The ESA of 1973

1
The ESA of 1973

• Purposes of the act
• to provide a means whereby the ecosystems upon
  which endangered species and threatened species
  depend may be conserved,
• to provide a program for the conservation of such
  endangered species and threatened species,
• and to take such steps as may be appropriate to
  achieve the purposes of the treaties and
  conventions set for in subsection (a) of this
  section
• treaties in subsection (a) are migratory bird
  treaties with Canada, Mexico, and Japan CITES, 2
  fisheries conventions, and the convention on
  nature protection and wildlife preservation in
  the western hemisphere.

2
Principal Provisions (USFWS 1996)

• Define endangered and threatened and
  empowered the Secretary of Interior and Commerce
  to list species (Sect. 3)
• Species of plants and inverts are available for
  listing, as well as species and populations of
  vertebrates (Sect. 3)
• Combined US and foreign species lists with
  uniform provisions applied to both (Sect. 4)
• Provide matching funds for state coop agreements
  (Sect. 6)
• Allow US to implement CITES (Sect. 8)

3
Administration of the Act

• Done by US Fish and Wildlife Service or National
  Marine Fisheries Service
• Two main thrusts
• LISTING
• RECOVERY

4
Listing

• Initiated by petition (individual, group, agency)
  or Service uses its priority system and available
  biological information
• Priority system for listing

5
There are Too Many Listings to Be Processed on
Time

• USFWS has 4 tiers of priority to handle this
• Tier 1--Emergency listing actions
• immediate listing of species in imminent risk of
  extinction
• Tier 2--Final listing decisions, sorting among
  candidate species, processing petitions to list,
  and reclassifying species by de- or down-listing
• Tier 3--Critical habitat determination

6
Listing by Petition

• 90 day finding within 90 days of getting
  petition, Service determines if it has merit for
  consideration
• 12 month finding within 12 months of petition,
  based on BIOLOGY alone, service determines
• listing is not warranted
• listing is warranted
• listing is warranted but precluded (low priority)

7
Warranted Listings

• Rule published in Federal Register
• 12 month review/comment period on proposed rule
• may be extended to 18 months if biological data
  is questioned
• Final rule is published in Federal Register
• Rule takes affect 30 days after publication

8
Judicial Review

• Negative 90 day findings, not warranted findings,
  and warranted but precluded 1-year findings
• Lawsuits filed at this time

9
How are Species Prioritized for Listing?

• Recall the stated listing criteria used by USFWS
• As we discussed, species are not listed in order
  of priority.
• Service gets sued, tries to complete final
  listing rules before considering new proposals,
  etc.
• Conservation groups (PEER, Fund for Animals, etc)
  have been concerned about a more fundamental
  problem--DELAY AND LACK of listing
• 33 are listed on time, 18 are gt1year late

10
Listing Delays (GAO 1993)

• Congress
• May limit listing budgets
• Eg., Public law 104-6 (FY 1996 budget act)
• rescinded listing budget thereby imposing a
  moratorium on listing
• removed with Clintons budget act in April 1996
• created a backlog of 243 species needing listing
• May rescind the ESA
• 5 million for 1998
• PEER claims its self-imposed to give the Service
  a way out of lawsuits seeking listing
• USFWS counters that it is all they could expect
  to get

11
Why Limit Your Budget?

• PEER concluded that the greatest barrier to
  implementation of the Endangered Species Act is
  Bruce Babbitt.
• Babbitt saw his control of endangered species
  funding being taken away from lawsuits that
  dictated where he had to spend what
• Babbitt may have feared that continued litigation
  on behalf of endangered species would actually
  doom the ESA
• By limiting funds for listing, FWS could allocate
  listing funds toward species it felt were in most
  need by invoking the Warranted But Precluded
  designation for less needy species
• Must review each year, but cannot be overturned
  by courts

12
More Reasons for Delays

• Insufficient data
• spotted frog (3 year delay and then got
  Warranted, but Precluded by higher priorities)
• Economic impacts of listing
• spotted frog, Louisiana black bear, Jemez
  Mountains salamander, Bruneau Hot Springs Snail
• Complete conservation agreements rather than list
• Jemez Mountains salamander, Bruneau Hot Springs
  Snail

13
Effect of Delays

• Lawsuits
• Fund for Animals sued for listing of 85 Species
  in 1992
• court ordered service get in gear and process
  listing petitions
• subverts priority system
• only 41 of 85 species were priority 1,2, or 3
• delays ability (uses available funds) to list
  others not in the settlement agreement

14
Major Effect of Not Following Priority System

• Arbitrary and Capricious Conservation
• Sidle (1998)
• Lynx

15
Recovery

• Outline of recovery actions needed within 60 days
• Recovery Plans developed by Recovery Team for the
  Regional Manager
• Prioritization of species (add C for conflict)

