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The Endangered Species Act

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Title: The Endangered Species Act


1
The Endangered Species Act
  • Lauren Gallagher
  • Eric Sirota
  • Courtney Segota

2
Table of Contents
Coverage
Administration
Principal Elements
Links With Other Laws
Citizen Involvement
Effects on Aquatic Resources
Limitations/ Effectiveness
Reform
Resources
Overview
  1. Overview
  2. Coverage
  3. Administration
  4. Principal Elements
  5. Links With Other Laws
  6. Citizen Involvement Remedies
  7. Effects on Aquatic Resources
  8. Limitations and Effectiveness
  9. Possibilities for Reform
  10. Resources

3
Coverage
Administration
Principal Elements
Links With Other Laws
Citizen Involvement
Effects on Aquatic Resources
Limitations/ Effectiveness
Reform
Resources
Overview
  • The Endangered Species Act (ESA) was viewed as
    the most comprehensive legislation for the
    preservation of endangered species ever enacted
    by any nation when it was first passed as a
    law.1 Under the ESA, the Fish and Wildlife
    Service (FWS) has authority to list species in
    need of protection. Once an animal becomes listed
    under the ESA, it is then entitled to numerous
    protections.
  • Congress identified the purposes of the ESA as
  • Providing a means where by the ecosystems upon
    which endangered species and threatened species
    depend may be conserved,
  • Providing a program for the conservation of such
    endangered species and threatened species, and
  • Taking such steps as my be appropriate to achieve
    the purpose of the treaties and conventions that
    seek to conserve species at the international
    level which were identified through Congressional
    findings.2

4
Coverage
Administration
Principal Elements
Links With Other Laws
Citizen Involvement
Effects on Aquatic Resources
Limitations/ Effectiveness
Reform
Resources
Overview
  • Congress recognized that in order to help species
    on the edge of extinction to recover and avoid
    slipping closer to extinction, it would require
    other federal agencies to make proactive efforts
    - not just to from participating in certain
    activities. This viewpoint is evident from the
    policy goals of the ESA
  • It is further declared to be the policy of
    Congress that all Federal departments and
    agencies shall seek to conserve endangered
    species and threatened species and shall utilize
    their authorities in furtherance of the purposes
    of this chapter.
  • It is further declared to be the policy of
    Congress that Federal agencies shall cooperate
    with State and local agencies to resolve water
    resource issues in concert with conservation of
    endangered species.1

5
Coverage
Administration
Principal Elements
Links With Other Laws
Citizen Involvement
Effects on Aquatic Resources
Limitations/ Effectiveness
Reform
Resources
Overview
When the United States Supreme Court examined the
ESA, it noted that the plain intent of
Congress in enacting this statute was to halt and
reverse the trend toward species extinction,
whatever the cost. This is reflected not only in
the stated policies of the Act, but in literally
every section of the statute. All persons,
including federal agencies, are specifically
instructed not to take endangered species,
meaning that no one is to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture,
or collect such life forms. Agencies in
particular are directed . . . to use all methods
and procedures which are necessary to preserve
endangered species. In addition, the legislative
history undergirding 7 reveals an explicit
congressional decision to require agencies to
afford first priority to the declared national
policy of saving endangered species.1 In sum,
the Court notes that the plain language of the
Act, buttressed by its legislative history, shows
clearly that Congress viewed the value of
endangered species as incalculable.2
6
Coverage
Administration
Principal Elements
Links With Other Laws
Citizen Involvement
Effects on Aquatic Resources
Limitations/ Effectiveness
Reform
Resources
Overview
Ultimately, the discussions of the ESA have left
many with the opinion that it is a very tough and
inflexible statute - but in practice, that might
not actually be the case. The Act has various
loopholes, and its effectiveness is often
hampered by under-funding and political
considerations.
7
Overview
Administration
Principal Elements
Links with other Laws
Citizen Involvement
Effects on Aquatic Resources
Limitations/ Effectiveness
Reform
Resources
Coverage
Who is restricted by the protections under the
ESA?   The ESAs main protection which prohibits
the taking of a listed animal applies to the
actions of all individuals, public or private.
Therefore, the same restriction applies to
individuals as well as any governmental entity.
However, 7 only restricts activities that are
considered federal actions. This includes not
only actions taken by a federal agency, but also
any action that is authorized, funded, or
carried out by a federal agency. This would
include when the agency supplies funding to a
private actor to perform the action. It does not
apply to state governments or private actors that
are acting on their own. Further, 7 will only
apply to actions that are discretionary, and not
mandatory actions.
8
Overview
Administration
Principal Elements
Links with other Laws
Citizen Involvement
Effects on Aquatic Resources
Limitations/ Effectiveness
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Resources
Coverage
Geographic Scope of the ESA   The ESA protections
apply throughout the entire jurisdiction of the
United States. Therefore, even if one were to
find a listed species in an unusual location or
outside of designated habitat, all of the
protections would still apply.
