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Overview of the U.S. Endangered Species Act

David S. Favre


Animal Legal & Historical Center
Publish Date:
2003
Place of Publication: Michigan State University College of Law
Printable Version

Overview of the U.S. Endangered Species Act

 

In 1973 the United State showed world leadership in the new area of environmental law with the adoption of the Endangered Species Act. Under this law species of the US and around the world are first identified as endangered or threatened. Then the government has the opportunity to identify critical habitat for the species. Because of being listed a species receives considerable protection from government and private actions.Indeed, the government is under a duty to seek the recovery of the species, to bring back the species from the risk of extinction. The reintroduction of the wolf in the Yellowstone area is an example of that process.

  • Full text of Endangered Species Act, without annotation, (147kb); or
  • Endangered Species Topic Page.
  • Legal citation information [ Public Law 93-205, December 28, 1973, 87 Stat. 884, history at 1973 US Cong. & Admin. News 2989. Amended 1976 - Pub. L. 94-359, 1976 USC&AN 1685; 1978 - Pub. L. 95-632, 1978 USC&AN 9453; 1979 - Pub. L. 96-159, 1979 USC&AN 2557; 1982 - Pub. L. 97-304, 1982 USC&AN 2807.]

A. Findings Purpose & Policy

Findings of Congress '2a

In the early 1970's Congress noted the state of affairs in the United States and around the world was that human activity was a significant pressure for extinction of species.

Congress also asserts the importance of these issues as reflected by the values that "species" represent to the American people:

(3) these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people;

Note that economic value is not listed. Even today in the United States there is little support for the idea that wildlife must realize an economic value in order to justify their preservation. However, in the past decade many developing countries, in conjunction with Japan, have asserted that recognizing and taking advantage of the economic value of endangered species is critical to their preservation. This represents a conflict of values and perspective which is critical to the today's international debate on endangered species. The premiere stage for the playing out of this conflict is in the CITES context. [See: CITES Topic Page; Favre, law review article].

The Findings then list a series of international treaties which reflect existing national obligations and provides a legal basis for the adoption of the law. As the US Federal Constitution does not delegate any authority to the federal government for dealing with animal issues, an alternative justification for the ESA must be found [See: Missouri v. Holland].  It is even a little curious that Congress did not assert as a justification for the law the need to control international and domestic trade in endangered species and their parts and products. If the law was being adopted today it most likely would assert this Congressional power.

Purposes ESA'2b

The first listed purpose in the Act  is the "conservation of ecosystems" (this may represent one of the first uses of this term in statutory language when it was adopted in 1973). This priority distinguishes the US law from many other national laws and domestic state laws that seek to protect individual members of endangered species but do no seek to protect the natural world in which the species live.

The second listed purpose is the "conservation of endangered and threatened species". Obviously some key terms for understanding this law will be Aconservation" and "endangered species."(see Section C below.)

The third listed purpose is the achievement of the purposes of the international treaties listed in section 2(a) of the ESA. Again, this is emphasis to the assertion of Congress's authority to adopt the law. 

Policy ESA§2c

This is an unusual section to have in a US law, but Congress sought to establish an over arching principle for all departments and agencies of the federal government, not just the two agencies that will have specific implementation responsibilities for the ESA (Dept. of Interior and Dept. of Commerce). The key language states that, Aall departments and agencies shall seek to conserve endangered species@ So the concept of conservation shall be the mandate of all aspects of the federal government. This would include the US Army, the energy agency and federal housing authority. Perhaps, it is better to say it is an added mandate to what ever an agency is already directed to do. This approach by Congress has one clear precedent, in the adoption of the National Environmental Protection Act of 1970 - which imposes the duty of developing an environmental assessment process on Aall agencies of the Federal Government.@ [NEPA ' 102 (2); 42 USC ' 4332 (2).] 

Note that control of private land use decision and the use of criminal law to control private acts is not discussed in any of these preliminary sections.

B. Key concepts, decision points and over arching principles.

Who are the Players

Three departments have management responsibilities under the law.  The principle agency is that of the Department of Interior, the office of Endangered Species. For marine mammals the Department of Commerce is the lead agency. For some plant importation/ exportation issues the Department of Agriculture is responsible. ESA§3(15)  Through out the law reference is made to the Secretary.  This is a reference to the chief administrative officer of the relevant agency.  Of course the Secretary is seldom personally involved in these issue, as the authority is delegated to working line agencies.

