Section 4 of the Endangered Species Act: top ten issues for the next thirty years.

• Author: Rohlf, Daniel J.

1. INTRODUCTION II. A BRIEF LOOK BACK A. Eligibility for Protection B. Factors for Making Listing Determinations C. Species Conservation in the Face of Limited Resources D. Creating--and Implementing--a Well-Defined Path to Recovery E. The Need for Caution F. Summation III. THE TOP TEN CHALLENGES TO COME 1. What Does It Mean for a Species to Be "Threatened" or "Endangered," and Can Science Provide the Answer? 2. Will Recovery Plans Ever Play a Significant Role in the Real World? 3. Just What Elements of Biodiversity Should the ESA Conserve? 4. How Should Existing Efforts to Conserve a Species Affect Listing Decisions? 5. Can FWS Get Its Listing and Critical Habitat Designation Processes Back on Track? 6. What is the Future of Section 4(d)? 7. How Will the Secretaries Choose to Exercise Their Authority to Exclude Areas from Critical Habitat Designation? 8. Will the Services Develop and Implement Required Monitoring Systems? 9. Will Listed Species Ever Actually Recover? 10. Will We Remember Why? IV. CONCLUSION I. INTRODUCTION

   In the early years of the twenty-first century, everyone seems fond of lists. There are lists of who's hot and who's not, compilations of the best and worst dressed, the richest, the most powerful, the best-selling, the biggest, and on and on. One venerable list, however, owes its prominence not to popular culture's fondness for rankings, but instead to its seemingly ever-increasing influence at both regional and national levels. For thirty years, the list of species that receive powerful legal protections under the federal Endangered Species Act (ESA) (1) has influenced the decisions of everyone from property owners to U.S. presidents. Like A-list celebrities, threatened and endangered species often tend to create a stir wherever they appear.

   When a list becomes highly visible or has influence beyond the pages of a tabloid, people become interested not only in the list, but on who makes the list and the process the list-maker employs. (2) This has proven particularly true in the case of the ESA; fights over whether a particular species belongs on the lists, or whether a particular area serves as critical habitat for an imperiled creature, have been legion. Almost equally numerous--but more important overall--have been the controversies over the processes for declaring species threatened or endangered, for designating their critical habitat, and for compiling recovery plans with lists of actions needed to eventually remove species from the protected lists. Though sections 7 and 9 of the ESA contain the procedural and substantive requirements that ultimately shape decisions about actions that affect protected species, high profile public wrangling and litigation involving section 4's provisions for listing, critical habitat designation, recovery planning, and related requirements have equaled or perhaps even eclipsed the number of battles involving the law's prohibitions and other mandates.

   While disputes involving section 4 began before enactment of the statute itself, (3) three decades of implementing the statute have resolved a number of questions. Congress has stepped into the fray on four occasions, amending the law to deal with issues such as prescribing time lines for responding to listing petitions from the public, establishing a process for critical habitat designation, banning nonscientific considerations in listing decisions (but allowing the implementing agencies to consider such factors in designating critical habitat), specifying the contents of recovery plans, and requiring monitoring of species placed in the statute's "warranted but precluded" category. (4) Most efforts to further amend the ESA--all of which have failed since 1988--have also targeted section 4 for the most extensive changes.

   Agency regulations and policies have also cleared up aspects of the listing, critical habitat designation, and recovery planning processes. The United States Fish and Wildlife Service (FWS) and National Oceanic and Atmospheric Administration (NOAA) Fisheries (5) (collectively the Services) administer the ESA for the Secretaries of Interior and Commerce, respectively. Since it historically has listed far more species than its sister agency, FWS has developed policy manuals covering the agency's handling of petitions from the public for listing and critical habitat decisions or modifications, the listing process in general, and for recovery plan development. (6) The agencies have also developed policy documents interpreting key aspects of section 4, such as the 1996 policy interpreting their statutory authorization to list "distinct population segments" of vertebrate fish and wildlife, (7) and the 2003 directive governing the extent to which the agencies may consider future conservation efforts in making listing determinations. (8) However, many times in the past thirty years third parties have challenged agency interpretations of their duties and authorities under section 4. Some of the agencies' answers to ambiguities under this section, while providing a clear description as to how FWS and NOAA Fisheries will implement the law, are nevertheless likely to continue to meet with challenges from various parties with keen interests in resulting decisions.

