The Endangered Species Act

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The Endangered Species Act

• The text in the following few slides are exact
  quotes from the Endangered Species Act of 1973.
• FINDINGS.-The Congress finds and declares that-
• (1) various species of fish, wildlife, and plants
  in the United States have been rendered extinct
  as a consequence of economic growth and
  development untempered by adequate concern and
  conservation

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• (2) other species of fish, wildlife, and plants
  have been so depleted in numbers that they are in
  danger of or threatened with extinction
• (3) these species of fish, wildlife, and plants
  are of aesthetic, ecological, educational,
  historical, recreational, and scientific value to
  the Nation and its people

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• PURPOSES.-The purposes of this Act are to provide
  a means whereby the ecosystems upon which
  endangered species and threatened species depend
  may be conserved, to provide a program for the
  conservation of such endangered species and
  threatened species, and to take such steps as may
  be appropriate to achieve the purposes of the
  treaties and conventions set forth in subsection
  (a) of this section.

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• The terms "conserve," "conserving," and
  "conservation" mean to use and the use of all
  methods and procedures which are necessary to
  bring any endangered species or threatened
  species to the point at which the measures
  provided pursuant to this Act are no longer
  necessary.

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• Such methods and procedures include, but are not
  limited to, all activities associated with
  scientific resources management such as research,
  census, law enforcement, habitat acquisition and
  maintenance, propagation, live trapping, and
  transplantation, and, in the extraordinary case
  where population pressures within a given
  ecosystem cannot be otherwise relieved, may
  include regulated taking.

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• The term "endangered species" means any species
  which is in danger of extinction throughout all
  or a significant portion of its range other than
  a species of the Class Insecta determined by the
  Secretary to constitute a pest whose protection
  under the provisions of this Act would present an
  overwhelming and overriding risk to man.

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• In order to achieve these goals, the Endangered
  Species Act does the following
• Authorizes the determination and listing, by the
  Secretary of the Interior, of species as
  endangered and threatened.
• Prohibits unauthorized taking, possession, sale,
  and transport of endangered species.
• Provides authority to acquire land for the
  conservation of listed species, using land and
  water conservation funds.

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• Authorizes establishment of cooperative
  agreements and grants to States that establish
  and maintain active and adequate programs for
  endangered and threatened wildlife and plants.
• Authorizes the assessment of civil and criminal
  penalties for violating the Act or regulations.
• Authorizes the payment of rewards to anyone
  furnishing information leading to arrest and
  conviction for any violation of the Act.

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• Section 7 of the Endangered Species Act requires
  Federal agencies to insure that any action
  authorized, funded or carried out by them is not
  likely to jeopardize the continued existence of
  listed species or modify their critical habitat.

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• Now, an important question is, what are the
  factors used to determine whether a species is
  threatened or endangered?
• The Act clearly identifies these factors
• The Secretary shall by regulation promulgated in
  accordance with subsection (b) 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

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• (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.

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• If one reads these factors carefully, it should
  be clear that they are all ecological and
  biological in nature.
• There is no requirement that these factors are
  balanced against the societys economic
  interests.
• This should give you some indication of potential
  conflicts.
• That has largely been the case. We will discuss a
  couple of high-profile lawsuits in the next class.

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• Now how does the listing process work?
• We will look at that with the help of a flow
  chart developed by the U.S. Fish and Wildlife
  Service.
• I will also give you hardcopies of two USFWS fact
  sheets.

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• Next, we will discuss the issue from the
  perspective of the different players of the
  policy process.

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• First, the legislatures.
• The legislatures were of course the player that
  enacted the Endangered Species Act.
• Also recall when this legislation was enacted.
• The ESA was part of a series of environmental
  legislations that were enacted soon after the
  environmental movement took shape in the 1960s.

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• As a result, there was very little opposition to
  the ESA in the legislatures.
• The Act was passed in the House with a vote of
  390-12.
• ESA prohibits taking of an endangered species.
• Taking is defined as, to harass, harm,
  pursue, hunt, shoot, wound, kill, trap, capture,
  or collect, or to attempt to engage in any such
  conduct.

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• Now, if you examine these different means of
  taking an endangered species, they all refer to
  specific actions except oneharm!
• Compared to the other ways of taking an
  endangered species, harm appears rather vague.
• The Act does not make any further attempt to
  clarify this term.

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• As it turns out, this word was inserted in the
  Senate right before the final passage of the Act.
• Why do you think this word was added to the list
  of actions?
• The answer can be found in the realities of
  politics.

