Page updated: 08/13/2001 08:16 AM

Many of the recent legal actions attempting to get public lands closed to vehicular access have alleged violations, usually on the part of the relevant Federal management agency, of the Endangered Species Act (ESA).  Use of the ESA is, for example, a favorite tactic of the Center for Biological Diversity—the plaintiff in the action that resulted in the closure of Surprise Canyon.  There is a large body of misinformation about the ESA floating around and it has become a kind of catchall marker for zealous environmental legislation gone awry.  One may have a philosophical difference with the intent of the ESA but it is not a particularly complicated law.  In fact, after having the experience of delving into NEPA litigation, or the labyrinthine regulatory processes of the Clean Water Act and the Clean Air Act, the ESA is actually refreshingly straightforward.  In this installment of Land (ab)Use I will try to outline the basic mechanisms of the ESA and the principal ways in which it is employed by environmental groups in an effort to limit vehicular access to our public lands.

A Little History:

For most of the early period in American history concerns about wild animals centered on catching and eating them.  The settlers were focused only on putting food on the table.  Gradually this attitude evolved into one of recreational, scientific, and aesthetic interest.  In the process wildlife management and protection became a legal matter. 

For most of the nineteenth century this legal structure consisted of a few rudimentary state statutes regulating hunting but these were generally ineffective due to a lack of enforcement mechanisms.  Subsequently state fish and game agencies, run by wardens, were founded whose primary mission was to protect the resources from the most egregious abuses.  The federal constitutional basis for state regulation was confirmed in Geer v. Connecticut, 161 U.S. 519, (1896), a case in which the Supreme Court recognized the State's sovereign rights to manage wildlife—a particularly important matter because hunting and fishing license fees generated considerable revenues.  After Geer, Congress was thought to have very limited powers over wildlife regulation and could only make laws where there was a clear interstate commerce aspect to the legislation (the Constitution, through the Commerce Clause, expressly grants Congress the power to regulate interstate commerce).  By way of example, The Lacey Act, passed by Congress in 1900, forbid the interstate transport of animals illegally bagged in the state of origin—this was ok because the Commerce Clause was the source of the Congressional power being exercised and the law addressed an interstate matter. 

In 1903 President Teddy Roosevelt created the first federal reservation of land specifically for wildlife purposes at Pelican Island Federal Bird Refuge.  With this first refuge a federal program for protecting wildlife habitat was born.  The program continually expanded and was eventually formalized into a national entity through the adoption of the Act creating the National Wildlife Refuge System in 1966. 

Thus, at the start of the 20th century, with the exception of management programs on federally owned lands and wildlife management where the Commerce Clause was clearly implicated, regulation of wildlife was a state matter.  However, over the next 75 years, Congress, with validation by the Supreme Court, made constant in-roads into this area and today we have a complex hybrid of state and Federal regulations.  During this period each new Federal law further eroded state control of wildlife resources.  The Migratory Bird Treaty Act of 1918 made the Department of the Interior a game agency with respect to migratory birds.  The MBTA was a Federal law that directly interfered with state law but the Supreme Court held Federal law pre-empted state law in the area.  The Bald Eagle Act (1940) imposed a flat ban on hunting bald eagles anywhere in the US.  The Fish and Wildlife Coordination Act (1958) directed Federal agencies to work in such a way as to minimize federal water projects impacts on wildlife.  The Anadromous Fish Conservation Act (1960) regulated salmon fishing.  The Wild Free-Roaming Horses and Burros Act (1971) set rules for the management of mustangs and burros on public lands.  The Marine Mammal Protection Act (1972) declared a moratorium on all taking of marine mammals except as incidental to tuna fishing.  There were also very primitive and ineffectual precursors to the ESA adopted in 1966 and 1969 and you might remember that NEPA was passed in 1969 as well. 

Most of the above mentioned Acts had at least an arguable relationship to interstate commerce but, when Congress passed the formal ESA in 1973, this link began to look somewhat dubious.  The ESA applies far more broadly than any of the earlier laws and its relationship to interstate commerce, particularly in certain instances, can be pretty remote.  Its provisions are also quite strict leading many to call the ESA the most stringent wildlife law ever passed by any country.

The Endangered Species Act:  Legal Structure and Overview

The ESA focuses on the protection of wildlife and habitat.  Its intent is to prevent the further extinction of species due to human actions.  (Whether or not certain species would become extinct as part of the natural process of evolution is a separate question and a distinction with which the ESA is not concerned).  For general purposes the Act may be divided into its 5 most important sections. 

Section 3 covers definitions (what is "endangered"), section 4 covers "listing" (how a species get placed on the endangered species list), section 7 is concerned with what actions a federal agency must take to comply with the ESA, section 9 has to do with what is actually prohibited by the Act, section 11 authorizes the bringing of citizen suits.

