Federal and State Interaction Under the ESA

AuthorLawrence R. Liebesman/Rafe Petersen
Page 91
Chapter X
Federal and State Interaction Under the ESA
As of November 2008, the FWS reported
1,358 species of animals and plants listed as
either endangered or threatened,1 with an
additional 56 proposed for list ing a nd 251 ca ndi-
date species.2 With roughly one-half of these spe-
cies having at least 80% of t heir habitat on private
lands,3 it is evident that an eective endangered
species conservation program is dependent upon
a healthy and cooperative interaction between the
federal government and private landowners, com-
munities, and tribes, with states serving as inte-
gral catalyzing agents to the species conservation
eort.4 With the passage of the ESA in 1973, Con-
gress sought to maximize t his relationship through
a number of key provisions and programs, at the
same time that it greatly expa nded the federal
role in the stewa rdship of wildlife throughout t he
United States.
A. The Federal Role Enhanced
e Endangered Species Protection Act of 1966
and the Endangered Species Conservation Act of
19695 essentially only oered protection for endan-
gered species occurring/residing on federal lands.
1. U.S. Fish & Wildlife Service, reatened and Endangered Spe-
cies System, http://ecos.fws.gov/tess_public/TESSBoxscore (last
visited Nov. 11, 2008).
2. U.S. Fish & Wildlife Service, reatened and Endangered Spe-
cies System, http://ecos.fws.gov/tess_public/ (last visited Nov.
11, 2008).
3. Id.
4. Under the ESA, “State” is dened as “any of the several States,
the District of Columbia, the Commonwealth of Puerto Rico,
American Samoa, the Virgin Islands, Guam, and the Trust Ter-
ritory of the Pacic Islands.” 16 U.S.C. §1532(17), ELR S.
ESA §3(17).
5. e Endangered Species Protection Act of 1966 established a
National Wildlife Refuge System and prohibited the disturbance
of animals or habitat within that system. Pub. L. No. 89-669, 80
Stat. 926 (repealed 1973). e Endangered Species Conservation
Act of 1969 required the Secretary of the Interior to develop
a list of endangered species and prohibited the importation of
However, in enacting the ESA in 1973, Congress
extended the reach of federal law to prohibit the
taking of endangered and threatened species on
all land in the United States, whether it be state-
owned, municipality-owned, or privately held.6
e clear and unprecedented objective of the 1973
ESA was to address species extinction as a national
concern and in the process, to “bet ter [safeguard],
for the benet of all citizens, the Nation’s heritage
in sh, wildlife and plants.”7
Congress undertook this bold expansion of t he
ESA, like so much other social and economic leg-
islation, through its Commerce Clause8 authority
to “regulate Commerce with foreign nations and
among the several States....”9 For the better part
of the 20th century, Congress’ Commerce Clause
authority was broadly construed and deferentially
reviewed by the courts, with little distinction given
between activities impacting interstate commerce,
whether they be directly or indirectly.10 In 1995,
however, the U.S. Supreme Court, for the rst
time in almost 60 years, struck down certain fed-
eral legislation as unconstitutional under the Com-
merce Clause. In United States v. Lopez,11 the Court
said species absent a permit. Pub. L. No. 91-135, 83 Stat. 275
(repealed 1973).
6. See Gibbs v. Babbitt, 214 F.3d 483, 30 ELR 20602 (4th Cir.
7. See 16 U.S.C. §1531(a)(3), ELR S. ESA §2(a)(3) (“these
species of sh, wildlife, and plants are of esthetic, ecological,
educational, historical, recreational, and scientic value to the
Nation and its peo ple”); id. §15 31(a)(5), ELR S. ESA
8. U.S. C. art. 1, §8, cl. 3.
9. Id.
10. is deferential standard of review was established by the Court
in the seminal 1937 case of National Labor Relations Board v.
Jones and Laughlin Steel Corp., 301 U.S. 1 (1937), wherein the
Court held that intrastate activities having a close and substantial
relationship to interstate commerce such that their control is es-
sential or appropriate to protect interstate commerce are within
the scope of the Commerce Clause.
11. 514 U.S. 549 (1995).

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