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The ESA of 1973 . Purposes of the act: “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species,

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the esa of 1973
The ESA of 1973
  • Purposes of the act:
    • “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved,
    • to provide a program for the conservation of such endangered species and threatened species,
    • and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forin subsection (a) of this section”
      • treaties in subsection (a) are: migratory bird treaties with Canada, Mexico, and Japan; CITES, 2 fisheries conventions, and the convention on nature protection and wildlife preservation in the western hemisphere.
principal provisions usfws 1996
Principal Provisions (USFWS 1996)
  • Define “endangered” and “threatened” and empowered the Secretary of Interior and Commerce to list species (Sect. 3)
  • Species of plants and inverts are available for listing, as well as species and populations of vertebrates (Sect. 3)
  • Combined US and foreign species lists with uniform provisions applied to both (Sect. 4)
  • Provide matching funds for state coop agreements (Sect. 6)
  • Allow US to implement CITES (Sect. 8)
administration of the act
Administration of the Act
  • Done by US Fish and Wildlife Service or National Marine Fisheries Service
  • Two main thrusts
  • Initiated by petition (individual, group, agency) or Service uses its priority system and available biological information
  • Priority system for listing
there are too many listings to be processed on time
There are Too Many Listings to Be Processed on Time
  • USFWS has 4 tiers of priority to handle this
  • Tier 1--Emergency listing actions
    • immediate listing of species in imminent risk of extinction
  • Tier 2--Final listing decisions, sorting among candidate species, processing petitions to list, and reclassifying species by de- or down-listing
  • Tier 3--Critical habitat determination
listing by petition
Listing by Petition
  • 90 day finding: within 90 days of getting petition, Service determines if it has merit for consideration
  • 12 month finding: within 12 months of petition, based on BIOLOGY alone, service determines
    • listing is not warranted
    • listing is warranted
    • listing is warranted but precluded (low priority)
warranted listings
Warranted Listings
  • Rule published in Federal Register
  • 12 month review/comment period on proposed rule
    • may be extended to 18 months if biological data is questioned
  • Final rule is published in Federal Register
  • Rule takes affect 30 days after publication
judicial review
Judicial Review
  • Negative 90 day findings, not warranted findings, and warranted but precluded 1-year findings
  • Lawsuits filed at this time
how are species prioritized for listing
How are Species Prioritized for Listing?
  • Recall the stated listing criteria used by USFWS
  • As we discussed, species are not listed in order of priority.
    • Service gets sued, tries to complete final listing rules before considering new proposals, etc.
  • Conservation groups (PEER, Fund for Animals, etc) have been concerned about a more fundamental problem--DELAY AND LACK of listing
    • 33% are listed on time, 18% are >1year late
listing delays gao 1993
Listing Delays (GAO 1993)
  • Congress
    • May limit listing budgets
      • Eg., Public law 104-6 (FY 1996 budget act)
        • rescinded listing budget thereby imposing a moratorium on listing
        • removed with Clinton’s budget act in April 1996
        • created a backlog of 243 species needing listing
    • May rescind the ESA
      • 5 million for 1998
        • PEER claims its self-imposed to give the Service a way out of lawsuits seeking listing
        • USFWS counters that it is all they could expect to get
why limit your budget
Why Limit Your Budget?
  • PEER concluded that: “the greatest barrier to implementation of the Endangered Species Act is Bruce Babbitt.”
    • Babbitt saw his control of endangered species funding being taken away from lawsuits that dictated where he had to spend what
    • Babbitt may have feared that continued litigation on behalf of endangered species would actually doom the ESA
    • By limiting funds for listing, FWS could allocate listing funds toward species it felt were in most need by invoking the Warranted But Precluded designation for less needy species
      • Must review each year, but cannot be overturned by courts
more reasons for delays
More Reasons for Delays
  • Insufficient data
    • spotted frog (3 year delay and then got “Warranted, but Precluded” by higher priorities)
  • Economic impacts of listing
    • spotted frog, Louisiana black bear, Jemez Mountains salamander, Bruneau Hot Springs Snail
  • Complete conservation agreements rather than list
    • Jemez Mountains salamander, Bruneau Hot Springs Snail
effect of delays
Effect of Delays
  • Lawsuits
    • Fund for Animals sued for listing of 85 Species in 1992
      • court ordered service get in gear and process listing petitions
      • subverts priority system
        • only 41 of 85 species were priority 1,2, or 3
      • delays ability (uses available funds) to list others not in the settlement agreement
major effect of not following priority system
Major Effect of Not Following Priority System
  • Arbitrary and Capricious Conservation
    • Sidle (1998)
      • Lynx
  • Outline of recovery actions needed within 60 days
  • Recovery Plans developed by Recovery Team for the Regional Manager
  • Prioritization of species (add C for conflict)
recovery tasks for a species
Recovery Tasks For A Species
  • Tasks prioritized by recovery team
    • Priority 1--action that must be taken to prevent extinction or prevent the species from declining irreversibly
    • Priority 2--action that must be taken to prevent a significant decline in species population or habitat that comes short of extinction
    • Priority 3--all other actions necessary to provide for full recovery of the species
  • Combined with species priority rank
    • 1c-1 (top priority to do on top species)
are priorities followed gao 1988
Are Priorities Followed? (GAO 1988)
  • Are recovery tasks done?