9
Overview
Coverage
Principal Elements
Links With Other Laws
Citizen Involvement
Effects on Aquatic Resources
Limitations/ Effectiveness
Reform
Resources
Administration
The agencies that administer the ESA, the Fish
and Wildlife Service (FWS) and, in the case of
certain marine species, the National Marine
Fisheries Service (NMFS or, more formally,
NOAA Fisheries) are charged with promulgation
of regulations, coordination of efforts, and
decisions regarding the application and
enforcement of the ESA.1
10
Overview
Coverage
Administration
Links With Other Laws
Citizen Involvement
Effects on Aquatic Resources
Limitations/ Effectiveness
Reform
Resources
Principal Elements
Goals of Listing The initial step in the ESA
conservation process is that of identifying and
listing species that need protection. Listing is
generally in the hands of the FWS the NMFS also
plays a large role. Species are listed towards
two intimately related ends. As a threshold goal,
the FWS lists at risk populations to ensure that
those at risk populations avoid extinction.
Similarly, the FWS lists population segments for
protection in order to increase that segments
population so that, hopefully, the at risk
population can be delisted. The ESA has been
largely successful in meeting the first goal, and
preventing endangered populations from further
diminishing significantly. However, the FWS has
been able to de-list few at risk populations.
11
Overview
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Citizen Involvement
Effects on Aquatic Resources
Limitations/ Effectiveness
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Resources
Principal Elements
Basics of Listing Process  Overview To gain
protection under the ESA, a population segment
must either be endangered or threatened. An
endangered population segment is the most
significantly at risk of extinction. A threatened
population segment is still at risk, though less
so than an endangered species. The FWS also
extends some protection to population segments
which are proposed for listing or are candidates
for study, even if those species do not qualify
as endangered or threatened. The FWS does so both
as a preventative measure to prevent having to
officially list a species and in order to protect
species that are particularly scientifically
useful. The FWS must answer three questions to
determine whether to list a population segment
and whether, the FWS should list the population
as endangered or threatened. First, the FWS must
identify the unit of life that it seeks to
protect. After selecting the distinct at risk
population, the FWS must determine whether that
population is endangered or threatened. Lastly,
even if the population qualifies as endangered or
threatened, the FWS will inquire as to whether
listing is necessary. In some situations, the FWS
will not list an otherwise qualified segment
because that segment already receives protection
through means other than the ESA.
12
Overview
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Citizen Involvement
Effects on Aquatic Resources
Limitations/ Effectiveness
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Resources
Principal Elements
What is the Unit of Life that Should be
Protected? Notice that, thus far in the
presentation, I have shied away from using the
term species. This is because the ESA does not
use the term species strictly to refer to
taxonomically classified species. Rather, the ESA
defines species very broadly. Species, in
relevant part, refers to any subspecies and any
distinct population segment of . . . vertebrate
fish that breed when mature. Thus, species, as
defined in the ESA, may refer to a group larger
or smaller than a taxonomical species.  As such,
the courts have on multiple occasions addressed
whether the FWS should protect multiple types of
fish as a single unit. This has arisen in the
context of the classification of the Alabama
Sturgeon and the Western Sage Grouse.
13
Overview
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Effects on Aquatic Resources
Limitations/ Effectiveness
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Principal Elements
What is the Unit of Life that Should be
Protected? Case study 1 The Alabama Sturgeon The
FWS classified the Alabama Sturgeon as distinct
from the more populous shovelnose sturgeon. If
the Alabama Sturgeon is a distinct species from
the shovelnose sturgeon, the Alabama sturgeon
would gain ESA protection as an endangered
species. Although the Alabama sturgeon and
shovelnose sturgeon are genetically similar, the
11th Circuit upheld the FWSs classification,
acknowledging that other taxonomic factors,
beyond genetics, are relevant. These factors
include morphological, chromosomal, biochemical,
physiological, behavioral, ecological,
biogeographic, and of course, genetic
characteristics of the populations.
14
Overview
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Principal Elements
What is the Unit of Life that Should be
Protected? Case study 2 The Western Sage
Grouse The case of the western sage grouse
emphasizes that, while they are not controlling,
taxonomic classifications still play a fairly
dominant role under the ESA. The courts generally
give the FWS wide discretion to trust some
scientific opinions over others. Nonetheless, the
9th Circuit invalidated the FWSs decision to
classify the western sage grouse as a distinct
population segment of sage grouse warranting
distinct protection. The 9th Circuit reasoned
that the FWSs classification ignored the opinion
of taxonomists and instead gave greater weight to
the opinions of wildlife ecologists, but, under
the ESA, the opinions of taxonomists should be
give more weight. Thus, the FWS should find
persuasive the opinion of taxonomists that the
western sage grouse does not constitute a
distinct subspecies of sage grouse for ESA
purposes.
