Endangered Species Act

Species have evolved throughout the course of natural history, and the fossil record is filled with evidence of extinctions, some of which have been sudden and catastrophic. Ecologists believe that we are in such an era of rapid species extinctions today. The most prominent current cause is human activity, which brings about loss of habitat for species and also causes pollution and overharvesting. For example, the spotted owl is endangered by overharvesting of old growth forests in the Northwest; the bald eagle was nearly rendered extinct in the United States outside of Alaska due to poisoning with DDT and its metabolites; and many species have been hunted to extinction. Species biodiversity has a number of health benefits for people, including maintenance of stable environmental processes that support human life, provision of biological substances that may be useful in pharmaceutical and other applications, and enhancement of the enjoyment of the environment and recreational opportunities.

Enacted in 1973, the Endangered Species Act emerged as a result of concern about extinctions of "various species of fish, wildlife, and plants in the United States" and an understanding that many other species had become "so depleted in numbers that they are in danger of or threatened with extinction." In the act, an endangered species is defined as one for which there is a danger of extinction in "all or a significant portion of its range," unless the species is an insect that has been determined by the secretary of the interior to be a "pest that presents an overwhelming and overriding risk to man." A threatened species is one that is likely to become endangered in the foreseeable future. The Endangered Species Act replaced an earlier statute, the Endangered Species Conservation Act of 1969.

The Endangered Species Act was revolutionary in that it explicitly recognized that to protect species one must conserve "the ecosystems upon which endangered species and threatened species depend." Specifically, "critical habitat" is the area occupied by a species requiring protection that contains the physical or biological features that are essential to the conservation of that species. It does not include the entire potential geographic area that can be occupied by the threatened or endangered species. The Department of the Interior (DOI) is responsible for making determinations of which species are threatened or endangered, and defining the critical habitat for these species. This activity is carried out within the department's Fish and Wildlife Service. The department is also charged with development of protective regulations, recovery plans, and monitoring efforts.

The act explicitly applies to the actions of "all departments and federal agencies" and also requires that the federal government work in concert with state and local agencies to resolve water resource issues involved with the conservation of endangered species. DOI issues "biological opinions" that set the stage for actions to protect endangered species by other agencies.

The act also incorporated provisions for implementation of a number of international agreements, including:

• Migratory bird treaties with Canada and Mexico;
• The Migratory and Endangered Bird Treaty with Japan;
• The Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere;
• The International Convention for the Northwest Atlantic Fisheries;
• The International Convention for the High Seas Fisheries of the North Pacific Ocean;
• The Convention on International Trade in Endangered Species of Wild Fauna and Flora.

The protection of endangered species is very complex and involves inherent conflict and competition over the use of resources. Critical habitat may be in the hands of private owners, and there may therefore be conflicts regarding property rights. The DOI has evolved mechanisms to help minimize these conflicts. Biological opinions and listing decisions written by its biologists receive peer review by outside scientists to provide assurance of a strong scientific basis. Interior has a policy of developing "habitat conservation plans," which seek to bring all the critical players to the table to develop and agree on plans for conserving critical habitat for endangered and threatened species.

(SEE ALSO: Biodiversity; Ecosystems; Environmental Justice; Environmental Movement)

Bibliography

U.S. Congress (1973). Endangered Species Act of 1973. Available at http://endangeredspecies.fus.gov/esa.htm.

— LYNN R. GOLDMAN

The federal Endangered Species Act of 1973 (ESA) (16 U.S.C.A. §§ 1531 et seq.) was enacted to protect animal and plant species from extinction by preserving the ecosystems on which they survive and by providing programs for their conservation.

The act classifies species as either endangered or threatened. It defines an endangered species as one "in danger of extinction throughout all or a significant portion of its range" (§ 1532). A threatened species is one that is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range" (§ 1532). A current detailed listing of endangered and threatened animal and plant species is provided in the Code of Federal Regulations (see 50 C.F.R. §§ 17.11-.12). As of March 1996, the code listed approximately one thousand endangered and threatened species.

The ESA is administered by two agencies: the National Marine Fisheries Service, which designates marine fish and certain marine mammals, and the U.S. Fish and Wildlife Service, which has jurisdiction over all other wildlife. These agencies may list a species at their own initiative, or any interested person may submit a petition to have a species considered for listing. In either case, the act requires that the decision of whether to include a species must be based solely on the "best scientific and commercial data available," following a review of the status of the species that takes into account any conservation efforts being made to protect the species (§ 1533 (b)(1)(A)).

