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A SHOW OF HUMANITY TO “SLOW HUGH,” THE MANATEE: A PROPERTY RIGHTS PROPOSAL FOR THE SEA COW (WITH A BRIEF CONSIDERATION FOR HIS FRIEND, THE BROWN PELICAN)

Mark A. Mullins


Animal Legal & Historical Center
Publish Date:
2007
Place of Publication: Michigan State University College of Law
Printable Version

A SHOW OF HUMANITY TO “SLOW HUGH,” THE MANATEE: A PROPERTY RIGHTS PROPOSAL FOR THE SEA COW (WITH A BRIEF CONSIDERATION FOR HIS FRIEND, THE BROWN PELICAN)

 

 

 

Detailed Discussion Table of Contents:

I. Introduction

II. Background

III. Issues that Need to be Resolved – How to Better Achieve the Goals of a Floundering Endangered Species Act

IV. The Laws Currently in Place 

V. Analysis of State and Federal Protection Measures 

VI. Issue Resolution 

VII. Conclusion

 

 

 

Topics & Links – Other Documents in the Web Center:

Endangered Species Act Topic Area

Marine Mammal Protection Act - Table of Contents

 

 

 

Non-Web Center Resources:

Save the Manatee Club – non-profit organization dedicated to protecting manatees and their habitat.

 

US Fish & Wildlife Service’s information page on Florida Manatees.

 

 

 

I. INTRODUCTION

“Slow Hugh,” the subject of this case study, does not represent any manatee, but rather, he is a specific manatee.  One of the luxuries of being a manatee is that it is able to be individually identified—thanks primarily to the distinctive scars provided almost exclusively by collisions with motorboats.[1]  Hugh is an endangered West Indian Manatee, one of the first species to receive listing under the Endangered Species Act, in 1967.[2]  Manatees are common to the warm waters of Florida, and they are threatened primarily by human intervention in the form of interaction with recreational boating as well as commercial shipping, and habitat destruction.  Being able to attach a name to Hugh’s being, in addition to his symbolic regard, particularly in the State of Florida where he holds the title of state marine mammal,[3] are perhaps the only factors in his favor.  His friend, the Brown Pelican, also benefits from her symbolic standing, particularly in the Pelican State of Louisiana, where she maintains state bird status.  Despite their reverence, the maintenance and prosperity of these two species will require forward thinking and new approaches to their protection and the security of their habitats. 

This paper will first explore the background of the manatee and the issues the species faces.  It will then set forth some of the applicable law that is currently in place, followed by a consideration of the benefits and shortcomings of those laws identified as having been enacted to ensure the preservation of the species and its habitat.  Finally, it will reflect on some changes that have been suggested, and, ultimately, it will introduce a new approach—providing property rights to the West Indian Manatee—with a response to potential criticism in mind.  The Brown Pelican, as a neighbor of the manatee, will receive some secondary consideration for comparative benefit.

 

II. BACKGROUND

The West Indian Manatee and the Brown Pelican are among the species listed as endangered by the United States Fish and Wildlife Service.[4] It was recently decided that Hugh be downlisted, in his home state of Florida, with respect to his endangered status.  The Florida Fish and Wildlife Conservation Commission voted in early June to downlist the manatee from endangered status to threatened status.[5]  As of last month, a plan to delist the West Indian Manatee in the state of Florida was already being drafted.[6]  The vote approving the reclassification entailed that a management plan be put forth before the downlisting goes into effect.[7]  Both the West Indian Manatee and the Brown Pelican are among the species federally listed; however, the pelican was delisted in the U.S. Atlantic Coast region, which includes Florida, in 1985.[8]

West Indian Manatee

The West Indian Manatee, Trichechus manatus, is large in size (with an average length of ten feet long and an average weight of one thousand pounds) and gray in color, with a paddle-like tail at one end, a whiskered snout at the other end, and two forelimbs.[9]  The manatee resides in shallow inland and coastal warm waters and, although migratory, is primarily found in Florida.[10]  Manatees, much to their detriment, are slow moving and gentle herbivorous marine mammals, thus requiring them to surface for air.[11]

Threats to the West Indian Manatee

West Indian Manatees have no known predators; the primary threat to the 3,000 West Indian Manatees remaining is from humans[12], despite the fact that they lack any appreciable commercial value.  Manatees are primarily threatened by collisions with boaters and habitat loss. 

Conservative estimates of manatee mortality due to collisions with watercraft puts it at twenty percent of all manatee deaths,[13] but estimates range upward by as much as fifteen percent.  Because of their dark color, manatees are often difficult to see in the water.  The slow speed with which they move in the water makes it difficult for them to avoid approaching vessels on the water. 

Other human-related causes of manatee deaths include interactions with flood gates and navigation locks that trap and drown or crush migrating manatees.  Poaching, vandalism, accidental entanglement in fishing and crab trap lines, and pollution are other human contributors to mortality.[14]

Habitat destruction is the area of greatest concern, however, given the rate at which it continues to occur.  Much of the manatee’s natural habitat no longer exists.[15]   

This is particularly troubling given their low reproductive rate.[16]  It is usually five years before female manatees achieve sexual maturity, while male manatees tend to reach sexual maturity at the age of nine.[17]  The manatee gestation period lasts approximately one year, and calves are born every two to five years, with twins occurring rarely.[18]  Mother manatees are solely responsible for raising their calves.[19]

Manatee deaths are also attributable to natural causes, sometimes resulting in unanticipated, large-scale die-offs.  Because of manatees’ tendency to congregate, disease can be particularly harmful to the manatee population. 

