Endangered Act?
The Endangered Species Act of 1973
Krista Benson
Professor Elizabeth Burleson
Environmental Law
November 26, 2008
The United States has reached a pivotal moment in the history of the
Endangered Species Act. Either the Endangered Species Act will continue to be one of
the most powerful mechanisms of protecting and recovering endangered species in the
United States and in foreign countries, or the Endangered Species Act will be reduced to
no more than words cluttering wasted paper. The critical consultation requirement of
the Endangered Species Act is currently proposed to be all but removed from the Act
within the next year.
In 1900, the United States Congress passed the Lacey Act.1 The Lacey Act was
Congress’s first attempt to protect wildlife in the United States. Prior to 1900, western
civilization did not hold much merit to the idea that human activities could have a
negative effect on other species.2 With the near extinction of the buffalo and the actual
extinction of the passenger pigeon, the United States government found itself
addressing the reality of the close relationship between humans and other animals.3
The Lacey Act received its authority via the Commerce Clause.4 The act gave the
federal government authority to enforce state wildlife protection laws, and allowed the
Secretary of Agriculture to take any necessary steps to protect game and other wild bird
1
Marty Bergoffen, Endangered Species Act Reauthorization: A Biocentric Approach, 31 (Ellisa
Lichtenstein, American Bar Association 1995).
2
Id.
3
United States Fish and Wildlife Service, Nation Marks Lacey Act Centennial, 100 Years of Federal
Wildlife Law Enforcement, http://www.fws.gov/pacific/news/2000/2000-98.htm (last updated
May 30, 2000).
4
Supra n. 1.
populations.5 The act also prohibited importation of specific birds or animals that may
injure any agriculture or horticulture interest.6
The authority of the Lacey Act slowly dissolved with a series of Commerce Clause
and Property Clause cases. In Missouri v. Holland, the Migratory Bird Treaty Act was
upheld as a congressional treaty-making power.7 In Hughes v. Oklahoma, an Oklahoma
statute banning the interstate transport of minnows was ruled found to be an
unconstitutional bar on interstate commerce.8
In the 1960’s, the environmentalist movement started to gain momentum with
the publishing of Rachel Carson’s Silent Spring.9 As a result, the United States
Department of the Interior created a Committee on Rare and Endangered Wildlife
Species. This committee research and eventually published the first Redbook of fish and
wildlife threatened with extinction.10
In 1966, Congress passed The Endangered Species Preservation Act. This act was
the precursor to the present day Endangered Species Act. The Endangered Species
Preservation Act classified certain native animal species as endangered and allowed
these species limited protections. The Departments of Interior, Agriculture, and
Defense were to seek to protect listed species and preserve the habitats of such
5
Supra n. 3.
Supra n. 1.
7
Missouri v. Holland, 252 U.S. 416 (1920).
8
Hughes v. Oklahoma, 441 U.S. 322 (1979).
9
Supra n. 1 at 33.
10
Id.
6
species.11 The act also provided the U.S. Fish and Wildlife Service with the authority to
acquire land as habitat for endangered species.12
The 1966 act was problematic. Federal agencies were ordered to protect
habitats of endangered native vertebrates; yet they only had to do so if such actions
were within their primary purpose.13 There were no restrictions on the commerce of
endangered species, and there was only a prohibition on the taking of endangered
species on wildlife refuges.14
In 1969, the Endangered Species Preservation Act received a name change; the
Endangered Species Conservation Act.15 Congress also broadened the power of the act
by prohibiting importation and subsequent sale of species in danger of worldwide
extinction.16 The 1969 act also extended protections to invertebrates as well as Lacey
Act protections to reptiles, amphibians and some invertebrates. This particular
provision was written as a response to the popularity of alligator poaching in the
Southeast.17 In addition to these amendments, Congress called for an international
meeting to adopt a convention to conserve endangered species.
Eighty nations met in Washington, D.C. in 1973 to sign the Convention on
International Trade in Endangered Species of Wild Fauna and Flora (CITES). CITES
11
United States Fish and Wildlife Service, History and Evolution of the Endangered Species Act of
1973, http://www.fws.gov/endangered/ESA/esasum.html (last updated April 2008).
12
Supra n. 11.
13
Supra n. 1 at 32.
14
Id.
15
Supra n. 11.
16
Id.
17
Supra n. 1 at 32.
monitors and restricts international commerce in plant and animal species harmed by
trade.18
While still under the momentum of CITES, Congress passed the Endangered
Species Act of 1973. While the current Endangered Species Act has been amended
several times, the 1973 Act provides the framework for the current statutory scheme.