   Finally, court decisions and scholarly commentary round out the thirty years of accumulated wisdom regarding the ESA's process for identifying species in danger of extinction and charting a course for their conservation. Courts have more or less definitively resolved questions ranging from the way to count deadlines specified for answering listing petitions to the prescriptive force of recovery plans. (9) In addition, a plethora of excellent commentary from legal, scientific, and management perspectives provides insight into the weighty decisions involved in identifying the specific components of the planet's biodiversity at which the federal government will aim its protections and conservation resources. (10)

   Given three decades of Congress, agencies, courts, and scholars addressing such decisions, one of the most surprising things about section 4 is how many issues still remain unresolved. Many years after Congress set out to outline a comprehensive strategy for conserving endangered and threatened species and the ecosystems upon which they depend, it sometimes seems that agencies' experiences in attempting to identify species and habitats to protect have simply spawned more and more difficult questions.

   After a brief analysis in Section II of how the years of implementing the ESA have shaped federal policies regarding listing, critical habitat designation, and recovery planning, this Article attempts to look out over the next thirty years, identifying and discussing the issues that are most likely to shape the future of federal policy for implementing section 4. To do so, Section III borrows a page from one of the country's most famous list-makers by compiling the "Top Ten Most Important Unresolved Issues in Section 4 of the ESA." While this list does not pack the comedic punch of Mr. Letterman's late night rankings, (11) it describes and analyzes questions that will likely set the direction of species conservation for many years (and also unlike the Late Show countdown version, this Article's list starts from number one and continues through number ten in descending order of the author's opinion of what are likely to be the most influential issues). As with many lists, some may disagree with the order of the rankings or feel that the list overlooks an important issue. The process used to proclaim this ranking was of course unilateral. However, there can be little doubt that the next thirty years will play a pivotal role in whether modern society can avoid, or at least ameliorate, what some have called the sixth global extinction--the first to result almost exclusively from the actions of a single species. (12) How scientists, managers, and policymakers answer the sorts of questions on the list below will have a substantial influence on the outcome of this struggle.

2. A BRIEF LOOK BACK

   Over decades of implementing section 4 of the ESA, FWS and NOAA Fisheries have grappled with the same sort of issues that all list-makers face: determining eligibility for appearance on a list, identifying criteria for use in making listing decisions, and dealing with the practical challenges of administering an influential rankings system. Lawmakers and federal judges have also occasionally become involved in this area, at times overruling the agencies. Examining how Congress, courts, and agencies have dealt with these issues, this Section discusses five general themes that to date have characterized federal efforts to single out for legal protection elements of imperiled biodiversity. Together, these points serve as important context for understanding the challenges facing similar federal efforts in the future.

   1. Eligibility for Protection

      The first issue is the most basic. Despite rhetoric in its purposes section about ecosystem conservation, the ESA provides legal protection only to groups of individual organisms and the habitat upon which they depend. This gives rise to section 4's towering challenge: Of the diversity of life on earth, what groupings of living things are eligible for inclusion on the protected fists?

      The planet harbors life-forms that, given humanity's current limited knowledge, are literally countless. Biologists and taxonomists have made limited headway in classifying this amazing amalgam of life using the concept of a "species" as their basic tool. Most people know this classification technique by its simplified rule of thumb that a species consists of a group of individuals that can sexually reproduce with one another to produce fertile offspring. (13) There is no doubt that the vast majority of lawmakers had in mind this general concept when in 1973 they enacted a biodiversity conservation scheme aimed at...