One such example is the threat of red tide—toxic algae that, when conditions are met to produce a high incidence of blossoming, can pose grave danger when ingested or inhaled by the manatee.[20]  Given the manatee’s substantial appetite, a significant amount of red tide organisms are ingested when the manatee feeds in underwater beds of grass.  Manatees’ tendency to congregate, mentioned above, is inclined to occur where there is warm water and food.  High counts of red tide often similarly occur in these warm water areas.  In March of 2005, nearly fifty manatee deaths in southwest Florida were attributed to red tide contamination,[21]  demonstrating the disastrous effect of one incident of a severe red tide count on the manatee population.  In 1996, nearly 150 manatee deaths were attributed to red tide.[22]  Where red tide does not directly cause the death of a manatee, its effect on the animal can often be enough to debilitate it, thus making it more susceptible to its primary threat of watercraft collision.   

Another natural threat to the manatee is cold-related death, where there is the potential for considerable manatee mortality in the event of particularly cold temperatures.[23]  Seventeen manatees perished due to cold-related illness in 1996, and a particularly harsh Florida winter in 1990 resulted in the death of forty-six manatees.[24] 

In a number of manatee deaths, the cause is not able to be determined because the carcass was not recovered or was too badly decomposed to make such a determination.[25]

Brown Pelican

The Brown Pelican, Pelecanus Occidentalis, also resides along the coastal waters of Florida,[26] though not with the exclusivity that the manatee exhibits.  The Brown Pelican, however, prefers fish to vegetation.[27]  A social sort, like her friend the manatee, the pelican has also suffered from the effects of human interaction, though only sharing in common with the manatee that of habitat loss.  Poaching threatened the Brown Pelican during the early part of the twentieth century.[28]  The primary motivations for this activity were the taking of feathers as well as the protection of fishing lines and the elimination of fishing competition[29] (because pelicans are much more efficient fishers than their human counterparts).  The more substantial threat to the brown pelican occurred during the mid-twentieth century , when pesticide exposure (most notoriously DDT obtained in the digestion of fish) devastated the Brown Pelican population throughout its entire range, nearly eliminating it in the Pelican State of Louisiana, and earning it endangered listing status in 1970.[30]  The population recovery that allowed the Brown Pelican to be removed from the Endangered Species List in 1985 can be directly attributed to the banning of DDT.[31]

                     

III. ISSUE THAT NEEDS TO BE RESOLVED—HOW TO BETTER ACHIEVE THE GOALS OF A FLOUNDERING ENDANGERED SPECIES ACT

A.     Habitat/Ecosystem Preservation—Preventing Rather Than Curing

Ultimately, the necessity for habitat and ecosystem preservation and restoration can be reduced to the absolute avoidance of irreversible change.  Habitat redemption is a difficult, and often impossible, task. 

Natural Habitats

Habitat restoration is essential to the future well being of the West Indian Manatee.  Perhaps the greatest threat facing the West Indian Manatee, like many endangered species, is the loss of natural habitat. The Save the Manatee Club, a national non-profit organization that has undertaken to protect the manatee and its habitat, cited loss of habitat as “the most serious threat facing manatees today.”[32]  This has occurred most often as a result of the degradation of water quality and of development[33] along Florida’s popular, and valuable, coastline.  These two elements of impact on habitat decline often go hand in hand. 

Artificial Habitats

Because of their low metabolic rate, manatees are unable to generate enough heat to offset decreases in water temperature.  This results in cold stress, which in turn ultimately leads to death from malnutrition after the manatees become too weary to eat.[34]  Due to their reliance on warm water to survive, artificial manatee habitats have arisen near power plants in Florida that produce warm water effluents as a result of their operation.  The manatee, unable to withstand cold water temperatures, has taken to the areas surrounding the power plants during the winters.  These artificial habitats have become popular congregating areas for the manatees.  Two power plants in Brevard County, Florida provide winter sanctuary for better than six hundred manatees.[35]  This presents two potential issues:

1)      The current threat that these habitats pose to the manatee due to a high incidence of red tide;[36] and

2)      The impending threat that the congregating manatees will perish should these power plants shut down.

Both issues address the need for habitat diversification in order to avoid the catastrophic results of either possibility.[37]  Such reliance by the manatees on these artificial habitats makes them unfortunate candidates for deaths occurring in large proportions, to which a likely reduction in genetic diversity would follow.       

B.     Limitations on Government Actions

The effectiveness of government actions and the ability of the government to enforce those actions present another issue with regard to the success of the manatee, the Brown Pelican, and other threatened or endangered species.  These limitations will be considered at length in Part V, following an account of the statutory law as it currently exists.

However, the enforcement limitations are worth considering here.  Obviously, enforcement can be constitutionally limited, but that will be saved for the later discussion, as mentioned.  The enforcement limitations to be addressed here concern the practical inability of the government to enforce the law as it exists due to a lack of resources, a lack of interest, sympathy with violators, and the nature of the beast—the inherent difficulty of enforcing a broad-based law, sometimes on private property, in remote areas of the country, and against victims who are limited in their ability to assert their rights on their own behalf.

The timeline of Florida laws regarding manatee protection represents this well.  Obviously, the failure of the manatee to flourish as a species is not the result of a lack of attention or legislation with respect to the manatee’s plight.  Further, the demonstration of various efforts, and subsequent failures, to promote the prosperity of the species indicates that neither is it a result of misdirected approaches.  The likely answer is that, despite Florida’s best intentions and efforts with respect to implementing effective law, the law is only as effectual as it is operative in enforcement.  That is where the Florida manatee protection efforts have in the past failed to improve, or even sustain, manatee populations.