The Endangered Species Act is designed to protect only listed species. A species
is defined as “any subspecies of fish or wildlife or plants, and any subspecies of fish or
wildlife or plants, and any distinct population segment of any species of vertebrate fish
or wildlife that interbreeds when mature.”19
The Endangered Species Act created and covers two lists of species; endangered
and threatened. A species is considered “endangered” if there is a danger of it
becoming extinct throughout all or a significant portion of its range.20 A species is
considered “threatened” if there is a danger of it becoming an endangered species
within the foreseeable future.21 The 1973 act also permitted plants and all
invertebrates eligible for protection. 22
18
Supra n. 11.
16 U.S.C. §§ 1532(16).
20
Id. at §1532(6).
21
Id. at §1532(20).
22
Id. at §1532(8).
19
The original act also applied a broad “taking” prohibition to all endangered
animal species and allowed the prohibition to apply to threatened animal species by
special regulation. 23
The Endangered Species Act requires all federal agencies to use their authority to
conserve listed species. An important part of the execution of the Endangered Species
Act is a requirement to consult with the U.S. Fish and Wildlife Service on any action that
may affect listed species.24
Section 7 also prohibits federal agencies to authorize, fund or carry out any
action that would jeopardize a listed species or destroy or modify its critical habitat. 25
The consultation process may result in the federal agency action being cancelled or
altered. If an agency action is found to jeopardize a species, the agency can apply for an
exception with the Endangered Species Committee.26
In order to facilitate collaboration between state governments and the federal
government, Section 6 provides matching funds for states with cooperative
agreements.27 Conversely, Section 8 provides funds to acquire land outside the United
States in order to protect foreign species.28 Congress also implemented the CITES
protections in the United States in Section 8.29
23
Supra n. 11.
Supra n. 19 at §1532(7).
25
Id.
26
Supra n. 1. at 37.
27
Supra n. 19 at §1535(d).
28
See Id. at §1537(c)(2).
29
See Id. at §1537a.
24
The first collection of amendments to the Act was passed in 1978. An exception
was created in Section 7. This exception allowed federal agencies to undertake an
action that would jeopardize a listed species if the action was exempted by a cabinetlevel committee convened for this sole purpose.30
The 1978 amendments also added a new requirement to Section 4. When listing
a species, a critical habitat must be designated. When determining the boundaries of a
critical habitat, economic and other impacts must be considered.31
Section 3 now required the Secretary of Agriculture for the Forest Service, to join
the Secretaries of Interior, Commerce, and Defense in developing a program to conserve
fish, wildlife and plants.32 The ability to acquire land to protect habitat was extended to
these species.33 The 1973 amendments redefined “species” in respect to “populations.”
This definition of “species” is restricted to vertebrates. However, any species,
subspecies or variety of plant or species or subspecies of animal remained eligible for
protection.34
More amendments to the Endangered Species Act were passed in 1982. When
determining if a species is endangered or threatened, there can be no consideration to
the possible economic effects. The decision must be made solely on the basis of biology
30
See Id. at §1536(e).
See Id. at §1533(b)(2).
32
See Id. at §1534(a).
33
See Id. at §1534(a)(1).
34
Id.
31
and trade information.35 A final determination of the status of a species was required to
follow within one year of the proposal unless withdrawn for cause. This was a change
from the previous two-year limit enacted in 1978.36
Section 10 had several changes. A new provision was added to designate
experimental populations of listed species that could be subject to different treatment
under Section 4 for critical habitat, Section 7 for interagency cooperation and Section 9
for prohibitions.37 Habitat conservation plans introduced and provided “incidental take”
permits for listed species in connection with normally lawful activities.38 In addition to
the Section 10 changes, Section 9 created a prohibition against removing endangered
plants from land under federal jurisdiction.39
In 1988 and 2004, congress approved the most recent amendments to the
Endangered Species Act of 1973. The 1988 amendments focused primarily on the
recovery process for listed species. Section 4 now required monitoring of candidate and
recovered species.40 Biennial reports were required on the development and
implementation of recovery plans as well as the status of all species with plans.41
Congress also adopted an emergency listing provision if there was evidence of a
35
See Id. at §1533(3)(A)(B).
Supra n. 11.
37
Id.
38
Supra n. 19 at §1539(a)(1)(B).
39
See Id. at §1538(a)(2)(B).
40
See Id. at §1533(g)(1).
41
See Id. at §1533(f)(3).
36
significant risk to a species.42 Recovery plans for listed species were now required to
undergo public notice and comment.43 Federal agencies affected by the recovery plan
had to give consideration to those comments.44 A new subsection was created requiring
five years of monitoring recovered species.45
In addition to Section 4 changes, a new Section 18 was added to the act. All
federal and state governments that received Section 6 funds must now file a report of
all identifiable expenditures on the recovery of endangered or threatened species.46
These reports must be done on a species-by-species basis.47 The last 1988 amendment
was a small change to Section 9. The protection of endangered plants was broadened
to include a prohibition on malicious destruction on federal land.48
In response to the events of September 11th, congress amended the act in 2004.
Section 4 now exempted the Department of Defense from critical habitat designations
so long as an integrated natural resource management plan was prepared and accepted
by the Secretary of the Interior.49
42
Supra n. 11.