Conservation ESA'3(3)

This definition is a significant policy point for the Act and Congress chose to be very aggressive in a pro-species position. The goal of the Act is the conservation of species and species habitat. Under this definition, "to conserve" requires not only the stopping of population decline toward extinction, and maintenance of existing population levels, but the recovery of the population of the species so that it will no longer be qualified to be listed under the Act. This latter point is unusual, most laws seek to list and protect species but are silent on the issue of who has responsibility to help the species recover from its precarious ecological position. This law creates an affirmative duty on the federal government generally and the charged agencies in particular, for the recovery of listed species. Not only is the government precluded from doing actions which may increase the risk of extinction, but there is an obligation to do positive actions for the recovery of a species. The process by which the federal government conserves a species is through the adoption and implementation of Recovery Plans.

As a practical matter, Congress must reconfirm it=s degree of commitment to this goal thought the annual budget process. Congress must decide just how much resources will be made available to the Department of Interior and other departments for the accomplishment of the stated goal. Congress also must decide whether or not to fund recovery plans on a case by case basis.  Upwards of $1million dollars was spent on the recovery program for the gray wolf.

Species within the umbrella of this Act are clearly the Agolden species@ upon which human, and agency resources and energy will be focused. (Obviously there is an ecological perspective about being a listing species which suggest that being on the list is not a preferred position.) Therefore, the criteria under which a species will be listed are important to articulate.

Endangered Species ESA'3(6), Species ESA'3(16), Threatened Species, ESA'3(20)

[For the full List of Endangered and Threatened Species, see 50 CFR § 17.11(animals) &17.12 (plants).]

One of the most fascinating aspects of this law is that it does not contain a biological definition by which the federal agency can determine which species to put on the endangered list. Congress in effect dodged a key public policy issue and left it up to the judgment of the executive branch. The definition in the ESA§3(6) of an endangered species provides the phrase Ais in danger of extinction through out all or a significant portion of its range.@  The biggest unknown within the statutory language is what the term Ain danger@ might mean. Does it mean a 10% risk of extinction in ten years, or 95% risk of extinction in two years. The latter would be a much shorter list of species than the former. 

An additional point  not addressed in the definition is: does extinction mean literally the death of the last individual of the species any where on earth, or might it mean ecological extinction, that level of population below which a species is no longer performing their function or role in the local ecosystem?

The initiation of the listing process can be self generated within the agency, or may begin by citizen petition process.  The process for listing has become rather complex since there are many more species to consider than there are financial and human resources available. As will be discussed later, the factors which the Secretary of Interior must consider do not aid in defining when a species should be listed as endangered, rather, the law sets out what categories of information should be considered before making the decision. [See ESA'4(a)]. The Secretary has set out some details in published regulation.

The policy question that Congress had to answer was whether they wanted the Department of Interior to be able to provide protection and aid for population groups less than the world wide distribution of a species. Congress decided yes, thus expanding the reach of the ESA. In the ESA'3(16) the term "species" was defined to include Aany subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.@ The advantage of this approach is both genetic  and ecological. By having multiple groups of a species protected then genetic diversity is preserved as well as protection from any one group being harmed by  local disasters such as sudden floods or fires. This approach also preserves the ecological role of a species over as broad a physical range as possible. When the American eagle was listed as an endangered species under the ESA different population groups were treated differently. 

For example, in the 1970's the American eagle was facing significant declining population number in many states in the United States. However, the American eagle population in Alaska (and Canada) was robust and in no risk of extinction. Therefore, if the question was asked in the broadest geographic context: is the American eagle Ain danger of extinction?@  The the answer would clearly have been: no. However, if the question was: is the American eagle in danger of extinction in California or New Mexico, the answer was clearly yes. The government chose to list the eagle on a state by state basis, endangered in some, threatened in others and not list at all for Alaska.

Another policy decision by Congress dealt with the issue of whether or not they wanted to create a second category of species for those that had some of the risk profiles of an endangered species but did not yet fully qualify. This issue was decided in the affirmative and given the category name of Athreatened species.@  In ESA'3(20) the term phrase is defined as Aany species which is likely to become an endangered species within the foreseeable future.@ Again, the term species has the geographic context as discussed above. To the extent that the definition of the term endangered is a fuzzy term then obviously Alikely to become endangered" is even more unknowable. 

