Transcript Document

The Endangered Species Act
Lauren Gallagher
Eric Sirota
Courtney Segota
Overview
Coverage
Administration
Principal
Elements
Links With
Other Laws
Citizen
Involvement
Effects on
Aquatic
Resources
Limitations/
Effectiveness
Reform
Table of Contents
1. Overview
2. Coverage
3. Administration
4. Principal Elements
5. Links With Other Laws
6. Citizen Involvement & Remedies
7. Effects on Aquatic Resources
8. Limitations and Effectiveness
9. Possibilities for Reform
10.Resources
Resources
Overview
Coverage
Administration
Principal
Elements
Links With
Other Laws
Citizen
Involvement
Effects on
Aquatic
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Limitations/
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The Endangered Species Act (“ESA”) was viewed as the “most
comprehensive legislation for the preservation of endangered
species ever enacted by any nation” when it was first passed as a
law.1 Under the ESA, the Fish and Wildlife Service (“FWS”) has
authority to list species in need of protection. Once an animal
becomes listed under the ESA, it is then entitled to numerous
protections.
Congress identified the purposes of the ESA as…
• Providing a means where by the ecosystems upon which
endangered species and threatened species depend may be
conserved,
• Providing a program for the conservation of such endangered
species and threatened species, and
• Taking such steps as my be appropriate to achieve the purpose
of the treaties and conventions that seek to conserve species at
the international level which were identified through
Congressional findings.2
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Congress recognized that in order to help species on
the edge of extinction to recover and avoid slipping
closer to extinction, it would require other federal
agencies to make proactive efforts - not just to from
participating in certain activities. This viewpoint is
evident from the policy goals of the ESA:
• It is further declared to be the policy of Congress
that 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
chapter.
• It is further declared to be the policy of Congress
that Federal agencies shall cooperate with State
and local agencies to resolve water resource
issues in concert with conservation of endangered
species.1
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When the United States Supreme Court examined the ESA, it
noted that “[t]he plain intent of Congress in enacting this statute
was to halt and reverse the trend toward species extinction,
whatever the cost. This is reflected not only in the stated policies
of the Act, but in literally every section of the statute. All persons,
including federal agencies, are specifically instructed not to ‘take’
endangered species, meaning that no one is ‘to harass, harm, [ ]
pursue, hunt, shoot, wound, kill, trap, capture, or collect’ such life
forms. Agencies in particular are directed . . . to ‘use all methods
and procedures which are necessary’ to preserve endangered
species. In addition, the legislative history undergirding § 7
reveals an explicit congressional decision to require agencies to
afford first priority to the declared national policy of saving
endangered species.”1
In sum, the Court notes that “the plain language of the Act,
buttressed by its legislative history, shows clearly that Congress
viewed the value of endangered species as ‘incalculable.’”2
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Ultimately, the discussions of the ESA
have left many with the opinion that it
is a very tough and inflexible statute but in practice, that might not actually
be the case. The Act has various
loopholes, and its effectiveness is often
hampered by under-funding and
political considerations.
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Who is restricted by the protections under the ESA?
The ESA’s main protection which prohibits the “taking” of a
listed animal applies to the actions of all individuals, public or
private. Therefore, the same restriction applies to individuals
as well as any governmental entity.
However, § 7 only restricts activities that are considered
federal actions. This includes not only actions taken by a
federal agency, but also any action that is “authorized, funded,
or carried out” by a federal agency. This would include when
the agency supplies funding to a private actor to perform the
action. It does not apply to state governments or private actors
that are acting on their own. Further, § 7 will only apply to
actions that are discretionary, and not mandatory actions.
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Geographic Scope of the ESA
The ESA protections apply throughout the
entire jurisdiction of the United States.
Therefore, even if one were to find a listed
species in an unusual location or outside of
designated habitat, all of the protections would
still apply.