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• Politicians generally have an incentive to make a
  piece of legislation somewhat vague.
• Why?
• Because it minimizes opposition, which is always
  in the politicians interest.
• It also takes the focus off them and puts it on
  other players, primarily the judiciary

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• Next is the Judicial Branch.
• There are numerous court cases involving the ESA.
• A few of these cases went all the way up to the
  Supreme Court.
• The most significant ESA case that involves
  private land management was probably the Sweet
  Home case.

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• A group of small landowners, logging companies,
  and families sued the Secretary of the Interior.
• This case involved the meaning of the word harm
  and whether or not habitat modification
  constitutes harming an endangered species.
• The District Court agreed with the government
  that habitat modification does constitute harm to
  the species.
• The Supreme Court upheld the District Courts
  ruling by a vote of 6-3.

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• Next, the executive branch.
• The Fish and Wildlife Service, the agency
  responsible for enforcing the ESA, has always
  taken their responsibilities seriously.
• In the South, most of the forest management
  related conflicts probably stemmed from one
  endangered speciesthe red-cockaded woodpecker
  (RCW).

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• While very little controversy exists about RCW
  management on public lands, enforcement of RCW
  management guidelines on private land has been
  controversial.
• The question is, how much impact could RCW
  management have on private forestry?
• Lets take a look at a few things from the RCW
  management guidelines on private land prepared by
  the Fish and Wildlife Service.

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• A cluster is defined as the collection of
  cavity trees used by a group of RCW for nesting
  and roosting. A cluster may consist of 1 to 15
  trees and may take 5 to more than 10 acres.
• Within an active cluster
• No damaging or removing an active cavity tree.
• No removing any pine greater than 10 DBH unless
  the stocking is greater than 50 BA (if the
  stocking is greater than 50 BA then it can be
  thinned down to 50 without removing any 12 DBH
  trees).

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• No use of pesticides.
• No construction of roads or facilities.
• No planting of shrubs or ornamentals.
• Or, any other activities that might cause
  harassment or stress for the bird.

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• A foraging habitat is defined as the pine and
  pine-hardwood stands contiguous to the cluster
  containing 10 DBH or larger pines of at least 25
  years of age.
• A foraging habitat must contain
• At least 60 acres (can be up to 300 acres).
• A minimum BA of 3000 ft2 of 10 DBH pines.
• The number of stems required may vary from 2000
  (for 16 DBH) to 5000 (for 10 to 10.9 DBH)
  depending on the average DBH of the stands.

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• Therefore, based on the landowners intentions
  and desired products, he or she can choose the
  number of stems to be left for foraging.
• Any failure to comply with these requirements
  would constitute a taking and the person is
  liable to face civil and criminal prosecution
  according to the provisions of the ESA.

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• Initially, the Fish and wildlife Service tried to
  enforce the ESA through the use of the command
  and control approach.
• This was largely unsuccessful because,
• not enough manpower to enforce
• Encourages cheating.
• The Fish and Wildlife Service is now trying new
  incentive-based approaches, one example of such
  an approach is the Safe Harbor program.

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The Safe Harbor Program

• This is a contract between the landowner and the
  government.
• First, the baseline population of endangered
  species is established (can be zero).
• The landowner is then responsible to manage only
  for the baseline population.
• If the population increases, the landowner can
  notify the government and the additional species
  will be removed.
• It is completely voluntary to enter into the
  contract.
• Completely transferable.
• Can be repealed at any time by either party.

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The Safe Harbor Program contd.

• Now, why would a landowner participate in this
  program?
• What does the Safe Harbor program do for a
  private landowner?
• It removes future uncertainties related to
  endangered species.
• However, the program has costs associated with
  it, which makes it difficult for landowners with
  relatively small holdings to participate.

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• How about the other player in the policy process,
  i.e. the interest groups?
• The environmental groups are continuing their
  pressure on the legislatures, the executive
  branch, and continuing their use of the judicial
  system.
• There are also a growing number of groups on the
  other side. These groups, often called the
  property rights groups, lobby for ease of
  restriction on private land management.

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• OK, how about non-industrial private forest
  landowners?
• A survey of landowners (some of whom were Safe
  Harbor participants) shows that, about 26 percent
  landowners strongly agree that the society has a
  moral obligation to protect endangered species.
  Another 42 percent somewhat agree with the
  statement.
• So, the landowners are largely willing to help,
  as long as they dont lose their investment in
  the process.