15
Overview
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Limitations/ Effectiveness
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Principal Elements
What is the Unit of Life that Should be
Protected? Distinct Population Segments As
stated, in many instances the FWS will list, not
an entire species, but rather a subgroup,
referred to as a distinct population segment.
When considering if a unit of fish constitutes a
distinct population segment, the FWS evaluates
the discreteness of the population segment in
relation to the remainder of the species to which
it belongs, the significance of the population
segment to the species which it belongs, and the
populations segments conservation status in
relation to the ESAs standard for listing. To
qualify as discrete, a population segment must be
either separated from the rest of the species due
to physical, physiological, ecological or
behavioral factors or separated from the rest of
the species by international government
boundaries with significant differences regarding
exploitation, habitat management, conservation
status, or regulatory mechanisms.
16
Overview
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Principal Elements
What is the Unit of Life that Should be
Protected? Distinct Population Segment, contd To
qualify as a significant population segment, the
FWS evaluates the persistence of the population
unit in a unique place for the species, whether
the loss of the discrete population would result
in a significant gap in the geographic range of
the species, whether the segment is the only
naturally occurring segment greater than
introduced population of the species outside of
the species historic location, and whether the
unit is markedly genetically different from other
populations of the species. Regarding the
conservation status of the population segment,
the FWS simply asks whether the segment, if
distinct, would qualify as endangered or
threatened under the ESA.  The ESA has grouped
salmon of different runs as distinct population
segments under the ESA. The Pacific Salmon, for
example, represents a distinct population
segment.
17
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Principal Elements
  • Does the unit qualify for listing, either as
    endangered or threatened?
  • Basics
  • The ESA defines endangered and threatened
    species as follows
  • Endangered species any species which is in
    danger of extinction throughout all or a
    significant part of its range
  • Threatened species any species likely to become
    endangered with the foreseeable
  • The FWS answers three question when determining
    if the unit should be listed as endangered,
    threatened, or not at all. First, the FWS must
    answer a two-part question what is the
    probability that the species will become extinct
    in a certain period of time, and is that risk
    acceptable? Second, the FWS must determine if the
    species is at risk in a significant portion of
    its range. Finally, the FWS will assess whether
    present conservation efforts are adequate such
    that the FWS need not list the species. When
    considering the listing species of a species, the
    FWS takes into account the following factors
    habitat loss, over harvesting, disease,
    predation, as well as all other natural or
    manmade factors affecting the species continued
    existence.

18
Overview
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Effects on Aquatic Resources
Limitations/ Effectiveness
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Resources
Principal Elements
Does the unit qualify for listing, either as
endangered or threatened? What is the probability
that the species will become extinct in a certain
period of time, and is this risk acceptable?
These questions are difficult to answer. As
such, the courts grant great discretion to the
FWS to make these determinations. As long the FWS
does not act arbitrarily and capriciously, and as
long as it does not ignore material scientific
evidence, the courts will generally uphold the
FWSs decisions. Still, in Western Watershed
Project, the Idaho District Court held that the
FWS acted inappropriately by refusing to list a
species that had a 64 chance of extinction over
the next 100 years, even though the FWS thought
the 100 time span was not sufficiently imminent
to warrant listing the species. Articulating the
difficulty of answering these questions, a group
of scientists convened by the NMFS opined that
species with a 1 chance of extinction over the
next 100 years should be listed.
19
Overview
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Limitations/ Effectiveness
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Principal Elements
Does the unit qualify for listing, either as
endangered or threatened? Is the species at risk
of disappearing in a significant portion of its
range? The FWS and the federal circuits are
largely at odds with each other as to how the
significant portion of its range requirement
should be interpreted and applied. The FWSs
interpretation states that a species should only
be listed if the risk in a significant portion
of its range created an overall risk of
extinction for the species. Some courts adhere to
the FWSs interpretation. The Federal District
Court of New Mexico applied a similar
interpretation regarding whether the Grande
cutthroat trout was at risk in a significant
portion of its range. The Grande trouts habitat
was severely threatened, but several populations
of Grande trout continued to thrive. The court
held that the Grande trout was not at risk in a
significant portion of its range because there
was not a sufficient general risk of extinction
to warrant listing the species. Most federal
courts, however, disagree with the FWS. As stated
by the Ninth Circuit and echoed by most other
federal courts, a species can be extinct in a
significant portion of its range if there are
major geographical areas in which it is no longer
viable but once was.