Supra n. 19 at §1533(f)(4).
44
Id.
45
Supra n. 19 at §1533(g)(1).
46
See Id. at §1544(2)
47
See Id. at §1544(1)
48
Id.
49
See Id. at §1536(j).
43
As of November 2008, there are approximately 1,925 total species listed under
the Endangered Species Act.50 Of those species approximately 1,350 are found in part
or entirely in the U.S. and its waters; the remainder are foreign species.51 Two
departments share responsibility implementing the Endangered Species Act. NOAA’s
National Marine Fisheries Service manages marine and “anadromous” species. The
National Marine Fisheries Service currently has jurisdiction over sixty-seven listed
species.52 The Fish and Wildlife Service manages land and freshwater species.
Some well-known endangered species include the gray wolf, humpback whale,
black-footed ferret and puma. The polar bear, otter and Utah prairie dog are all
threatened species.53 When the list was first created in 1966, there were thirteen
mammals, thirty-six birds, six reptiles and amphibians, and twenty-two fishes listed.54
The original 1966 list included species such as the grizzly bear, black-footed ferret,
Florida manatee, bald eagle and the American alligator.55 The bald eagle was removed
from the list on March 11, 1967, the alligator on July 27, 1979, and the grizzly bear on
March 29, 2007.56
50
National Oceanic and Atmospheric Administration, Endangered Species Act (ESA), http://www.
Mfs.noaa.gov/pr/laws/esa (last accessed October 1, 2008).
51
Supra n.50.
52
Id.
53
United States Fish and Wildlife Service, Species Information,
http://www.fws.gov/Endangered/wildlife.html (last updated November 18, 2008).
54
United States Fish and Wildlife Service, Native Fish and Wildlife,
http://www.fws.gov/Endangered/1966listing.html (last updated January 16, 2008).
55
Id.
56
United States Fish and Wildlife Service, Delisting Report,
http://ecos.fws.gov/tess_public/DelistingReport.do (last accessed November 10, 2008).
As of November 2008, only forty-seven species have been removed from the
list.57 Of those species, twenty-one are considered recovered, nine are now extinct and
seventeen were erroneously placed on the list initially.58 Currently, only six species are
in the process of changing status; none of those species have a proposed change of
status to delisted.59
Fifty-two different species are on the proposed endangered species list and four
species are on the proposed threatened species list.60 Over-all, 251 species are on the
endangered and threatened candidate list.61 A species may move between lists. The
gray wolf in particular has been moved between several lists within the last year.
The placement of the gray wolf on the endangered species list is not without
controversy. In 1995 and 1996, sixty-six wolves were introduced into central Idaho and
Yellowstone in an effort to establish a stable pollution of at least 300 animals.62 In
February 2008, the Fish and Wildlife Service announced the removal of the gray wolves
57
Id.
Id.
59
United States Fish and Wildlife Service, Change Status Species List,
http://ecos.fws.gov/tess_public/SpeciesReport.do?listingType=SC (last accessed November 5,
2008).
60
United States Fish and Wildlife Service, Proposed Species List,
http://ecos.fws.gov/tess_public/SpeciesReport.do?listingType=P (last accessed November 5,
2008).
61
United States Fish and Wildlife Service, Candidate Species List,
http://ecos.fws.gov/tess_public/pub/SpeciesReport.do?listingType=C&mapstatus=1 (last
accessed November 5, 2008).
62
Pat Dawson, Yellowstone Wolves: Embattled Again,
http://www.time.com/time/health/article/0,8599,1670093,00.html (last updated October 10,
2007).
58
from the endangered species list.63 The Fish and Wildlife Service claimed victory in the
effort to reestablish the wolves to the Idaho, Montana, and Wyoming region. As of
March 28, 2008, wolves in the northern Rockies numbered over 1,500.64 Wildlife service
officials say the population is increasing by about 24% a year.65
On May 22, 2008, Montana, Wyoming and Idaho announced plans to allow fall
hunts of the wolves.66 The proposed hunts were expected to kill approximately 500
wolves.67 In direct response to the pending hunts, an environmental group
“Earthjustice” filed a suit on behalf of Defenders of Wildlife, Natural Resources Defense
Council, Sierra Club, Center for Biological Diversity, The Humane Society of the United
States, Jackson Hole Conservation Alliance, Friends of the Clearwater, Alliance for the
Wild Rockies, Oregon Wild, Cascadia Wildlands Project, Western Watersheds Project
and Wildlands Project.68
Each party presented their own scientific studies. The plaintiffs provided the
Fish and Wildlife Service’s 1994 specific recovery criteria requiring “genetic exchange
between subpopulations.”69 Since the Yellowstone population has been genetically
63
Defenders of Wildlife v. Kempthorne, 365 F. Supp. 2d 1160, 1165 (2008).