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The agencies that administer the ESA, the Fish and
Wildlife Service (“FWS”) and, in the case of certain
marine species, the National Marine Fisheries Service
(“NMFS” or, more formally, “NOAA Fisheries”) are
charged with promulgation of regulations,
coordination of efforts, and decisions regarding the
application and enforcement of the ESA.1
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Goals of Listing
The initial step in the ESA conservation process is that of
identifying and listing species that need protection.
Listing is generally in the hands of the FWS the NMFS
also plays a large role.
Species are listed towards two intimately related ends. As
a threshold goal, the FWS lists at risk populations to
ensure that those at risk populations avoid extinction.
Similarly, the FWS lists population segments for
protection in order to increase that segments’ population
so that, hopefully, the at risk population can be delisted.
The ESA has been largely successful in meeting the first
goal, and preventing endangered populations from further
diminishing significantly. However, the FWS has been
able to de-list few at risk populations.
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Basics of Listing Process
Overview
To gain protection under the ESA, a population segment must either be
endangered or threatened. An endangered population segment is the most
significantly at risk of extinction. A threatened population segment is still at
risk, though less so than an endangered species. The FWS also extends some
protection to population segments which are proposed for listing or are
candidates for study, even if those species do not qualify as endangered or
threatened. The FWS does so both as a preventative measure to prevent
having to officially list a species and in order to protect species that are
particularly scientifically useful.
The FWS must answer three questions to determine whether to list a
population segment and whether, the FWS should list the population as
endangered or threatened. First, the FWS must identify the unit of life that it
seeks to protect. After selecting the distinct at risk population, the FWS must
determine whether that population is endangered or threatened. Lastly, even
if the population qualifies as endangered or threatened, the FWS will inquire
as to whether listing is necessary. In some situations, the FWS will not list an
otherwise qualified segment because that segment already receives protection
through means other than the ESA.
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What is the Unit of Life that Should be Protected?
Notice that, thus far in the presentation, I have shied away
from using the term “species.” This is because the ESA
does not use the term “species” strictly to refer to
taxonomically classified species. Rather, the ESA defines
“species” very broadly. “Species,” in relevant part, refers
to “any subspecies and any distinct population segment of
. . . vertebrate fish that breed when mature.” Thus,
“species,” as defined in the ESA, may refer to a group
larger or smaller than a taxonomical species.
As such, the courts have on multiple occasions addressed
whether the FWS should protect multiple types of fish as
a single unit. This has arisen in the context of the
classification of the Alabama Sturgeon and the Western
Sage Grouse.
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What is the Unit of Life that Should be Protected?
Case study 1: The Alabama Sturgeon
The FWS classified the Alabama Sturgeon as distinct
from the more populous shovelnose sturgeon. If the
Alabama Sturgeon is a distinct “species” from the
shovelnose sturgeon, the Alabama sturgeon would gain
ESA protection as an endangered species. Although the
Alabama sturgeon and shovelnose sturgeon are
genetically similar, the 11th Circuit upheld the FWS’s
classification, acknowledging that other taxonomic
factors, beyond genetics, are relevant. These factors
include: morphological, chromosomal, biochemical,
physiological, behavioral, ecological, biogeographic, and
of course, genetic characteristics of the populations.
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What is the Unit of Life that Should be Protected?
Case study 2: The Western Sage Grouse
The case of the western sage grouse emphasizes that, while
they are not controlling, taxonomic classifications still play a
fairly dominant role under the ESA. The courts generally give
the FWS wide discretion to trust some scientific opinions over
others. Nonetheless, the 9th Circuit invalidated the FWS’s
decision to classify the western sage grouse as a distinct
population segment of sage grouse warranting distinct
protection. The 9th Circuit reasoned that the FWS’s
classification ignored the opinion of taxonomists and instead
gave greater weight to the opinions of wildlife ecologists, but,
under the ESA, the opinions of taxonomists should be give
more weight. Thus, the FWS should find persuasive the
opinion of taxonomists that the western sage grouse does not
constitute a distinct subspecies of sage grouse for ESA
purposes.
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What is the Unit of Life that Should be Protected?