C. Conflicts with Private Landowners & the Military

Private Landowners

The significance of habitat preservation becomes even more apparent when one considers the fact that more than 75% of endangered and threatened species are dependent upon critical habitat that, at least partially and often fully, exists upon private land.[38]  Where this becomes a problem is in the case of a small landowner, confronted with an endangered species on his property, who does not wish to cede his property rights but who cannot bear the financial burden of a fine for violating the endangered species act; thus leaving the owner to quietly make the dilemma go away.[39]  At a minimum, the property owner will often do nothing, particularly avoiding needed management efforts, in the hope that the problem will eventually take care of itself through the degradation of the habitat.[40]   

To lawfully undertake development where such action may affect an endangered species, an incidental take permit can be sought.  The incidental take permit involves a rigorous application process.[41]  A Habitat Conservation Plan, authorized by a 1982 amendment to §10 of the Endangered Species Act, must be developed.  A Habitat Conservation Plan (HCP) “allows a landowner to proceed with a proposed activity that may injure a listed species or its habitat if the landowner has put into place sufficient protection and mitigation measures to insure that the impacts of the project will be minimal.”[42]  Habitat conservation plans can also be conceived at the county or state level to cover all landowners within their subsequent jurisdiction.[43]  The purpose of the habitat conservation plan is to demonstrate that measures will be taken to mitigate the impact on endangered species of the action for which an incidental take permit is being sought.[44] Considering the expense and exhaustive nature of submitting an HCP, it is usually not a viable option for the small landowner.[45]    

Privately owned land considerations are not as directly applicable to the manatees, given their marine environment.  Yet the abutment of their habitat to private property can pose significant risk due to water degradation and pollution.  In addition, the manatee resides between the private landowner and the open ocean that the landowner wishes to access for personal or commercial reasons.  As migratory animals, manatees are also prone to inland migration which often puts them in close contact with private landowners.  Although private landowners cannot exert direct control over the waters in which the manatees live, their recreational, commercial, or developmental interests can often be hindered by the manatee’s proximity; thus, such landowners might perceive the manatee as an enemy to their ability to enjoy the full economic benefit of their property.   

Military

Both the West Indian Manatee and the Brown Pelican find themselves in constant conflict with the Department of Defense, often as a result of projects and operations that result in incidental takings of either or both.[46]  Such actions require the application and receipt of a permit before they may go forward,[47] but this is sometimes overlooked.  Where it is observed, yet challenged, the interests to those opposed to the proposed action receive little deference.[48] 

Furthermore, recent amendments have been made to the Endangered Species Act in the Defense Authorization Act, under which the Secretary of the Interior is permitted to give deference to national security in consideration of critical habitat designation.[49]

The Defense Authorization Act has also affected the Marine Mammal Protection Act by raising the threshold of harassment to require “significant” potential of harm, as it applies to military preparedness.[50]

D. Inadequacy of Recovery Projections

Many policy decisions with regard to endangered species, such as listing and delisting, are made based on information that may indicate something other than that on which the decision hinges.  For instance, perceived increases in manatee populations could be a result of surveillance improvements rather than actual species recovery.[51]  

Moreover, it is nearly impossible to foresee and account for any devastating natural occurrences, such as might result from red tide-borne[52] or other illness, or from hurricane activity[53] or cold weather onset.  The manatee’s slow reproductive rates are not conducive to a successful recovery in the event of catastrophe.[54]  As mentioned earlier, manatees require five to nine years to reach sexual maturity.  Additionally, they have lengthy gestation periods (one year), as well as lengthy interims between calves (two to five years).  If many calves die at once, as well as adult manatees of calf-bearing age, their ability to keep pace with mortality rates reproductively after such a catastrophe will be seriously thwarted.     

It is difficult enough to estimate the incidence of non-catastrophic natural death, especially among a species with a significant percentage of undetermined mortality.

IV. THE LAWS CURRENTLY IN PLACE

A. The Endangered Species Act and Other Federal Protection Measures

Endangered Species Act

The Endangered Species Act (ESA) is the regulatory scheme created by Congress to protect endangered species and their habitats.  The ESA necessitates a determination by the Secretary of the Interior, through the Fish and Wildlife Service, of whether a plant or animal faces a threat of extinction.[55]  If so, the ESA requires a listing that reflects whether the species is deemed to be threatened or endangered.[56]  Once listed, a recovery plan must be established that describes the species and its habitat, and provides an action plan to achieve the species’ successful delisting.[57]   The primary functions of the ESA are to prohibit the taking of endangered and threatened species, to provide for the designation and, when necessary, the acquisition of critical habitat, and to put into practice meticulous consultation procedures for government agencies and private landowners who wish to take actions that could potentially cause detriment to endangered species and their habitats.  The ESA, with respect to agency action, prohibits any activity that will jeopardize the continued existence of a listed species or adversely affects its critical habitat.[58]    

Critical habitat is designated “to the maximum extent prudent and determinable” concurrently with the listing of a species under the ESA.[59]   The West Indian Manatee has extensive designated critical habitat in the State of Florida and its adjoining islands, covering essentially the state’s entire East Coast, as well as the state’s southern Gulf Coast, including connected bays, estuaries, harbors, sounds, and numerous rivers inland.[60]  This expansive critical habitat encompasses five federal sanctuaries and sixteen federal refuges that are manatee protection areas.[61]

The Florida Manatee Recovery Plan

The Florida Manatee Recovery Plan, set up under the ESA, recognizes the inadequacies of the enforcement measures in relation to their effectiveness in dealing with the sustained protection of the manatee and offers suggestions for improving them, including enforcement assessment, consistency in issuing fines, and improved training.[62]  The manatee recovery plan identifies lands deserved of consideration for federal acquisition because of their suitability as manatee habitat.[63]  In 2003, the State of Florida received a federal grant, to the tune of nearly a half million dollars, in order to acquire over thirty acres of land contiguous to Warm Mineral Springs Creek in Sarasota County, a naturally occurring warm water refuge for as many as one hundred manatees, as part of the Warm Mineral Springs Creek Protection Program.[64]  This type of funding is made possible under the Endangered Species Act through its Land Acquisition Grants Program that makes available “funds to states and territories for acquisition of habitat for endangered and threatened species in support of approved recovery plans,” identifying habitat acquisition as an “essential element of a comprehensive recovery effort for a listed species.”[65]     

