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What is an “endangered species”? Sec. 3: Definitions (6) The term ''endangered species '' means any species which is in danger of extinction throughout all or a significant portion of its range other than [certain pest insects].

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Presentation Transcript
slide1

What is an “endangered species”?

Sec. 3: Definitions

(6) The term ''endangered species'' means any species which is in danger of extinction throughout all or a significant portion of its range other than [certain pest insects].

(16) The term ''species'' includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.

slide2

Who determines whether a species is endangered, and how do they make that determination?

ESA Section 4: Determination of endangered species and threatened species (a) Generally(1)The Secretary shall by regulation … determine whether any species is an endangered species or a threatened species because of any of the following factors:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B)overutilization for commercial, recreational, scientific, or educational purposes; (C)disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E)other natural or manmade factors affecting its continued existence.

slide3

What does the ESA require of federal agencies?

Sec. 7 Interagency cooperation

(a) Federal agency actions and consultations … (2)Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency … is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species …

slide4

TVA v. Hill

1967: Congress authorized Tellico Dam; construction commenced

1967-late ‘73: Unsuccessful litigation (NEPA, other) challenging dam

Mid-1973: Snail darter discovered by David Etnier

Late 1973: ESA passed

1975: Snail darter listed; critical habitat designated

Feb. 1976: ESA challenge filed

slide5

Madison v. Ducktown Sulphur

“[S]hall we … grant [plaintiffs request] to blot out two great mining and manufacturing enterprises, destroy half of the taxable values of a county, and drive more than 10,000 people from their homes?”

TVA v. Hill

“Congress was concerned about the unknown uses that endangered species might have and about the unforeseeable place such creature may have in the chain of life on this planet … The plain intent of Congress … was to halt and reverse the trend toward species extinction, whatever the cost.”

slide6

Sec. 7 Interagency cooperation

(a) Federal agency actions and consultations(1) … Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency … is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species …

unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section. …

The “God Squad”

slide7

TVA v. Hill -- postscript

1967: Congress authorized Tellico Dam; construction commenced

1967-late ‘73: Unsuccessful litigation (NEPA, other) challenging dam

Mid-1973: Snail darter discovered by David Etnier

Late 1973: ESA passed

1975: Snail darter listed; critical habitat designated

Feb. 1976: ESA challenge filed

1980: Congress passes rider exempting Tellico from ESA

2000: Etnier urges delisting of snail darter; says 100,000 exist

slide8

What does the ESA require of private sector actors?

Sec. 9 Prohibited acts

(a) Generally (1)Except as provided in … 1539 of this title, with respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to …

(B)take any such species within the United States or the territorial sea of the United States;

Sec. 3 Definitions

(19) The term ''take'' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.

slide9

What does “harm” mean?

50 CFR Sec. 17.3:

“harm” means “an act which actually kills or injures wildlife … [including] significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.

Palila II:

wild sheep  degrade palila habitat  “harms” palila

BUT, Palila population recovering 1979-86, after removal of feral sheep and goats after Palila I

slide10

Babbitt v. Sweet Home (1995)

50 CFR Sec. 17.3:

“harm” means “an act which actually kills or injures wildlife … [including] significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.

Should “harm” be confined to “direct applications of force”? Is the statutory term limited in this way?

slide11

Babbitt v. Sweet Home (1995)

  • What are O’Connor and Scalia worried about? Why the argument over the difference between habitat modification that affects:
    • The ability of the population to grow
    • Unborn members of the species
    • The ability of existing members to breed?
  • Likewise, what is their argument about causation and foreseeability all about? Why reach these issues? Isn’t this a simple Chevron deference case?
slide12

Section 10(a): Incidental Taking Permits/HCPs

(1) The Secretary may permit, under such terms and conditions as he shall prescribe - …

(B)any taking otherwise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.

slide13

Section 10(a): Incidental Taking Permits/HCPs

(2) (A)No permit may be issued by the Secretary authorizing any taking referred to in paragraph (1)(B) unless the applicant therefor submits to the Secretary a conservation plan that specifies - (i) the impact which will likely result from such taking; (ii) what steps the applicant will take to minimize and mitigate such impacts…; (iii) what alternative actions to such taking the applicant considered …; and(iv) such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan.

Hardship Exemptions

slide14

ESA Sec. 9(a)(2) … with respect to any endangered species of plants listed pursuant to section [4] …, it is unlawful for any person subject to the jurisdiction of the United States to

(A) import any such species into, or export any such species from, the United States;

(B)remove and reduce to possession any such species from areas under Federal jurisdiction; maliciously damage or destroy any such species on any such area; or remove, cut, dig up, or damage or destroy any such species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law; …