THE ENDANGERED SPECIES ACT ("ESA")
LEGAL PROTECTION OF ENDANGERED SPECIES AND THEIR HABITATS
.Thomas G. Tomasello, Tallahassee
.,. I,,. . . . .-- ....-
The Endangered Species Act ("'SA")
(f Legal Protection of Endangered Species and their Habitats
Thomas G. Tomasello*
"One would be hard pressed to find a statutory provision
whose terms were any plainer than those of Section 7 of
the Endangered Species Act. Its very words
affirmatively command all federal agencies to Insurer
that actions authorized, funded, or carried out by them
do not jeopardize the continued existence of an
endangered species, or result In the destruction or
adverse modification of the habitat of such species.
This language admits of no exception."
TVA v. Hill, 437 U.S. 153,173(1978).
A. FINDING, PURPOSE AND POLICY OF ESA.
1. Finding: Endangered species of wildlife and plants.
; "are of esthetic, ecological, educational, historical,
recreational, and scientific value to the Nation and its people,"
16 US.C. 1531(a)(3).
2. Purpose: To provide "a means whereby the ecosystems
upon which (endangered species) depend may be conserved." 16
3. Policy: "All federal departments and agencies shall
seek to conserve endangered species and threatened species and
shall utilize their authorities in furtherance of the purposes of
this Act (ESA),' and shall use "all methods and procedures which
are necessary to bring any endangered species or threatened
species to the point at which the methods provided pursuant to
this Act (ESA) are no longer necessary." 16 U.S.C. 1531(c) and'
:1532(3). Thus, the thrust of ESA is to increase endangered
Species populations, as opposed to maintaining those
*Thonas G. Tomasello is General Counsel 'and Chief Cabinet Advisor
for the Department of State of Florida. From 1978 to 1983 he was
Counsel for the National Wildlife Federation Fisheries and
Wildlife rogyramr in Washingotn, D.C. From 1977 until 1978 he was
an enforcement attorney in the U.S. Environmental Protection
Agency in Washington, D.C. He received his J.D. from the
University of Florida in 1976, as well as a Masters of Science in
Coastal Engineering (1974) and a Bachelors of Science with High
S..i i .
B. LISTING OF SPECIES AND DESIGNATION OF CRITICAL HABITAT.
1. Wildlife and plant species eligible for protection
under ESA include "any member of the animal or plant kingdoms."
16 U.S.C. 1532(5).
2. To be eligible for protection, a species must be
listed as endangered or threatened by either the U.S. Department
of the Interior or the Department of Commerce (for convenience
for the remainder of this outline, both of these Departments will
Sbe referred to as Interior).
3. Listings can be initiated by Interior or by petition
from any "interested person." 16 U.S.C. 1533(b)(3).
4. Process: Petitions presenting "substantial
Information" that listing is warranted must be formally acted
upon by the Department of Interior within 12 months. If the
p; petition is rejected, it must be done so on the basis Of written
S r findings. If the decision is to list, notice of the listing must
be published in the Federal Register, and a public hearing must
:be held. The final listing determination must be made within 12.
months of the proposal, although a six month extension may-be
granted to resolve substantial disagreement. 16 U.S.C.
1533(b). In total then, a listing may take at least two years.
5. Critical habitat is an area determined to be
S..".essential to the conservation of the species" and need be
6 designated only if "prudent" and "determinable" at the time a
species is determined qualified for listing. 16 U.S.C.
S1533(b)(6)(c). Critical habitat has been designated in Florida
-" for the Everglade kite, Cape Sable sparrow and the Dusky Seaside
6.. factors for Listing: :All listings must be done "soley
on the basis of the best scientific and commercial data
available." If a species is determined to be endangered or
threatened it must be listed 16 U.S.C. 1533(a)(l)(e). Economic
considerations are not relevant. Factors that are relevant
include threatened destruction of habitat, overutilization,
disease and predation, inadequacy of existing regulatory
mechanisms, and other natural and manmade factors affecting
continued existence. ,16 U.S.C. 1533(a).
7. Thirty-five endangered and thirty-one threatened
species in Florida have been listed, including the Key deer,
manatee, crocodile, bald eagle, brown pelican, Everglade kite,
woodstock, panther and red cockaded woodpecker.
