Federal Agency Conservation Obligations and Consultation Under §7 of the ESA

AuthorLawrence R. Liebesman/Rafe Petersen
Page 39
Chapter VI
Federal Agency Conser vation Obligations and
Consultation Under §7 of the ESA
The ESA mandates protection of endangered
and threatened species on an individual
species and project basis, and §7 of the ESA
addresses the obligations of federal agencies with
respect to conser vation and protection of species
listed as either endangered or threatened under
the ESA.1 Section 7(a)(1) sets out the primary pro-
visions on the species conservation obligations of
federal agencies,2 and §7(a)(2) addresses the basic
obligation of other federal agencies to “consult”
with the NMFS and the FWS before taking any
“action” that might have direct or indirect impacts
on listed species or designated critical habitat.3 Sec-
tion 7(a)(3) provides t hat a private applicant for
a federal action, e.g., permit or license, that may
aect areas with listed species can request a consul-
tation and evaluation of those impacts.4e consul-
tation procedures under §7 are quite detailed and
are intended to assure that federal agency action
“is not likely to jeopardize the continued existence
of any enda ngered species or threatened species or
result in the destruction on adverse modication of
[critical] habitat of such species,” unless a specic
exemption is granted for such action under §7.5
A. Section 7(a)(1) Conservation
Section 7(a)(1) directs all federal agencies, “in con-
sultation with and with the assistance of the Secre-
tary, [to] utilize their authorities in f urtherance of
the purposes of [the ESA] by carrying out programs
1. 16 U.S.C. §1536, ELR S. ESA §7. See Chapter III, supra,
for a discussion of the criteria and procedures for listing species
as “endangered” or “threatened” under the ESA.
2. 16 U.S.C. §1536(a)(1), ELR S. ESA §7(a)(1).
3. 16 U.S.C. §1536(a)(2), ELR S. ESA §7(a)(2).
4. 16 U.S.C. §1536(a)(3), ELR S. ESA §7(a)(3).
5. 16 U.S.C. §1635(a)(2), ELR S. ESA §7(a)(2).
for the conservation of [species listed as endangered
or threatened].”6 Agencies are required to ar-
matively act within the s cope of their authority
for the conservation of listed species. However,
the ESA does a ord agencies s ome discretion in
determi ning how conserv ation program s are to
be implemented.7
Currently, there are no regulations directly inter-
preting or implementing §7(a)(1). Joint regulations
adopted by the NMFS and the FWS only address
§7(a)(1) in the limited context of adverse impact on
listed species resulting from federal action.8 us,
the bounda ries of §7(a)(1) have been set by litiga-
tion9 and, as such, provide case-specic guidance.10
Courts have determined that, at a minimum,
§7(a)(1) imposes some ma ndatory duties upon
federal agencies.11 Historically, §7(a)(1) had been
interpreted to require substantially more from
federal agencies with respect to the restoration of
6. 16 U.S.C. §1536(a)(1), ELR S. ESA §7(a)(1).
7. Strahan v. Linnon, 967 F. Supp. 581, 596 (D. Mass. 1997) (not-
ing that the ESA “does not mandate particular actions be taken
by federal agencies to implement section 7(a)(1)”); Hawksbill
Sea Turtle v. Fed. Emergency Mgmt. Agency, 11 F. Supp. 2d
529, 543, 29 ELR 20100 (D.V.I. 1998) (quoting Strahan, 967
F. Supp. at 596).
8. See 50 C.F.R. §402.14(g)(6).
9. See, e.g., Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180-85, 8
ELR 20513 (1978) (discussing the overall conservation mandate
of the ESA); Defenders of Wildlife v. Andrus, 428 F. Supp. 167,
170, 7 ELR 20269 (D.D.C. 1977) (nding that the regulation
did not armatively address the FWS’ duty to minimize inad-
vertent killing of listed species); Pyramid Lake Paiute Tribe of
Indians v. Dep’t of the Navy, 898 F.2d 1410, 1416-1720 ELR
20572 (9th Cir. 1990) (noting that federal agencies have “af-
rmative obligations” under the ESA); Connor v. Andrus, 453
F. Supp. 1037, 1041 (W.D. Tex. 1978) (nding that the FWS
is charged with conserving species to a point to where they may
be delisted).
10. J.B. Ruhl, Section 7(a)(1) of the “New” Endangered Species Act:
Rediscovering and Redening the Untapped Power of the Federal
Agencies’ Duty to Conserve Species, 25 E. L. 1107 (1995).