20
Overview
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Principal Elements
Does the unit qualify for listing, either as
endangered or threatened? Are present
conservation efforts adequate such that the FWS
need not list the species? When determining the
risk to a species, the FWS considers the
inadequacy of existing regulatory mechanisms.
Put otherwise, if existing conservation efforts
are adequate to address the threats to a species,
listing can become unnecessary.   The FWS is
once again at odds with the courts regarding what
types of conservation efforts the FWS may
consider. The courts have held that the FWS may
not rely on conservation efforts unless those
efforts constitute legally binding policies.  
On the other hand, the FWS is more reluctant to
list a species when the FWS has already put in
place policies that encourage landowners to
protect a species. The FWS takes an extremely
pragmatic approach to conservation, as the FWS
may encourage landowners to protect an at risk
species by giving that land owner assurances that
the landowners will not have to conserve more
than is necessary even if this involves
permitting the landowner to otherwise violate ESA
bans. Still, the FWS is more hesitant to list a
species if such an agreement has been reached
with a landowner.
21
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Principal Elements
Designating Critical Habitat  Definition and
Purpose The ESA defines a critical habitat as a
geographic area essential to the conservation of
a species which may require special management
consideration or protection. Most species are in
decline due to habitat loss or degradation.
Conservation of habitat is perhaps the most
essential factor in species preservation and
repopulation. Thus, the ESA allows the ESA to
designate critical habitat for protection. If the
FWS is to designate a habitat as critical, it
must do so when it lists the species which the
habitat designation seeks to protect.
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Principal Elements
Designating Critical Habitat  Designation
Standard The FWS engages in a cost benefit
analysis. Thus, even if the habitat otherwise
qualifies for designation, the FWS may exclude
habitat that would otherwise be critical upon a
finding that the benefits of designation are
outweighed by the harms. The FWS considers the
following factors in its cost benefit analysis
biological evidence regarding the needs of the
species economic costs of designating the
habitat, including the affect on economic
development as well as social effects of the
designation the effects on national security
and the likelihood that the designation will
increase illicit takings by alerting interested
parties to the location of an at risk species.
The FWS, however, does not engage in this cost
benefit analysis if designation of the habitat is
necessary to prevent the species extinction. In
such an instance, the FWS will designate the
habitat regardless of how the cost benefit
analysis falls. Moreover, in order to prevent
illicit takings, the FWS can delay a habitat
designation for up to a year.
23
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Principal Elements
Designating Critical Habitat  Effects of
Designation When the FWS designates a habitat,
this serves to prohibit both acts which directly
or indirectly jeopardize the continued existence
of the species, as well as acts which adversely
modify the habitat. Thus, critical habitat
designation has served as a critical tool to
protect fisheries, even where the FWS does not
designate the habitat to protect fish. Indeed,
much of the clamor favoring protection of the
critical habitats of the spotted owl was
motivated by the desire to have fisheries within
such critical habitats protected.
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Principal Elements
9 Protections   9 is the heart of the ESA and
applies to all public and private actors.
9(a)(1)(B) makes it unlawful to take even a
single member of a listed species. The ESA
defines take in very broad terms and includes
any action that would harass, harm, pursues,
hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such
conduct. This broad definition and the
legislative history makes clear that Congress
intended the term to apply broadly to all conduct
that directly or indirectly harms the listed
species.
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9 Protections--Regulations   The regulations
expand upon the definition of take in the
statute. They define harass as an intentional
or negligent act or omission which creates the
likelihood of injury to wildlife by annoying it
so such an extent as to significantly disrupt
normal behavior patterns, and harm means an act
which actually kills or injures wildlife and
may include significant habitat modification or
degradation where it actually kills or injures
wildlife by significantly impairing essential
behavioral patterns, including breeding, feeding
or sheltering.1
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Principal Elements
9 Protections--Habitat Modification as
Taking The regulations include harmful habitat
modification under the definition of take. This
would at first seem very helpful to those who are
attempting to protect fish populations since much
of the harm to the fish are not from directly
harming the fish, but instead from altering the
waterways themselves, or by altering the
landscape around the waterways. And originally
courts were willing to find a violation of 9 if
the alterations were significant enough to
disrupt breeding activity.  However, the trend
of courts recently has been to require evidence
that particular animals were injured, even though
the regulation seems to say that disrupting
breeding is enough. 9 has been read not to
permit every activity which through habitat
modifications harms the fish population
indirectly, it requires a showing that animals
have actually been killed or injured to violate
9 even though the regulation seems to suggest
that disrupting breeding is enough to constitute
a take.