State News Service, Interior Department Removes Northern Rocky Mountain Wolves From
Endangered Species List, St. News Serv. (February 21, 2008).
65
Tami Abdollah, Protections reinstated for wolves,
http://articles.latimes.com/2008/jul/19/nation/na-wolves19 (Last Updated July 19, 2008).
66
US State News, Gray Wolf Status: Idaho’s Perspective, US St. News. (November 7, 2008).
67
Brad Knickerbocker, Delisting of wolves raises hackles,
http://features.csmonitor.com/environment/2008/05/28/delisting-of-wolves-raises-hackles/
(last updated May 28, 2008).
68
Supra n. 63.
69
See Id. at 1168.
64
isolated, they have yet to reach a metapopulation.70 The Department of Interior does
not refute the lack of genetic DNA exchange; however, they maintain that a
metapopulation can be reached without DNA exchange.71
On July 18, 2008, federal District Court judge Donald Molloy of Montana issued a
preliminary injunction reinstating federal Endangered Species Act protections for the
gray wolves in the Northern Rockies region.72 The Department of Interior initially
decided to appeal the decision.73 However, the Department of Interior instead dropped
the suit and allowed the wolves to be relisted.74 On October 24, 2008, the Fish and
Wildlife Service announced its plans to delist the gray wolf again and invited the public
to comment on the proposal.75 Public comment was available until November 28,
2008.76 A decision on the status of the gray wolf has yet to be announced.
The Endangered Species Act does contain a citizen-suit provision.77 Under this
provision, citizens and watchdog groups with standing are allowed to sue the federal
70
Id.
See Id. at 1168 and 1169.
72
United States Fish and Wildlife Service, Endangered Species Act Protections Reinstated for
Northern Rocky Mountain Wolf Population, Interior Dept. Documents and Publications (July 22,
2008).
73
Supra n. 65.
74
Supra n. 62.
75
United States Fish and Wildlife Service, U.S. Fish and Wildlife Service Reopens Public Comment
Period on 2007 Proposal to Delist Northern Rocky Mountain Population of Gray Wolves Under
the Endantered Species Act,
http://www.fws.gov/news/NewsReleases/showNews.cfm?newsId=303B00BC-DD03-F914B2EED474E7DBB274 (last updated October 24, 2008).
76
Id.
77
Supra n. 19 at §1540(g).
71
government in order to have a species deemed threatened or endangered.78 Citizens
and watchdog groups can also file suit against those who violate the act.79 The
preliminarily issue in lawsuits involving the Endangered Species Act citizen-suit provision
is if the plaintiff has standing to bring the suit.
Lujan v. Defenders of Wildlife is considered a landmark case involving standing
and Endangered Species Act citizen-suit provision. In 1986, a regulation was created to
require consultation only with cases in the United States and its high seas.80 This
provision removed the Endangered Species Act consultation requirement in foreign
nations.
Groups dedicated to wildlife conservation and other environmental causes filed
an action against the Secretary of the Interior in the United States District Court for the
District of Minnesota seeking both a declaratory judgment that the regulation was in
error as to the geographical scope of 7(a)(2) of the Endangered Species Act, and an
injunction requiring the Secretary to create a new regulation restoring the initial
interpretation.81
Initially, the District Court granted the defendant’s motion to dismiss the action
for lack of standing.82 On appeal, the motion was reversed, and the case remanded. On
remand, the United States District Court for the District of Minnesota found the plaintiff
78
Supra n. 1. at 202
Id.
80
Defenders of Wildlife v. Lujan, 504 U.S. 555, 558 (1992).
81
See id. at 559
82
Id.
79
had standing and granted their request for a declaratory judgment.83 The Secretary of
the Interior appealed, and the United States Court of Appeals for the Eighth Circuit
affirmed.84
When deciding the plaintiff had standing under the Endangered Species Act
citizen-suit provision, the Appeals Court considered three factors; two different
affidavits from members of the organization as well as a showing of a procedural
injury.85 The first affidavit stated a member of the organization had traveled to Egypt to
observe the habitat of the endangered Nile crocodile and intended to do so again, and
that she would suffer harm as a result of the role of the United States in overseeing and
developing water projects in Egypt.86
The second affidavit stated a member had traveled to Sri Lanka to observe the
habitat of endangered species such as the Asian elephant and the leopard, and the
development project funded by a United States agency might severely shorten the
future of these species.87 The member also asserted the threat to the species harmed
her because she intended to return to Sri Lanka in the future to see these species.88
Furthermore, the plaintiff showed that their organization had suffered a procedural
83
Id.
Id.
85
Supra n. 80.
86
See id. at 563.
87
Id.
88
See id. at 564.