Critical Habitat ESA§3(5)

Remembering that "conservation" of the ecosystem as well as specific species is the prime purpose of the ESA, then the identification of which ecosystem, or habitat, the law should focus upon is of critical importance. The obvious focus for the ESA is that habitat which is important to a listed species, the species' Acritical habitat@. There are two subcategories of this term. First, land presently occupied by the listed species which is important for their continued existence. Secondly, that the larger track of land which will be important to the species as it increases in population, at least to the level of conservation, e.g. when the population has recovered sufficiently in numbers to be removed from the protection of the ESA. ESA§3(5)(A)(i) defines the first subcategory as Athe specific areas within the geographical area occupied by the species... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection.@ Note that both elements must be present in order for the Secretary to list an area as critical habitat  As with the issue of  defining an endangered species, the Act does not offer any suggestions as to how to define "essential" habitat.

The second subcategory of critical habitat is Aspecific areas outside the geographical area occupied by the species at the time it is listed ..., upon a determination by the Secretary that such areas are essential for the conservation of the species." As this might be considered an invitation to an agency to list all of the United States as essential for recovery of various species, a further subsection of the Act states Acritical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species." ESA'3(5)(C). 

Not addressed by Congress is the key issue:  when should a species be considered no longer threatened with extinction? How many different population groups with how many individuals in each, is the threshold for safety for the species? These questions must be answered  before the second category of critical habitat can be determined. While science will have to provide much information before a decision can be made, there are still public policy issues that have not been addressed.

The detailed provisions for determination of critical habitat are found in ESA§. In making a judgment about which lands to include in the federal listing the Secretary may, unlike in the process for the determination of which species is endangered, balance the cost and the benefits of listing certain tracks of land.  As clear ecological boundaries are often difficult to develop for a formal listing proposal, political boundaries can be used with populations being  identified by state or county. The list of adopted critical habitat can be found at 50 CFR §17.94.

A key policy point which Congress had to face was whether to limit the reach of the law to only federally owned land or whether to allow identification and listing of private and state owned land. The provisions as adopted do not distinguish the ownership of the land. The power of Congress to so identify and limit private land use has been questioned, but for the most part has been allowed by the courts. As will be explained in the enforcement section below, the ESA does impose limitations on uses of private land designated as critical habitat. 

Enforcement - by and against the government, ESA'7(a)(2), ESA'9(a), ESA'11(c), ESA'11(g)

Enforcement of the provisions of the ESA is realized through four distinct but overlapping approaches.

(a) restrictions on government projects that may adversely impact endangered species, 
(b) civil actions by the government against private parties,
(c) criminal actions against private parties, and 
(d) citizen suits against both the government or private parties for violations of obligations under the Act.

(a) ESA'7(a)(2) requires every federal agency to assure itself that its own actions are Anot likely to jeopardize the continued existence of any endangered species ..., or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary ... to be critical.@ As most federal agencies are not experts about impacts on endangered species the same section requires agencies to consult with the Secretary of the Interior about the existence of endangered species as well as the possible consequences of the proposed action. The administrative tool used in this consultation process is known as a biological opinion. ESA'7(b) & (c) 

This is one place where the teeth of Act are hidden but present and sharp. If, for example, the mandate of your agency is to build dams, and the agency has spend $100 million on the construction of a dam, when on a particular day an endangered species, a fish to be named the snail darter, is discovered up stream from the dam site, there can be no balancing of the interests (the benefits of completing the dam v. the benefits of saving the species).  The construction of the dam must stop in light of the certain destruction of the critical habitat of the fish in question.

(b) Restrictions on private actions are primarily found in ESA§9(a).  This section makes illegal a long list of actions related to a listed animal or plant: 

  • (A) import..., or export... from the United States; 
  • (B) take any such species; 
  • (D) possess, sell, deliver, carry, transport, or ship; 
  • (E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any such species; 
  • (F) sell or offer for sale in interstate or foreign commerce any such species; or 
  • (G) violate any regulation pertaining to such species

This list does not contain any exceptions or exemptions, although a number of them are provided for latter in the section. One way to examine the list is to consider who is in the typical chain of possession for illegal wildlife movement. Also, what actions are the most likely to be discoverable and provable in court. Some statutes simple make the killing or taking from the wildlife illegal, but what are the odds that a law enforcement person will be present when the animal is captured or kill. Illegal activity is much more likely to be detectable when the animal is in the transportation system or being offered for sale.