If an emergency poses a significant risk to the well-being of a species of fish, wildlife, or plant, the secretary of the interior may bypass standard listing procedures and issue regulations that take effect immediately upon publication in the Federal Register. Emergency regulations remain in force for 240 days. To issue an emergency regulation, the secretary must publish detailed reasons why the regulation is necessary and notify the appropriate state agency in each state where the species is found (§ 1533 (b) (7)).

Critical Habitat

The ESA requires that at the same time the decision is made to list a species, the secretary of the interior must develop a recovery plan for the species and, with certain exceptions, designate the species's critical habitat. Critical habitat consists of "the specific areas within the geographical area occupied by the species, at the time it is listed … on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection." Critical habitat must be designated on the basis of the best scientific data available and after taking into consideration the economic impact of the designation. An area may be excluded from designation if the benefits of the exclusion outweigh the benefits of the designation, unless the failure to designate will result in the extinction of the species (§ 1533 (b)(2)).

The issue of the economic impact of designating critical habitat was addressed in Bennett v. Plenert, 63 F.3d 915 (9th Cir. 1995). In Plenert, Oregon ranchers and irrigation districts sued regulators under the ESA over a proposal to change water flow at reservoirs in Oregon and California in order to protect the habitat of two endangered species, the Lost River sucker and the shortnose sucker. They claimed that the proposal did not take economic impact into consideration before designating critical habitat. The district court dismissed the suit. The U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal, holding that because the ranchers and irrigation districts had no interest in preserving the fish under the ESA, they were not within the "zone of interest" protected by the act. As a result, said the court, they lacked standing (a legally protectible interest) to bring a citizen suit. In March 1996, the U.S. Supreme Court agreed to hear the case.

Taking

Once a fish or wildlife species is listed as endangered or threatened under the ESA, the act prohibits anyone from taking the species; plants are protected under separate provisions of the act. To take a species means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct" (§ 1532 (19)).

The federal courts have disagreed whether the term harm in the ESA's definition of taking includes the detrimental modification of a species's habitat. For example, the U.S. Courts of Appeals for the Fifth and Ninth Circuits had interpreted the taking prohibition to include habitat modification (Palila v. Hawaii Department of Land & Natural Resources, 639 F.2d 495 [9th Cir. 1981]; Sierra Club v. Yeutter, 926 F.2d 429 [5th Cir. 1991]). But the U.S. Court of Appeals for the District of Columbia Circuit, in Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, 17 F.3d 1463 (1994), invalidated regulations that included habitat modification within the definition of taking. On appeal of the Sweet Home decision, the U.S. Supreme Court resolved this split, holding that habitat destruction that "actually kills or injures" an endangered or threatened species constitutes a violation of the ESA (Sweet Home, 515 U.S. 687, 115 S. Ct. 2407, 132 L. Ed. 2d 597).

Violations of the ESA can result in criminal penalties of up to one year in prison and $50,000 in fines. Civil penalties of up to $25,000 for each violation may also be imposed. Private citizens may bring actions against other individuals or government entities for violations of the ESA.

The ESA allows certain exceptions to prohibited activities. For example, the secretary of the interior may issue a permit for a taking of a listed species that is "incidental" to an otherwise lawful activity. The applicant must prepare a conservation plan specifying the probable impact of the taking and the steps the applicant will take to minimize the impact. In the early 1990s, the Department of the Interior relied on this exception when it began negotiating voluntary habitat conservation agreements with timber companies in the Pacific Northwest. Under these agreements, the landowners can set aside habitat for endangered or threatened species and, in return, avoid prosecution for the incidental taking of a species by accidental killing or other harm. By October 1995, the agency had begun negotiating more than forty such plans, covering 5.4 million acres, in Washington and Oregon. For example, Murray Pacific Corporation, a timber company in Tacoma, Washington, negotiated an agreement to set aside 10 percent of its fifty-four-thousand-acre tree farm and provide buffers to protect spotted owls, salmon, and other species. Plum Creek Timber Company, the second-largest private landowner in the Northwest, developed a far-reaching plan to set aside up to 170,000 acres of habitat that will help protect an estimated 284 species of wildlife, including grizzly bears, gray wolves, moles, fishers, and several different kinds of frogs, fish, and birds.

