SPECIES-SPECIFIC REGULATION OF THREATENED SPECIES UNDER SECTION 4(D) OF THE ENDANGERED SPECIES ACT: LEARNING THE LESSONS OF THE PAST

• Jurisdiction: United States

Endangered Species Act
(Nov 2015)
CHAPTER 7A
SPECIES-SPECIFIC REGULATION OF THREATENED SPECIES UNDER SECTION 4(D) OF THE ENDANGERED SPECIES ACT: LEARNING THE LESSONS OF THE PAST
Frank R. Lupo ¹
Attorney Advisor
Office of the Solicitor, Southwest Region
U.S. Department of the Interior
Albuquerque, NM

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FRANK LUPO is an Attorney Advisor with the U.S. Department of the Interior, Office of the Solicitor, Southwest Region. He was previously an Honors Attorney with the U.S. Army Corps of Engineers in New Orleans assisting with environmental law matters related to post-Katrina recovery and rebuilding. Frank completed a judicial clerkship with the State of Alaska Court of Appeals in Anchorage. He received his J.D. from Lewis and Clark School of Law with certificates in Environmental and Natural Resources Law and Criminal Law, and has a B.A. in Political Science from the University of Florida.

Through the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, the "Services")² are tasked with spearheading the federal government's obligation to protect and recover imperiled species and the ecosystems upon which they depend. 16 U.S.C. § 1531(b), 1532 (15). This broad mission requires deft handling of the intersection of complex scientific principles and land-use management across the country, notably where private property interests are concerned. In many instances, the mandate of the ESA conveys limited discretion for the Services. However, the ESA provides the Services with certain latitude to tailor the applicable legal restrictions and adopt other protective regulations for threatened species. Some critics complain the Services use this discretion unnecessarily to compromise the science-based focus of the ESA, while other critics contend the Services do not take advantage of this flexibility broadly enough.

The ESA, in establishing separate categories of "endangered" and "threatened" species, recognizes a distinction between a species faced with an immediate risk of extinction and a species where the risk of potential extinction looms in the future. For those species where the risk of extinction is not immediate, the ESA allows for species-specific regulations based on the Services' determination of what measures best meet the conservation mission of the ESA. See 16 U.S.C. § 1533(d) (section 4(d)). As discussed herein, the FWS has determined that, in most instances, the standard protections for an endangered species should apply to threatened species as well. The FWS promulgated, under the authority of section 4(d), a comprehensive regulation extending the prohibitions against certain activities from section 9 to threatened species. But the FWS has also retained, to use where appropriate, the 4(d) authority to customize the restrictions for a species via species-specific 4(d) rules.

Several recent examples indicate that the FWS has increased its use of 4(d) rules as a flexible tool to determine with more precision what measures are needed to alter the projected course of a species. The FWS is using this discretion to foster increased opportunities for partnerships with landowners regarding species conservation. Likewise, the FWS is also using section 4(d) to achieve greater accuracy in correlating the legal restrictions for threatened species to the specific elements causing the projected decline of the species. This article examines notable 4(d) rules and the associated litigation over the forty-plus year history of the ESA to explore the contours of appropriate applications of section 4(d).

This article first discusses the ESA and the authority of the Services to establish species-specific 4(d) regulations. Next, this article considers prior applications of the 4(d) authority and

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associated legal challenges. This section reviews a select subset of 4(d) rules based on frequently encountered challenges. Finally, this article reviews some of the more recent species-specific 4(d) rules, viewed in the context of the lessons learned from prior uses of section 4(d).

I. Overview of Authority

A. The Endangered Species Act

The ESA consists of six main provisions at its core: (1) listing a species as endangered or threatened under section 4(a)(1); (2) designating of critical habitat under section 4(a)(3); (3) creating recovery plans under section 4(f); (4) meeting the consultation requirements under section 7(a); (5) enforcing the prohibited acts of section 9; and (6) permitting nonfederal actions under section 10(a)(1). These provisions are collectively intended to ensure conservation of species and the ecosystems on which they depend. 16 U.S.C. § 1531(b); Tennessee Valley Auth. v. Hill, 437 U.S. 153, 174 (1978) (noting that it is "beyond doubt that Congress intended endangered species to be afforded the highest of priorities" in concluding that ESA will "produce results requiring the sacrifice of the anticipated benefits of the project and of many millions of dollars in public funds"); Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 698 (1995) (noting Congressional intent to protect against taking of species on all lands in the United States, not just federal lands); Sierra Club v. United States Fish & Wildlife Service, 245 F.3d 434 (5th Cir. 2001) (the objective of the ESA to not just allow species to survive, but to recover from endangered or threatened status).

