§19.2 - Federal Endangered Species Act of 1973

• Jurisdiction: Washington

§19.2 Federal Endangered Species Act of 1973

In the United States, wildlife conservation was historically controlled by the states. See Geer v. Connecticut, 161 U.S. 519, 16 S. Ct. 600, 40 L. Ed. 793 (1896) ([W]ild game within a state ... is not the subject of private ownership ...; and they may ... absolutely prohibit the taking of it, or traffic and commerce in it, if it is deemed necessary for the protection or preservation of the public good.) (quoting Ex parte Maier, 103 Cal. 476, 483, 37 P. 402 (Cal. 1894)).

As an exercise of its powers over interstate commerce, Congress began to legislate to protect wildlife in 1900, initially prohibiting interstate transport of wild animals and birds poached in violation of state law. Lacey Act, ch. 553, 31 Stat. 187 (1900).

Congress enacted the Migratory Bird Treaty Act of 1918 (MBTA), 16 U.S.C. §§703-712, to enforce a treaty between the United States and Great Britain regarding the protection of migratory bird species. The MBTA prohibits a person from taking, capturing, killing, or otherwise interfering with migratory birds unless permitted by the Secretary of the Interior. 16 U.S.C. §§703-704. Adopted in 1940, the Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C. §§668-668d, extends special protections to bald and golden eagles. The U.S. Fish and Wildlife Service (USFWS) has made important regulatory changes to the BGEPA in conjunction with the delisting of the bald eagle. See Protection of Eagles; Definition of Disturb, 72 Fed. Reg. 31,132 (June 5, 2007) (expanding the scope of take under the BGEPA); Eagle Permits; Take Necessary To Protect Interests in Particular Localities, 74 Fed. Reg. 46,836 (Sept. 11, 2009) (establishing new BGEPA incidental take permits). See §19.2(1)(b), below, for a discussion of the listing (and delisting) process. See also §19.2(3) for discussion of take under the ESA.

Before enactment of the Endangered Species Act of 1973, Congress passed several laws increasing protections for species with declining numbers. The Endangered Species Preservation Act of 1966, Pub L. No. 89-669, 80 Stat. 926 (1966), required the Secretary of the Interior to generate a list of species facing extinction and authorized federal acquisition of habitat for listed species. The Endangered Species Conservation Act of 1969, Pub. L. No. 91-135, 83 Stat. 275 (1969), expanded protections to some invertebrates, prohibited the importation of endangered species, and called for a higher degree of international coordination to combat endangered species trade. The Marine Mammal Protection Act of 1972, 16 U.S.C. §§1361-1423h, prohibits taking marine mammals as well as importing marine mammals and marine mammal products.

The Endangered Species Act (ESA), 16 U.S.C. §§1531-1544, was enacted in 1973. The USFWS and the National Marine Fisheries Service (NMFS) (collectively, the services), are charged with implementing and enforcing the ESA. In general, the NMFS has jurisdiction over marine species and the USFWS has jurisdiction over terrestrial and freshwater species. Westlands Water Dist. v. U.S. Dept of Interior, 376 F.3d 853, 873 (9th Cir. 2004).

The ESA requires development of species lists; encourages research and international cooperation; and prohibits import, export, and take of listed species. See generally 16 U.S.C. §§1531-1544. Unlike its precursors, the ESA also protects endangered plants. 16 U.S.C. §1541. To ensure that the status of some species improves to a point where listing is no longer necessary, the ESA also requires designation and protection of a listed species critical habitat and development of plans for the recovery of listed species. 16 U.S.C. §1533. Federal agencies must consult with the services to ensure that federal actions do not jeopardize listed species. 16 U.S.C. §1536. Finally, the ESA authorizes the services to work with nonfederal entities and private landowners to develop habitat conservation plans (HCPs) that include measures to avoid or mitigate impacts in exchange for permits authorizing the incidental take of listed species. 16 U.S.C. §1539.

(1) Section 4

The purpose of the ESA is to provide a program for the conservation of such endangered ... and threatened species, and the ecosystems upon which such species depend. 16 U.S.C. §1531(b). Section 4 of the ESA, 16 U.S.C. §1533, requires the services to create and maintain lists of threatened and endangered species and designate areas of habitat deemed essential for species conservation. The services are also required to develop and implement plans for listed species recovery. Id. Conservation includes all actions necessary to recover an endangered or threatened species to the point where it can be delisted. 16 U.S.C. §1532(3).