11. See Tony A. Sullins, Endangered Species Act, Basic Practice Series
Page 40 Endangered Species Deskbook
endangered or threatened species.12 Subsequently,
the Ninth Circuit in the Pyramid Lake case found
that, while §7(a)(1) imposes armative conserva-
tion duties, “some discretion should be allowed”
to federa l agencies in fullling these responsibili-
ties.13 It has been said that §7(a)(1) emerges from
the Pyr amid L ake Paiute Tribe of Indians v. Dep’t of
the Navy decision a s “a little something extra” and
“in the absence of rm guidance by the biologi-
cal agencies, there is considerable leeway as to what
that something will be.”14
Initially, §7(a)(1) was construed by the courts
to impose duties on federal agencies when those
agencies were c arrying out their primary agency
missions.15 Section 7(a)(1) has been interpreted to
authorize an agency to refuse to execute a contract,16
to require implementation of alternative courses of
action that had signicant conservation benets,17
to require an agency to show it minimized harm to
endangered species in a manner consistent with its
primary obligations,18 and to require an agency to
consider §7(a)(1) when carrying out nonconserva-
tion activities.19 e Fifth Circuit may have signi-
cantly expanded the reach of §7(a)(1) in Sierra Club
v. Glickman.20
In Glickman , the Fifth Circuit found that §7(a)
(1) imposed an “armative duty on each federal
agency to conserve each of the species listed.21
Additionally, the court found that the U.S.
Department of A griculture (USDA) was required
to create or implement conservation programs con-
sistent with §7(a)(1).22 e USDA had not taken
any measures to fulll its conservation obligations
imposed by §7(a)(1) at the time of the litigation.23
Two district court cases contemporaneous with
12. See, e.g., Sierra Club v. Clark, 755 F.2d 608, 15 ELR 20391 (8th
Cir. 1985); Nat’l Wildlife Fed’n v. Hodel, 839 F.2d 694, 18 ELR
20646 (D.C. Cir. 1988); Carson-Truckee Water Conservancy
Dist. v. Sec’y of the Interior, 748 F.2d 523, 15 ELR 20026 (9th
Cir. 1984); Connor v. Andrus, 453 F. Supp. 1037, 1041 (W.D.
Tex. 1978); Defenders of Wildlife v. Andrus, 428 F. Supp. 167,
7 ELR 20269 (D.D.C. 1977).
13. Pyramid Lake, 898 F.2d at 1416-17.
14. See Oliver Houck, e Endangered Species Act and Its Imple-
mentation by the U.S. Depar tments of Interior and Commerce,
64 C . L. R. 277, 286 (1993) (dening the phrase “a
little something extra” as a New Orleans expression, also called
a “lagniappe,” such as a 13th donut in a baker’s dozen, or beads
on Mardi Gras Day).
15. See infra note s 19-23.
16. Carson-Truckee, 741 F.2d at 26061.
17. Pyramid Lake, 898 F.2d at 1417.
18. Defenders of Wildlife, 428 F. Supp. at 170.
19. Florida Key Deer v. Stickney, 864 F. Supp. 1222 (S.D. Fla. 1994).
20. 156 F.3d 606 (5th Cir. 1998).
21. Id. at 6 16.
22. Id. at 618.
23. Id .
the Glickman decision dened a gency obligations
in less ma ndatory terms24; however, t he agencies
in those cases had taken some steps to conserve
species. us, the courts were reluctant to reverse
agency decisions without a showing that the same
alternative method of conservation that would have
provided greater conservation benets should have
been adopted.25
However, in 2008, the court in Florida Key Deer
v. Paulison26 held that FEMA had failed to com-
ply with §7(a)(1). e Eleventh Circuit held that
FEMA’s program of incentives to communities to
conserve species “amounted to [ ] total inaction”
because there wa s “no evidence t hat even a single
community [had] developed or adopted” a conser-
vation plan.27
B. Section 7 Consultation Process
Section 7 has often been described a s the “hea rt”
of the ESA. Before engaging in any type of activit y
that may have direct or indirect eects on endan-
gered or threatened species or critical habitat, fed-
eral agencies must “consult” with the NMFS or
the F WS28 in order to evaluate the impact of t he
proposed agency action.29 is consultation may be
“formal” or “informa l” in nature. After rev iewing
the biological a ssessment prepared by the agency,
the NMFS or the FWS prepares a “biological opin-
ion” that ultimately determines whether the pro-
posed agency action is likely to have an adverse
impact on a listed species. If such an impact will
occur, the NMFS or the FWS will provide writ-
ten requirements for minimizing the impact on the
listed species in the form of an “incidental take”
statement. Section 7 requires consulting agencies
“to use the best scientic and commercial data
available,”30 and failure to consult properly may
result in the proposed activity being enjoined.31
24. Strahan v. Linnon, 967 F. Supp. 518 (D. Mass. 1997) (holding
that §7(a)(1) conservation plans were voluntar y measures);
Hawksbill Sea Turtle v. FEMA, 11 F. Supp. 2d 529, 29 ELR
20100 (D.V.I. 1998) (same).
25. Strahan, 967 F. Supp. at 596; Hawksbill Sea Turtle, 11 F. Supp.
2d at 543.
26. 522 F.3d 1133, 38 ELR 20083 (11th Cir. 2008) (slip op. at 28).
27. Id. at 1147.
28. Whether the agency must consult with the NMFS or the
FWS depends on the particular species aected. See 50 C.F.R.
§§223.102, 224.101 for species listed by the NMFS and 50
C.F.R. §§17.11, 17.12 for species listed by the FWS.
29. 16 U.S.C. §1536(a)(2), ELR S. ESA §7(a)(2).
30. Id.
31. See, e.g., Pac. Rivers Council v. Robertson, 854 F. Supp. 713,
724 (D. Or. 1993) (enjoining the underlying proposed action
for agency’s failure to initiate required consultation).

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