Distinct Population Segments
As stated, in many instances the FWS will list, not an entire
species, but rather a subgroup, referred to as a distinct
population segment. When considering if a unit of fish
constitutes a distinct population segment, the FWS evaluates
the discreteness of the population segment in relation to the
remainder of the species to which it belongs, the significance
of the population segment to the species which it belongs, and
the populations segment’s conservation status in relation to the
ESA’s standard for listing.
To qualify as discrete, a population segment must be either
separated from the rest of the species due to physical,
physiological, ecological or behavioral factors or separated
from the rest of the species by international government
boundaries with significant differences regarding exploitation,
habitat management, conservation status, or regulatory
mechanisms.
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What is the Unit of Life that Should be Protected?
Distinct Population Segment, cont’d
To qualify as a significant population segment, the FWS
evaluates: the persistence of the population unit in a unique
place for the species, whether the loss of the discrete
population would result in a significant gap in the geographic
range of the species, whether the segment is the only naturally
occurring segment greater than introduced population of the
species outside of the species’ historic location, and whether
the unit is markedly genetically different from other
populations of the species.
Regarding the conservation status of the population segment,
the FWS simply asks whether the segment, if distinct, would
qualify as endangered or threatened under the ESA.
The ESA has grouped salmon of different runs as distinct
population segments under the ESA. The Pacific Salmon, for
example, represents a distinct population segment.
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Does the unit qualify for listing, either as endangered or
threatened?
Basics
The ESA defines ‘endangered’ and ‘threatened species’ as follows:
1. Endangered species – any species which is in danger of extinction
throughout all or a significant part of its range
2. Threatened species – any species likely to become endangered with the
foreseeable
The FWS answers three question when determining if the unit should be
listed as endangered, threatened, or not at all. First, the FWS must answer a
two-part question: what is the probability that the species will become extinct
in a certain period of time, and is that risk acceptable? Second, the FWS
must determine if the species is at risk in a significant portion of its range.
Finally, the FWS will assess whether present conservation efforts are
adequate such that the FWS need not list the species. When considering the
listing species of a species, the FWS takes into account the following factors:
habitat loss, over harvesting, disease, predation, as well as all other natural or
manmade factors affecting the species’ continued existence.
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Does the unit qualify for listing, either as endangered or
threatened?
What is the probability that the species will become extinct in a
certain period of time, and is this risk acceptable?
These questions are difficult to answer. As such, the courts grant great
discretion to the FWS to make these determinations. As long the FWS
does not act arbitrarily and capriciously, and as long as it does not
ignore material scientific evidence, the courts will generally uphold
the FWS’s decisions. Still, in Western Watershed Project, the Idaho
District Court held that the FWS acted inappropriately by refusing to
list a species that had a 64% chance of extinction over the next 100
years, even though the FWS thought the 100 time span was not
sufficiently imminent to warrant listing the species. Articulating the
difficulty of answering these questions, a group of scientists
convened by the NMFS opined that species with a 1% chance of
extinction over the next 100 years should be listed.
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Does the unit qualify for listing, either as endangered or threatened?
Is the species at risk of disappearing “in a significant portion of its range?”
The FWS and the federal circuits are largely at odds with each other as to how
the “significant portion of its range” requirement should be interpreted and
applied. The FWS’s interpretation states that a species should only be listed if
the risk “in a significant portion of its range” created an overall risk of extinction
for the species. Some courts adhere to the FWS’s interpretation. The Federal
District Court of New Mexico applied a similar interpretation regarding whether
the Grande cutthroat trout was at risk “in a significant portion of its range.” The
Grande trout’s habitat was severely threatened, but several populations of
Grande trout continued to thrive. The court held that the Grande trout was not at
risk in a significant portion of its range because there was not a sufficient
general risk of extinction to warrant listing the species.
Most federal courts, however, disagree with the FWS. As stated by the Ninth
Circuit and echoed by most other federal courts, “a species can be extinct in a
significant portion of its range if there are major geographical areas in which it
is no longer viable but once was.”
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Does the unit qualify for listing, either as endangered or threatened?
Are present conservation efforts adequate such that the FWS need not list the
species?
