LISTING AND CRITICAL HABITAT DECISIONS AND RELATED ISSUES UNDER SECTION 4 OF THE ENDANGERED SPECIES ACT

JurisdictionUnited States
Federal Regulation of Cultural Resources, Wildlife & Waters of the U.S.
(Apr 2012)

CHAPTER 7B
LISTING AND CRITICAL HABITAT DECISIONS AND RELATED ISSUES UNDER SECTION 4 OF THE ENDANGERED SPECIES ACT

Jay Tutchton
WildEarth Guardians
Centennial, Colorado

JAY TUTCHTON has served as the General Counsel of WildEarth Guardians since 2007. Prior to working at WildEarth Guardians he was the Clinic Director of the Environmental Law Clinic at the University of Denver, Strum College of Law, and the Clinic Director of the University of Colorado's Environmental Law Clinic. He has also worked as a staff attorney with the Center for Biological Diversity, EarthJustice, and the National Wildlife Federation. He is a 1990 graduate of the UCLA Law School, a former associate with Arnold & Porter, and was a law clerk for the Hon. William D. Keller, U.S. District Judge for the Central District of California. He continues to teach at the University of Denver as an Adjunct Professor. On behalf of several different clients he has filed dozens of lawsuits seeking to enforce Section 4 of the Endangered Species Act and recently acted as lead counsel and negotiator for WildEarth Guardians in the ESA Section 4 Multi-District Litigation, which resulted in a significant ESA Section 4 Settlement Agreement addressing the listing status of over 250 candidate species and approximately 600 petitioned species.

I. The ESA Operates on the Principal of a Magic List

Shortly after it became law it in 1973, the U.S. Supreme Court termed the Endangered Species Act "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Authority v. Hill. 437 U.S. 153, 180 (1978). Though now, nearly four decades hence, this claim is subject to reasonable dispute, as many other nations have enacted comprehensive endangered species protections that are arguable stronger than the Endangered Species Act ("ESA") in certain respects, the point remains - the ESA is the United States' most comprehensive law designed to protect endangered and threatened species.

As stated by Congress, the purpose of the ESA is to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered and threatened species ...." 16 U.S.C. § 1531(b). The ESA defines conservation as "the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the ESA] are no longer necessary." 16 U.S.C. § 1532(3). Accordingly, the goal of the ESA is not only to temporary save endangered and threatened species from extinction, but also to recover these species to the point where they are no longer in danger of extinction, and thus no longer in need of ESA protection.

Importantly, however, the protective provisions of the ESA do almost nothing to conserve a species until that species is officially "listed" as either "threatened" or "endangered" under the terms of the Act. 16 U.S.C. § 1533. A species is listed as "endangered" if it is "in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A species is listed as "threatened" if it is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20).

In a nutshell, not unlike the biblical Noah or the historical Oskar Schindler, the ESA operates on the principle of a magic list. Listed species receive the full legal protection of the Act. Unlisted species, species petitioned by citizens for listing, species which the federal government has termed "candidates" for listing, or even species which the federal government has proposed to list, do not receive any of the substantive protections of the Act. Thus, because listing decisions either confer or deny the full legal protection of the ESA, they are highly scrutinized and controversial.

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II. Listable Entities

The first of these controversies arises at the outset: What qualifies as a "species" eligible for listing under the ESA?

As defined in the ESA, the term "endangered species" excludes "species of the Class Insecta determined by the Secretary [of Interior or Commerce] to constitute a pest whose protection under the provisions of [the] Act would present an overwhelming and overriding risk to man." 16 U.S.C. § 1532(6). Because the ESA defines the term "threatened species" as one likely to become an "endangered species" in the foreseeable future, this exclusion of insect pests prevents them from being listed as either endangered or threatened. See 16 U.S.C. § 1532(20) (definition of threatened species). Thus, insect pests whose protection under the ESA would present an overwhelming and overriding risk to man may not be listed. To date this provision has been noncontroversial.

The same cannot be said of the ESA's definition of a species. The ESA defines a species to include "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. 1532(16). The ESA further defines "fish or wildlife" as "any member of the animal kingdom, including without limitation any mammal, fish, bird ... amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate ..." 16 U.S.C. § 1532(8). A "plant" is more simply defined as "any member of the plant kingdom ..." 16 U.S.C. § 1532(14). Accordingly, if more accurately named, the Endangered "Species" Act would be entitled "an act for the protection of species or subspecies of fish or wildlife or plants, including any mammal, fish, bird, amphibian, reptile, mollusc, crustacean, arthropod, or other invertebrate, or any member of the plant kingdom, or distinct population segment of any species of vertebrate fish or wildlife, including any mammal, fish, bird, amphibian, or reptile that interbreeds when mature." Thus, the scope of listable entities under the ESA is in fact much broader than the term "species" standing alone implies.

The inclusion of "distinct population segments" of "any species of vertebrate fish or wildlife which interbreeds when mature" adds an additional level of complexity: What is a distinct population segment?

The National Marine Fisheries Service and Fish and Wildlife Servicei have jointly published a policy document defining the statutory term "distinct population segment." 61 Fed. Reg. 4722 (Feb. 7, 1996). This joint policy employs a three-part analysis to determine the status of a possible distinct population segment as endangered or threatened under the ESA: (1) the "discreteness" of the population segment; (2) the "significance" of the population segment; and (3) its conservation status. 61 Fed. Reg. at 4725. The joint policy provides that in a decision to list a distinct population segment under the ESA the responsible agency will evaluate: (1) the discreteness of the...

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