Protecting the wildlife trust: a reinterpretation of section 7 of the Endangered Species Act.

• Author: Wood, Mary Christina

1. INTRODUCTION II. THE WILDLIFE TRUST DOCTRINE III. INTERPRETING "JEOPARDY" UNDER SECTION 7(A)(2) TO PRESERVE THE WILDLIFE TRUST A. Depleting the Wildlife Asset: The Services' "Incremental Harm Approach to Jeopardy" B. Preserving the Wildlife Asset: A "No Further Harm" Approach to Jeopardy C. Policy Discretion to Diminish the Wildlife Trust: Who Holds It? IV. PROMOTING RECOVERY UNDER SECTION 7(A)(1) TO REPLENISH THE WILDLIFE TRUST A. The Section 7(a)(1) Mandate B. The Services' Abdication of Statutory Authority Under Section 7(a)(1) C. A Trust Approach to Developing Regulatory Content for Section 7(a)(1) V. CONCLUSION I. INTRODUCTION

   A quarter of a century ago, the United States Supreme Court declared the Endangered Species Act (ESA) (1) to be "the most comprehensive

   legislation for the preservation of endangered species ever enacted by any nation." (2) The bold statutory scheme was aimed towards recovery of imperiled species. (3) Yet, at the thirtieth anniversary of the ESA, the statute has a dismal record of achieving this central purpose. While the statute seems to be holding a floor of protection preventing extinction of listed species, (4) it has failed to bring species to recovery. (5) Out of 1,288 listed species, (6) only 15 have been recovered. (7)

   This Article argues that the failure to accomplish recovery is largely due to a basic flaw in interpreting one of the ESA's core provisions, section 7. (8) Section 7 presents a dual mandate applicable to federal agencies. Section 7(a)(2), known as the "jeopardy prohibition," requires federal agencies to insure that their actions are not "likely to jeopardize the continued existence" of any listed species. (9) Section 7(a)(1), known as the "affirmative conservation mandate," requires federal agencies to develop programs for the conservation of listed species. (10) The Fish and Wildlife Service (FWS) and NOAA Fisheries (11) (collectively the Services) are charged with implementing the ESA (12) and play a key role in section 7 through a consultation process with federal action agencies. (13) This Article suggests reinterpreting section 7 to carry out common law wildlife trust principles that focus on preserving and restoring the wildlife asset in perpetuity. (14)

2. THE WILDLIFE TRUST DOCTRINE

   The wildlife trust doctrine, a branch of the well-known public trust doctrine, (15) was clearly enunciated by the United States Supreme Court in Geer v. Connecticut (Geer) (16) in 1896. There the Court said that governmental ownership of wildlife should be exercised "as a trust for the benefit of the people." (17) At the core of this doctrine is the principle that every sovereign government has a property interest in wildlife, in the form of a sovereign trust. (18)

   The wildlife is the corpus, or res, of the trust. (19) The government is the trustee of this valuable corpus. The public--including future generations--is the beneficiary. (20) While the wildlife trust doctrine traditionally protected game species used by the public, (21) its foundational principles apply to protecting biodiversity as a whole. The public trust doctrine has advanced from its nineteenth century application to streambeds and now reaches vital public resources, including water, wetlands, and wildlife. (22) Its scope extends beyond the traditional public interests of fishing, navigation, and commerce to modern needs such as aesthetics, biodiversity, and even recreation. (23) As a branch of the public trust doctrine, the wildlife trust doctrine places a particular focus on preserving living assets and should be construed to encompass the full realm of biological resources protected under the ESA, including animals, insects, and plant life. (24) Trust principles force a perspective that views endangered species not just as regulatory objects under the ESA, but as assets in the property sense that comprise part of the natural trust that belongs to the people as a whole.

   Trust principles provide a normative anchor for ESA interpretation. With roots in legal regimes predating the United States, (25) such principles derive from ancient formulations. They are basic, logical, and geared towards sustaining society for generations to come. They constrain the natural tendency of governmental officials to exhaust resources in the present generation. Two cardinal principles of the trust doctrine should guide implementation of section 7. First, government trustees are required to preserve wildlife assets and protect them against damage. (26) Second, where there has been damage to trust assets, the trustees have an affirmative duty to recoup damages and restore the corpus. (27) Sections III and IV of this Article suggest a reinterpretation of section 7 of the ESA congruent with these principles.

