The Endangered Species Act: Does "endangered" Refer to Species, Private Property Rights, the Act Itself, or All of the Above?

• Publication year: 1998
• Citation: Vol. 22 No. 02

SEATTLE UNIVERSITY LAW REVIEWVolume 22, No. 3WINTER 1999

The Endangered Species Act: Does "Endangered" Refer to Species, Private Property Rights, the Act Itself, or All of the Above?

Diana Kirchheim(fn*)

Imagine that your family has owned a 3200-acre ranch in western Riverside County, California, for five generations. You grow wheat, oats, and barley. Using standard agricultural practice, you leave a portion of land unplanted, or fallow, for a year so that the soil has a chance to rejuvenate, thereby keeping the land in good condition and increasing future yields.

One day you discover biologists surveying the fallow land on your ranch. These biologists forward the data collected on your land to the Fish and Wildlife Service (FWS). The data indicates that a population of Stephens Kangaroo Rats was found on your farm. The FWS decides to prohibit your family from plowing the 800 fallow acres so that the rodents can be studied. It takes the rats three years to traverse your property. Once the FWS lifts the ban on planting on the fallow land, your family is out $400,000 in lost income and expenses for attorneys and biologists. Your family now plants every acre every year, reducing the land's yield and eliminating all natural habitat for wildlife, out of fear that the rat will return and the use of your land will once again be taken from you.

In another scenario, you are a resident once again of Riverside County in southern California, a region notorious for wildfires. Unfortunately, the FWS has prevented you from discing(fn1), a procedure used to dig firebreaks to keep your home safe from wildfires. The FWS has taken this position because discing would disturb the burrows of Stephens Kangaroo Rats. You have been applying for permission to disc your property for over a year. Then a wildfire strikes. The fire department urges people to disc their property. The FWS still refuses your requests to disc. When you smell the smoke nearing your home, do you violate federal law by discing the land around your home to protect it, or do you allow the fire to destroy it? Whatever decision you make, the rats will be destroyed.

Unfortunately, these hypotheticals are real-life scenarios.(fn2) They happened to property owners under the current Endangered Species Act (ESA or "the Act").(fn3) In fact, the Kangaroo Rat regulations in Riverside County, California have made the rat the largest "landowner" in that county.(fn4)

It is not only the Stephens Kangaroo Rat that is affecting property owners. There are many compelling stories from people who have had to live with the real-life impact of the ESA.(fn5) As a result of these adverse effects on property owners, the ESA has been criticized not only for being ineffective in preserving species and their ecosystems, but also for being more expansive than Congress originally envisioned. In fact, Senator Mark Hatfield, one of the authors of the Act, was quoted as saying:I have supported-and I continue to support-the ESA. . . . But unlike many of my colleagues from urban areas, I also have to deal with the human side of this act, and thus[,] have special reason to know that it has come to be an environmental law that favors preservation over conservation. There is no question that the act is being applied in a manner far beyond what any of us envisioned when we wrote it 20 years ago. . . . The fact is that Congress always considered the human element as central to the success of the ESA. The situation has gotten out of control.(fn6)

The ESA, as written and applied today, is not reaching the goals that its drafters envisioned. While the ESA in theory saves species from extinction and restores them to viable populations, in actuality it often devastates property owners and arguably results in the recovery of few species. By shifting the burden of species conservation to private property owners, the ESA has caused people to fear species conservation instead of encouraging property owners to become part of the solution by conserving species on their own property. In an era of environmental awareness, we all want the same goal: to preserve the species in our environment. Only by encouraging the states and citizens of our country to become actively involved in endangered species conservation and by giving them incentives to implement this program, will we see a turnaround in the recovery of threatened species. Therefore, the ESA must be rewritten to restore it to its original purpose of species conservation without imposing stifling bureaucratic regulations.

There is no doubt that the ESA was adopted with the utmost good will. Upon signing the ESA on December 28, 1973, President Nixon stated, "[n]othing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed."(fn7) This statement defines the ESA's ultimate purpose, which is to conserve the Nation's natural heritage for the enjoyment and benefit of current and future generations.(fn8) "Conserve" is defined in the ESA to mean the use of all methods necessary to bring a protected species to a point where the ESA's protections are no longer needed.(fn9) The Supreme Court found that "[t]he plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost."(fn10)

The ESA is the most comprehensive environmental legislation Congress has ever passed.(fn11) Since its adoption, a conflict has arisen between those who think the ESA is effective in saving endangered species and those who think it infringes on property rights and often results in major economic loss in return for minor environmental gain.(fn12) This conflict intensified when the ESA came up for renewal beginning in 1992.(fn13)

The future of the ESA is uncertain. Recent attempts by Congress to reauthorize the ESA have failed.(fn14) Some have noted that the ESA has come close to being repealed or becoming extinct itself.(fn15) Private property advocates have promoted several proposals to weaken the ESA's power upon reauthorization and, in some cases, have advised repealing the Act itself.(fn16) Donald Berry, vice president for lands at the World Wildlife Fund, notes that "if there is one event that causes the diverse environmental community to hyperventilate in unison, it is an assault on the ESA."(fn17) Environmentalists have apparently felt no urgency to reauthorize the ESA because it remains operational as long as money is appropriated for it.(fn18) A recent ruling by the United States Supreme Court on the ESA has added more fuel to the debate between private property interests and environmentalists and will be discussed in a later section of this Comment.

This Comment will focus on the current problems of the ESA and suggest how the ESA can be rewritten to accommodate both environmental and private property interests. Section I will discuss procedure under the ESA. In Section II, the Comment examines the controversial "harm" definition frequently arising in ESA litigation. In Section III, the Comment will dispel the myth that the ESA is currently operating as originally intended and will discuss the reasons why private property owners criticize the current ESA. Section IV will examine a proposal for reauthorizing the ESA written by Senator Dirk Kempthorne (R-Idaho) that Congress failed to adopt in 1997.(fn19) Further, in Section V, the Comment will focus on suggestions for improving the Kempthorne Reauthorization Bill as the basis for future legislation geared toward ESA reform and reauthorization. Finally, in Section VI, this Comment will conclude that the ESA should not be reauthorized without first being rewritten to ensure a balance between strong, effective species protection and a genuine respect for property rights and economic interests.

I. Procedure Under the ESA

The ESA is administered by the Secretaries of the Interior and Commerce.(fn20) Specifically, the FWS is responsible for terrestrial species, while the National Marine Fisheries Service (NMFS) is responsible for marine species.(fn21)

The ESA requires that endangered and threatened species be identified and that these species, along with their habitats, receive statutory protection.(fn22) Federal protection for species begins once the species has been listed in the Federal Register as either threatened or endangered.(fn23) The decision to list a species as threatened or endangered is thus a key decision.(fn24)

At the initiative of the FWS, NMFS, or any interested person, a species or critical habitat may be proposed for listing or delisting.(fn25) Once a petition is filed, the agency has ninety days to determine whether the request presents enough data to support further investigation.(fn26) If there is enough evidence to support further investigation, then the agency begins review of the species's status.(fn27) Review must be completed within a year and the following action must be taken: (1) rejection of the petition, (2) proposal of a rule to list the species, or (3) extension of time for consideration of the petition for another year.(fn28)

Once a decision is made to propose a rule listing a species, the agency has another year to make the listing decision after proposal of the rule.(fn29) A decision to list a species as endangered or threatened must be made "solely on the basis of the best scientific and commercial data available...