Marine Mammal Protection Act

Because the manatee is a marine mammal, The Marine Mammal Protection Act (MMPA) of 1972 is deserved of consideration.  The MMPA accords responsibility for the conservation of marine mammals, those mammals “physically structured to survive in marine environments” (explicitly identifying manatees among these), to the federal government.[66]  The MMPA can be comprehended as going a step further than the ESA in that it extends its reach to all marine mammals, rather than limiting itself to those that are endangered or threatened.  The Congress, in reference to the MMPA, observed:

[M]arine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic, and it is the sense of the Congress that they should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem. Whenever consistent with this primary objective, it should be the goal to obtain an optimum sustainable population keeping in mind the carrying capacity of the habitat.[67]

B. State Protection Measures

Manatees have received protection under Florida state law since 1893, when penalties were first created for the capture or killing of a manatee.[68]  Subsequent protection laws have implemented a variety of tactics over the years to address the issue of manatee—and manatee habitat—protection.  The 1939 law authorized the fencing off of manatee habitat;[69] and the 1953 law reinforced the permit requirements and augmented the penalties for killing or capturing a manatee established in 1893.[70]  That brings us to the Manatee Sanctuary Act.          

Manatee Sanctuary Act

In response to declining manatee populations, the Florida Manatee Sanctuary Act (MSA) was passed in 1978.[71]  Structured upon (1) permit requirements for the taking of a manatee,[72] and (2) vesting the Florida Department of Environmental Protection (DEP) with the power to regulate boat traffic, thus enabling the protection of manatee habitats,[73] the MSA was a consolidation of earlier laws enacted for the purpose of manatee protection.[74]

The Manatee Sanctuary Act represents a transition within the State of Florida in its approach to manatee protection that reflects the emergence of boaters as the primary threat to the manatee.  More recent state protection efforts have been focused on the establishment and enforcement of speed and no-entry zones, and otherwise moderating the impact of humans on manatee mortality.[75]  Recognizing the fact that prohibiting boats or limiting boat speed in manatee habitats would minimize the incidence and severity of collisions,[76] the Florida legislature introduced legislation allowing the DEP to designate manatee habitat speed zones (limiting boat speed),[77] as well as motorboat-prohibited zones (barring engine-powered boats)  and no-entry zones (restricting any human intrusion).[78]

Florida Endangered and Threatened Species Act

Although in accordance with the Endangered Species Act, the Florida Endangered and Threatened Species Act sets forth its own list of protected species.[79]  The Florida Legislature identified the magnitude of Florida’s endangered and threatened species, and its desire to ensure their protection, as the rationale behind this supplementary identification.[80]

Comprehensive Management Plan

The new comprehensive management plan drafted last month to correspond with the Florida Fish and Wildlife Conservation Commission’s June 2006 vote approving the reclassification of West Indian Manatee from endangered to threatened status identified the following recovery goals: a minimum of 2,500 mature manatees, a high survival rate among adult manatees, and enough warm water habitat to sustain the population for the future.[81]  The plan also considers the fatal threat of watercraft collisions and demands an assessment of speed limit zones that have been established in manatee habitat areas.[82]    

The major development in the protection effort over the last decade has been the implementation of educational programs to promote greater awareness of the manatee.

 

V. ANALYSIS OF FEDERAL & STATE PROTECTION MEASURES

Federal

In general, the primary weakness in the Endangered Species Act (ESA) is that it is curative in nature rather than preventative, only seeking to put protection measures in place once a species’ numbers have been significantly reduced.  Critical habitat is not even considered until an individual species is listed, often resulting in very little habitat remaining to designate.  This approach necessarily limits species recovery because of a lack of remaining sustainable habitat.

Another major shortcoming that has limited application of the Endangered Species Act is its focus on harm to the individually listed species rather than to collective ecosystems.  By failing to give broad consideration to effects on all listed species within an ecosystem, the ESA has allowed the Fish and Wildlife Service (FWS) to focus its impact assessment only on those species most likely to be affected by its proposed action, rather than giving credence to subsequent indirect effects on other listed species occurring throughout the entire ecosystem; the courts, however, have held this exercise to not be arbitrary and capricious, and thus consistent with the ESA.  In San Francisco Baykeeper v. U.S. Army Corps of Engineers, a case considering Endangered Species Act violations with regard to port renovation projects, the District Court for the Northern District of California, in response to plaintiffs’ argument that the indirect effects of all listed species in and around the project area should be evaluated, stated:

Because these species [the least tern and brown pelican] were found in close proximity to the project area, they are more likely to be affected by the construction and long-term operation of the projects than other listed species in the Bay-Delta ecosystem.  This approach is consistent with the ESA’s focus on harm to individual listed species and their habitat rather than on the health of ecosystems as a whole.[83] 

This disregard of ecosystems as a whole is a prominent drawback of the ESA, in that it fails to recognize the interconnectedness of all species within an ecosystem and the substantial role that ecosystem interconnectedness plays in the preservation of individual species and their habitats.   In addition, this species-specific approach has resulted in less recognized species causing the greatest controversy,[84] thus undermining the ESA to some degree.

The constitutionally of the ESA has recently been challenged on the ground that its regulation does not fall within the purview of Congress’ Commerce Clause authority, under which the ESA was originally enacted.[85]  While the ESA has, to date, been upheld, the litigation that has arisen serves to detract from focusing on the preservation of species and habitat.[86]    

While the Endangered Species Act recognizes and responds to the need for species and habitat protection, its ability to successfully address these issues has proven questionable at best.  Ultimately, if the ESA is unable to achieve its goals, it is still a viable last defense for threatened and endangered species.

