An endangered theory: vicarious liability under the Endangered Species Act.

• Author: McLaren, William M.

1. INTRODUCTION II. THE GENESIS OF ESA VICARIOUS LIABILITY A. Liability Rooted in the Implications of Agency Actions B. Liability for Agency Activity That Has Resulted in Past ESA Violations III. EVOLUTION OF ESA VICARIOUS LIABILITY A. The Reasoning and Statutory Basis of ESA Vicarious Liability B. Broader Application of ESA Vicarious Liability Resulting in Outright Failure C. The Modern Understanding of ESA Vicarious Liability IV. MODERN ESA VICARIOUS LIABILITY CASES A. Dismissal of Recent ESA Vicarious Liability Claims B. ESA Vicarious Liability Claim in the Context of a Non-Endangered Species V. Vicarious Liability in the Context of Other Animal Protects Acts A. Statutory Differences Between the Bird Acts and the ESA Foreclose Vicarious Liability. B. Absence of Citizen Suit Provision in the Bird Acts Undermines ESA Vicarious Liability Application C. ESA Vicarious Liability in Pure ESA, Hybrid ESA, and Non-ESA Claims VI. CONCLUSION I. INTRODUCTION

   In the domain of endangered and threatened species protection, liability is a lynchpin issue for those seeking to enforce the Endangered Species Act (ESA) (1) against potentially responsible individuals. (2)

   The theory of governmental and municipal vicarious liability attached to ESA violations by regulated parties has experienced fluctuating popularity among citizen plaintiffs in ESA cases. As this analysis will show, the theory has steadily declined in effectiveness since its inception in the late 1980s. ESA vicarious liability applies fittingly to situations in which a member of a threatened or endangered species is harmed or "taken" by an indiscrete or untraceable entity in the course of performing an activity subject to some degree of government oversight. (3) In such cases, rather than bring suit against a random boater responsible for colliding with an endangered manatee, or an indiscernible landowner who applied a pesticide that subsequently destroyed a threatened ferret population, plaintiffs may instead choose to pursue claims against the governmental entity charged with regulating the activity. In such cases, the governmental defendant is often responsible for approving the legality of, or providing a permit for, the detrimental activity that ostensibly resulted in the ESA violation. (4)

   The following is a synopsis of cases that have contributed to the evolution of ESA vicarious liability and have served as vehicles for the theory. (5) The anatomy of the theory has changed over time, so several distinct periods in its growth will be considered. First, this Comment will discuss the cases from which the theory originated. Second, emphasis will shift to several cases that applied sophisticated versions of ESA vicarious liability and offered detailed explanations of its function. Then, modern day applications of the theory will be used to illustrate its current potency or, depending on interpretation, lack thereof. Finally, the Bald and Golden Eagle Protection Act (6) and the Migratory Bird Treaty Act will be considered for their potential viability as hosts for theories that parallel ESA vicarious liability.

2. THE GENESIS OF ESA VICARIOUS LIABILITY

   Two cases are usually cited as the supposed source of ESA vicarious liability: Defenders of Wildlife v. EPA (Defenders) (8) and Sierra Club v Yeutter (Yeutter). (9) The Defenders court held that the decision of the U.S. Environmental Protection Agency (EPA) to register certain pesticides for permissible use rendered it liable, as those same pesticides resulted in takes of protected species. (10) Similarly, the Yeutter court held the U.S. Forest Service (USFS) liable for takes resulting from private timber harvesting activities carried out pursuant to a plan created by the agency. (11)

   1. Liability Rooted in the Implications of Agency Actions

      Defenders, a 1989 ESA case brought in the Eighth Circuit, received special attention due to the court's treatment of an oft-repeated agency argument--that plaintiffs are limited to seeking damages and injunctive relief from agencies only under a controlling statute. In Defenders, relief would have been limited to deregistration of strychnine as a usable pesticide under the controlling statute, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), (12) and not the ESA. (13) The Eighth Circuit specifically rejected that position and held that FIFRA "does not exempt EPA from compliance with the ESA requirements when EPA registers pesticides." (14) Based on this, the court held that the ESA citizen suit provision permits plaintiffs to sue EPA to enjoin alleged violations of the ESA,-even when agency actions comply with pertinent FIFRA provisions. (15)