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9 Protections--Habitat Modification as
Taking Babbit Habitat Modification Can be a 9
Take In Babbit v. Sweet Home1, the Supreme Court
stated that habitat modification can be
reasonably considered a take under 9 of the
ESA. The Court thus upheld the regulations of the
FWS interpreting the term harm in 9 to include
the more indirect harms cause by habitat
modifications. The Court stressed that the common
meaning of harm does not only refer to direct
harm, but also to indirect harm, such as, in this
context, habitat modification. Moreover, the
Court argued that, in light of the ESAs purpose
to prevent the species extinction, the term harm
should be interpreted broadly so as to best
effectuate that goal. Thus, the modification of
the red-cockaded woodpeckers habitat could be
considered a take under the ESA even though the
modifying group in no way intentionally harmed
the woodpecker.
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9 Protections--Habitat Modification as
Taking Clarification of Babbit Several courts
have grappled with the following question, in
interpreting Babbit does habitat modification
constitute a take if it likely will injure an
animal although it hasnt yet. Courts have come
out different ways on this question. The 9th
Circuit in Arizona Cattle Growers Association1
held that habitat modification is only a take
if it actually injures a protected species. The
court here relied largely on the FWSs regulation
which stated that harm, under 9, may include
significant habitat modification or degradation
where it actually kills or injures wildlife. 50
C.F.R. 17.3. On the other hand, in Greenpeace
v. National Marine Fisheries2, the U.S. Western
District of Washington, considered commercial
expansion into the habitat of the protected
Stellar sea lion to constitute a take, although
there was not evidence of actual injury to the
sea lion. The court relied on the fact that the
potential harm to the sea lion was a relative
certainty. Concededly, Greenpeace interpreted the
term harm in 7, not 9. However, the 9th
Circuit, for example, interprets the term harm
in 7 and 9 synonymously.
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9 Protections--Habitat Modification as
Taking What Kinds of Harm Constitute a
Take? Indeed, the concept of a take through
habitat modification encompasses a broad array of
harm. In Loggerhead Turtle v. County Council1,
both the district and circuit courts took for
granted that it constituted a take for the
county to place beachfront lighting on the beach
where the loggerhead turtles lay eggs. Usually
baby turtles, upon being born, naturally
gravitate towards the water. However, on that
beach, turtles began gravitating towards the
light. The court considered this disruption in
the turtles natural behavior harmful to the
turtles. Thus, the lighting constituted a 9
take. On the other hand, in Defenders of Wildlife
v. Bernal2, the Ninth Circuit held that no take
occurred where a school was built in an area near
the home of the pygmy owl, according to an
expert. Because, however, there was no evidence
that pygmy owls actually lived where the school
was being built, the court held that the record
did not support the finding of a take.
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9 Protections and Threatened Species   When a
species is listed as threatened under the ESA,
the FWS has the power, under 4(d), to issue
regulations for their conservation.  Unless the
regulations for a threatened species specifically
state otherwise, the protections of 9 are fully
applicable to the threatened species.   However,
the FWS cannot issue regulations that would deny
9 protections to the threatened species without
a legitimate purpose, especially if it would
decrease the population of the species. It can
only issue regulations that would further the
conservation of the species. A taking can only be
authorized through regulations in the
extraordinary case that population pressures
necessitate takings because they could not
otherwise be managed.
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  • 9 Protections--Incidental Take Statement
  • When FWS issues a biological opinion in response
    to a federal agency inquiry regarding a proposed
    action, under 7, FWS can issue along with it a
    statement that authorizes the agency to carry out
    its planned activity, even though the activity
    will incidentally take listed species.  As long
    as the applying agency complies with the terms of
    the statement, it will not violate 9 even when
    its actions take a member of the species.
  • For the Statement to be valid, it must include
  • the impact of such incidental taking on the
    species
  • the reasonable and prudent measures that the
    agency can take to minimize the impact
  • the requirements to report to FWS on incidental
    takes as well as such other terms and
    conditions as are necessary to minimize the harm
  • Some courts have required that a precise limit on
    the number of animals that can be taken must be
    provided and if it is not possible to give one,
    the FWS must explain why.

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  • 10 Permits
  • While 9 might give the impression that the ESA
    imposes a very hard and tough restriction that
    protects listed species, it must be considered
    alongside 10 which provides permits for
    different purposes that will exempt a holder from
    9 liability. Thus, 10 causes 9 to lose much
    of its bite. The permits include
  • Safe Harbor Program
  • CCA Permits
  • Incidental Take Permits

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Principal Elements
10 Permits 10(a)(1)(A) Safe Harbor
Program 10(a)(1)(A) authorizes permits for
scientific purposes or to enhance the propagation
or survival of the affected species.  While the
description seems quite narrow, this section has
actually spawned an entire program, under which a
landowner can agree to implement conservation
measures on her land, aiding or attracting listed
species, without incurring a risk of liability
under 9, and guaranteeing that the conservation
measures can be undone if the landowner
chooses.    As long as the landowner is in
compliance with the terms of the Safe Harbor
Agreement, no liability will be imposed for
incidental takes.