   The sheer scope of ESA regulation now demands that these broader trust principles guide implementation of the statute. No longer is wildlife regulation primarily the domain of state law. (28) The ESA has become the overriding wildlife law in this nation, its grasp reaching an ever-growing percentage of known species. When the statute was first enacted, Congress may have envisioned that ESA protection would rarely be needed; in 1973, there were only 119 listed species. (29) But now, thirty years later, extinction has become a regular threat across the national landscape. Presently there are 1,288 listed species (30) and many others waiting in the pipeline to be protected under the ESA. (31) A 1990 report issued by the Council on Environmental Quality concludes that a total of 9,000 U.S. plant and animal species may currently be at risk of extinction, noting: "'The problem is national in scope, with every region of the country reporting losses of native species.... Whole plant and animal communities--integrated, resilient systems--are threatened.'" (32) The unrelenting frenzy of land development and resource depletion in this nation continues to deliver more and more species to the jurisdiction of the ESA. (33) In the absence of more protective statutes, the ESA has become a bottom line--and the only bright line--in general wildlife regulation, operating as a giant vacuum that draws species of all varieties towards its irreducible minimum of protection. In light of the statute's emerging role as a comprehensive wildlife law, the Services should ground their interpretation of the ESA in fundamental normative principles of wildlife regulation designed to preserve the natural plant and animal kingdom at abundant levels. (34)

   The wildlife trust doctrine has rich expression in state court decisions and statutes, (35) likely reflecting the traditional primacy of state government in wildlife regulation. (36) As yet, there is scant case law imposing the wildlife trust doctrine on the federal government, (37) but cases make clear that the wildlife trust arises as an attribute of sovereignty (38)--a rationale that suggests its application to any sovereign, including the federal government. (39) Many federal statutes establish a role for the federal government as a trustee of wildlife and other resources for the nation's future generations of citizens. The National Environmental Policy Act (NEPA), (40) passed just a few years before the ESA, declares that the federal government has the duty "[to] fulfill the responsibilities of each generation as trustee of the environment for succeeding generations." (41) And several federal statutes, including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), (42) the Oil Pollution Act, (43) and the Clean Water Act, (44) contain natural resource damages provisions that charge the federal government with trustee duties to collect damages for harm to natural assets belonging to the public. (45) As Professor Charles Wilkinson has observed:

   The whole of [federal environmental statutory law] is greater than the sum of its parts. The modern statutes set a tone, a context, a milieu. When read together they require a trustee's care. Thus we can expect courts today, like courts in earlier eras, to characterize Congress' modern legislative scheme as imposing a public trust on the public resources. (46) As the national interest in wildlife regulation expands and the federal government increasingly usurps traditional state functions, (47) trust principles that inhere in the wildlife regulatory function should gain more force at the federal level. The listing of species under the ESA amounts to a federal assertion of general wildlife regulatory authority over those species and should activate, at the federal level, those longstanding trust principles that have always formed a backdrop for state wildlife regulation. Though Congress did not use the term "trust" in the language of the ESA, the statute creates an implied trust over the imperiled wildlife assets and imposes a public trustee's duty of care on the federal agencies implementing the Act. Under this view of the ESA, listed species are not simply regulatory objects that enter into the federal jurisdictional net through the government's assertion of its legislative authority. Listed species comprise a definable asset in the trust sense and are owed traditional protections deriving from property law accorded to public natural assets. By analogy, courts have made clear that federal agencies act as trustees of Indian wildlife assets, and must implement federal statutes in a way that protects those assets. (48) The Departments of Interior and Commerce have issued a Joint Secretarial Order designed to integrate federal Indian trust principles into ESA implementation. (49) This administrative accomplishment may pave the way for injecting wildlife trust principles into the ESA.

3. INTERPRETING "JEOPARDY" UNDER SECTION 7(A)(2) TO PRESERVE THE WILDLIFE TRUST

   Trust principles would force a sea-change in the current implementation of the jeopardy standard of section 7(a)(2), which prohibits federal agencies from taking...