ESA: Section 3, Definitions: 

This is pretty simple.  Endangered means "is in danger of extinction throughout all or a significant portion of its range".  Threatened means "likely to become endangered". 

ESA: Section 4, Listing:

In order for the ESA provisions to apply a species must be threatened or endangered.  If it is deemed an endangered species it gets placed on the "list".   The Secretary of Commerce or the Secretary of the Interior, usually the latter, based on the "best scientific and commercial data available" makes a determination about listing a species.  The species is studied and the results released in a document known as a Status Review.  1982 Amendments to the Act made biological risks the sole inquiry into the viability of a species.  Other factors and costs may not be considered. 

As relates to a "critical habitat" determination the Secretary must take into consideration the "economic impact, and any other relevant impact, of specifying any particular area as critical habitat".  Note that this is a slightly different analysis.  When it comes to the listing decision with respect to a species the Secretary must use the best scientific knowledge only and need not balance his judgment with an economic factor. In contrast, other factors must be included in a habitat listing review.  What this subtle difference in language is saying is that, before the Feds come and tell you you can't plant your back forty because it is "critical habitat" for some endangered species, they must take into account the economic impact of doing so (in the hypothetical this might be the cost to you of leaving your fields lying fallow).  The same economic consideration would not be utilized in a decision to list the species only. 

Early on there was a fair amount of legal wrangling over the listing decision.  Often environmental groups would sue Interior for failure to list a certain species that the group felt the scientific data indicated was in danger of extinction.  The Spotted Owl controversy, which came to a head when Interior decided not to list the owl as endangered, and the lawsuits it sparked, (see Northern Spotted Owl v. Hodel, 716 F.Supp. 479 (1988)), largely closed this litigation avenue—not because Interior won, it did not, but because it set a judicial standard of review applicable to the listing determination.  Essentially that standard boils down to this: if the Secretary can show any evidence, usually through documentation, supporting the decision to list or not to list, the court will grant the Secretary deference.  In the actual case the Secretary was largely unable to demonstrate how the finding in the Status Review was reached, expert witness testimony and supporting documents for the defense were thin, and the court ruled that the decision not to list was unsupported by the evidence.  So Interior lost that one but they came away knowing  how to insulate themselves from further suits.  The listing determination remains controversial but, as the basis for a legal challenge, because of the deferential standard of review it is now tougher for a plaintiff to prevail.

Section 7: Duties of Federal Agencies under the ESA:

Section 7 is a hot area from a legal challenge perspective.  Center for Biological Diversity likes this one and it is the basis for the complaint in the Surprise Canyon litigation (more on this later).  Section 7 provides that all federal agencies must insure, in consultation with the Secretary of the Interior, that their actions are "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of such species critical habitat".  Before any proposed action is taken the agency must, often through the EIS, engage in a consultation with the US Fish and Wildlife Service.  Upon being approached by an agency seeking consultation the USFWS will generate a Biological Opinion which speaks to the agency action and its potential impacts on endangered species.  If the B.O. indicates that adverse impacts will threaten the species, either through direct takings (kills) or habitat destruction, the agency cannot proceed with the action.  That sounds pretty ironclad and it is.  If you are an agency planning to take some action you live in mortal fear that the scientists will find an endangered species in the area and/or that the B.O. will come back identifying adverse impacts. 

Section 7 (as amended in 1978), also establishes a so-called "God Squad", a cabinet level "Endangered Species Committee".  The Committee has the power to exempt agency projects from ESA compliance.  But they almost never do.  An agency cannot rely on exemption as a solution because it is so rarely given.  In fact, the committee provision was not a part of the original 1973 ESA and was created as a sort of safety valve, an "out" if you will, for major projects that had endangered species implications.  Under the law as first enacted there was no way to get around the ESA and, when the ES Committee provision was first adopted, environmentalists saw this amendment as gutting the effect of the Act.  It has not done that because an appeal to the committee has, in practice, almost never resulted in an exemption.  (Through 1991 the committee had exempted exactly one project-a dam in WY.  In 1992 it exempted, largely due to political motivations born of the spotted owl conflict, out of a total of 44 requests, 12 Oregon timber sales.  No more recent exemptions have been made). 

The Surprise Canyon lawsuit is based on a section 7 violation by the BLM  The Center for Biological Diversity filed the suit over how the California Desert Conservation Area management plan was instituted.  Surprise Canyon's closure is the most notable result for us but, as it is only one area of the very large CDCA, it is just one outcome. The suit may have much more far-reaching impacts if CBD ultimately prevails.  