When determining the risk to a species, the FWS considers “the inadequacy of
existing regulatory mechanisms.” Put otherwise, if existing conservation efforts are
adequate to address the threats to a species, listing can become unnecessary.
The FWS is once again at odds with the courts regarding what types of
conservation efforts the FWS may consider. The courts have held that the FWS may
not rely on conservation efforts unless those efforts constitute legally binding
policies.
On the other hand, the FWS is more reluctant to list a species when the FWS has
already put in place policies that encourage landowners to protect a species. The
FWS takes an extremely pragmatic approach to conservation, as the FWS may
encourage landowners to protect an at risk species by giving that land owner
assurances that the landowners will not have to conserve more than is necessary –
even if this involves permitting the landowner to otherwise violate ESA bans. Still,
the FWS is more hesitant to list a species if such an agreement has been reached
with a landowner.
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Designating Critical Habitat
Definition and Purpose
The ESA defines a critical habitat as “a geographic area
essential to the conservation of a species which may
require special management consideration or protection.”
Most species are in decline due to habitat loss or
degradation. Conservation of habitat is perhaps the most
essential factor in species preservation and repopulation.
Thus, the ESA allows the ESA to designate critical habitat
for protection. If the FWS is to designate a habitat as
critical, it must do so when it lists the species which the
habitat designation seeks to protect.
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Designating Critical Habitat
Designation Standard
The FWS engages in a cost benefit analysis. Thus, even if the habitat
otherwise qualifies for designation, the FWS may exclude habitat that
would otherwise be critical upon a finding that the benefits of
designation are outweighed by the harms. The FWS considers the
following factors in its cost benefit analysis: biological evidence
regarding the needs of the species; economic costs of designating the
habitat, including the affect on economic development as well as social
effects of the designation; the effects on national security; and the
likelihood that the designation will increase illicit takings by alerting
interested parties to the location of an at risk species. The FWS,
however, does not engage in this cost benefit analysis if designation of
the habitat is necessary to prevent the species’ extinction. In such an
instance, the FWS will designate the habitat regardless of how the cost
benefit analysis falls. Moreover, in order to prevent illicit takings, the
FWS can delay a habitat designation for up to a year.
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Designating Critical Habitat
Effects of Designation
When the FWS designates a habitat, this serves to prohibit
both acts which directly or indirectly jeopardize the
continued existence of the species, as well as acts which
adversely modify the habitat.
Thus, critical habitat designation has served as a critical
tool to protect fisheries, even where the FWS does not
designate the habitat to protect fish. Indeed, much of the
clamor favoring protection of the critical habitats of the
spotted owl was motivated by the desire to have fisheries
within such critical habitats protected.
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§ 9 Protections
§ 9 is the heart of the ESA and applies to all public
and private actors. § 9(a)(1)(B) makes it unlawful
to “take” even a single member of a listed species.
The ESA defines “take” in very broad terms and
includes any action that would “harass, harm,
pursues, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such
conduct.”
This broad definition and the legislative history
makes clear that Congress intended the term to
apply broadly to all conduct that directly or
indirectly harms the listed species.
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§ 9 Protections--Regulations
The regulations expand upon the definition of
“take” in the statute. They define “harass” as “an
intentional or negligent act or omission which
creates the likelihood of injury to wildlife by
annoying it so such an extent as to significantly
disrupt normal behavior patterns, and harm “means
an act which actually kills or injures wildlife” and
“may include significant habitat modification or
degradation where it actually kills or injures
wildlife by significantly impairing essential
behavioral patterns, including breeding, feeding or
sheltering.”1
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§ 9 Protections--Habitat Modification as Taking
The regulations include harmful habitat modification under the definition
of “take.” This would at first seem very helpful to those who are
attempting to protect fish populations since much of the harm to the fish
are not from directly harming the fish, but instead from altering the
waterways themselves, or by altering the landscape around the
waterways. And originally courts were willing to find a violation of § 9
if the alterations were significant enough to disrupt breeding activity.