C. SECTION 7 PROHIBITIONS.
1. Section 7 imposes sevcril significant restraints on
federal agencies and their activities. It mandates that federal
a. "Utilize their authorities by carrying out
programs for the conservation of endangered and threatened
species ." 16 U.S.C. 1536(a)(1).
b. "Shall, in consultation with and with the assistance
of the Secretary (of the Interior), 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 ." 16
c. Prepare a biological assessment to determine the
affect on any endangered or threatened species likely to be
affected by the agency action. The biological assessment must be
prepared before the action is taken. 16 U.S.C. 1536(c).
d. Not make any "irreversible or irretrievable"
commitment of resources (e.g. commencement of construction, or
issuance of permit) until consultation is complete. 16 U.S.C.
2. Biological Opinion: If agency action is "likely to
affect" an endangered or threatened species, the agency shall
consult with the Department of the Interior and at the conclusion
of such consultation usually within 90 days of initiation --
the Secretary shall issue a biological opinion that:
a. Sets forth the information upon which it was
based. (Such information shall be the best scientific and
commercial information available. 16 U.S.C. 1536(d).)
b. Details the affect of the agency action on the
species or its critical habitat.
c. Suggests reasonable and prudent alternatives that
would prevent jeopardy to the species or avoid the adverse
modification of critical habitat. 16 U.S.C. 1536(b).
3. Biological Opinion does not give veto authority.
a. Section 7 does not give the Department of Interior
veto authority over agency action.. After consultation, the final
decision to proceed is left to the agency even if a jeopardy
opinion is issued. Sierra Club v. Froehlke, 534 F.2d 1289 (8th
b: However, a biological opinion is entitled to "great
deference" and a presumption of validity until rebutted by
contrary evidence. National Wildlife Federation v. Coleman, 529
F.2d 359 (5th Cir.) cert. denied,-429 U.S. 979 (1976).- moreover,
in overcoming a negative biological opinion, the agency must
affirmatively seek out the best evidence available. 16 U.S.C.
1536(a)(2). In turn, if the record indicates that additional
information would contribute to a more precise understanding of
the risk to an endangered or threatened species, the agency has
the affirmative duty to seek it. Roosevelt Campobello
International Park Commission v. EPA, 684 F.2d 1041 (1st Cir.
1982). An agency proceeding in the face of a jeopardy opinion
does so at great risk.
4. Mitigation measures in Biological Opinion. An agency
action that would jeopardize a species can be salvaged if an
agency adopts mitigation measures proposed by the Department of
the Interior in its biological opinion. Indeed, aside from
identifying the impacts of an agency action on a listed species,
the primary purpose of the biological opinion is to identify
measures that can be taken by the agency to both proceed with the
proposed action and yet avoid any jeopardy to the species. Thus,
in Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678(D.C.
Cir. 1982) the court upheld mineral exploration activities in
grizzly bear habitat with a national forest because the Forest
Service imposed restrictions on the exploration activities that
were recommended by the Interior Department in its biological
opinion. These included limitations on drilling season, the
elimination of certain timber sales to lessen cumulative impacts,
and certain permanent road closures.
Similarly, in North Slope Borough v. Andrus 642 F.2d 589(D.C.
Cir. 1980) an OCS oil and gas lease sale was upheld because of
the numerous restrictions on activities that the agency adopted to
lessen the impact on the endangered bowhead whale.
5. Affirmative duty: Even if the determination of the
biological opinion is no jeopardy, it is not always a shield for
a. An agency cannot sidestep its obligation to insure
that its actions are not likely to jeopardize a species merely by
relying on the biological opinion. It has an affirmative duty to
decide whether damaging activity can be prevented. Stop H-3
Association v. Dole 740 F.2d 1442 (9th Cir. 1984).
b. Furthermore, the requirements of Section 7(a)(1)
that an agency "use all methods which are necessary to
bring any endangered or threatened species to the point at
which" the protection of (ESA) "are no longer necessary" is a
mandatory duty. Carson-Truckee Water Conservancy District v.