Specifically, CBD's complaint alleges that the BLM did not consult with USFWS in preparing the management plan for the CDCA.  CBD's position is that the original NEPA process was defective for failure to consult with USFWS, that Surprise Canyon is an Area of Critical Environmental Concern due to its riparian nature, and that the failure to consult resulted in potential impacts to endangered species in the ACEC not being considered.  Basically, CBD is saying that had the BLM done its section 7 consultation, as required by law, the B.O. would have come back identifying the unique riparian character of the canyon and the endangered species for which it is habitat, and, further, the B.O. would have suggested to BLM that it should not allow vehicular use in the canyon.  A study is being prepared and the judge has granted an injunction pending the outcome of that study.  Surprise Canyon is closed to jeeps in the interim.  It may or may not be reopened depending on what the conclusions of the study are with respect to the impacts of vehicle use in the canyon.

Section 9:  What is prohibited under the ESA:

Section 7 applies only to federal agencies.  Section 9 applies to all landowners.  Section 9 outlines exactly what is prohibited under the Act.  Obviously this includes the killing, referred to in the Act's language as "taking", of any endangered species.  You can't shoot Bighorn Sheep that live on your land.  But the prohibitions are broader than that.  Also covered are "sale, import, export or transport" of endangered species.  "Taking" is generally defined to include "harassing, harming, killing, capturing, or collecting".  Subsection (a)(2)(B) makes these prohibitions expressly applicable to endangered plant species (remember this when a rare lichen is found in the rock gully that is your favorite trail). 

These prohibitions against direct harm to animals are pretty obvious if one wants to prevent an endangered species from going extinct.  But does destruction of habitat fall under the heading of taking?  If one chops down a tree where a spotted owl nests the owl may be killed, by the falling tree or more likely by having its nest destroyed, but the chopper didn't kill the owl directly.  Does the ESA prohibit such activity?  Remember that the language concerning habitat destruction and modification in Section 7 is applicable only to Federal agencies.  What about a private landowner?  If a developer fills in a wetland, displacing the endangered least tern, does this constitute a taking if the terns cannot survive without the habitat (a real possibility)?  The case on point is Babbitt v. Sweet Home Chapter of Communities For a Great Oregon, US Supreme Court No. 94-859, (1995).  In that case the Court held that Section 9 controls over private landowners and that the definition of "taking" meant to include habitat destruction.  So, the answer to the above question is yes, if you are a waterfront developer with land where a least tern has been found, you have a real problem even if you never so much as directly ruffle a feather.  Generally the solution to the problem, ethically questionable but often done, is to purchase a like amount of land someplace else to mitigate the habitat loss where you are building.  This is frequently done in the context of wetlands under the moniker of "mitigation".  It is akin to the idea of emissions credits and trading under the Clean Air Act (where a clean burning utility, polluting less than its permit allows may sell the excess "pollution" credits, up to its permit limit, to a dirty factory that is over its permit limit). 

In any case, a developer looking to build hopes not to find the land is habitat for an endangered species and a group opposing the development will cheer if it turns out that it is.

Section 11, Citizen Suit Provision:

Congress thought that very few suits would be brought under the ESA if the normal rules of justicability applied.  There are two basic types of justiciability rules.  I mentioned them in the NEPA article but was remiss as I failed to note this particular distinction.  The first type is called an Article III requirement because it appears within Article III of the Constitution, the Article that created and governs the Courts.  That there be an active case or controversy is a good example of an Article III requirement—without a conflict "in fact" there is no case and the court cannot issue advisory opinions or "what ifs".  Congress can't negate this requirement, it cannot pass a law that says that in a certain instance or kind of case the Court may go ahead and issue advisory opinions.  Such a law by Congress would violate the separation of powers inherent in the Constitution.  However, the standing to sue requirement is not an Article III rule and so Congress can make a law where standing is not required to bring suit.  This is the case under the ESA.  "Any citizen" can bring a suit against another party (usually the government) under the ESA.   

Just as an aside I should mention something about sovereign immunity.  You will notice that in most cases where the government is a party the government is not sued directly.  It is usually a governmental officer.  (In fact, in environmental cases, if you are well versed in who was Secretary of the Interior under the various Presidential Administrations, you can tell the approximate year of the case just by looking at the named governmental party)  This is because the government has sovereign immunity from suit and cannot be sued unless it has waived this immunity.  In certain areas there is legislation waiving sovereign immunity, the Federal Tort Claims Act allows you to bring a tort action against the US directly, but generally you will have to name a responsible governmental officer or the government can assert its immunity and the case will be dismissed. 

So, plaintiff names a governmental officer "in his official capacity" and does not have to meet the standing requirement.  This makes it very easy for someone to bring an action under the ESA.  Well, except that you have to pay for it—the court costs and attorney's fees.   These expenses can pile up fast and can be a real deterrent to bringing a suit. 

