Job's plight revisited: the necessity defense and the Endangered Species Act. .

• Author: Lindquist, Anne

1. INTRODUCTION

   Behold, I cry 'Violence!' but I get no answer; I shout for help, but there is no justice. He has walled up my way so that I cannot pass; and He has put darkness on my paths. (1) Founded on absolute faith in God as an omnipotent protector, the Bible relates a tale of numerous adversities suffered by Job, who believed, in the end, God would deliver salvation. (2) A similar plight has befallen ranchers, farmers, and landowners in the face of prohibitions under the Endangered Species Act (ESA or Act). (3) As wild animals cloaked in federal protection freely roam American soil, property owners are asked to entrust faithfully the protection of their interests to the U.S. government. (4) However, unlike God, who ultimately rewarded Job's unfaltering faith, (5) state and federal officials sometimes fail in their attempts to fulfill prescribed duties to individuals while protecting endangered and threatened animals. (6) Placing trust in the American government and the agencies that administer its laws, property owners may find themselves hog-tied while their possessions are foraged and destroyed by animals the government has christened indispensable natural resources.

   Although the ESA prohibits "taking" an endangered or threatened species, (7) the statute expressly provides limited exceptions. (8) Section 7 of the ESA authorizes the Secretary of the Interior to grant exceptions where agency interests outweigh the need to protect species and no viable alternative exists. (9) The ESA also precludes criminal and civil liability where defense of self or others is proven. (10) Where animals create a nuisance, the ESA authorizes designated officials to intervene. (11) Finally, the ESA allow taking by permit. (12) However, unlike some environmental laws, the ESA remains silent regarding other common law defenses. (13) Where compliance with the Act fails to balance and protect the interests of a property owner. (14) the ESA fails to offer clear guidance for acceptable lawful recourse, essentially tying the private citizen's hands. (15)

   One such defense for which the ESA remains silent is a choice-of-evils or necessity defense. (16) To assert the defense, a defendant must show, among other elements, that the legislature has not already balanced the evils. (17) While expressly providing common law defenses for protecting oneself or the safety of other humans, (18) the language of the ESA does not expressly provide a necessity defense. (19) Therefore, the availability of the defense for alleged violations of the ESA remains unclear. (20)

   As a well-established tradition in American jurisprudence, the necessity defense is arguably implied in federal cases. (21) However, the Supreme Court recently affirmed that where a statute expressly provides for exceptions to the law, unless the necessity defense is included in those express exceptions the defense of necessity fails, (22) suggesting a shift in federal jurisprudence. The Court's decision is significant for all federal statutes that do not expressly provide for a necessity defense.

   Can the ESA support a necessity defense for the otherwise illegal taking of endangered and threatened species? At first blush, statutory interpretation, legislative history, and judicial precedent appear to foreclose the defense's availability. (23) However, upon closer scrutiny, broad interpretation of the statute permits a court to consider necessity as a viable defense against alleged violations of the ESA taking prohibition. This Comment begins in Part II with a review of the ESA, concentrating on the section 9 prohibition of taking protected species and the statutory exceptions to liability, as well as exemptions authorized under section 7. Part II also describes the backlash for both endangered and threatened species, and private property owners as a consequence of strict interpretation and enforcement of the ESA. Part III examines the necessity defense in terms of its history in the common law, utility in the ESA context, and applicability to federal cases, especially in light of the recent Supreme Court holding in United States v. Oakland Cannabis Buyers' Cooperative (Oakland Cannabis). (24) Finally, by closely examining section 7, the regulatory language, and the ultimate goals of the Act, this Comment concludes that equitable treatment of private citizens requires that the courts consider a necessity defense in response to allegations of unlawfully taking a protected species.

