Federal and State Interaction Under the ESA

• Author: Lawrence R. Liebesman/Rafe Petersen
• Pages: 91-95

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Stat. 926 (repealed 1973).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.

2000).

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

§2(a)(5).

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).