      Defenders formed clearly drawn precedent. It allowed plaintiffs to impute ESA liability onto agencies even in a situation where a third party had actually committed the take. (16) In Defenders, EPA was performing a normal agency function: registering a pesticide under, and in compliance with, FIFRA. The implications of Defenders, then, contribute to and go well beyond Yeutter's basic premise that agencies can be liable under the ESA for effectively prescribing activities likely to result in a take. On balance, Defenders showed that agencies can be held liable under the ESA when a completely independent third party actually commits the take in question, so long as the agency sanctioned the take in some way. (17)

   2. Liability for Agency Activity That Has Resulted in Past ESA Violations

      In Yeutter, the Fifth Circuit upheld a district court decision imposing ESA liability on USFS. (18) The court used simple reasoning to apply well-explored ESA principles to a somewhat novel situation. (19) The Yeutter court effectively increased the ambit of ESA pleading requirements from demanding party-specific allegations to allowing nebulous arguments against tentatively connected entities. (20) Given this new breadth of permissible allegations, vicariously liable governmental entities were brought into the fray. (21)

      In reviewing the plaintiffs' challenge to the lower court's decision, the Fifth Circuit considered and relied upon the fact that district courts have authority to enjoin agencies from outright violations of ESA's Section 7. (22) However, a primary source of contention in Yeutter derived from the fact that the agency was not in literal violation of Section 7. Instead, USFS was simply sanctioning planning methods that were allegedly resulting in takes." ' The Fifth Circuit, after considering imposing an injunction for direct violations, determined that "the court may eryoin the agency from continuing activity that has resulted in past violations." (24) By doing this, the Fifth Circuit extended its reach just slightly past the actual to the vicarious violators, and held USFS liable, thereby fundamentally changing the scope of ESA claims going forward.

      With this established, and because the agency was actively approving and promulgating plans with measurable effects on endangered species, the Fifth Circuit determined that agency approval itself was an ESA violation. (25) This was the first of many subsequent changes to the basic nature of ESA liability. It was also the origin of ESA vicarious liability.

3. EVOLUTION OF ESA VICARIOUS LIABILITY

   After Defenders and Yeutter set the stage for successful ESA vicarious liability claims against governmental entities, a host of subsequent cases inched the jurisprudence closer to a pure version of ESA vicarious liability. Most notable among these are Strahan v. Coxe (Strahan), (26) Loggerhead Turtle v. Volusia County Council (Loggerhead Turtle),2' United States v. Town of Plymouth, Massachusetts, (28) and, more recently, Animal Protection Institute v. Holsten (Holsten). (29)

   1. The Reasoning and Statutory Basis of ESA Vicarious Liability

      In 1997's Strahan, claims were brought under both the ESA and the Marine Mammal Protection Act. (30) The violation in question stemmed from a Massachusetts regulatory scheme, imposed by the Massachusetts Division of Marine Fisheries (DMF), which licensed and authorized gillnet and lobster pot fishing. (31) The First Circuit reviewed a lower court's finding that DMF's regulations violated the ESA. In doing so, the court cited Yeutter, among other cases, and ultimately reached a parallel conclusion. (32)

      After reciting a litany of ESA vicarious liability case law, including many cases mentioned in this analysis, the First Circuit opined on the advancement and acceptance of the theory. Initially, it noted that the district com! found DMF vicariously liable and had based its conclusions on "two provisions of the ESA read in conjunction. The first relates to the definition of the prohibited activity of a 'taking,' see [section] 1538(a)(1)(B), and the second relates to the solicitation or causation by a third party of a prohibited activity, such as a taking, see [section] 1538(g)." (33) In the following statement, the First Circuit fashioned a concise summary of the basis for ESA vicarious liability:

      The [ESA] not only prohibits the acts of those parties that directly exact the taking, but also bans those acts of a third party that bring about the acts exacting a taking. We believe that ... a governmental third party pursuant to whose authority an actor directly exacts a taking of an endangered species may be deemed to have violated the provisions of the ESA. (34) Functionally, Strahan was a direct product of its predecessor cases--primarily Defenders and Yeutter. The court's opinion, as illustrated above, practically parroted the teachings of those cases but clarified their lessons and offered a cognizable explanation of this emergent theory.

   2. Broader Application of ESA Vicarious Liability Resulting in Outright Failure

      In the initial few cases in which ESA vicarious liability was employed against governmental entities, clear trends were created and clearer lines were formed. The rule created by the First Circuit in Strahan illustrates that fact...