Clark, 741 F.2d 257 (9th Cir. 1984). (Agencies are directed to
pursue a species conservation policy; therefore, the court upheld
agency's decision even though it went beyond what was necessary
to avoid jeopardy).
c. Agencies must "do far more than merely avoid the
elimination of a protected species", rather they have the
affirmative duty to increase the population of protected
species." Defenders of wildlife v. Andrus, 453 F. Supp. 1037
(W.D. Tex. 1978) (Administrative record upon which regulations
permitting hunting of migratory waterfowl during twilight hours
was virtually barren of information of the potential impact on
endangered species. Such a record was determined to be contrary
to the duty to increase species populations).
d. Typically, the courts rely on this affirmative duty
to uphold agency action designed to conserve endangered and
threatened species, For instance, in Carson-Truckee Water
Conservancy District, supra, the court upheld the Secretary of
Interior's decision not to sell water from a federal reservoir
because to do so would deplete instream flows needed to support
an endangered species of fish.
5. Indirect Impacts: Section 7 applies to the indirect as
well as the direct impacts of agency action. E.g.; Riverside
Irrigation District v. Andrews 758 F.2d 508 (10th Cir. 1985)
(although construction of the dam itself would not cause adverse
impacts on an endangered species, water withdrawals from the
reservoir would deplete instream flows in the river enough to
harm the endangered whooping crane); National Wildlife Federation
v. Hodel, Civ. No. S-85-0837 (E.D. Cal. August 26, 1985) (bald
eagles poisoned by feeding upon waterfowl killed with lead shot).
6. Limitation on commitment of resources.
a. Section 7 requires the identification of
alternatives to agency action that would avoid conflicts with
endangered and threatened species. To insure that such
alternatives are given adequate consideration and a chance to be
implemented, Section 7(b) prohibits agencies from taking actions
that would "irreversibly or irretrievabley" commit resources so
as to have the effect of foreclosing the formulation or
: implementation of any reasonable or prudent alternative measures,
once consultation is under way.
b. Thus, for example, the issuance of a permit by the
Corps of Engineers authorizing the construction of a dam was
overturned because "as a practical matter (issuance) forecloses
consideration of the kinds of modifications or alternatives,"
that would avoid endangering the species. Nebraska v. Rural
Electrification Administration, 12 Env't Rep. Cas. (BNA) 1156 (D,
Neb. Oct. 3, 1978). In other words, once the dam is built or for
thdt matter, construction has begun, the range of alternatives is
greatly limited., One obvious alternative that is precluded is
the no action alternative.
c.. The courts however, have allowed agency actions to
proceed incrementally through various phases where the
incremental actions do not on their own cause jeopardy, if in
addition, the agency has the authority to stop further phases.
North Slope Borough v. Andrus, 642 F.2d 589 (D.C. Cir. 1980) (OCS
oil and gas lease sale allowed even though consultation was still
underway since agency could refuse to issue subsequent
exploration or development permits).
D. PROHIBITION AGAINST "TAKING" ENDANGERED AND THREATENED
1. Section 9 of ESA makes it unlawful for any person to
"take" any endangered species anywhere in the United States, its
territorial seas or the high seas. 16 USC 1538(a)(1)(B). This
prohibition applies as well to all threatened species. 50 CFR
17.31 and 16 U.S.C. 1533(d).
2. The term "take" is broadly defined in ESA to mean:
"harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage
in any such conduct." 16 U.S.C. 1532(19).
3. The term "harm" is defined by the Department of the
Interior to mean:
"an act which actually kills or injures
wildlife. Such act may include significant
habitat modification or degradation where it
actually kills or injures wildlife by impairing
essential behavoral patterns, including breeding,
feeding or sheltering. 50 CFR 17.3.
4. In Palila v. Hawaii Department.of Land and Natural
Resources, 471 F.Supp..985 (D. Hawaii 1979), aff'd on other
grounds, 639 F.2d 495 (9th Cir. 1981) a taking by Hawaii DNR was
found where feral sheep and goats were destroying a native forest
by overbrowsing and threatening the palilas' survival. Thus,
environmental modification may result in a taking.
5. In National Wildlife Federation v. Hodel, supra, the
Department of Interior was found to have violated Section 9 of
ESA by not imposing steel shot zones for the hunting of
waterfowl. Bald eagles were dying from lead poisoning by eating
waterfowl killed with lead shot. Thus, indirect actions may
result in a taking.