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Principal Elements
10 Permits-- 10(a)(1)(A) CCA Permit 
10(a)(1)(A) also authorizes permits to be issued
in the course of Candidate Conservation
Agreements (CCA).  A landowner who commits to a
CCA can obtain authority to engage in incidental
takes of any species that is subsequently listed
so long as they continue to comply with the terms
of the CCA.
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Principal Elements
  • 10 Permits-- 10(a)(1)(B) Incidental Take
    Permits 
  • 10(a)(1)(B) authorizes permits to be issued to
    take a member of a listed species if the take is
    incidental to, and not the purpose of, the
    carrying out of an otherwise lawful activity. 
  • The process for obtaining this type of permit is
    public. To obtain a permit under this section, a
    person must prepare a habitat conservation plan
    (HCP) that describes in detail
  • the impact that the proposed action will have on
    the species
  • steps that will be taken to minimize and
    mitigate such impacts
  • the funding that will be available to implement
    these steps
  • alternative actions that the applicant considered
    and why the alternatives were rejected and
  • such other measures that the Secretary may
    require as being necessary or appropriate for
    purposes of the plan.

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Principal Elements
  • 10 Permits-- 10(a)(1)(B) Incidental Take
    Permits
  •   The HCP must be submitted to the FWS for review
    and it is also made available to the public for
    comments.  The plan will be approved if the FWS
    finds that
  • the taking will be incidental
  • the applicant will minimize and mitigate the
    impacts of such taking to the maximum extent
    practicable
  • the plan is adequately and securely funded and
  • the taking will not appreciably reduce the
    likelihood of the survival and recovery of the
    species in the wild.
  •   If the plan is approved, the agency will issue
    an incidental take permit.  The ultimate standard
    used in approving an HCP includes a no-jeopardy
    standard that duplicates the language of
    7(a)(2).  However, 7 and 10 use different
    language, so while the standards between the two
    provisions were previously thought to be the
    same, a close reading of the statute casts doubt
    on that interpretation. 

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Principal Elements
10 PermitsThe Interaction between 7 and
10 When a permit is issued under 10, it
triggers the consultation process under 7
because the FWS is a federal agency, and
consequently, it must consult with itself.  This
means that a biological opinion will be required
to be issued because the 10 permit authorizes
harm to a species.  One court has required that
the biological opinion must expressly discuss how
the take will affect the recovery of the species
and not just its survival. Because the issuance
under 10 triggers 7, it would seem to mean
that the permit can only be issued if both of
7s restrictions are met in addition to the
requirements of 10. Thus, although 10 only
expressly includes a no-jeopardy standard, it
might indirectly include a ban on modifying
critical habitat, which is contained in 7,
because the duty to consult with the FWS under
7 consultation has been triggered by the issuance
of a permit.
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Principal Elements
10 PermitsLiability to Holders of a Permit  
When a permit is issued under either
10(a)(1)(A) or 10(a)(1)(B), the individual with
the permit will not incur further liability under
the ESA as long as they comply with the terms of
the permit even if the species declines further
in number or if other species on the same
property become listed.
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Principal Elements
  • 7(a)(2) Protections
  • 7(a)(2) bans all federal actions that directly
    or indirectly
  • jeopardize the continued existence of a species
    or
  • that adversely modify designated critical
    habitat.
  • 7, however, allows actions to proceed unless
    the action, when considered alone, imperils the
    existence of a species. It does not bar
    activities that merely push the species a bit
    closer to edge, or actions that interfere with
    recovery efforts. The no-jeopardy language only
    applies to the examination of actions that
    threaten a species. The no-jeopardy rule keeps a
    species from being pushed too close to the edge
    of extinction that habitat provision can halt
    activities that merely interfere with a species
    recovery.
  • In its assessments under section 7(a)(2), it
    appears the FWS must examine the entire operation
    in which the agency is engaged.  The FWS cannot
    exclude from consideration those aspects that it
    deems non-discretionary and it cannot siphon the
    overall action into many parts.
  • Also, this section only applies to federal
    actions and therefore, its limitations do not
    apply to state or local government or private
    actors. (See Section 2 Coverage).

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7(a)(2) Protections--The No-Jeopardy
Provision FWS must decide how much closer to
extinction a species will become due to the
federal action, but it is currently unclear when
this provision is violated. The regulations
define the language in the statute,
jeopardizing the continued existence of a
species, as an action that reasonably would be
expected, directly or indirectly, to reduce
appreciably the likelihood of both the survival
and recovery of a listed species in the wild by
reducing the reproduction, number or distribution
of the species.  Under FWS interpretation,
this provision would seem to only restrict
actions that pushed a species appreciably to a
point of greater danger, without considering how
close to extinction the species already is. Under
the regulation, it is the appreciable worsening
of a species plight that violates the section,
not the absolute danger that the species faces. 