84
injury based on the Secretary’s failure to follow the consultation procedure required by
7(a)(2) of the Endangered Species Act.89
In a 7-2 decision, the Supreme Court reversed. In an opinion written by Justice
Scalia, the court found five reasons the plaintiff could not assert standing. First, the
affidavits did not support a finding of actual or imminent injury.90 Second, if the court
adopted the ecosystem nexus theory, any person who uses any part of an adversely
effected ecosystem would have standing to challenge that adverse activity even if it was
located a great distance away.91
The court also struck down both animal nexus and vocational nexus approaches
to the Endangered Species Act citizen-suit provision. Under the animal nexus approach,
any person who had an interest in studying or seeing an endangered species would have
standing to challenge any federal decision adversely affected such animals.92 The
vocational nexus approach would give standing to anyone with a professional interest in
threatened animals.93
Finally, the court found the citizen-suit provision of the Endangered Species Act
did not create in all persons a procedural right to consultation. If that were to be true,
89
See Id. at 571.
See id. at 564.
91
See id. at 565.
92
See id. at 566.
93
Id.
90
anyone could file a suit in federal court to challenge a decision from the Secretary even
without a resulting injury.94
In another substantial case involving standing and the Endangered Species Act,
Bennett v. Spear, the court ruled in favor of the plaintiff and found sufficient evidence
for standing in the suit. The controversy in Bennett surrounded the Klamath Project, a
federal reclamation project consisting of a series of lakes, rivers, dams and irrigation
canals in northern California and southern Oregon.95 The Fish and Wildlife Service issued
a biological opinion concluding the project was jeopardizing the continued existence of
two endangered species of fish.96
Two Oregon irrigation districts that received water from the project, along with
the operators of two ranches in those districts, filed an action against the Secretary of
the Interior under the citizen-suit provision of the Endangered Species Act.97 Both the
United States District Court for the District of Oregon and the United States Court of
Appeals for the Ninth Circuit ruled the plaintiffs did not have standing since their
recreational, aesthetic and commercial interests did not fall under the zone of interests
sought to be protected by the Endangered Species Act.98 More specifically, the Court of
Appeals expressed in dictum “only plaintiffs who alleged an interest in the preservation
94
Supra n. 80 at 572.
Bennett v. Spear, 520 U.S. 154, 158 (1997).
96
See id. at 159.
97
Id.
98
See id. at 160 and 161.
95
of endangered species fell within the zone of interests protected by the Endangered
Species Act.”99
In a unanimous decision, the United States Supreme Court reversed and
remanded. In an opinion written by Justice Scalia, the court rejected the reasoning of
the Court of Appeals. Justice Scalia wrote. “…the “any person” formulation applies to all
the causes of action authorized by § 1540(g) —not only to actions against private
violators of environmental restrictions, and not only to actions against the Secretary
asserting underenforcement under § 1533, but also to actions against the Secretary
asserting overenforcement under § 1533.”100
The most recent case to involve the Endangered Species Act was decided on
November 12, 2008. In Winter v. Natural Resources Defense Council, conservation
groups filed suit in federal court against the United States Navy for its use of active
sonar.101 The U.S. Navy routinely runs training exercises off the coast of California.
These training exercises involve various things including active and passive sonar. Active
sonar is “emitting pulses of sound underwater and then receiving the acoustic waves
that eco off the target.”102 Passive sonar “’listens’ for sound waves but does not
99
See id. at 161.
See id. at 166.
101
Winter v. Natural Resources Defense Council, 2008 U.S. Lexis 8343 (2008).
102
See id. at 11 and 12.
100
introduce sound into the water.”103 Passive sonar is not as effective as active sonar since
some vessels can travel in almost completely silence.104
The training exercises involving active sonar are performed off the coast of
southern California. The location is considered “ideal” since “this is the only area on the
west coast that is relatively close to land, air and sea bases, as well as amphibious
landing areas.”105 This area is also the home of the strike groups. Strike groups are
groups of naval units that train together in order to be deployed together. To be
certified for deployment, a strike group must complete various Joint Tactical Force
Exercises including a demonstration of proficiency in antisubmarine warfare.106
Also sharing this training ground off the coast of California is approximately
thirty-seven species of marine mammals.107 The Navy maintains that active sonar only
causes temporary hearing loss or brief disruptions of marine mammals’ behavior
patterns.108 However, the plaintiffs provide information that active sonar can cause
“permanent hearing loss, decompression sickness and major behavioral disruptions.”109
The plaintiffs filed suit claiming violations of the National Environmental Policy
Act of 1969, the Endangered Species Act of 1973, and the Coastal Zone Management
Act of 1872. The District Court granted a preliminary hearing prohibiting the Navy from
103
See id. at 12.
Id.
105
See id. at 13.
106
Id.
107
See id. at 14.
108
See id. at 14.
109
See id. at 14 and 15.
104
using active sonar. The District Court found “that there was in fact a ‘near certainty’ of
irreparable injury to the environment and that this injury outweighed any possible harm
to the Navy.”110
The Navy filed an emergency appeal. The Court of Appeals affirmed the District
Court, finding there was a NEPA violation. However, they remanded in part, finding a
complete ban on active sonar was overbroad.111 On remand, the District Court entered a
new preliminary judgment, allowing the Navy to use active sonar conditionally.