The triggering provision is the listing determination. Wilson v. Block, 708 F.2d 735, 748-50 (D.C. Cir. 1983), cert denied 464 U.S. 956 (1983) and cert denied 464 U.S. 1056 (1984) (explaining that section 7 consultation obligations can only apply where the relevant Secretary has first determined the species should be added to the list of endangered or threatened species); see also S. Rep. No. 418, 97th Cong., 2d Sess. at 10; H. Rep. No. 567, 97th Cong., 2d Sess. at 10. The Services publishes a list of endangered and threatened wildlife species at 50 C.F.R § 17.11 and a list of endangered and threatened plants at 50 C.F.R. § 17.12 . Under the ESA, the relevant Secretary must determine whether species are endangered species or threatened species using only "the best scientific and commercial data" available to the Secretary. 16 U.S.C. § 1533(a)(1), § (b)(1)(A). This determination of listing status is dictated by five factors and a consideration of efforts being made to protect the species. 16 U.S.C. § 1533(a)(1)(A)-(E), § (b)(1)(A); In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litig., 709 F.3d 1, 3-4 (D.C. Cir. 2013), cert denied 134 S. Ct. 310. Economic impacts are not a consideration fora listing determination. N.M. Cattlegrowers Ass'n v. United States Fish & Wildlife Serv., 248 F.3d 1273, 1282 (10th Cir. 2001).

An endangered species is "any species³ which is in danger of extinction throughout all or a significant portion of its range."⁴ 16 U.S.C. § 1532(6). A threatened species is "any species

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which 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). There have been few cases directly challenging the statutory difference between an endangered species and a threatened species. The key statutory distinction between the definition of an endangered species and a threatened species is one of timing. In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation, 794 F.Supp2d 65, n.27 (D. D.C. 2011), aff'd, 709 F.3d 1 (D.C. Cir. 2013); see In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation, 748 F.Supp2d 19, 26-28 (D. D.C. 2010) (remanding polar bear decision to FWS for further interpretation of ambiguous statutory definition of "endangered species"). The FWS has explained that the statutory definition of an "endangered species" connotes an established, present condition, while the definition of a "threatened species" connotes a predicted or expected future condition. See Memorandum: Supplemental Explanation for the Legal Basis of the Department's May 15, 2008 Determination of Threatened Status for Polar Bears from the Acting Director, FWS⁵ ("Polar Bear Memo") at 7 and 11 (Dec. 22, 2010) (discussing explanations by the Department of the Interior at the time of the original bill that became the ESA where the Department stated that the "timing of the risk of extinction was intended to be the key distinction between the endangered and threatened classifications.").

B. Threatened Species and Section 4(d)

As noted above, designating a species as an endangered or threatened species triggers the distinct obligations of the ESA primarily found in sections 7 and 9. The two federal endangered species laws pre-dating the ESA, the Endangered Species Preservation Act of 1966, Pub. L. No. 89-669, 80 Stat. 926 (1966) and the Endangered Species Conservation Act of 1969, Pub. L. No. 91-135 (1969), defined only a single category of endangered species. However, with the adoption of the ESA in 1973, the new category of threatened species was created. See Polar Bear Memo at 8-11 (discussing legislative history of creating the threatened category in the ESA. In particular, the category of threatened species was proposed by the Nixon Administration to address the challenge that species were being federally protected too late in time, i.e. after they were already in danger of extinction.).

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With the addition of the new "threatened" category of species, section 4(d) created new latitude for the Services to determine the applicable protective regulations for threatened species. The 1973 ESA provides that endangered species will receive the most stringent of protections in order to reverse the trend toward extinction. Polar Bear Memo at 8. However, because threatened species are not yet in danger of extinction, these species can be...