(a) What is a species?

The ESA defines a species as any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. 16 U.S.C. §1532(16). In determining whether a particular population constitutes a distinct population segment (DPS), the services consider both the population segments discreteness and significance relative to the remainder of the species. Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4,722, 4,725 (Feb. 7, 1996); see also Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1143-45 (9th Cir. 2007). A population is discrete if it is markedly separated from other populations ... as a consequence of physical, physiological, ecological, or behavioral factors, or by international borders if there are significant transboundary differences in conservation regulations applicable to the species. 61 Fed. Reg. at 4,725. The services also consider the biological and ecological significance of a population segment by evaluating factors such as whether the genetic characteristics of the DPS are considerably different from those of other populations of the same species and whether loss of the DPS would create a significant gap in the species range. Id. Under a separate policy issued by the NMFS, a Pacific salmon stock is considered a species for listing purposes if it represents an evolutionary significant unit. Policy on Applying the Definition of Species Under the Endangered Species Act to Pacific Salmon, 56 Fed. Reg. 58,612 (Nov. 20, 1991).

Caveat: The U.S. District Court for the District of Columbia invalidated a USFWS rule delisting a distinct population segment (DPS) for the gray wolf because the state's regulatory protections were unenforceable, suggesting some courts will look beyond the definition of DPS when ruling on decisions to delist. Defs. of Wildlife v. Jewell, 68 F.Supp.3d 193 (D.D.C. 2014), aff'd in part, rev'd in part, 849 F.3d 1077 (D.C. Cir. 2017). But see Defs. of Wildlife v. Jewell, 815 F.3d 1 (D.C. Cir. 2016) (withdrawal of proposal to list lizard not arbitrary and capricious even though based on voluntary state conservation plan).

(b) Listing process

The services list endangered and threatened species by regulation and may do so either on their own initiative or in response to a petition filed by an interested person, including individuals, corporations, and public and private organizations, but excluding federal entities. 16 U.S.C. §1533(b)(3); see also 50 C.F.R. §424.14. In September 2016, the services issued a final rule revising 50 C.F.R. § 424.14, governing the petition process. 81 Fed. Reg. 66,462 (Sept. 27, 2016). The revised regulation clarifies the procedures the federal agencies will use to evaluate petitions, to require advance notice to state agencies for some petitions, to require petitioners to provide all facts pertaining to the species, and to eliminate the requirement for the federal agencies to respond within 30 days.Under the ESA, a species is endangered when it is in danger of extinction throughout all or a significant portion of its range. 16 U.S.C. §1532(6). A species is threatened if it is likely to become an endangered species within the foreseeable future throughout all or a significant part of its range. 16 U.S.C. §1532(20).

The services consider the following factors when making a listing determination: (1) the present or threatened destruction, modification, or curtailment of [the species] habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence. 16 U.S.C. §1533(a)(1). The U.S. Court of Appeals for the D.C. Circuit's decision on the polar bear listing is significant for future listings based, in part, on future impacts to species from climate change. In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litig., 709 F.3d 1 (D.C. Cir.), cert, denied sub nom Safari Club Int'l v. Jewell, 134 S.Ct. 310 (2013). In that case, the D.C. circuit court concluded the polar bear was properly listed despite competing opinions on whether the bear was likely to be endangered in the foreseeable future due to anticipated decreases in sea ice habitat. Decisions must be made solely on the basis of the best scientific and commercial data available. 16 U.S.C. §1533(b)(1). Economic impacts of a listing decision are not a consideration. Home Builders Assn of N. Cal. v. U.S. Fish & Wildlife Serv., 268 F.Supp.2d 1197, 1225-26 (E.D. Cal. 2003).

Lists of endangered and threatened species are published in the Federal Register. The services are required to review listing decisions at least once every five years to reevaluate the status of the species or DPS and determine whether delisting or a status change is warranted. 16 U.S.C. §1533(c). The ESA also requires the services to monitor delisted species for at least five years. 16 U.S.C. §1533(g)(1).

Substantive challenges to listing...