The Navy took their redresses to the Executive branch. The President granted
the Navy an exception from the Coastal Zone Management Act of 1973.112
Concurrently, the Council on Environmental Quality made alternative arrangements
with the Navy in order to comply with NEPA.113
In light of these new exceptions, the Navy asked the District Court to vacate the
injunction. The District Court refused as well as the Appeals Court as such the case was
granted certiorari by the Supreme Court.
In a 6-3 opinion, the court ruled in favor of the Navy. Justice Roberts wrote the
opinion for the court in which he weighted the importance of national security against
the importance of conserving the environment. The majority states, “These interests
110
See id. at 19.
Id.
112
See id. at 20.
113
See id. at 21.
111
must be weighed against the possible harm to the ecological, scientific and recreational
interests that are legitimately before the court.”114
The court analyzes the scientific data on both sides of the argument and finds
the evidence for the Navy more compelling. The damage to marine mammals is
considered minimal in comparison to the harm inflicted on national security. “We do
not discount the importance of plaintiffs’ ecological, scientific, and recreational interests
in marine mammals. Those interests, however, are plainly outweighed by the Navy’s
need to conduct realistic training exercises to ensure that it is able to neutralize the
threat posed by enemy submarines.”115
The Endangered Species Act is not only altered by the Supreme Court and
Congress, but also by the administrative agencies themselves. In August 2008, the Fish
and Wildlife Service and the Marine Fisheries Service proposed two changes to the
current Endangered Species Act.116 An appreciation of the current proposed
amendments to the species location list and consultation requirement requires a
thorough understanding of the catalysis behind the proposed changes.
In February 2008, Center for Biological Diversity, Greenpeace and Natural
Resource Defense Council filed a suit against Dirk Kempthorne, United States Secretary
of the Interior, and the United States Fish and Wildlife Service after their failure to meet
the Endangered Species Act prescribed time schedule in determining the listing status of
114
See id. at 33.
See id. at 47.
116
73 Fed. Reg. 47868 (August 15, 2008), 73 Fed. Reg. 45383 (August 5, 2008).
115
the polar bear.117 The United States District Court of Northern California ruled in favor of
the plaintiffs and filed a court order imposing a May 15, 2008 deadline.118
On May 15, 2008, the Fish and Wildlife Service made the controversial decision
to list the polar bear as a threatened species.119 The polar bear is the first species to be
listed due to a diminishing habitat resulting from global warming.120 In a nine-volume
study by the United States Geological Survey, scientists predicted two-thirds of the polar
bears’ habitat would disappear by 2050.121
Polar bears are experts at hunting seals and other prey from sea ice during the
winter months.122 However, their hunting skills do not translate to land, and as a result,
polar bears fast all summer.123 Polar bears lose two pounds a day during their summer
fast. As a result of rising temperatures, sea ice is forming less often and for shorter
117
Climate Justice, Environmental Groups Take Legal Action to Enforce Endangered Species Act,
http://climatelaw.org/media/jan0908 (last updated January 9, 2008).
118
Felicity Barringer, Judge Gives Agency Deadline for Decision on Polar Bears,
http://www.nytimes.com/2008/04/30/us/30bear.html?ref=us (last updated April 30, 2008).
119
Kenneth R. Weiss, Polar bear is listed as threatened species,
http://www.latimes.com/news/science/environment/la-me-polar152008may15,0,1220040.story (last updated May 15, 2008).
120
Science Daily, Protecting Polar Bears Must Include Mitigating Global Warming, Group Argues,
http://www.sciencedaily.com/releases/2008/05/080521100419.htm (last updated May 22,
2008).
121
Supra n. 119.
122
Supra n. 120.
123
Id.
periods of time.124 The summer fast for polar bears is now three weeks longer than it
was thirty years ago.125
Polar bears now have less time to hunt, smaller amounts of reserved fat, and
must survive on these diminished reserves for a longer period of time.126 As a polar
bear gets thinner, the reproductive rates of females and survival rates of cubs decline.
Since 1987, the polar bear population in the western Hudson Bay area has dropped by
22%.127
The reduced sea ice not only lowers birth rates, but also is directly responsible
for polar bears starving.128 Polar bears are drowning in attempts to reach other areas of
sea ice.129 Polar bears are also resorting to new shocking means in order to get the
nutrition they need. There is evidence that polar bears are resorting to cannibalism in
order to survive.130
In response to the listing of the polar bear as a threatened species, the Bush
administration proposed amendments to the Endangered Species Act’s consultation
124
Marsha Walton, Polar Bears Resort to Cannibalism as Arctic Ice Shrinks,
http://www.cnn.com/2008/TECH/09/23/arctic.ice/index.html (last updated September 23,
2008).
125
Supra n. 119.
