ENDLESS WAR OR END THIS WAR? THE HISTORY OF LITIGATION UNDER SECTION 4 OF THE ENDANGERED SPECIES ACT AND THE MULTI-DISTRICT LITIGATION SETTLEMENTS

• Jurisdiction: United States

Federal Regulation of Cultural Resources, Wildlife & Waters of the U.S.
(Apr 2012)
CHAPTER 7A
ENDLESS WAR OR END THIS WAR? THE HISTORY OF LITIGATION UNDER SECTION 4 OF THE ENDANGERED SPECIES ACT AND THE MULTI-DISTRICT LITIGATION SETTLEMENTS
Ben Jesup ¹
Office of the Solicitor
Department of the Interior
Washington, DC

BEN JESUP is an attorney with the Solicitor's Office of the Department of the Interior, where he has worked for 16 years. He is the unofficial nationwide coordinator for listing and critical habitat litigation under section 4 of the Endangered Species Act. He also counsels the U.S. Fish and Wildlife Service and the Department on policy matters, regulation drafting, and decision making relating to section 4. He led or participated in Solicitor's Office teams that drafted a number of formal legal opinions related to section 4. During his time at Interior, Ben has participated in nearly all the major section 4 decisions and litigation, from the onslaught of critical habitat litigation beginning in the late 1990s, to listing decisions with respect to polar bears, bald eagles, wolves, etc. Most recently, he was a key member of the Interior team that negotiated a comprehensive settlement in the Multi-District Litigation regarding section 4 deadlines. In addition, Ben does a substantial amount of work on issues related to the Migratory Bird Treaty Act. He regularly teaches classes on listing and critical habitat and the MBTA at the National Conservation Training Center. Before coming to Interior, Ben was an associate at Covington & Burling, and clerked for the Supreme Court of New Hampshire. He graduated from Haverford College and NYU Law School. When not at the office, Ben is a serious birder, and an avid student of natural history, generally. (He is also very allergic to cats--rumors that this is due to the hundreds of millions of birds they kill in the U.S. every year are completely baseless.)

"War is only a cowardly escape from the problems of peace."

Thomas Mann

Call me Thucydides.² Some years ago--never mind how long precisely--having nothing particular to interest me in other areas of the law, I thought I would enter the fray of Endangered Species Act litigation. Although it has done nothing for my spleen or circulation, it has given me a unique opportunity to play the role of historian to the Listing Wars.³

It has often been remarked that the Endangered Species Act (ESA)⁴ is one of the most ambitious and far-reaching of environmental statutes anywhere in the world.⁵ Thus, the ESA endows the United States Fish and Wildlife Service (FWS)⁶ with considerable power over actions that may affect species that the ESA protects. Exercise of that power, however, requires compliance with a host of procedural and substantive requirements. Those requirements begin with FWS's

[Page 7A-2]

determination that a species should be protected by the ESA. That determination is governed by section 4 of the ESA.⁷

Given the extinction crisis being caused by the power of industrialized society as well as the sheer number of human beings on the planet, there are many species that might qualify for protection under the ESA. But because of the actual and perceived effect of listing under the ESA, those decisions, and even FWS's authority to make those decisions, are controversial. Thus, FWS is faced with significant, "problems of peace": a statute that places many demands on FWS, a political system that routinely fails to provide FWS with the resources necessary to meet those demands, and interested parties watching FWS's every move (or failure to move).⁸

Congress apparently anticipated that FWS would at times be either unable or unwilling to fully meet its responsibilities under the ESA, and provided the public with the ability to sue the government to force compliance with the mandates of section 4.⁹ Thus armed, and motivated by the power of the ESA, a variety of combatants have reacted to the "problems of peace" by launching the Listing Wars.¹⁰

Referring to the litigation over the listing program as warfare is not a new creative insight on my part. In 2003, Jason Patlis published an excellent article that used the listing moratorium, the listing budget cap, and the early battles of the Listing Wars as the case study for his discussion of legislative riders.¹¹ In it, he used the metaphor of warfare to describe the situation.¹² Better still, he nested that metaphor within a larger one, that of a play in five acts, a play that tells the story of epic battles. Mr. Patlis cleverly describes his fifth act as unfinished, awaiting the intervention of the deus ex machina for resolution of an apparently insoluble problem.¹³