The main drawback to the Florida Manatee Recovery Plan is the consequential inability to live up to the sturdy structure of habitat protection that it sets forth, which contradicts the intention of the protective measure under which it was established and overlooks the most serious threat to the species.[87] 

The manatees had their day in U.S. District Court, where landowners and contractors seeking permits to build docks in manatee-inhabited inland waters were denied due to the potential adverse impact on the species.[88]  Conversely, when confronted with an attempt by the military to undertake a bridge replacement project that would affect manatee habitat, the manatees were not so lucky.  The District Court for the Southern District of Florida, in Florida Keys Citizens Coalition, Inc. v. U.S. Army Corps of Engineers, upheld the proposed action despite evidence of 33.7 acres of mangrove habitat loss.[89] 

The motivation behind comparing the outcome of these cases is not to suggest a greater likelihood of success when facing a private landowner than when facing a military or other governmental entity, but rather to demonstrate the arbitrary nature of the application the law with respect to federal endangered species protection.

State

In that many states have exhibited a considerable interest in their own endangered species, state endeavors have proven to be the most effective in achieving the effective protection of endangered and threatened species, given their connectedness to the issues and their ties to many of the species, such as the manatee in Florida and the pelican in Louisiana.  The states can play a significant role in species and habitat preservation in that they possess the ability to take a broader approach than that employed by the federal government, thus allowing state governments to implement restrictions that are more stringent in their capacity to protect wildlife.  For instance, even though the brown pelican has been federally delisted in the Southeastern United States, Florida has instituted legislation designating the brown pelican as a “species of special concern,” acknowledging the need to endow it with protection and management consideration.[90]  The only confinement for the states in establishing such measures would be its application to federally owned lands.  These lands, however, would obviously remain subject to federal species protection regulations, and much of this federally owned acreage has been acquired specifically for that purpose at any rate. 

In addition, the states primarily bear the enforcement burden upon which the effectiveness of the law’s implementation is heavily dependent.  One of the most crucial deficiencies in the federal and state wildlife protective schemes is the inadequacy or, in some cases, absence of effective enforcement.  This can be attributed for the most part to not having enough hands on board to ensure the success of the mission and, to a lesser extent, the disinterest or opposition of those vested with the responsibility of carrying out the objectives of the various regulations in place to ensure the vitality of endangered species’ populations and habitats.

State efforts to reduce boat collisions with manatees under the MSA are well-founded, but poorly enacted.  First and foremost, the DEP’s restrictive zone establishment is limited by a legislative requirement to weigh the burden of boaters against the frequency of manatee sightings (requiring that manatees “inhabit ***areas [in question] on a regular or continuous basis”) in its protection consideration.[91]  This concern was realized in Bonita Bay Properties v. Department of Environmental Protection,[92] where the Administrative Law Judge presiding found that the DEP did not demonstrate that manatees were “frequently” sighted,[93] and that the DEP failed to give consideration to “undue interference” with boaters.[94]  This determination suggests that the language of the MSA leaves too much room for interpretation, revealing a need to eliminate terms such as “frequently” and conditions such as “undue interference with boaters.”

Enforcement is a potential issue here, given many boaters’ general disregard for speed limits; however, a relatively uncomplicated solution presents itself: mandate motorboat-prohibited zones where speed zone violation enforcement resources are less than adequate; mandate no-entry zones where motorboat prohibition enforcement is insufficient; and continue to increase speeding penalties until violations are fewer in number than collisions—an environmental baseline, of sort.  Research has indicated that an analysis of manatee injuries, specifically the location of their wounds, resulting from collisions with boats suggests that manatees attempt to avoid moving water vessels.[95]  Based on this evidence, it would be reasonable for one to draw the conclusion that reducing the speed at which boats are permitted to travel will directly correlate to manatees having a better opportunity to avoid such detrimental collisions.    

Although the Florida Endangered and Threatened Species Act would appear to do little more than reflect what the Endangered Species Act has already addressed, merely narrowed to state inhabitants, its tremendous potential effect may have yet to be seen.  Should the tide change with respect to the constitutional challenges the ESA is facing (concerning its interstate nature), the Florida Endangered and Threatened Species Act would not be subject to such federal litigation.[96]

The primary concern regarding the recently unveiled comprehensive management plan for the manatee in Florida is whether it can adequately carry out the preservation of the species and take the further step of bringing about its recovery.[97]  As with many wildlife protection measures, what it lays out will only be as successful as its ability to be successfully put into effect and seen through to fruition.

VI. ISSUE RESOLUTION

A. Other Proposals

With respect to the issue regarding the closing of Florida power plants, a Winter Provision has been proposed, which would involve making the deregulation of the power plants contingent upon the stipulation that “the new private owners agree to keep the plants in operation during unusually harsh winter seasons….”[98]  The goal of such a provision would be preservation of the manatee’s artificial habitat.[99]  The conditional nexus test is correctly applied in determining whether the Winter Provision would be a “justifiable exercise of police power,…”[100] and that “the Winter Provision should have little problem passing the intensified judicial review given that (1) the objective of saving the manatees serves a legitimate public interest (2) the means (i.e., requiring the owners to keep the plant running during unusually cold winters) substantially advances objective.”[101]  Despite resolving its potential constitutional limitation, the Winter Provision proposal fails to solve the habitat diversification issue.  Although the existence of these artificial sanctuaries has been essential to the preservation of the West Indian Manatee, the proposal of a Winter Provision should only be considered a temporary solution geared toward adapting West Indian manatees to more natural warm water habitats such as natural springs.  A potential step-down in this adaptive process would be artificial habitats where warm water effluents could be generated without significantly decreasing water quality.