    • Not all of them
      • only slightly more than 50% of tasks in 16 plans were initiated despite the plans being in place for an average of 4+ years
  • Are species recovered in order of their priority?
      • NO, a few species get the bulk of the funds
        • most funds go to 12 species, 6 of which are highly endangered and 2 of which are barely threatened
  • Are recovery tasks done in order of priority?
      • NO, in all but 2 of 16 species lower priority tasks were done before all priority 1 tasks were completed
why aren t priorities followed
Why Aren’t Priorities Followed?
  • Congressional earmarking
    • takes part of Service budget and stipulates it to be spent on particular species
  • Allure of sexy species
    • high visibility, good PR, good chance of recovery
  • Lawsuits
    • For sexy species with public appeal
  • Poor Coordination
    • Conservation of species in one part of its range may not offset conservation in less important region
  • Plans are not kept up to date
    • priorities may no longer be valid
effect of earmarking
Effect of Earmarking
  • 1994
    • total recovery budget for usfws = 29.55 million
    • Earmarked portion was 10.392 million (35%)
      • Only 28% of the earmarks were for species ranked as 1 or 2 on the priority list
      • A few sexy big winners
        • Peregrine (900K) rank = 9
        • Condor (600K) rank = 4C
        • Wolves (1.6 mill) rank =3-5C
        • Manatee (500K) rank = 5C
        • Spotted Owls (2.35 mil) rank = 9C
things are different down under
Things are Different Down Under

(Endangered Birds in Australia; Garnett et al. 2003)

  • No Congressional influence to muddy the funding waters
    • Single Commonwealth minister, in consultation with advisors, can effectively allocate funds based on national priorities
  • No provision to challenge outcome of allocation in the courts
sometimes politics undoes recovery planning
Sometimes Politics Undoes Recovery Planning
  • Grizzly Bear recovery planning for Bitterroot Mountains of Montana and Idaho
    • 6 year consensus effort
    • Citizen Management Committee (appointed)
    • Would bridge Yellowstone pops to northern pops in Cabinet-Yaak Mountains
    • FWS adopted plan in Nov. 2000
      • June 2001, Norton suspends plan
        • Bowed down to conservative State position
        • Kempthorne: grizzlies are “massive, flesh-eating carnivores.”
      • Public comments disagree with Norton
        • 98% of Idahoans and 93% of Montanans wanted grizzly reintroduction to proceed
section 9 provisions
Section 9 Provisions
  • Limit any person subject to jurisdiction of US to take endangered species (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in such conduct)
    • Harm was later defined and upheld by Supreme Court (1995; Babbitt vs. Sweet Home Chapter of Communities for a Great Oregon) to include HABITAT MODIFICATION
section 9 provisions apply to endangered not threatened species
Section 9 Provisions Apply to Endangered, Not Threatened Species
  • Automatic application of all provisions to ENDANGERED SPECIES
  • THREATENED SPECIES can have benefits, but must be stated by Secretary
    • Sect 4(d) the secretary can “issue such regulations as he deems necessary and advisable to provide for the conservation” of threatened species, including regulations that prohibit any or all of the activities prohibited for endangered species
section 7 provisions federal agencies must
Section 7 Provisions: Federal Agencies Must:
  • (1) Cooperate with the Secretaries and use their own programs to further the conservation of endangered and threatened species, and
  • (2) Not authorize, fund, or carry out any action that would jeopardize a listed species or destroy or modify its critical habitat
    • Jeopardy refers to acts that reasonably would be expected, indirectly or directly, to reduce appreciably the likelihood of survival and recovery by reducing reproduction, numbers of distribution of a listed species
      • weighs proposed activity plus CUMULATIVE EFFECTS of activities likely to occur on state and private lands
section 7 consultation
Section 7 Consultation
  • Federal agencies must consult with the Service when activity affects listed species or likely jeopardizes proposed species or habitat
    • Informal Consultation--usually done to get exemption from formal consultation (no effect)
    • Formal Consultation--Action will affect listed species. Service does a Biological Opinion of whether action will result in jeopardy
      • must be completed within 90 days of initiation and delivered within 45 days
1978 amendments
1978 Amendments
    • After a biological opinion has been rendered by the service, the affected agency, the governor of the affected State, or the applicant for the federal permit of questionable effect (if applicable) can petition the Secretary
    • Secretary determines within 20 days if basic requirements of act are met and passes report to Endangered Species Committee
      • “God Squad”, “Gang of 7”