No playwright, I will stick with the first metaphor. This history begins by examining the origins of the Listing Wars. It then follows the conflict through each of its major phases: the Battle of Overdue Listings, the First and Second Battles of Critical Habitat, and the Battle of the Mega-

[Page 7A-3]

Petitions. This history does not attempt to address in detail the myriad of substantive disputes relating to section 4, such issues arising from the key provisions of section 4 and related definitions--many of those battles have already attracted whole colleges of historians. The history concludes with an extended discussion of the Multi-District Litigation (MDL) settlement agreements that hold some chance of de-escalating the conflict, if not actually leading to a complete cessation of hostilities. The other parties to these settlement agreements are WildEarth Guardians (Guardians), and the Center for Biological Diversity (CBD)--over time, these organizations have become the most active and litigious environmental groups with respect to section 4 issues, in recent years filing considerably more section 4 lawsuits against FWS than all other plaintiffs combined. It remains to be seen whether these settlements truly resolve the problem described in Mr. Patlis's play; if so, I would argue that they are better characterized as flowing from the internal logic of the play, rather than an external deus ex machina.

I. Prelude to War

a. The ESA

During the Twentieth Century, there was an increasing realization that population growth, technological advances, and market forces were able to drive increasing numbers of species to extinction. As the myth of America's infinite resources¹⁴ slowly faded (a process not yet completed), there were fitful efforts to harness the power of the Federal government to forestall extinction. Wildlife law and federal conservation actions in the first half of the Twentieth Century focused largely on regulation of commercial exploitation of vulnerable species. The best examples of this were the Lacey Act of 1900,¹⁵ The Fur Seal Treaty (1911),¹⁶ the Migratory Bird Treaty Act (1918),¹⁷ and the Bald Eagle Protection Act (1940).¹⁸ There was also an effort to protect particular lands for the benefit of species conservation, beginning with President Theodore Roosevelt's designation of Pelican Island as a federal wildlife refuge.¹⁹

Notwithstanding those efforts, the threats to what we now call biodiversity continued to escalate. In the 1960s, Rachel Carson's Silent Spring, warning of the insidious threat that pesticides pose to wildlife, contributed to the growing understanding that merely regulating exploitation of species directly used by humans was inadequate to prevent additional extinctions.

These concerns found their ultimate legislative expression in the ESA. Passed in 1973, the ESA is one of a series of laws²⁰ resulting from the environmental awakening of that era, symbolized by the celebration of the first Earth Day in the 1970. The ESA superseded two attempts in the prior decade to create a broader federal law to stem extinction: the Endangered Species

[Page 7A-4]

Preservation Act of 1966 and the Endangered Species Conservation Act of 1969. These precursors to the ESA had significant limitations.²¹

What follows is a description of the relevant provisions of the ESA as it reads in 2012. Some of the amendments to the original text are discussed in the next section.

In contrast earlier laws, the ESA is not limited to a single class of animals, and instead covers all wildlife and plants.²² Also in contrast to earlier laws, it is not limited merely to prohibiting or regulating direct overexploitation, but contemplates a comprehensive program of conservation. Thus, it not only prohibits direct taking and killing of protected species,²³ but it also (1) prohibits "harm" of protected species,²⁴ defined by regulation to include habitat modification that kills or injures wildlife (even if indirectly),²⁵ (2) requires federal agencies to consult with FWS to ensure that they do not take actions that jeopardize listed species or adversely modifying habitat identified as critical (this is referred to as "section 7 consultation"),²⁶ and (3) provides federal agencies with authority to take positive actions to conserve listed species.²⁷

The prerequisite for application of this comprehensive program of conservation is listing as a threatened or endangered species. "Species," "threatened species," and "endangered species" are all defined terms in the ESA.²⁸ The genesis of the Listing Wars is found in the statute's procedures for making listing determinations, which make up the bulk of section 4.

Section 4(a)(1)²⁹ authorizes (or, arguably, mandates) FWS to determine whether species are threatened or endangered because of a number of enumerated factors. The determination must be made by regulation. Section 4(a)(3)(A)³⁰ requires that FWS designate critical habitat for the species, also by regulation, concurrently with listing it, "to the maximum extent prudent and determinable." "Critical habitat" is also a defined term,³¹ and this determination must also be made by regulation. Listing decisions must be made solely on the best scientific and commercial data available...