Another proposal involves the installation of new flood control gates to prevent the trapping and drowning or crushing of manatees that sometimes occurs when gates close as manatees are passing through.[102]  However, the ramifications of this improvement (involving sensors to detect the presence of manatees) include high cost and a potential restriction on manatee migration;[103] and, when balanced against the relatively low incidence of manatee deaths caused by flood control structures, it is not likely to go forward.

A general suggestion that is a move in the right direction is the pursuit of governmentally-directed “ecosystem solutions to manatee protection.”[104]  More specifically, this proposal identifies the likelihood of compelling “complete removal of potentially harmful human activities, such as watercraft traffic and development.”[105]  The success of designated no-entry manatee habitats in Florida has been identified where, “Researchers found that maintenance of habitat quality and protective measures reducing human impact are accompanied by high rates of adult manatee survival.”[106]   This evidence bodes well for the new proposal that follows.      

B. A New Proposal

This author proposes giving Hugh and other West Indian manatees the right to purchase property for their own use and disposal.  This would involve setting up a trust, with manatee conservation groups as trustee(s), to maintain and enhance the property in the best interests of the title holders, the manatees.  This trust would be a trust for the benefit of wildlife, a transition from the traditional wildlife management doctrine of a trust for the benefit of the people.  The maintenance and enhancement responsibilities would primarily involve maintaining water quality, ensuring warm water currents or other measures during periods of cold weather, and the construction of necessary barriers to maximize habitat preservation and minimize human intrusion. 

This scenario would also allow for close monitoring by individuals intimately familiar with the nature of the manatee to guard against harmful invasive species and to prevent illnesses that might result in mortality catastrophes.  For instance, manatees exposed to red tide often exhibit telltale symptoms.  These indicators include labored breathing, difficulty in surfacing, and the inability to swim upright.[107]  This observable behavior is noteworthy because manatees are often able to pull through despite red tide exposure when an adequate response can be administered in time.[108]  It would also allow for greater observation and understanding of manatee behavioral patterns that will only serve to benefit the preservation of the species.  Observation and monitoring would also serve the purpose of recovering and recuperating manatees that have suffered an injury due to a fishing line entanglement, a flood control gate incident, or, most importantly, a collision with a motorboat that did not result in immediate death.  Injured manatees, like most animals, often demonstrate noticeable indications.    

Providing a private property right for the West Indian Manatee would allow them the ability to enforce an outright ban on the docking and launching of motorboats from land owned by the manatee.  This would be a significant step forward in preserving the species.  

This new option is particularly feasible for the manatee for a variety of reasons.  First, the manatee is a social being that is capable of playing well with others, thus allowing one property to serve as many manatees as it can optimally sustain.  The manatee will go where it finds food, and the promotion of its habitat preservation will ensure there is sufficient vegetation to keep the manatee on its property.  By placing the property in the hands of the manatee itself, other species in the ecosystem, including the brown pelican, will benefit from the pristine conditions provided by a property owner whose only interest is maintaining the ecological sanctity of his home.  Second, the ability to put a name with a face, and a face that Florida citizens love, would give this proposal greater appeal.  The manatee’s migratory nature does not affect this scenario because migration does not constitute cessation of property interests.  All that is required is the demonstration of a habit of returning to a particular location.  For example, Florida’s substantial snowbird population often spends many months in various northern migration spots and yet returns every winter without consequence.   

Because property rights arise under state law, the potential of implementation would be bolstered by states that have already demonstrated concerted efforts to preserve endangered species and their habitats and have most effectively dealt with the diminishing species and declining habitat problems at the state level. 

Allowing this option would take a great deal of pressure off of state and federal governments, and other private landowners, in dealing with and paying for conservation measures.  Enforcement needs would be supplemented by the ability of Hugh and others to sue for trespass; and they could take private action to protect their rights within the bounds of their property by restricting access and seeking injunctive measures.  The federal government’s only role, if any, would be as a judicial watchdog of the state trust arrangements. 

Enforcement primarily fails because there are not enough eyes watching.  The organizations that serve as wardens for the manatee property, however, could contribute to effective monitoring, thus easing the governments’ enforcement burden, particularly if all government and manatee owned property was bordered by federally regulated no entry zones.  This is where federal regulation can most significantly contribute under the scenario—by protecting the waters to which the manatees cannot rightfully lay claim—through establishment of a regulation or an amendment to current law declaring all waters which abut manatee owned property as no entry zones.  Enforcement becomes much easier when one merely has to be seen in a restricted area, rather than caught in the act of violating a less restrictive prohibition.

This begs the question of funding, particularly given the high price of property that corresponds to manatee habitats.  The manatee can meet these costs in various ways.  As was mentioned above, the possibility of trespass actions and other assertions of their newly acquired property rights would generate monetary capital from damages and settlements.  A provision allowing for the forfeiture of property (such as boats, arms, and fishing gear) for violations of no entry zones bordering manatee property could also be considered. Such a penalty could allow for some of the funds from those seizures to be directed to the manatee trust, particularly where the trustee organization plays a part in the identification of the violator. 

Also, opening up their property to wildlife friendly visitors for a nominal fee would generate considerable funds, particularly in a tourist haven like Florida and considering the interest in a species that can rarely be seen elsewhere.  In fact, existing manatee sanctuaries draw thousands of visitors.[109]  Such visitation allowance could be easily regulated so as not to adversely affect the habitat, and various pathways and observation points could be established without causing any detriment to the habitat.  It is likely that visitor interest would be directly proportional to the authenticity of the habitat.  A great deal of manatee trust funding will come from contributions, which may actually increase with contributors more satisfied with the distribution of their donations.  Additionally, the Save-the-Manatee license plate has consistently been one of Florida’s most popular, and it would be appropriate that a portion of those proceeds go directly to the manatees themselves.  Similar proceeds could be generated from stamp sales.  These would prove equally lucrative for the popular brown pelican.  It is also a very real possibility that title to property could be transferred to the manatees on a regular basis, given the average age of Florida residents, many of whom have fallen in love with their winter companions.     