Actually, you don't have to pay for your legal costs.  Section 11 also includes a cost recovery provision so that a party who brings suit to enforce the ESA can recover the costs of doing so, including reasonable attorney's fees.  Cost recovery provisions are included in other environmental laws, not just the ESA.  The fees recovered are not large, Johnnie Cochran won't be bringing an ESA action any time soon, and the size of any fees is a determination made at the Court's discretion.  Still, you can see how an environmental group, faced with the choice of how to couch the complaint, will try to word it so it alleges a violation under a law which incorporates the awarding of attorney's fees.

The Case: Tennessee Valley Authority v. Hill, 437 US 153, (1978)

Understanding TVA v. Hill is not important to understanding the mechanics of the ESA.  Still, any discussion of the ESA would not be complete without a mention of it as it is the most important case in the history of ESA jurisprudence.  It is a celebrated case, oft talked about even among lay people, but I leave it for last because I think it makes more sense once you know a little bit about how the ESA works. 

In 1967 the TVA, a federal agency, began construction of the Tellico Dam on the Little Tennessee River near Knoxville. The dam and resultant reservoir was going to inundate 16,500 acres, much of which was highly productive farmland.  As with any project of this size there were a significant number of people who opposed it.  In 1969 NEPA was passed, immediately a lawsuit was brought, and in 1970 further construction was enjoined while an EIS was prepared.  The EIS was completed and the court found it valid.  The injunction was lifted and construction continued.  The lawsuit alleging violations of the EIS process is not important to the story except as it relates to timing.  Because, while the NEPA matter was worked out in the courts, a scientist from the University of Tennessee found a small (3") perch, commonly referred to as a snail darter, in the river.  While there are approximately 130 species of snail darter this one appeared to be previously unknown and the scientist estimated its numbers at between 10,000-15,000.  Normally the discovery of a new species such as this would have been exciting only to ichthyologists.  However, in 1973 the ESA had been passed and the TVA was worried as there was a question as to whether the Tellico project was subject to its strictures.  In 1975 the snail darter was officially listed as endangered and the whole area to be inundated was declared critical habitat.  The TVA asserted that the ESA did not apply to the Tellico project as it had been planned, funded, and construction started before the law went into effect.  The trial court agreed but the lower appellate court did not and permanently enjoined further construction. 

In 1977, with the dam all set to go except for the closing of the sluice gates, Congress appropriated monies to relocate the snail darter.  This solution was not satisfactory to the original plaintiff who had gotten the injunction and the TVA, wanting the matter settled,  petitioned for certiorari (a hearing) in the Supreme Court. 

The Supreme Court ruled that the ESA did apply to Tellico as the funds needed to finish it were not available (appropriated) until after the ESA became law.  Further, the TVA's proposed relocation of the darter would not absolve it from compliance with the ESA.  By the Supreme Court's own admission it felt that Congress had not intended there be NOTHING an agency could do if a major project violated the plain language of the law.  But, the Court said, what do you want us to do?  We uphold the law and the law, as you have written it, clearly prohibits the opening of the dam if the snail darter will be imperiled.  The Court pointed out that there was no language about balancing interests (in fact the words expressly said no such balancing was allowed) and, if a $100 million dollar dam couldn't be completed because of a 3" fish, that was that. 

In 1978 the ESA was amended to create the exemption committee (the "God squad" mentioned above).  Senator Howard Baker (TN) immediately sought exemption for Tellico but it was denied.  Baker then added a rider to a general authorization bill legislatively exempting the Tellico Dam from ESA compliance and mandating its completion.  A number of other snail darters were ultimately found and it was eventually taken off the endangered species list. 

The lesson of Tellico might be that the ESA should be modified to be more flexible and that there should be a more equitable balancing test concerning the value of an endangered species versus a huge public works project like the dam.  The Supreme Court's ruling identified the ESA for the potential legal straitjacket that it is.  However, Congress reauthorized, without significant amendment (excepting the creation of the exemption committee), the ESA three times after the Tellico Dam case (1978, 1982, 1988).  Perhaps Congress feels that, if necessary, it can exempt projects by legislation.  Nevertheless, the whole affair makes a great story—one of biological interests triumphing over man's mad technological rush (dolled up to look like progress) or one which chronicled new heights of absurdity, depending on your perspective.

In Conclusion: 

I hope this discussion has given you a better understanding of the ESA and how it works.  Just by way of review, remember that the ESA is concerned with protecting "endangered and threatened species".  Those actual words are legally relevant and important.   The determination of whether a species is endangered is at the discretion of the Secretary of the Interior (or, less often, the Secretary of Commerce).  If he finds a species to be endangered he will "list" the species.  Once listed the species is granted the protections outlined in the ESA.  Section 7 applies directly to government agencies.  The rest of the Act is applicable to all landowners.  A taking, prohibited under the Act, includes destruction or modification of habitat.  A plaintiff in an action under the ESA need not prove standing and may recover costs and attorney's fees.  (For the complete text of the Act see 16 United States Code Annotated, sections 1531-1543).

See you on the trails.