exemption is given if 5 of 7 conclude
Exemption is Given if 5 of 7 Conclude:
  • There are no reasonable or prudent alternatives for the agency
  • The benefits of the action clearly outweigh the benefits of species conservation and the benefits are for the public good
  • The action is of regional or national significance
  • The agency or applicant did not purposefully over-commit resources that would preclude any reasonable or prudent alternatives
two exemptions have been given
Two Exemptions Have Been Given
  • Grayrocks Dam, Wyoming (1979)
    • court settlement provided for compromise solution
  • BLM Timber sales, Oregon (1992)
    • Spotted Owl habitat--Environmental groups sued claiming that BLM had not considered new info on NSO before it agreed to sell old growth
      • Court agreed, but Congress attached Section 314 on Dept of Interior’s appropriation bill (1988, 1990) limiting court’s ability to challenge BLM mgmt plans! BLM withdrew exemption application in 1993 when Clinton was elected
designating critical habitat
Designating Critical Habitat
  • Critical Habitat includes habitat in and out of current range that contains physical or biological features (1) essential to the conservation of the species and (2) requiring special management considerations or protection.
  • Federal agencies must not jeopardize listed species or appreciably affect their abundance by reducing or modifying their critical habitat (Sect. 7)
  • Required to be designated at time of listing
    • if PRUDENT and considering economics
    • USFWS rarely sees it as prudent anymore
designating experimental populations
Designating Experimental Populations
  • 1982 amendment added exemption for experimental populations
    • population established by human intervention that is outside of the species’ current range
    • essential versus nonessential experimental populations
      • essential have full protection of Section 7
      • nonessential is not protected by Section 7
      • all are viewed as THREATENED species
    • can be helpful in getting public support/access
experimental populations can backfire
Experimental Populations Can Backfire
  • Yellowstone & central ID wolves
    • 1997, judge found that introduced wolves could not be considered a nonessential experimental population and ordered them removed (stayed, pending appeal)
    • USFWS claim that reintroduction areas are outside of current range is arbitrary and capricious
    • Cannot keep experimental population in area because it diminishes protection to natural population
incidental take
Incidental Take
  • Incidental take is take that results from some activity “but is not the purpose of the otherwise lawful activity.”
  • Can take species only with permit
    • Federal agencies get “incidental take statement” in biological opinion during section 7 consultation
    • Private and state entities get “incidental take permit” (Sect. 10) by negotiating a habitat conservation plan (HCP)
mitigation for take
Mitigation for Take
  • Basically incidental take is allowed if it is:
    • minimized and will not appreciably reduce the likelihood of survival and recovery of species
    • mitigated
    • defined as to extent
    • monitored
    • all alternatives are impractical
    • applicant ensures funding and means to deal with unexpected circumstances
getting off the list
Getting off the List
  • Priority system for de-listing and down-listing as well
    • based on petition status and the impact of the reclassification on other management (how much $ will be freed up to do other work)
enforcement and penalty
Enforcement and Penalty
  • Citizen suits---backbone of the act
    • can sue individuals, corporations, or agencies
  • Penalties depend on status of species, knowledge of violator
    • knowing violators can get 1year in prison and $50,000 fine (half of both for threatened species)
    • can revoke leases, licenses, etc.
    • equipment can be forfeited
literature cited
Literature Cited
  • USFWS 1996. A summary of the ESA and implementation activities. (
  • Bean, M. J. and M. J. Rowland. 1997. The evolution of national wildlife law, Third Edition. Praeger. Westport, CN.
  • USFWS 1983. Endangered and threatened species listing and recovery priority guidelines. 48FR 43098.
  • Garnett, S; Crowley, G., and A. Balmford. 2003. The costs and effectiveness of funding the conservation of Australian Threatened Birds. BioScience 53:658-665.
  • Knibb, David. In press. Grizzly Wars. U. W. Press
literature cited42
Literature Cited
  • USFWS. 1997. Recovery plan for the threatened Marbled Murrelet in Washington, Oregon, and California. Portland, OR. 203pp.
  • GAO. 1993. Factors associated with delayed listing decisions. GAO/RCED-93-152.
  • Sidle, JG. 1998. Arbitrary and capricious species conservation. Conservation Biology 12:248-249.
  • Clark, T. W., Reading, R. P., and Clark, A. L. (eds.) 1994. Endangered species recovery: finding the lessons, improving the process. Island Press