This may also present a happy ending to the potential closing of power plants in that owners could sell their property to the manatee trust and the artificial habitats could be maintained until they are able to be returned to more natural habitat. 

Allowing for property rights to be vested in the manatee would create the opportunity to supplement federally designated critical habitat through the acquisition of property that is not designated as critical habitat, thus increasing the overall acreage of protected manatee habitat.  This solution would address the Endangered Species Act’s curative approach, which often results in a failure to effectively prevent habitat loss before there is little left to preserve.  This would greatly enhance the Endangered Species Act’s objective of achieving a recovery of the West Indian Manatee and other listed species.  

The last benefit worth mentioning is the increase in educational opportunities that can exceed the state’s best efforts.  These property holding would provide a learning conducive sanctuary for students of all ages, and will likely increase appreciation of the manatee and other member of the ecosystem.

 

VII. CONCLUSION

This progressive approach to wildlife management has the potential to be of great benefit to “Slow Hugh” the Manatee, his friend the Brown Pelican, and numerous other threatened and endangered species, as well as their unlisted neighbors.  Giving property rights to wildlife would by no means supplant existing laws, but rather supplement their intention in conservation and restoration.

This solution would adequately confront may of the issues facing Hugh, Brown Pelican, and others, by (1) making wildlife masters of their own domain to ensure that habitats are preserved in a manner most conducive to their survival; (2) reducing the government’s enforcement burden and legal responsibility by strengthening the standing of wildlife, as property owners themselves, to assert their own interests; (3) providing a sanctuary for endangered species that might otherwise stand in the way of private property owners and military operations; and (4) allowing for more accurate observation and understanding of specific species behavior that will boost their recovery.

 



[1] See Thomas J. O’Shea, Manatees, SCI. AM., July 1994, at 70.

[2] See Endangered Species Act 50 C.F.R. § 17.11 (1980).

[3] See Fla. Stat. § 370.12 (2006).

[4] See U.S. Fish and Wildlife Service (visited Nov.1, 2006) <http://www.fws.gov/endangered/wildlife.html> (providing federal endangered species list).

[5]See Defenders of Wildlife, “FWCC Moves to Downlist the Manatee,” (visited Nov.1, 2006) <http://www.defenders.org/wildlife/new/manatees.html>

[6] See Ludmilla Lelis, Mission: Keep Manatees Safe, ORLANDO SENTINEL, November 6, 2006, at A1.

[7] See id.

[8] See Species Profile of the Brown Pelican (visited Nov. 1, 2006)

<http://ecos.fws.gov/species_profile/servlet/gov.doi.species_profile.servlets.SpeciesProfile?spcode=B02L> 

[9] See Manatee Facts (visited Nov. 1, 2006) < http://www.savethemanatee.org/manfcts.htm>

[10] See id.

[11] See id.

[12] See id.

[13] See Longevity and Causes of Death (visited Dec. 1, 2006) <http;//seaworld.org/infobooks/Manatee/deathman.html>

[14] See id.

[15] See id.

[16] See id.

[17] See id.

[18] See id.

[19] See id.

[20] See Emergency Red Tide Alert (visited Dec. 1, 2006) <http: www.savethemanatee.org/newsfredtide05.htm>

[21] See Ron Brooks “Red Tide Kills Manatees” (posted Aug. 8, 2005) <http://selffishing.about.com/od/environment conservation/a/aa050409a.htm>

[22] See Longevity and Causes of Death, supra note 13.

[23] See Lelis, supra note 6.

[24] See Longevity and Causes of Death, supra note 13.

[25] See Manatee Mortality (visited Dec.1, 2006) <www.savethemanatee.org/mort.htm>

[26] See NatureWorks-Brown Pelican (Pelecanus occidentalis) (visited Nov. 1, 2006) <http://www.nhptv.org/natureworks/brownpelican.htm>

[27] See id.

[28] See All About Birds (visited Nov. 1, 2006)

<http://www.birds.cornell.edu/AllAboutBirds/BirdGuide/Brown_Pelican.html>

[29] See id.

[30] See id.

[31] See id.

[32]  Manatee Facts, supra note 9.

[33] See Keith Rizzardi, Toothless? The Endangered Manatee and The Florida Manatee Sanctuary Act, 24 FLA. ST. U. L. REV. 377, 384 (1997).

[34] J.M. Packard et al., Florida Cooperative Fish and Wildlife Research Unit, Report No.8, Manatee Response to Interrupted Operation of the Ft. Myers [(Fla.)] Plant (1995).

[35] Lelis, supra note 6.

[36] See Power Plants: Good or Bad for Manatees? SIRENEWS (International Union for Conservation of Nature and Natural Resources, Washington, D.C.), Apr. 1998, at 5.

[37] See Rex D. Khan, Environmental Jurisprudence: The Fate of the Manatees, 11 VILL. L.J. 31, 42 (2000) (“This lack of habitat diversification could be detrimental to the survival of the manatees as a whole.”)

[38] See Dirk Kempthorne and Michael Bogert, RX for the ESA: The Endangered Species Act At 30, SK056 ALI-ABA 223, 233 (2005).

[39] See Mike Vivoli, Shoot and Shovel & Shut Up, WASHINGTON TIMES, Nov. 22, 1992, at F1.

[40] See Erin Morrow, The Environmental Front: Cultural Warfare in the West, 25 J. LAND RESOURCES & ENVTL. L. 183, 194 (2005).