A species could face exceedingly grave danger,
and an action worsening its plight would
nonetheless be lawful because the action did not
make matters appreciably worse.  On the other
hand, a species could slide downward continuously
as a result of many small actions none of which
would violate the jeopardy definition because no
action, standing alone, would have an appreciable
effect. 
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7(a)(2) Protections--The No-Jeopardy
Provision   In National Wildlife Federation v.
NMFS1, the 9th Circuit seemed to reject the FWS
interpretation.  Under this approach, a listed
species could be gradually destroyed, so long as
each step on the path to destruction is
sufficiently modest.  This type of slow slide
into oblivion is one of the very ills the ESA
seeks to prevent.  The court interpreted
jeopardy as a particularly high degree of risk
to a species.  Any action that pushed the species
to this level of risk, however slight the action,
violated the no-jeopardy rule.  Similarly, an
action ran afoul of the statute if it caused any
additional harm to a species that was already in
jeopardy.    Therefore, it is unclear how this
provision will be interpreted in the future.
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Principal Elements
7(a)(2) Protections--No Adverse Modification  
The FWS definition in the regulations, which has
been invalidated by courts, provides that a
habitat modification is adverse only if it
appreciably diminishes the value of critical
habitat for both the survival and recovery of a
listed species.    The agency has not yet
proposed a new definition in a regulation.    In
National Wildlife Federation v. NMFS, the NMFS
argued that an adverse modification only took
place if an action altered an essential feature
of the critical habitat and if the alteration
appreciably diminished the value of the
critical habitat for survival or recovery.  The
court did not comment on this proposed
definition. 
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Principal Elements
7(a)(2) Protections--No Adverse
Modification The Tenth Circuit, in Center for
Native Ecosystems v. Cables1, stated that
critical habitat is adversely modified in
violation of 7 by all actions that adversely
affect a species recovery and the ultimate goal
of delisting.  While this limit might seem to
ban all modifications of critical habitat that
would diminish its value for recovery, minor
violations are routinely overlooked.
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Principal Elements
7(a)(2) Protections--Consultation
Process Because most federal agencies will not be
able to determine if their action would violate
7, Congress created a consultation process to
assist the agencies.  There is little chance for
citizen involvement in the process. It is usually
done privately and no information is released to
the public until after a final decision is
reached. When an agency contemplates an action
that might affect a species that is listed or
proposed for listing, the agency asks the FWS
whether such a species might be present in the
action area.  If a species might be present, the
agency is obligated to undertake a biological
assessment to determine whether the planned
activity is likely to affect it.  However,
biological assessments are only required for
agency actions that are so significant that they
trigger the requirement to prepare an
environmental impact statement under the National
Environmental Policy Act. The content of the
biological assessment is at the discretion of the
agency, but it must consider the effects on both
critical habitat and the listed species.  Once
the assessment is submitted, FWS has 30 days to
determine whether it agrees with the applying
agency.
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7(a)(2) Protections--Consultation Process If
FWS concludes that the action is likely to affect
the listed species or critical habitat, then, the
applying agency must engage in consultation with
FWS to determine wither the action will comply
with the jeopardy and habitat modification
protections of 7.  If it violates the
prohibitions, FWS must suggest reasonable and
prudent alternatives to the proposed action that
would eliminate the violation. During the
consultation, the agency applying must refrain
from commencing its proposed activity,
technically from making any irreversible and
irretrievable commitment of resources that might
foreclose alternative courses of action that
could avert violation of 7(a)(2).  If the
affected species is not yet listed or the
critical habitat is not just designated, but it
has been proposed, then a different, less formal
process is used.  The agency is required to
confer with FWS rather than consult, and the
ban on committing resources during a consultation
does not apply.
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7(a)(2) Protections--Consultation Process The
outcome of an inter-agency consultation generally
is an informal approval by FWS of what the agency
plans to do, particularly when the action
directly complies with 7(a)(2) or when the
agency alters its proposal in response to FWS
suggestions to bring it into compliance. If the
consultation is not resolved informally, it leads
to the issuance of a biological opinion which
contains a conclusion on whether the proposed
action complies with 7(a)(2) and, if
appropriate, an explanation of reasonable and
prudent alternatives. It also includes a detailed
Incidental Take Statement, authorizing the agency
to engage in activities that would incidentally
take listed species which would otherwise
violate 9.  If after receiving approval from
FWS, the applying agency discovers new, relevant
facts or decides to alter its planned action, the
consultation process must be reinitiated.