Experimental Populations

In 1982, the ESA was amended to allow the reintroduction of experimental populations of threatened or endangered species into their historic ranges without requiring compliance with many of the act's restrictions (§ 1539 (j)). Currently designated experimental populations are listed in the Code of Federal Regulations (see 50 C.F.R. §§ 17.81-.82). As of March 1996, nine species were designated as experimental populations, including the red wolf and the gray wolf. The experimental population designation relaxed existing ESA regulations by allowing reintroduced species to be managed or controlled; for example, ranchers could kill reintroduced wolves that threatened livestock.

In January 1995, the federal government began a program to restore an experimental population of gray wolves to Yellowstone National Park and central Idaho. The program projected the transfer of 90 to 150 Canadian gray wolves into Yellowstone National Park and central Idaho over three to five years. From January to March 1995, 29 gray wolves from Canada were released into Wyoming and Idaho. The goal of the wolf recovery program was to remove wolves from the endangered species list by 2002.

The release of the experimental population of gray wolves was controversial and created conflict between environmentalists and livestock ranchers. In 1994, just prior to the release, a farm group sued to stop it (Wyoming Farm Bureau Federation v. Babbitt, No. 94-CV-286-D [D. Wyo. Nov. 25, 1994]). The following year, an environmental group sued to remove the experimental population designation and allow the wolves to be released under full ESA protection (National Audubon Society v. Babbitt, No. CIV95-0305-S-HLR [D. Idaho Jan. 5, 1995]). The two lawsuits were consolidated for hearing in the U.S. District Court for the District of Wyoming.

Proposed Reform

In April 1995, Congress, intent on rewriting the ESA to loosen restrictions on private landowners, imposed a moratorium on all new-species listings and critical habitat designations. The moratorium, passed as a rider to the Emergency Supplemental Appropriations and Rescissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995 (Pub. L. No. 104-6, 109 Stat. 73), prohibited Secretary of the Interior Bruce Babbitt from spending funds to identify and list any additional endangered or threatened species.

The 1995 freeze created a backlog of nearly 250 plants and animals awaiting decision on protected status under the ESA. In April 1996, as part of an agreement on federal spending for the current fiscal year, Congress agreed to waive the moratorium. In May 1996, the Clinton administration began resolving the backlog, focusing first on species facing immediate extinction, then on species that biologists determine would be most likely to recover if given full protection under the law. The administration said it would also consider making moderate changes to the act, including adding requirements for independent scientific review of decisions to list species and for increased state and local input into decisions about listings and habitat protection, and adding provisions to make habitat plans less restrictive for private landowners.

See: environmental law.

The Endangered Species Act (ESA) represents two important legal traditions: environmental law and wildlife law. Congress passed the ESA as part of the explosion of federal legislation enacted between 1970 and 1980 to protect the environment. As a wildlife law, the ESA is part of a thousand-year common law tradition of government regulation of the taking of wildlife.

The United States Constitution grants the federal government no specific authority over wildlife. Congress protects endangered species under the commerce clause authority the Constitution grants it to regulate interstate and foreign commerce. Wildlife is generally a matter of state concern, as it has been since the American Revolution, when the power once invested in the British crown to protect and regulate the taking of wildlife passed to the states. States grant hunting and fishing licenses and monitor and manage wildlife populations.

During the twentieth century, the federal government became increasingly involved in wildlife protection. The Lacey Act of 1900 allowed federal officials to assist in enforcement of state laws against unauthorized takings of wildlife by making interstate transportation of wildlife taken in violation of state law a federal crime. The Migratory Bird Treaty Act of 1918 authorized federal protection of migratory birds, which habitually cross both state and national borders.

In the 1960s the federal government began specifically to protect species in danger of extinction. Congress passed early forms of endangered species protection legislation in 1966 and 1969. Dissatisfaction with this early legislation, coupled with the increased concern for the environment expressed in the demonstrations on the first Earth Day in April 1970, led to the passage of the broader, more powerful, Endangered Species Act of 1973.

Need for the Esa

Over the course of the twentieth century, scientists became increasingly concerned about the disappearance of once common species of animals and plants. Scientific organizations began to keep lists of extinct and endangered species as an indicator of the health of the environment. By the late twentieth century, most recognized that human activities were driving species to extinction at many times the natural rate. If unchecked, these human activities would result in the annihilation of a significant share of the species inhabiting the planet. The legislative history of the Endangered Species Act of 1973 demonstrates concern about this extinction crisis and a commitment to "the conservation of species and of the ecosystems on which they depend." Many statements in Congress supporting enactment of the law contained references to the extinction crisis. Legislative documents recognized the limited scientific understanding of the crisis and recommended both a "certain humility and sense of urgency" in our efforts to protect the "incalculable" value of biological diversity.