However, the trend of courts recently has been to require evidence that
particular animals were injured, even though the regulation seems to say
that disrupting breeding is enough. § 9 has been read not to permit every
activity which through habitat modifications harms the fish population
indirectly, it requires a showing that animals have actually been killed or
injured to violate § 9 even though the regulation seems to suggest that
disrupting breeding is enough to constitute a take.
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§ 9 Protections--Habitat Modification as Taking
Babbit: Habitat Modification Can be a §9 Take
In Babbit v. Sweet Home1, the Supreme Court stated that habitat
modification can be reasonably considered a ‘take’ under §9 of the
ESA. The Court thus upheld the regulations of the FWS
interpreting the term ‘harm’ in §9 to include the more indirect
harms cause by habitat modifications. The Court stressed that the
common meaning of ‘harm’ does not only refer to direct harm, but
also to indirect harm, such as, in this context, habitat modification.
Moreover, the Court argued that, in light of the ESA’s purpose to
prevent the species extinction, the term harm should be interpreted
broadly so as to best effectuate that goal. Thus, the modification of
the red-cockaded woodpecker’s habitat could be considered a
‘take’ under the ESA even though the modifying group in no way
intentionally harmed the woodpecker.
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§ 9 Protections--Habitat Modification as Taking
Clarification of Babbit
Several courts have grappled with the following question, in interpreting Babbit:
does habitat modification constitute a ‘take’ if it likely will injure an animal
although it hasn’t yet. Courts have come out different ways on this question. The
9th Circuit in Arizona Cattle Growers’ Association1 held that habitat modification
is only a ‘take’ if it actually injures a protected species. The court here relied
largely on the FWS’s regulation which stated that “harm,” under §9, “may
include significant habitat modification or degradation where it actually kills or
injures wildlife.” 50 C.F.R. § 17.3. On the other hand, in Greenpeace v. National
Marine Fisheries2, the U.S. Western District of Washington, considered
commercial expansion into the habitat of the protected Stellar sea lion to
constitute a take, although there was not evidence of actual injury to the sea lion.
The court relied on the fact that the potential harm to the sea lion was a relative
certainty. Concededly, Greenpeace interpreted the term ‘harm’ in §7, not §9.
However, the 9th Circuit, for example, interprets the term ‘harm’ in §7 and §9
synonymously.
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§ 9 Protections--Habitat Modification as Taking
What Kinds of “Harm” Constitute a “Take?”
Indeed, the concept of a “take” through habitat modification
encompasses a broad array of harm. In Loggerhead Turtle v. County
Council1, both the district and circuit courts took for granted that it
constituted a ‘take’ for the county to place beachfront lighting on the
beach where the loggerhead turtles lay eggs. Usually baby turtles, upon
being born, naturally gravitate towards the water. However, on that
beach, turtles began gravitating towards the light. The court considered
this disruption in the turtles’ natural behavior harmful to the turtles.
Thus, the lighting constituted a §9 take. On the other hand, in Defenders
of Wildlife v. Bernal2, the Ninth Circuit held that no take occurred where
a school was built in an area near the home of the pygmy owl, according
to an expert. Because, however, there was no evidence that pygmy owls
actually lived where the school was being built, the court held that the
record did not support the finding of a “take.”
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§ 9 Protections and Threatened Species
When a species is listed as threatened under the ESA, the FWS
has the power, under § 4(d), to issue regulations for their
conservation. Unless the regulations for a threatened species
specifically state otherwise, the protections of § 9 are fully
applicable to the threatened species.
However, the FWS cannot issue regulations that would deny § 9
protections to the threatened species without a legitimate purpose,
especially if it would decrease the population of the species. It can
only issue regulations that would further the conservation of the
species. A taking can only be authorized through regulations “in
the extraordinary case” that population pressures necessitate
takings because they could not otherwise be managed.
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§ 9 Protections--Incidental Take Statement
When FWS issues a biological opinion in response to a federal agency inquiry
regarding a proposed action, under § 7, FWS can issue along with it a statement
that authorizes the agency to carry out its planned activity, even though the
activity will incidentally take listed species. As long as the applying agency
complies with the terms of the statement, it will not violate § 9 even when its
actions take a member of the species.