126
Id.
127
Felicity Barringer, Agency Proposes to List Polar Bears as Threatened,
http://www.nytimes.com/2006/12/28/science/28polar.html?n=Top/News/Science/Topics/Glob
al%20Warming (last updated December 27, 2007).
128
Supra n. 120.
129
Tom Simonite, Drowning Polar Bears Worry Researchers,
http://www.bioedonline.org/news/news.cfm?art=2246 (last updated December 20, 2005).
130
Supra n. 124.
requirement.131 Currently, federal agencies must consult with either the Fish and
Wildlife Service or the National Marine Fisheries Service if they intend on carrying out
an action that may affect an endangered species.132 Through the consultation process,
the Fish and Wildlife Service or the National Marine Fisheries Service can approve, reject
or modify the proposed project.133
The consultation process starts with an initial informal consultation.134 During
the informal consultation, the wildlife agencies decide whether the project is likely to
harm an endangered species. If one of the wildlife agencies determines yes, then the
formal consultation process begins.135 Through this process, the wildlife agencies make
sure the species is not put in danger and the impacts are minimized and counteracted.
The amendment proposed on August 15, 2008 bypasses the consultation
requirement of Section 7 by allowing agencies to self-consult.136 Rather than requiring
agencies to seek the approval from the Fish and Wildlife Service and National Marine
Fisheries Service and their independent scientists, agencies only need to seek approval
within their own department.137 In the proposed rules, the Department of the Interior
states, “After decades of experience and literally thousands of consultations per year,
however, we have concluded that there is no gain in requiring federal action agencies to
131
73 Fed. Reg. 47868 (August 15, 2008).
Supra n. 19 at §1532(7).
133
Id.
134
Supra n. 1. at 37.
135
Id.
136
Supra n. 131.
137
Id.
132
consult...We recognize that Federal action agencies have more expertise now than in
1986 and are much more aware of the consequences and significance of their
findings.”138
The August 15 proposed amendment also allows agencies to disregard
information about the impacts of greenhouse gas emissions on endangered species
threatened by climate change, mainly the newly listed polar bear.139 The Department of
the Interior states, “First, GHG (greenhouse gas) emissions from building one highway
are not an “essential cause” of any impacts associated with global warming. Moreover,
any such effects are later in time, but are not reasonably certain to occur.”140
Removing consultation requirements under Section 7 of the Endangered Species
Act has been attempted previously under the National Fire Plan. The National Fire Plan
is “an interagency strategy approved in 2000 to reduce risks of catastrophic wildland
fires and restore fire adapted ecosystems.”141
Before civilization fought and suppressed wildfires, forests went through a
natural cycle.142 Dead timber and unhealthy trees were removed by a natural fire cycle.
However, once civilization started to fight forest fires, forests no longer had a
mechanism to cycle naturally. Fire fuels, such as dead timber and unhealthy trees,
138
Supra n. 131.
Id.
140
Id.
141
68 Fed. Reg. 68254 (December 8, 2003).
142
Id.
139
started to accumulate at higher and higher levels. The accumulated fuels allowed fire to
spread quickly, and created several years of devastating wildfires in the United States.143
“The National Fire Plan is intended to reduce risk to communities and natural
resources from wildland fires through rehabilitation, restoration and maintenance of
fire-adapted ecosystems, and by the reduction of accumulated fuels or highly
combustible fuels on forests, woodlands, grassland and rangelands.”144
Originally, projects involving the National Fire Plan were subject to Endangered
Species Act Section 7 consultation requirements. However, agencies moving forward
with National Fire Plan projects found the consultation process cumbersome and
dawdling.145
In 2003, the Department of Interior excluded National Fire Plan projects from the
consultation requirement. The Department of Interior reasoned that most agencies
involved in the National Fire Plan already have biologists on staff that could assess the
risk to endangered species.146 The department also balanced the potential harm
National Fire Plan projects could inflict on endangered species and the over-all benefit
of maintaining a healthier forest habitat.
After a public comment period that yielded over 50,000 responses, the new
regulation was put into effect in 2004.147 The Fish and Wildlife Service reviewed the
143
Id.
Id.
145
Id.
146
Id.
147
Id.
144
results of this Endangered Species Act self-consultation and found the Forest Service
and the Bureau of Land Management had violated the act in approximately 68% of their
National Fire Plan projects. Nonetheless, self-consultation is still permitted with
National Fire Plan projects.148
The proposed amendments to the Endangered Species Act would extend the
proven ineffective Endangered Species Act self-consultation exception to all federal
agencies. In addition to this August 15 proposed rule, another lesser known rule was
proposed on August 5. The August 5 rule would change the formatting of the lists of
both threatened and endangered species by creating a new column heading of “Where
Listed.”149 This new heading would “set forth the geographic area where the species is
listed for purposes of the Act.”150
The Department of Interior reasons, “Over time, we have noted numerous
anomalies in the Lists, including ambiguous entries and confusing format and column
titles.”151 Under the heading “rule purpose,” the department explains the change is only
to simplify the lists, and as a result, make the lists more accessible to the public. The
148
Center for Biological Diversity, Eleventh-hour Bush Policy Tries to Gut Endangered Species Act,
http://www.biologicaldiversity.org/campaigns/esa_in_peril/index.html (last accessed October 5,
2008).