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7(a)(2) Protections--Consultation Process   It
is up to the applying agency to decide whether
its planned activity will comply with 7(a)(2)
the FWS opinion is merely advisory.  However,
agencies will routinely defer to the judgment of
FWS, due to the agencys expertise in
interpreting the ESA. Courts have generally
allowed action agencies to rely on FWS opinion
so long as the agency is forthcoming in
explaining its activity to FWS and complies with
recommendations it receives in response. 
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Principal Elements
  • 7(a)(2) Protections--The God Squad
  •   The God Squad is composed of six cabinet level
    officials and the governor of the state in which
    the proposed activity would occur.  This Squad
    has the ability to authorize exemptions to 7,
    including exemptions that would result in the
    extinction of a species. 
  • An exemption can be issued as long as at least 5
    of the 7 members agree that
  • there are no reasonable and prudent alternatives
    to the action
  • the action is of regional or national
    significance and
  • the benefits of the action clearly outweigh the
    benefits of alternative courses of action
    consistent with conserving the listed species or
    its critical habitat.

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Principal Elements
7(a)(1) Conservation Duties   7(a)(1) of the
ESA instructs the Interior and Commerce
Departments to utilize all of their
departmental programs to promote the purposes of
the ESA.  All other units of the federal
government are instructed to carry out
programs for the conservation of listed
species in consultation with FWS. Courts have
found this section to impose an obligation on
agencies to develop programs to protect listed
species.   More recently, courts have
interpreted 7(a)(1) to only require that
agencies develop conservation programs, not
that agencies give weight to species conservation
in every action that they take as it may have
been previously interpreted.    Thus, a litigant
can only challenge an agency for failing to
develop programs.
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Principal Elements
  • 4(f) Recovery Plans
  •   FWS must develop and implement a recovery
    plan for each listed species unless the
    preparation of such a plan would not promote
    conservation of the species.  Its goal is to
    provide an overarching plan outlining the efforts
    to achieve conservation. 
  •   The plan must include
  • a description of the site-specific management
    actions that are needed to achieve conservation
    of the species
  • objective, measurable criteria for determining 
    when recovery has taken place and
  • estimates about how long it will take and how
    much it will cost to achieve full recovery and to
    achieve intermediate steps toward recovery.
    Implementation can be tough when a species is
    located on private land.
  •   Courts have determined these plans are not
    legally binding, just advisory.  Therefore, a
    citizen cannot sue to compel enforcement and FWS
    cannot require that other parties comply. 
  • Another federal agency however must have a
    justification for not complying with a plan.

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Delisting   If conservation efforts succeed, or
if information surfaces that the plight of a
species is not as severe as was suspected, the
FWS can take steps to downgrade or entirely
remove a species from the lists.  An individual
can also petition for delisting, following
procedures similarly to listing.
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Additional Provisions   Additionally, the ESA
contains provisions limiting the import and
export of listed species it bans the taking of
species upon the high seas and bans the
possession, sale, delivery, transport, and so on
of the species by any means. There is also a
large exemption for Alaskan Natives who take
species for subsistence purposes, including
animals and plants used to make authentic native
articles of handicrafts and clothing.
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Penalties-- 11 The ESA provides for civil and
criminal penalties for noncompliance, depending
on the status of the species involved, endangered
or threatened, and whether the violator acted
with knowledge.
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The ESA and Other Laws CITES the Convention on
International Trade in Endangered Species
provided the impetus for the passage of the ESA.
CITES created regulates international commerce in
endangered species. Congress implemented the ESA
to comply with the USs obligations under CITES.
Natural Resource Protections CERCLA, the
Comprehensive Environmental Response,
Compensation and Liability Act, and the Clean
Water Act. After the ESA was used to protect the
snail darter, the Department of the Interior
issued regulations stating that entities that
disrupt the habitat of an endangered specie must
pay a certain some of money corresponding to the
worth of the resources destroyed. However, in
Ohio v. Department of the Interior, the D.C.
Circuit invalidated this regulation, stating that
Congress intended for endangered species to be
considered incalculably valuable. Hence, instead
of paying monetary damages, the entity must
restore the habitat.
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The ESA and Other Laws NEPA various courts have
grappled with the question when the FWS
designates a critical habitat, must the FWS
include an Environmental Impact Statement ("EIS")
under NEPA.  The 9th Circuit held that the
government need not engage in a NEPA study when
designating a critical habitat because critical
habitat designation does not itself change the
physical environment. The federal government must
only draft an EIS for actions which change the
physical environment. On the other hand, the 10th
Circuit concluded oppositely, stating that the
NEPA study should serve to compliment the ESA's
habitat designation process. According to the
10th Circuit, habitat designation does alter the
physical environment by, for example, limiting
flooding and erosion to protect a species, and,
thus, the FWS must comply with NEPA when
designating a critical habitat.
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The ESA and Other Laws The ESA is also bolstered
by several other acts, such as the Federal Power
Act, and the P
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