For the Statement to be valid, it must include:
• “the impact of such incidental taking on the species”
• the “reasonable and prudent measures” that the agency can take to minimize
the impact
• the requirements to report to FWS on incidental takes as well as such other
“terms and conditions” as are necessary to minimize the harm
Some courts have required that a precise limit on the number of animals that can
be taken must be provided and if it is not possible to give one, the FWS must
explain why.
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§ 10 Permits
While § 9 might give the impression that the ESA
imposes a very hard and tough restriction that
protects listed species, it must be considered
alongside § 10 which provides permits for different
purposes that will exempt a holder from § 9
liability. Thus, § 10 causes § 9 to lose much of its
bite. The permits include:
• Safe Harbor Program
• CCA Permits
• Incidental Take Permits
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§ 10 Permits—§ 10(a)(1)(A) Safe Harbor Program
§10(a)(1)(A) authorizes permits “for scientific purposes or
to enhance the propagation or survival of the affected
species.”
While the description seems quite narrow, this section has
actually spawned an entire program, under which a
landowner can agree to implement conservation measures
on her land, aiding or attracting listed species, without
incurring a risk of liability under § 9, and guaranteeing that
the conservation measures can be undone if the landowner
chooses.
As long as the landowner is in compliance with the terms
of the Safe Harbor Agreement, no liability will be imposed
for incidental takes.
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§ 10 Permits--§ 10(a)(1)(A) CCA Permit
§ 10(a)(1)(A) also authorizes permits to be
issued in the course of Candidate
Conservation Agreements (CCA). A
landowner who commits to a CCA can
obtain authority to engage in incidental
takes of any species that is subsequently
listed so long as they continue to comply
with the terms of the CCA.
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§ 10 Permits--§ 10(a)(1)(B) Incidental Take Permits
§10(a)(1)(B) authorizes permits to be issued to take a member of a listed
species if the take is “incidental to, and not the purpose of, the carrying
out of an otherwise lawful activity.”
The process for obtaining this type of permit is public. To obtain a permit
under this section, a person must prepare a habitat conservation plan
(HCP) that describes in detail:
• the impact that the proposed action will have on the species;
• steps that will be taken to “minimize and mitigate” such impacts;
• the funding that will be available to implement these steps;
• alternative actions that the applicant considered and why the
alternatives were rejected; and
“such other measures that the Secretary may require as being necessary
or appropriate for purposes of the plan.”
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§ 10 Permits--§ 10(a)(1)(B) Incidental Take Permits
The HCP must be submitted to the FWS for review and it is also made
available to the public for comments. The plan will be approved if the FWS
finds that:
• the taking will be incidental;
• the applicant will minimize and mitigate the impacts of such taking “to the
maximum extent practicable;”
• the plan is adequately and securely funded; and
• the taking “will not appreciably reduce the likelihood of the survival and
recovery of the species in the wild.”
If the plan is approved, the agency will issue an incidental take permit. The
ultimate standard used in approving an HCP includes a no-jeopardy standard
that duplicates the language of § 7(a)(2). However, §§ 7 and 10 use different
language, so while the standards between the two provisions were previously
thought to be the same, a close reading of the statute casts doubt on that
interpretation.
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§ 10 Permits—The Interaction between §§ 7 and 10
When a permit is issued under § 10, it triggers the consultation process
under § 7 because the FWS is a federal agency, and consequently, it must
consult with itself. This means that a biological opinion will be required
to be issued because the § 10 permit authorizes harm to a species. One
court has required that the biological opinion must expressly discuss how
the take will affect the recovery of the species and not just its survival.
Because the issuance under § 10 triggers § 7, it would seem to mean that
the permit can only be issued if both of § 7’s restrictions are met in
addition to the requirements of § 10.
Thus, although § 10 only expressly includes a no-jeopardy standard, it
might indirectly include a ban on modifying critical habitat, which is
contained in§ 7, because the duty to consult with the FWS under § 7
consultation has been triggered by the issuance of a permit.
