The Endangered Species Act: impact of section 9 on private landowners.

• Author: Gidari, Albert
• Position: Endangered Species Act at Twenty-One: Issues of Reauthorization

1. INTRODUCTION

   Twenty years ago, Environmental Law published an article about "a new and nearly unheralded law for the protection of endangered species"(1) enacted on December 28, 1973-the Endangered Species Act (ESA).(2) The article made this prescient observation concerning the possible impacts of section 9 on private landowners:

   The alarming question here is what does "harass" or "harm" mean? Is it limited to specific acts directed toward harassing or harming individual creatures? That construction would be consistent with the other terminology used, i.e., "pursue, hunt, shoot, wound, kill. . . ."

   However, since one of the purposes discussed earlier was to preserve the ecosystems of endangered species, it is conceivable that the government could argue that destruction of habitat for whatever reason, including logging, could be harassment and harmful to endangered species. As applied to private land, such an interpretation would appear to be on the fringe area of possible interpretations because of both the wording of the ESA itself and the world-stopping effects. Consider here that if the spotted owl was determined to be endangered and that if it needs 200 to 300 acres of old- growth Douglas fir per mating pair, how many acres of timber could be tied up if the latter interpretation was used?

   Fortunately, the legislative history does not support such a far-reaching interpretation.(3)

   In the twenty years since the ESA's passage, the "far-reaching interpretation" has become the standard.(4) Now, the idea has gained common currency that, as a matter of law, a species of wildlife could be "harmed," and therefore "then," by otherwise lawful activities on private lands that expose the protected wildlife to an increased chance of predation or result in a general shortage of habitat for nesting, breeding, or foraging.(5) At first, the idea was made manifest only through express threats of prosecution against both the prospective private developing landowner and the prospective state or local permitting agency.(6) More recently, the threats have become real prosecutions and the federal government has taken a more aggressive approach to habitat modification cases.(7)

   The government's more aggressive tactics demonstrate that the section 9 prohibition against taking wildlife has evolved into a de facto biology-is-law rule requiring private landowners to keep large areas of their land in an undisturbed state to avoid "harming" any threatened or endangered species. Today's interpretation of the reach of section 9 is the manifestation of an ascendant biological logical view based on speculative conservation biology principles rather than the law.(8) Biology, not law or deliberate public policy decision-making, drives the ESA. One consequence of this transformation is to empower biologists working for the government to decide what constitutes a "take" as a matter of law. In one case now pending in federal court, the government's biologist actually offered an expert opinion that a prohibited take in violation of section 9 of the ESA would occur if certain timber was harvested.(9)

   Did Congress, however, intend to have section 9 applied in a way that deprives private landowners of the use of their property on a grand scale, leaving it to a cadre of agency biologists to interpret the ESA or to define when a criminal violation of section 9 occurs?(10) The question is substantial for private landowners. Individuals may be subjected to criminal liability for otherwise lawful land use activities undertaken miles away from a known protected species because some government biologist claims that a member of the protected species needs the individual's land--habitat, that is--for breeding, foraging, or nesting.

   Further, the biology-is-law application of section 9 has resulted in unintended consequences and has had a perverse effect on efforts to conserve species. Because of the habitat modification restrictions now imposed under section 9, landowners are taking pains to manage their lands so that protected, or potentially protectable, species do not occupy the site. This is not surprising, given that many landowners feel that when they are required to manage their lands exclusively for the benefit of wildlife, they are being forced to bear alone public burdens that in all fairness should be borne by the public as a whole.(11)

   The purpose of this Article is not to make a Luddite attack on science or to suggest that biology should not play a role in formulating public policy and law. Rather, the Article argues that sound biology should inform the law, not supplant it. Part II illustrates the impact of the biological interpretation of section 9 of the ESA on private landowners. Part III examines how section 9 erroneously came to include within its purview the concept of habitat modification as a form of take without proof of actual death or injury to any particular member of a protected species. Part IV concludes that if the ESA is to be salvaged, and species are to saved, some balance must be struck that comprehends the impact of section 9 on private landowners.