Enforcement and Core Provisions

Two federal agencies administer and enforce the ESA. The United States Fish and Wildlife Service (FWS), in the Department of the Interior, administers the act for all terrestrial and fresh water species. The National Marine Fisheries Service (NMFS), in the Department of Commerce, administers the act for marine and anadromous species (animals, such as shad, that ascend rivers from the sea for breeding).

Four provisions form the core of the ESA. Section 4 requires the federal designation or "listing" of both endangered and threatened species of both plants and animals. Species must be listed as endangered if they are "in danger of extinction throughout all or a significant portion of their range." Species must be listed as threatened if they are "likely to become ... endangered ... within the foreseeable future throughout all or a significant portion of its range." Since 1978, section 4 has also explicitly required the designation of critical habitat for protected species. It also authorizes individuals and groups to petition for the listing of species and notifies the public when a species is subject to the protections of the 1973 act.

Section 7 requires all federal agencies to insure that activities they "authorize, fund or carry out" will not jeopardize the continued existence of any species listed under section 4 or any critical habitat designated under section 4. This obligation must be fulfilled in consultation with the FWS or NMFS. Section 9 forbids any person in the United States or on the high seas from taking any endangered species of fish or wildlife. Take is broadly defined in this section "as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."

The protections offered by section 7 and section 9 differ in three significant ways. First, section 7 protects all listed threatened and endangered species of plants and animals and all designated critical habitat, whereas section 9 protects only endangered species of fish and wildlife. Second, section 7 protects species as a whole, while section 9 protects every member of every species of endangered fish or wildlife. Third, section 7 applies only to actions authorized, funded, or carried out by federal agencies, while section 9 prohibits takings by any person.

Finally, section 10 provides exceptions to the prohibitions of section 9. First, the federal government may grant an exception for scientific purposes or to enhance the propagation or survival of the affected species. Second, since 1982 the federal government may authorize takings of protected species that do not jeopardize the continued existence of the species if (1) the takings occur as part of an otherwise legal action, and (2) the taking results from an activity subject to an approved habitat conservation plan (HCP).

Experience Under the Act

The ESA emerged as a powerful wildlife preservation law in 1978 when the United States Supreme Court in Tennessee Valley Authority v. Hill, affirmed an order stopping construction of the Tellico Dam to protect an endangered fish, the snail darter. A majority of the Court found that "the language, history, and structure of the legislation under review ... indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities." Despite the opinion and other controversy surrounding the project, Congress subsequently passed a law authorizing completion of the Tellico Dam, which resulted in destruction of the snail darters' habitat.

Later in 1978, Congress amended the Endangered Species Act, creating a narrow exception to section 7's prohibition against jeopardizing species or habitats. The exception applies to actions of "regional or national significance" when "the benefits of the action clearly outweigh the benefits of alternative courses of action" and "there is no reasonable and prudent alternative" to the proposed action. Under the amendment, this exception could be invoked by decision of the Endangered Species Committee, which the amendment created. This committee is often called the "God Committee" or "God Squad" because it has the power to sentence an entire species to extinction. The Endangered Species Committee exception has rarely been invoked.

The Supreme Court revisited the Endangered Species Act in 1995 in Sweet Home Communities for Greater Oregon v. Babbitt. In that case, the Court upheld an FWS regulation defining harm in the statutory definition of take to include destruction of habitat essential for species breeding, feeding, or sheltering. This regulation can make destruction of essential habitat a violation of the section 9 taking prohibition.

Bibliography

Bean, Michael J., and Melanie J. Rowland. The Evolution of National Wildlife Law, 3d ed. Westport, CT: Praeger, 1997.

Cheever, Federico. "The Road to Recovery: A New Way of Thinking about the Endangered Species Act." 23 Ecology L.Q. 1 (1996).

Hood, Laura C. Frayed Safety: Conservation Planning Under The Endangered SpeciesAct. Washington, DC: Defenders of Wildlife, 1998.

Mann, Charles, and Mark Plummer. Noah's Choice: The Future of Endangered Species. New York: Knopf, 1995.

National Research Council. Science and the Endangered Species Act. Washington DC: National Academy Press, 1995.

Stein, Bruce A., Lynn S. Kutner, and Jonathan S. Adams. Precious Heritage: The Status of Biodiversity in the United States. New York: Oxford University Press, 2000.

Wilson, Edward O. The Diversity of Life. Cambridge, MA: Belknap Press, 1992.

Internet Resource

United States Fish and Wildlife Service, Endangered Species Program. .

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