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

• Author: Lawrence R. Liebesman/Rafe Petersen
• Pages: 39-62

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.4 e 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

Obligations

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

(2001).

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).