Job's plight revisited: the necessity defense and the Endangered Species Act. .

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Job's plight revisited: the necessity defense and the Endangered Species Act. .

I. INTRODUCTION

Behold, I cry 'Violence!' but I get no answer; I shout for help, but there is no justice. He has walled up my way so that I cannot pass; and He has put darkness on my paths. (1) Founded on absolute faith in God as an omnipotent protector, the Bible relates a tale of numerous adversities suffered by Job, who believed, in the end, God would deliver salvation. (2) A similar plight has befallen ranchers, farmers, and landowners in the face of prohibitions under the Endangered Species Act (ESA or Act). (3) As wild animals cloaked in federal protection freely roam American soil, property owners are asked to entrust faithfully the protection of their interests to the U.S. government. (4) However, unlike God, who ultimately rewarded Job's unfaltering faith, (5) state and federal officials sometimes fail in their attempts to fulfill prescribed duties to individuals while protecting endangered and threatened animals. (6) Placing trust in the American government and the agencies that administer its laws, property owners may find themselves hog-tied while their possessions are foraged and destroyed by animals the government has christened indispensable natural resources.

Although the ESA prohibits "taking" an endangered or threatened species, (7) the statute expressly provides limited exceptions. (8) Section 7 of the ESA authorizes the Secretary of the Interior to grant exceptions where agency interests outweigh the need to protect species and no viable alternative exists. (9) The ESA also precludes criminal and civil liability where defense of self or others is proven. (10) Where animals create a nuisance, the ESA authorizes designated officials to intervene. (11) Finally, the ESA allow taking by permit. (12) However, unlike some environmental laws, the ESA remains silent regarding other common law defenses. (13) Where compliance with the Act fails to balance and protect the interests of a property owner. (14) the ESA fails to offer clear guidance for acceptable lawful recourse, essentially tying the private citizen's hands. (15)

One such defense for which the ESA remains silent is a choice-of-evils or necessity defense. (16) To assert the defense, a defendant must show, among other elements, that the legislature has not already balanced the evils. (17) While expressly providing common law defenses for protecting oneself or the safety of other humans, (18) the language of the ESA does not expressly provide a necessity defense. (19) Therefore, the availability of the defense for alleged violations of the ESA remains unclear. (20)

As a well-established tradition in American jurisprudence, the necessity defense is arguably implied in federal cases. (21) However, the Supreme Court recently affirmed that where a statute expressly provides for exceptions to the law, unless the necessity defense is included in those express exceptions the defense of necessity fails, (22) suggesting a shift in federal jurisprudence. The Court's decision is significant for all federal statutes that do not expressly provide for a necessity defense.

Can the ESA support a necessity defense for the otherwise illegal taking of endangered and threatened species? At first blush, statutory interpretation, legislative history, and judicial precedent appear to foreclose the defense's availability. (23) However, upon closer scrutiny, broad interpretation of the statute permits a court to consider necessity as a viable defense against alleged violations of the ESA taking prohibition. This Comment begins in Part II with a review of the ESA, concentrating on the section 9 prohibition of taking protected species and the statutory exceptions to liability, as well as exemptions authorized under section 7. Part II also describes the backlash for both endangered and threatened species, and private property owners as a consequence of strict interpretation and enforcement of the ESA. Part III examines the necessity defense in terms of its history in the common law, utility in the ESA context, and applicability to federal cases, especially in light of the recent Supreme Court holding in United States v. Oakland Cannabis Buyers' Cooperative (Oakland Cannabis). (24) Finally, by closely examining section 7, the regulatory language, and the ultimate goals of the Act, this Comment concludes that equitable treatment of private citizens requires that the courts consider a necessity defense in response to allegations of unlawfully taking a protected species.

II. THE ENDANGERED SPECIES ACT

In December 1973 President Richard Nixon signed into law the ESA, coined "the pit bull of environmental law." (25) Many regard the statute as the "most powerful environmental law in the nation." (26) Its enactment represented Congress's response to growing concern regarding the diminution and likely extinction of fish, plants, and wildlife indigenous to the United States. (27) The ESA purports "to provide a means whereby the ecosystems upon which endangere...

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