16
Recovery Tasks For A Species

• Tasks prioritized by recovery team
• Priority 1--action that must be taken to prevent
  extinction or prevent the species from declining
  irreversibly
• Priority 2--action that must be taken to prevent
  a significant decline in species population or
  habitat that comes short of extinction
• Priority 3--all other actions necessary to
  provide for full recovery of the species
• Combined with species priority rank
• 1c-1 (top priority to do on top species)

17
Are Priorities Followed? (GAO 1988)

• Are recovery tasks done?
• Not all of them
• only slightly more than 50 of tasks in 16 plans
  were initiated despite the plans being in place
  for an average of 4 years
• Are species recovered in order of their priority?
• NO, a few species get the bulk of the funds
• most funds go to 12 species, 6 of which are
  highly endangered and 2 of which are barely
  threatened
• Are recovery tasks done in order of priority?
• NO, in all but 2 of 16 species lower priority
  tasks were done before all priority 1 tasks were
  completed

18

• Annual Expenditures do Not Follow Priorities
  (Restani and Marzluff 2001)

19
Why Arent Priorities Followed?

• Congressional earmarking
• takes part of Service budget and stipulates it to
  be spent on particular species
• Allure of sexy species
• high visibility, good PR, good chance of recovery
• Lawsuits
• For sexy species with public appeal
• Poor Coordination
• Conservation of species in one part of its range
  may not offset conservation in less important
  region
• Plans are not kept up to date
• priorities may no longer be valid

20
Effect of Earmarking

• 1994
• total recovery budget for usfws 29.55 million
• Earmarked portion was 10.392 million (35)
• Only 28 of the earmarks were for species ranked
  as 1 or 2 on the priority list
• A few sexy big winners
• Peregrine (900K) rank 9
• Condor (600K) rank 4C
• Wolves (1.6 mill) rank 3-5C
• Manatee (500K) rank 5C
• Spotted Owls (2.35 mil) rank 9C

21
Island Species Suffer From Not Following
Priorities
22
Wide-ranging Species Benefit From Not Following
Priorities
23
Things are Different Down Under
(Endangered Birds in Australia Garnett et al.
2003)
24
Why?

• No Congressional influence to muddy the funding
  waters
• Single Commonwealth minister, in consultation
  with advisors, can effectively allocate funds
  based on national priorities
• No provision to challenge outcome of allocation
  in the courts

25
Funding Helps (Garnett et al. 2003)
26
Sometimes Politics Undoes Recovery Planning

• Grizzly Bear recovery planning for Bitterroot
  Mountains of Montana and Idaho
• 6 year consensus effort
• Citizen Management Committee (appointed)
• Would bridge Yellowstone pops to northern pops in
  Cabinet-Yaak Mountains
• FWS adopted plan in Nov. 2000
• June 2001, Norton suspends plan
• Bowed down to conservative State position
• Kempthorne grizzlies are massive, flesh-eating
  carnivores.
• Public comments disagree with Norton
• 98 of Idahoans and 93 of Montanans wanted
  grizzly reintroduction to proceed

27
Section 9 Provisions

• Limit any person subject to jurisdiction of US to
  take endangered species (harass, harm, pursue,
  hunt, shoot, wound, kill, trap, capture, or
  collect, or to attempt to engage in such conduct)
• Harm was later defined and upheld by Supreme
  Court (1995 Babbitt vs. Sweet Home Chapter of
  Communities for a Great Oregon) to include
  HABITAT MODIFICATION

28
Section 9 Provisions Apply to Endangered, Not
Threatened Species

• Automatic application of all provisions to
  ENDANGERED SPECIES
• THREATENED SPECIES can have benefits, but must be
  stated by Secretary
• Sect 4(d) the secretary can issue such
  regulations as he deems necessary and advisable
  to provide for the conservation of threatened
  species, including regulations that prohibit any
  or all of the activities prohibited for
  endangered species

29
Section 7 Provisions Federal Agencies Must

• (1) Cooperate with the Secretaries and use their
  own programs to further the conservation of
  endangered and threatened species, and
• (2) Not authorize, fund, or carry out any action
  that would jeopardize a listed species or destroy
  or modify its critical habitat
• Jeopardy refers to acts that reasonably would be
  expected, indirectly or directly, to reduce
  appreciably the likelihood of survival and
  recovery by reducing reproduction, numbers of
  distribution of a listed species
• weighs proposed activity plus CUMULATIVE EFFECTS
  of activities likely to occur on state and
  private lands

30
Section 7 Consultation

• Federal agencies must consult with the Service
  when activity affects listed species or likely
  jeopardizes proposed species or habitat
• Informal Consultation--usually done to get
  exemption from formal consultation (no effect)
• Formal Consultation--Action will affect listed
  species. Service does a Biological Opinion of
  whether action will result in jeopardy
• must be completed within 90 days of initiation
  and delivered within 45 days

