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 armative conserva-
tion duties, “some discretion should be allowed”
to federa l agencies in fullling 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 signicant conservation benets,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
In Glickman , the Fifth Circuit found that §7(a)
(1) imposed an “armative 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 fulll 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) (dening 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 dened 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 benets should have
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-
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 eects 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 scientic 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 aected. 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).
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).