   2. ILLUSTRATING THE IMPACT OF SECTION 9 ON LANDOWNERS

   1. The Northern Spotted Owl

   The government has used a variety of methods to effectuate its biology-is-law rule for enforcement of section 9 of the ESA, but nowhere are the government's efforts more transparent or the impact of section 9 on private landowners greater than in the case of the northern spotted owl.

   The northern spotted owl (strix occidentalis caurina) was listed as a threatened species on June 26, 1990.(12) In July 1990, Region 1 of the FWS promulgated "informal" guidelines for timber harvesting and related activities in and around known spotted owl sites.(13) The Guidelines were promulgated without the benefit of public notice, comment, or other rule-making procedures required under the Administrative Procedures Act (APA).(14)

   The FWS gave notice that any person carrying out activities "in a manner inconsistent with the guidelines" would be subject to criminal investigations for violating the takings provision.(15) The FWS established a biological standard in the Guidelines to define when a take of the spotted owl by habitat modification would occur.(16) The guidelines effectively prohibit any harvesting activity within a circle centered on a nest site, or center of activity with a radius between 1.2 to 2.2 miles, depending on the location, if such activity results in less than:

   * seventy acres of the best available suitable owl habitat encompassing the owl activity center;

   * 500 acres of suitable habitat within a 0.7-mile radius of a nest site or activity center; and

   * forty-percent coverage with suitable owl habitat of the entire circle.(17)

   To put this so-called 70-50040 rule in perspective, the guidelines imposed owl protection circles on lands covering as much as 9,900 total acres of publicly and privately owned timberland in the Olympic Peninsula, and mandated that all persons "[a]void any harvest activity" on 3,960 acres within the circle under penalty of prosecution for an unlawful take.(18) At today's market value, timber prices can range from $10,000-$40,000 per acre, depending upon the wood species.(19) Thus, using simple mathematics, the direct economic impact of each owl circle can exceed $160,000,000.(20)

1. Sweet Home Challenge to the Guidelines

   The substantive and procedural validity of the guidelines was challenged by a collection of grassroots organizations as well as individuals that had experienced the impact of the guidelines first hand. In Sweet Home Chapter of Communities for a Great Oregon v. Turner,(21) the plaintiffs sought declaratory and injunctive relief against the further use or enforcement of the guidelines, which, the plaintiffs alleged, were promulgated in violation of the ESA and the APA.(22) The plaintiffs and those they represented summarized their damages as follows:

   The threat of "taking" prosecutions created by the guidelines has

   caused significant economic injuries to timber-dependent families,

   communities and businesses throughout the owl's range. These

   economic injuries have in turn caused social injuries such as decreased

   revenues for schools and other public services and increases

   in domestic violence, child abuse, drug and alcohol abuse and

   homelessness.(23)

   On October 2, 1991, while the case was pending in federal court, the FWS rescinded the guidelines.(24) The government then moved to dismiss the suit as moot, stating that the "FWS has not simply rescinded application of the guidelines in a particular instance, it has finally and without limitation rescinded them in their entirety."(25)

   In opposing the motion, the Sweet Home II plaintiffs questioned whether the guidelines truly had been abandoned, but the government again represented to the court that there was no danger that the guidelines would be applied or enforced again, stating:

   [P]laintiffs' contention that FWS continues to rely on the standards

   in the Guidelines is unsupported by any evidence whatsoever and is

   directly refuted by FWS's statement in writing that the Guidelines

   have been rescinded . . . . In the absence of some evidence that

   FWS's recision is anything other than a complete withdrawal, we

   contend that this case does not involve a sufficiently concrete controversy

   to warrant judicial review.(26)

   Based upon the FWS's unequivocal revocation of the guidelines, the court granted the government's motion on February 27, 1992.(27) In dismissing the suit as moot, the court stated:

   [P]laintiffs are seeking to prevent enforcement of the Guidelines.

   That is precisely what FWS has now done: FWS declared that the

   Guidelines were rescinded, thereby clearly indicating its intention

   no longer to apply or enforce them.(28)

   Notwithstanding the express representation to the court that the guidelines would no longer be applied to any landowner or governmental entity, and the court's express...