2. THE ENDANGERED SPECIES ACT

   In December 1973 President Richard Nixon signed into law the ESA, coined "the pit bull of environmental law." (25) Many regard the statute as the "most powerful environmental law in the nation." (26) Its enactment represented Congress's response to growing concern regarding the diminution and likely extinction of fish, plants, and wildlife indigenous to the United States. (27) The ESA purports "to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, to provide a program for the conservation of such ... species ... and to take such steps as may be appropriate to achieve the purposes of the ... [Act]." (28) For purposes of the ESA, a species is "endangered" when it is in peril of extinction throughout all or most of its natural habitat, (29) and "threatened" when the likelihood of endangered status is foreseeable. (30)

   1. Protecting Species under the ESA

      Species listed as endangered or threatened enjoy expansive protections under the Endangered Species Act. (31) Through federal land acquisition, (32) strict obligations imposed on federal agencies to avoid actions adversely affecting listed species, (33) and prohibitions on "takings" by private citizens, (34) the ESA strives to preserve the delicate balance of nature. The Act not only prohibits killing, capturing, or directly harming a listed species, but also disallows actions having the potential to disrupt habitats. (35) While an exemption process exists for federal agencies, (36) similar relief is unavailable to private citizens and landowners facing stringent criminal and civil sanctions for ESA violations. Actions by Congress, (37) as well as the judiciary, (38) send a clear message that endangered and threatened species are to be protected, "whatever the cost[s]." (39)

   2. Exceptions

      Although the ESA wields a heavy sword in protecting species, Congress has recognized several exceptions to its enforcement since its enactment in 1973.

      1. Section 7 and the Balancing Test

         While section 7 obligates federal agencies to use their powers to further the purposes of the ESA and ensure actions they undertake, fund, or authorize do not imperil any species or their habitat, (40) a balancing test applies when irresolvable conflicts arise between proposed agency actions and environmental interests. (41) Following Tennessee Valley Authority v. Hill (TVA v. Hill), (42) Congress amended the ESA by creating the Endangered Species Committee (Committee). (43) This seven-member, cabinet-level panel--often referred to as the "God Squad (44)--" mediates and may authorize agency exemptions from compliance with the ESA where administrative interests collide with those of an endangered species. (45)

         Since the Committee's creation, agencies have requested intervention only three times to decide whether a federal agency's actions were sufficiently important to tromp prohibitions of the ESA. (46) In regard to the case spawning its creation, the Committee considered whether completion of a multimillion dollar dam construction project warranted foregoing conservation efforts on behalf of the snail darter, a small, endangered fish believed indigenous solely to the Tennessee Valley. (47) The Committee stood by the Court's decision in TVA v. Hill that, despite substantial financial investment and inevitable human costs, "a reasonable alternative to the project" existed, and the benefits of its completion did not outweigh alternative actions likely to protect the snail darter and its habitat. (48)

         In 1992, the Committee convened to resolve the dispute between Northwest logging companies and environmental groups concerned with the fate of the northern spotted owl, which makes its home in old growth timber. (49) Although forty-four logging companies requested exemptions under section 7 to log forest land where the owl nested, the Committee granted only thirteen exemptions and appended its ruling to require that a mitigation plan be expeditiously implemented to ensure the final recovery of the northern spotted owl. The Supreme Court subsequently sided with the northern spotted owl, declaring that any modification of habitat constitutes harm, and therefore amounts to a taking under the ESA. (50)

         The formation of the Committee met sharp criticism, suggesting that it empowers a select group to pass judgment on the continued existence of a species and undermines the goals of the ESA. (51) However, by exercising self imposed restraint and strict adherence to the exemption process, the Committee's conduct further legitimizes the widely held belief in the ESA as an omnipotent law. (52)

      2. Incidental Takings

         While the Committee does not convene on behalf of private property owners, (53) the ESA provides a limited alternative for individual citizens by allowing incidental takings of listed species. (54) An incidental taking occurs in conjunction with an otherwise lawful activity, and requires permission from the Secretary of the Interior. (55) The Department of the Interior may grant a permit only after the requesting party prepares a conservation plan, known as a regional habitat conservation plan (HCP), describing specific actions the property owner will take to conserve the listed species. (56) The incidental take permit is intended to respond to concerns expressed by private landowners that ESA prohibitions against taking a listed species prevent "otherwise lawful actions" previously not requiring...