31
1978 Amendments

• Section 7 EXEMPTIONS for FEDERAL AGENCIES
• After a biological opinion has been rendered by
  the service, the affected agency, the governor of
  the affected State, or the applicant for the
  federal permit of questionable effect (if
  applicable) can petition the Secretary
• Secretary determines within 20 days if basic
  requirements of act are met and passes report to
  Endangered Species Committee
• God Squad, Gang of 7

32
Exemption is Given if 5 of 7 Conclude

• There are no reasonable or prudent alternatives
  for the agency
• The benefits of the action clearly outweigh the
  benefits of species conservation and the benefits
  are for the public good
• The action is of regional or national
  significance
• The agency or applicant did not purposefully
  over-commit resources that would preclude any
  reasonable or prudent alternatives

33
Two Exemptions Have Been Given

• Grayrocks Dam, Wyoming (1979)
• court settlement provided for compromise solution
• BLM Timber sales, Oregon (1992)
• Spotted Owl habitat--Environmental groups sued
  claiming that BLM had not considered new info on
  NSO before it agreed to sell old growth
• Court agreed, but Congress attached Section 314
  on Dept of Interiors appropriation bill (1988,
  1990) limiting courts ability to challenge BLM
  mgmt plans! BLM withdrew exemption application
  in 1993 when Clinton was elected

34
Designating Critical Habitat

• Critical Habitat includes habitat in and out of
  current range that contains physical or
  biological features (1) essential to the
  conservation of the species and (2) requiring
  special management considerations or protection.
• Federal agencies must not jeopardize listed
  species or appreciably affect their abundance by
  reducing or modifying their critical habitat
  (Sect. 7)
• Required to be designated at time of listing
• if PRUDENT and considering economics
• USFWS rarely sees it as prudent anymore

35
Designating Experimental Populations

• 1982 amendment added exemption for experimental
  populations
• population established by human intervention that
  is outside of the species current range
• essential versus nonessential experimental
  populations
• essential have full protection of Section 7
• nonessential is not protected by Section 7
• all are viewed as THREATENED species
• can be helpful in getting public support/access

36
Experimental Populations Can Backfire

• Yellowstone central ID wolves
• 1997, judge found that introduced wolves could
  not be considered a nonessential experimental
  population and ordered them removed (stayed,
  pending appeal)
• USFWS claim that reintroduction areas are outside
  of current range is arbitrary and capricious
• Cannot keep experimental population in area
  because it diminishes protection to natural
  population

37
Incidental Take

• Incidental take is take that results from some
  activity but is not the purpose of the otherwise
  lawful activity.
• Can take species only with permit
• Federal agencies get incidental take statement
  in biological opinion during section 7
  consultation
• Private and state entities get incidental take
  permit (Sect. 10) by negotiating a habitat
  conservation plan (HCP)

38
Mitigation for Take

• Basically incidental take is allowed if it is
• minimized and will not appreciably reduce the
  likelihood of survival and recovery of species
• mitigated
• defined as to extent
• monitored
• all alternatives are impractical
• applicant ensures funding and means to deal with
  unexpected circumstances

39
Getting off the List

• Priority system for de-listing and down-listing
  as well
• based on petition status and the impact of the
  reclassification on other management (how much
  will be freed up to do other work)

40
Enforcement and Penalty

• Citizen suits---backbone of the act
• can sue individuals, corporations, or agencies
• Penalties depend on status of species, knowledge
  of violator
• knowing violators can get 1year in prison and
  50,000 fine (half of both for threatened
  species)
• can revoke leases, licenses, etc.
• equipment can be forfeited

41
Literature Cited

• USFWS 1996. A summary of the ESA and
  implementation activities. (www.fws.gov/r9endspp/e
  sasum.html).
• Bean, M. J. and M. J. Rowland. 1997. The
  evolution of national wildlife law, Third
  Edition. Praeger. Westport, CN.
• USFWS 1983. Endangered and threatened species
  listing and recovery priority guidelines. 48FR
  43098.
• Garnett, S Crowley, G., and A. Balmford. 2003.
  The costs and effectiveness of funding the
  conservation of Australian Threatened Birds.
  BioScience 53658-665.
• Knibb, David. In press. Grizzly Wars. U. W. Press

42
Literature Cited

• USFWS. 1997. Recovery plan for the threatened
  Marbled Murrelet in Washington, Oregon, and
  California. Portland, OR. 203pp.
• GAO. 1993. Factors associated with delayed
  listing decisions. GAO/RCED-93-152.
• Sidle, JG. 1998. Arbitrary and capricious species
  conservation. Conservation Biology 12248-249.
• Clark, T. W., Reading, R. P., and Clark, A. L.
  (eds.) 1994. Endangered species recovery finding
  the lessons, improving the process. Island Press