The prohibition against Ataking@ a specimen of a species  is an especially important category. As it includes inappropriate destruction of critical habitat even if the land is private. Whether this was an excessively expensive reading of the ESA has been argued long and hard by various private land owners who do not believe the provisions of the law should restrict what they do with their private land. In 1998 the issue was settled by the US Supreme Court. With full discussion and a dissent, the majority held that the regulation did not exceed the legislatively intended scope of the ESA.

A number of exceptions exist to the above, all inclusive, list of prohibitions:

  • exemption by Endangered Species Committee or the  "God Committee", ESA§(7)(g)- (the snail darter issue).
  • incidental take by federal actions, ESA§7(c).
  • national security issues, ESA§7(j)- (not used).
  • hardship ESA§10(a).
  • possession of a preexisting historical item, ESA§10(h)- (ancient ivory carvings).
  • certain actions by Alaskan Natives, ESA§.
  • Experimental populations, ESA§10(j)- (wolf re-introduction at Yellowstone National Park).

The Department of Interior has the authority to bring civil actions against individuals for violations of the ESA. There are three levels of violations, ESA§11(a):

  • knowing violations of major provisions - $25,000 fine.
  • violations of major provisions - $12,000 fine.
  • violation of minor provision, permits and regulations. - $500.

(c) Criminal law sanctions for the ESA are covered under ESA'11(b). Both jail time and fines can be imposed for violations of the law, permits and regulations; up to $25,000 or $50,000 depending on the violation and depending on whether or not the was a knowing violation.  Remember that criminal cases can only be filed by the Department of Justice or local federal district attorneys. Getting these individuals to give a priority to wildlife crime in the midst of the drug wars and other issues is often difficult.

The most common enforcement tool used by the federal government is the taking of the specimens possessed by individuals obtained in violation on the ESA. If a tourist returns to the United States with a sea turtle souvenir, or a ivory carving and the person is not part of commercial operation, then the most likely outcome is that the inspectors will simple take the item away from the individual without the filing of criminal lawsuits (see ESA§11(e)(4)(A)). 

(A) All fish or wildlife or plants taken, possessed, sold, purchased, offered for sale or purchase, transported, delivered, received, carried, shipped, exported, or imported contrary to the provisions of this Act, any regulation made pursuant thereto, or any permit or certificate issued hereunder shall be subject to forfeiture to the United States.

However the reach of the next provision, which requires a criminal conviction , ESA'11(e)(4)(B), is very broad

(B) All guns, traps, nets, and other equipment, vessels, vehicles, aircraft, and other means of transportation used to aid the taking, possessing, selling, purchasing, offering for sale or purchase, transporting, delivering, receiving, carrying, shipping, exporting, or importing ...shall be subject to forfeiture to the United States.

Criminal enforcement of this law is often done in tandem with other federal laws, primarily the US Lacy Act. [See Introduction to US Lacy Act.]

(d) Citizen suit provisions for the ESA are found in ESA'11(g). This unique provision found in a number of US federal environmental laws, allows citizens, citizen organizations and economic interest to file law suits against the federal government, state or local government or other private parties, when there has been a violation of an obligation of the law or a permits issued under the law. While a party still must meet the requirement of standing  See Salmon case, a number of other barriers to the federal courts such as minimum amount of controversy and diversity of parties, are not present. An additional benefit of this section is that under certain circumstance, if the plaintiff prevails in the law suit, they will be able to recover attorney and expert witness fees.

One of the most important powers that this section gives to private parties is the ability to force the government, primarily the Secretary of Interior, to perform its required duties under the law, when it might be politically difficult to do so. The spotted owl is a good example of a species which the federal government really did not want to list because of the serious consequence in land restricts, loss of area=s to log. But a citizen suit, forced the government to proceed down the listing road, not withstanding the political and potential economic consequences. 

While all of the above is important to understand, another corner of the world must be watched for a different perspective on enforcement issues. All of the above shall be of no consequence if the personal and financial resource are not provided for by Congress in its annual appropriation bill for the Department of Interior. The strongest provisions of a written law are without meaning if there are no police to enforce the law, no scientist to list species and no administrators to process permits.

C. Conclusion

How to assess the progress of the ESA is difficult for it is hard to decide on the criteria by which to judge the law. Clearly some species have received significant help because of the law. Many non endangered species  have been protected because of the higher visibility given to listed species. A few species have been able to recover to an extent that they have been taken off the list. But more species are added every year. As an additional positive outcome, in the decade of the 1990's more and more natural habitat received protection through programs related to the ESA.  It is the keystone legislation for protection of natural areas and species within the United States. It is emulated in other countries, but seldom it its entirety. 

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