The Endangered Species Act and Mineral Development in National Forests
| Jurisdiction | United States,Federal |
| Citation | Vol. 10 No. 1992 Pg. 2223 |
| Pages | 2223 |
| Publication year | 1992 |
1992, October, Pg. 2223. The Endangered Species Act and Mineral Development In National Forests
Mineral development projects on national forest land frequently encounter obstacles created by the Endangered Species Act ("ESA").(fn1) Congress passed the ESA in 1973 to protect the lives and habitats of wildlife species in danger of becoming extinct. The ESA imposes requirements on federal agencies, individuals and corporations. These requirements can potentially paralyze a mineral development project before completion or prohibit the project altogether.
This article discusses how the ESA affects companies contemplating mineral development in a national forest where an endangered species resides. It also examines various ways such companies can negotiate the ESA process with a minimum of delay and adverse publicity. To illustrate some of the common problems encountered by mineral development companies, the article compares two hypothetical projects of a company ("XYZ Corporation") on national forest land: an oil and gas drilling project and a gold mining venture on lands subject to federal hardrock minerals leasing.(fn2) The national forest is inhabited by the gray wolf (also known as the eastern timber wolf), a protected species under the ESA.
To determine the feasibility of mineral development in a national forest, a company or its counsel should refer to the U.S. Forest Service's Resource Management Plan for that forest. The National Forest Management Act, 16 U.S.C. § 1600, requires resource management plans to be prepared for all national forests to maximize resource efficiency under the multiple-use theory.(fn3) The resource management plan establishes the locations within the forest where mineral development is authorized, delineates where such development is prohibited (such as wilderness areas) and describes any current projects.
In this article's hypothetical situations, the gray wolf inhabits the national forest where XYZ Corporation has proposed oil and gas drilling and hard-rock mining. The ESA categorizes the gray wolf as endangered(fn4) and prohibits any entity (individuals, corporations or federal agencies) from "taking" an endangered species.(fn5) The term "take" is broadly defined by the ESA to include harassing, harming, shooting, wounding, killing, trapping and capturing.(fn6) The Fish and Wildlife Service ("FWS") has interpreted "harass" and "harm" to include indirect injury resulting from habitat disturbance.
In addition to the "taking" prohibition, the ESA places further duties and restrictions on federal agencies responsible for mineral development on national forest lands. Prior to any mineral development, XYZ Corporation must obtain from the Bureau of Land Management ("BLM")---with approval of the Forest Service---the appropriate federal oil and gas lease or federal mineral permit or lease(fn7) covering national forest land. The company also must obtain approval of its application for permit to drill with respect to the oil and gas operation(fn8) or to explore and mine with respect to the gold mining project.(fn9) In approving the project, both the BLM and the Forest Service must take precautions to ensure that they do not "jeopardize" the wolves or "adversely affect" the wolves' habitat.
The ESA prohibits federal agencies from taking actions which may jeopardize a listed species.(fn10) The prohibition against jeopardizing is similar to, yet independent from, the underlying and longterm objective of the ESA to conserve a protected species.(fn11) The courts have broadly defined "jeopardize" to include agency actions which may result in a decline in species population.(fn12) As a result, XYZ Corporation must demonstrate to both the BLM and the Forest Service that approval of a lease or permit will not result in a decline in the gray wolf population.
The ESA also prohibits federal agencies from acting in a way which could result in an "adverse modification" of a species' critical habitat.(fn13) The courts have broadly defined "adverse modification" to include any harm to the critical habitat. The likelihood of an ESA violation becomes greater when the proposed action is located within a critical habitat. For example, the Tenth Circuit Court of Appeals has enjoined the construction of a dam as a violation of the ESA, based primarily on the presence of critical habitat for the whooping crane.(fn14) Conversely, the Eighth Circuit Court of Appeals found that, although a listed species was located in an area, the construction of a dam did not violate the ESA, in part because of the absence of a critical habitat.(fn15)
The ESA also requires the FWS to compile recovery plans for listed species.(fn16) Recovery plans delineate reasonable actions necessary to protect a listed species. For example, the recovery plan for the eastern timber wolf sets out two essential criteria for protection and recovery of the wolf.(fn17) First, agencies must keep human intervention to a minimum. Second, the wolves' primary food source, deer, must be maintained at adequate levels. The BLM and the Forest Service must ensure that their actions regarding either project comport with these criteria.
In addition to...
To continue reading
Request your trial