[41] See Kevin M. Shuler, Is the Endangered Species Act Endangered in the Age of Strict Federalism?  A Florida Perspective on the Recent Commerce Clause Challenges to the ESA, 57 Fla. L. Rev. 1135, 1136 (2005).

[42] Robin Rivett, Recent Enforcement Litigation & Endangered Species Act Primer, SK056 ALI-ABA 249,59 (2005).

[43] See U.S. Fish and Wildlife Service Awards $70 Million in Grants to Support Land Acquisition and Conservation Planning for Endangered Species (posted July 14, 2003) <http://www.fws.gov/southeast/news/2003/r03-071.html>

[44] See id.

[45] Id.

[46] See, e.g., Water Keeper Alliance v. U.S. Dep’t of Defense, 152 F. Supp.2d 163, 173 (2001).

[47] See id.

[48] See, e.g., Cantrell v. City of Long Beach, 241 F.3d 674, 676-80 (51 ERC 1993) (2001).

[49] 16 U.S.C.A. § 1533 (2006).

[50] 16 U.S.C.A. § 1362 (2006).

[51] See Robert A. Garrot et al., Trends in Counts of Florida Manatees at Winter Aggregation Sites, 58 J. WILDLIFE MGMT. 642, 653 (1994).

[52] See Lisa Holewa, Scientists Blame Strain of Red Tide for Death of Manatees, FT. LAUD. SUN SENTINEL, July 3, 1996, at 20A.

[53] See Bruce B. Ackerman et al., Trends and Patterns in Mortality of Manatees in Florida, in POPULATION BIOLOGY OF THE FLORIDA MANATEE 223, 252-53 (Thomas J. O’Shea et al. eds., 1995).

[54] Id. at 254.

[55] See 16 U.S.C. § 1533 (2006).

[56] See id.

[57] See id.

[58] 16 U.S.C. § 1536 (2006).

[59] 16 U.S.C § 1533 (2006).

[60] See Manatee Critical Habitat (visited Dec.1, 2006) <http;//www.fws.gov/northflorida/Manatee/Documents/Critical-Habitat-Manatee.pdf>

[61] See Maps of Federal Manatee Protection Areas (visited Dec. 1, 2006) <http://www.fws.gov/northflorida/Manatee/Documents/MPARules/index-federal-mpa-maps.htm>

[62] See FLA. MANATEE RECOVERY TEAM, FLORIDA MANATEE RECOVERY PLAN, REVISED RECOVERY PLAN 39-40 (1989).

[63] See U.S. Fish and Wildlife Service, supra note 43.

[64] Id.

[65] Id.

[66] See Natalie Barefoot-Watambwa, Who Is Encroaching Whom?  The Balance Between Our Naval Security Needs and the Environment: The 2004 RRPI Provisions as a Response to Encroachment Concerns, 59 U. Miami L. Rev. 577, 585 (2005).

[67] 16 U.S.C. § 1361 (2006).

[68] See Act effective June 6, 1893, ch. 4208, 1893 Fla. Laws 145.

[69] See Act effective May 30, 1939, ch. 19192, § 1, 1939 Fla. Laws 392.

[70] See ch. 28145, § 12, 1953 Fla. Laws 469, 492.

[71] See Florida Manatee Sanctuary Act, ch. 78-252, 1978 Fla. Laws 725 (codified as amended at Fla. Stat. § 370.12(2) (2006)).

[72] See Fla. Stat. § 370.12 (2006).

[73] See id.

[74] See Rizzardi, supra note 33, at 378.

[75] Id. at 387.

[76] See Fla. Admin. Code Ann. r. 62N-22.001(3) (2006).

[77] See Fla. Stat. § 370.12(2006).

[78] See Fla. Admin. Code Ann. r. 62N-22.002(6)-(7), (11)-(13) (2006).

[79] See Fla. Stat. § 372.072 (2006).

[80] See id.

[81] Lelis, supra note 6.

[82] Id.

[83] 219 F. Supp.2d 1001, 1021 (N.D. Cal. 2002).

[84] See Shuler, supra note 41.

[85] See id. at 1137-38.

[86] See id. at 1140.

[87] See 16 U.S.C. § 1361(6) (2006).

[88] Fla. Marine Contractors v. Williams, 378 F. Supp.2d 1353, 55 (M.D. Fla. 2005).

[89] See 374 F. Supp.2d 1116 (S.D. Fla. 2005). 

[90] Fla. Admin. Code Ann. r. 68A-27.005 (2006).

[91] See § 370.12 (2006). 

[92] 18 F.A.L.R. 1289 (Fla. Dep’t of Envtl Prot. 1995).

[93] Id. at 1296, 1305.

[94] Id. at 1297.

[95] See Longevity and Causes of Death, supra Note 13.

[96] See Shuler, supra note 41, at 1156.

[97] See Lelis, supra note 6.

[98] Khan, supra note 37, at 54.

[99] Id. at 57.

[100] Id. at 57.

[101] Id. at 57-58.

[102] See Rizzardi, supra note 33, at 399-400.

[103] See U.S. ARMY CORPS OF ENGINEERS, § 1135 PROJECT MODIFICATION MANATEE PROTECTION PLAN AT SELECTED NAVIGATION AND WATER CONTROL STRUCTURES IN CENTRAL AND SOUTHERN FLORIDA 17 (1995).

[104] See Rizzardi, supra note 33, at 395.

[105] Id. at 396.

[106] Id. (citing Thomas J. O’Shea & Catherine A. Langtimm, Estimation of Survival of Adult Florida Manatees in the Crystal River, at Blue Spring, and on the Atlantic Coast, in POPULATION BIOLOGY OF THE FLORIDA MANATEE 194, 207-09 (Thomas J. O’Shea et al. eds., 1995).

[107] See Emergency Red Tide Alert, supra note 20.

[108] Id.

[109] Id. at 403.

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