6. Scienter may not be required to violate the "taking"
provision of Section 9. See e.g. U.S. v. FMC Corp., 572 F.2d 902
(2nd Cir. 1978), where the court found a violation of a similar
taking provision where migratory birds were killed as an
unintended consequence of the discharge of chemical wastes into a
7. Penalties for violations include:
a. $20,000 and one year imprisonment
b. Suspension or cancellation of fishing and hunting
c. Civil penalties up to $10,000.
d. Forfeiture of species, guns, equipment and vehicles
used to aid unlawful action.
E. EXEMPTIONS TO ESA'S PROHIBITIONS.
1. A federal agency, a state or a permit or license
applicant may apply for an exemption in situations where the
Department of the Interior, in a biological opinion under Section
7(a)(2), has determined that the proposed activity will cause
jeopardy. The application for exemption is reviewed by the
Department and if found to be eligible, it is sent to the
Endangered Species Committee for final determination. The
Committee may grant an exemption if:
a. There are no reasonable and prudent alternatives to
b. The benefits of the proposed agency action clearly
outweigh the benefits of alternative courses of action consistent
with conserving the species and the action is in the public
c. The action is of regional or national significance.
d. No irreversible or irretrievable commitment of
resources have been made.
16 U.S.C. 1536(f)-(h).
This exemption was added to ESA in 1978 following the U.S.
Supreme Court decision in TVA v. Hill, supra where the court
enjoined the completion of the almost completed Telico Dam
because of the impact on the endangered snail darter.
2. Self defense is available for criminal prosecution,
although civil penalties may still be assessed. E.g. to fend off
an attack by a grizzly bear. 16 U.S.C. 1540(b)(3).
3. Section 10 permits: Incidental Taking.
a. The Department of Interior is authorized to permit
the taking of endangered species if the taking is "incidental to,
and not the.,purpose of, the carrying out of an otherwise lawful
activity."I 16 U.S.C. 1539(a)(1)(B).
b. However, the Department may not issue a taking
permit unless the applicant has submitted a "conservation plan"
and the Department finds that:
1. The plan includes measures to mitigate any Incidental
2. Adequate funding will be provided for implementation
of the conservation plan.
3. The taking will not appreciably reduce the likelihood
of survival and recovery of the species in the wild. Id.
In Friends of Endangered Species v. Jantzen, 760 F.2d 976 (9th
Cir. 1985), the court set the stage for a narrow interpretation
of Section 10 even though it upheld the issuance of the
incidental take permit. In that case, 14% of the habitat of the
endangered Mission Blue Butterfly within the site of a major
housing development in the San Bruno Mountains was to be
modified. However, under the conservation plan, several thousand
arcres of grasslands would be set aside for the butterfly and
would be managed so as to avoid the intrusion of vegetation that
was displacing the grasslands. Indeed, had the plan not been
impelmented, the butterfly's habitat may well have been lost.
Thus, the court determined that the butterfly would actually
benefit under the plan.
F. CITIZENS SUITS.
1. ESA authorizes any person to initiate a law suit on
his behalf to:
a. Enjoin any person or agency who is in violation of
ESA or any rule issued under it.
b. Compel the Department of Interior to enforce the
taking provisions of ESA.
c. Compel the Department of Interior to perform any
nondiscretionary duties to list species under Section 4 of ESA.
16 U.S.C. 1540(g)(1).
2. No citizen suit action may be initiated if:
a. Sixty days written notice has not been given.
b. The Department has initiated enforcement action.
16 U.S.C. 1540(g)(2).
3. ;Courts may award costs of litigation, including
attorneys fees, where such award is deemed appropriate. 16
U.S.C. 1540(g)(4). To be awarded fees, it helps to win the
lawsuit although the test typically applied is whether "the suit
makes a substantial contribution to the goals of the statute."
Carson Truckee Water Conservancy District v. Clark, 21 ERC 2115
(9th Cir. 1984).
-'., C -,
( G. STANDARD OF REVIEW.
The standard of review applied to agency decision making
under ESA is "whether agency based its decision on a
consideration of relevant factors and whether the decision was
arbitrary, capricious, or an abuse of discretion or otherwise not
in accordance with law." Stop H-3 Association v. Dole, supra;
NWF v. Hodel, supra. This is .the standard enunciated In Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).