What outrages me about the Endangered Species Act.

• Author: Somach, Stuart L.
• Position: Endangered Species Act at Twenty-One: Issues of Reauthorization

1. INTRODUCTION

   The administration of the Endangered Species Act (ESA)(1) exemplifies governmental arrogance and abuse and special interest influence that should not be tolerated. This abuse creates a situation where people's natural tendency to protect plant and animal species is pitted against their desire to protect their private property rights and jobs from governmental interference.

   The protection of plant and animal species is important. Indeed, people abhor the very idea of species extinction. Concepts such as biodiversity and the need to preserve species for purposes associated with humankind's ultimate survival, whether it be for the extraction of vaccines to preserve life or otherwise derive knowledge which would be lost with species extinction, have created a certain impetus toward wildlife protection. The ESA represents an outgrowth of these motives. In the abstract, it is hard to understand how anyone could object to preservation of species, the avoidance of species extinction, and the insurance of biodiversity.

   The problem, of course, is that species protection in many cases conflicts with some kinds of human development activity. Indeed, human development is, in all likelihood, the root cause of species extinction. The most significant cause for extinction is not direct human predation, but rather the incidental impact associated with deprivation of habitat critical to the survival of many plant and animal species. In other words, the inherent conflict between human development activities and habitat needs of species has resulted in species endangerment. As a consequence, it is not surprising that attacks upon the ESA generally do not derive from restrictions on direct human actions, such as hunting, but rather on indirect human actions associated with resource development or land use. This inherent conflict does not change the underlying reason for species protection. However, understanding the root cause of the conflict can go a long way toward reducing friction.

   In seeking solutions to the conflict between development interests and interests in protecting species, the ESA can be examined in two ways. The first is to focus on the substantive protections afforded by the ESA--namely, sanctions imposed by the Act. The second way to look at the ESA is to focus on the procedures that one is forced to endure, assuming that one's activities require review under the ESA.

2. SUBSTANTIVE PROVISIONS OF THE ESA

   The major substantive provisions of the ESA include the duties resulting from listing, takings prohibitions, and critical habitat designation. The listing of a species imposes certain duties on federal agencies and applicants for federal permits. For example, agencies and permit applicants must consult with the Secretary of the Interior or the Secretary of Commerce, depending upon the type of species involved, if there is even a remote chance that an endangered or threatened species is involved in a project.(2) Listing also results in absolute prohibitions or limitations on certain actions which would adversely affect a listed species.(3)

   The ESA contains both criminal and civil penalties for the taking of a listed species.(4) "Taking" is defined broadly to include harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting, or attempting to engage in any such conduct.(5) The civil sanctions of the Act may apply to unintentional takings and actions that take place wholly on private lands.(6) Congress intended that sanctions be drastic in order to deter conduct contributing to the decline of species bordering on extinction.(7)

   Concurrent with the listing of a species, the Secretary of the Interior must designate critical habitat.(8) While a critical habitat determination may be modified because of adverse economic impact,(9) a taking can include destruction or modification of habitat needed by a listed species.(10) Consequently, even though the Secretary, for economic reasons, may not formally designate critical habitat, actions which constitute a taking may still be prohibited.

3. PROCEDURAL PITFALLS IN IMPLEMENTING THE ESA

   1. Flaws In The Listing Process

      Given the significant impact of the ESA's substantive provisions, the Act should provide for a cautious approach to species listing. Indeed, most of the significant problems associated with the ESA could be eliminated or at least minimized if implementation of the Act were undertaken in a more judicious manner. The best way to illustrate this point is undoubtedly through example. I am most familiar with the listing process of the winter run salmon (Oncorhynchus tshawytscha)(11) and the ongoing listing process of the delta smelt (Spirinchus thaleichthys)(12) in California, as well as the significant impact that these listings have had and will have on the continued operations of crucial water conveyance facilities in the Sacramento-San Joaquin Delta.

      In examining ESA implementation problems, it is useful to reveal certain fundamental myths with respect to the listing of species, debunk them from the beginning, and propose solutions to the listing-related implementation problems of the ESA. First, it is not true that environmental organizations or individuals who petition for listing are scientifically pure and motivated by only the most altruistic concerns. Groups and individuals who petition to list a species often do not have any interest in the species itself, but rather, seek to erect the ESA's substantive prohibitions to serve the group's or individual's own goals. For example, many special interest environmental groups, for reasons independent of any concern for a specific species, seek to control or eliminate resource development and land use activities. Local decisionmakers do not always share these environmental views, but unfortunately, many federal wildlife officials do. In light of the substantive provisions of the ESA, listing provides a powerful means by which resource...