149
Environmental News Service, Feds Allow More Comment Time on Endangered Species Act
Change, http://www.ens-newswire.com/ens/sep2008/2008-09-11-092.asp (last updated
September 11, 2008).
150
73 Fed. Reg. 45383 (August 5, 2008).
151
Id.
department goes on to state, “None of the proposed changes are regulatory in nature;
we are proposing them for the purpose of clarity.”152
While seemly minor, this change has very large implications with the
enforcement of the Endangered Species Act. Protections afforded to listed species
would be substantially decreased since most species have lost a considerable portion of
their historic range.153 Under this proposed rule, when adding a species to either the
endangered or threatened species list, the species can only be listed under locations
where it is currently found. For example, the California condor, which was extinct from
the wild, could have only been protected in its current location: zoos.154
As of November 20, 2008, the Bush administration was in the final twenty-four
hours of finalizing and publishing the proposed rules.155 If the Bush administration fails
to push through these “midnight regulations,” the president-elect Barack Obama could
choose to disregard the rules when he takes office on January 20, 2009.156 The future of
the Endangered Species Act could be decided within the next couple of months.157
152
Id.
Supra n. 148.
154
Id.
155
Jordan Lite, Bush Moves May Endanger Endangered Species Act,
http://www.sciam.com/blog/60-second-science/post.cfm?id=bush-moves-may-endangerendangered-2008-11-20 (last updated November 20, 2008).
156
Id.
157
Washington Post, Changes to Species Act Are Said to Be Near,
http://www.washingtonpost.com/wpdyn/content/article/2008/11/19/AR2008111904585.html?hpid=sec-nation (last updated
November 20, 2008).
153
While the current political climate surrounding wildlife conservation may move
towards limiting the power of the Endangered Species Act, new developments in
science are providing new innovative ways to protect and recover endangered and
threatened species. New scientific procedures may even someday revive extinct species.
In 2003, Japanese scientists announced their intention to prepare frozen DNA
samples of the Wooly Mammoth in order to start the DNA mapping process.158 The
DNA of a wooly mammoth was found frozen in Russia in the form of bone marrow,
muscle, and skin.159 The most promising DNA has been found in frozen hair samples.160
Hair samples are the most desirable, because they are easily washed of bacteria DNA.161
The frozen conditions have preserved the DNA well since DNA tends to break down
when exposed to heat.162
On November 19, 2008, Penn State announced their research team had
completed 80% of the Wooly Mammoth’s DNA genome.163 Penn State maintains the
research has been conducted merely to better understand the extinct species.164
However, other researchers believe mapping the genome is just the first step to a
158
CBS News, Wooly Mammoth To Live Again?,
http://www.cbsnews.com/stories/2003/07/15/tech/main563450.shtml (last updated July 16,
2003).
159
Id.
160
BBC News, Mammoth hair produces DNA bounty,
http://news.bbc.co.uk/2/hi/science/nature/7016160.stm (last updated September 28, 2007).
161
Ker Than, Woolly mammoth hair yields 'fantastic' DNA,
http://www.msnbc.msn.com/id/21015458/ (last updated September 27, 2007).
162
Id.
163
Jaya Jiwatram, Mammoth (DNA) Resurrection, http://www.popsci.com/scitech/article/200811/mammoth-dna-resurrection (last updated November 19, 2008).
164
Id.
cloning process. The second step is to somehow get life to start using the genome.165
Researchers now believe cloning this extinct species is possible. It is just a matter of
time and money.166
Mapping the Wooly Mammoth’s genome cost one million dollars, and scientists
admit cloning the species would no doubt cost much more.167 These types of scientific
breakthroughs would make it possible to save a species on the brink of extinction. Once
the technology evolves, the process may become easier, less expensive, and more
practical. Future endangered species recovery plans may include the option of
preserving DNA for cloning of the species.
The Endangered Species Act is facing new threats from the Judicial, Executive
and Legislative branches of our government. The Act was created to protect species
worldwide from the threat of extinction. The development of new technology often
leads to new threats as well as new recovery efforts. While different branches of the
government may disagree on the method of conserving species, all branches agree on
the prevention of species from worldwide extinction. More cooperation within the
current government as well as within the scientific community will ensure the survival of
endangered and threatened species in the future.
165
Supra n. 161.
CBS News, Scientists Complete Mammoth DNA Project,
http://www.cbsnews.com/stories/2008/11/19/tech/main4617718.shtml (last updated
November 19, 2008).
167
Id.
166