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§ 10 Permits—Liability to Holders of a Permit
When a permit is issued under either § 10(a)(1)(A)
or § 10(a)(1)(B), the individual with the permit will
not incur further liability under the ESA as long as
they comply with the terms of the permit even if the
species declines further in number or if other
species on the same property become listed.
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§ 7(a)(2) Protections
§ 7(a)(2) bans all federal actions that directly or indirectly:
• jeopardize the continued existence of a species or
• that adversely modify designated critical habitat.
§ 7, however, allows actions to proceed unless the action, when considered
alone, imperils the existence of a species. It does not bar activities that merely
push the species a bit closer to edge, or actions that interfere with recovery
efforts. The no-jeopardy language only applies to the examination of actions that
threaten a species. The no-jeopardy rule keeps a species from being pushed too
close to the edge of extinction; that habitat provision can halt activities that
merely interfere with a species’ recovery.
In its assessments under section 7(a)(2), it appears the FWS must examine the
entire operation in which the agency is engaged. The FWS cannot exclude from
consideration those aspects that it deems non-discretionary and it cannot siphon
the overall action into many parts.
Also, this section only applies to federal actions and therefore, its limitations do
not apply to state or local government or private actors. (See Section 2:
Coverage).
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§ 7(a)(2) Protections--The No-Jeopardy Provision
FWS must decide how much closer to extinction a species will become due to the
federal action, but it is currently unclear when this provision is violated.
The regulations define the language in the statute, “jeopardiz[ing] the continued
existence of” a species, as an action “that reasonably would be expected, directly or
indirectly, to reduce appreciably the likelihood of both the survival and recovery of a
listed species in the wild by reducing the reproduction, number or distribution of the
species.”
Under FWS’ interpretation, this provision would seem to only restrict actions that
pushed a species “appreciably” to a point of greater danger, without considering how
close to extinction the species already is. Under the regulation, it is the appreciable
worsening of a species’ plight that violates the section, not the absolute danger that
the species faces. A species could face exceedingly grave danger, and an action
worsening its plight would nonetheless be lawful because the action did not make
matters appreciably worse.
On the other hand, a species could slide downward continuously as a result of many
small actions none of which would violate the jeopardy definition because no action,
standing alone, would have an appreciable effect.
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§ 7(a)(2) Protections--The No-Jeopardy Provision
In National Wildlife Federation v. NMFS1, the 9th Circuit seemed
to reject the FWS’ interpretation. “Under this approach, a listed
species could be gradually destroyed, so long as each step on the
path to destruction is sufficiently modest. This type of slow slide
into oblivion is one of the very ills the ESA seeks to prevent.” The
court interpreted “jeopardy” as a particularly high degree of risk to
a species. Any action that pushed the species to this level of risk,
however slight the action, violated the no-jeopardy rule. Similarly,
an action ran afoul of the statute if it caused any additional harm to
a species that was already in jeopardy.
Therefore, it is unclear how this provision will be interpreted in
the future.
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§ 7(a)(2) Protections--No Adverse Modification
The FWS definition in the regulations, which has been
invalidated by courts, provides that a habitat modification is
“adverse” only if it “appreciably diminishes the value of critical
habitat for both the survival and recovery of a listed species.”
The agency has not yet proposed a new definition in a regulation.
In National Wildlife Federation v. NMFS, the NMFS argued that
an adverse modification only took place if an action altered “an
essential feature of the critical habitat” and if the alteration
“appreciably diminishe[d] the value of the critical habitat for
survival or recovery.” The court did not comment on this proposed
definition.
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§ 7(a)(2) Protections--No Adverse Modification
The Tenth Circuit, in Center for Native Ecosystems
v. Cables1, stated that critical habitat is adversely
modified in violation of § 7 by all “actions that
adversely affect a species’ recovery and the
ultimate goal of delisting.”
While this limit might seem to ban all
modifications of critical habitat that would diminish
its value for recovery, minor violations are
routinely overlooked.
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§ 7(a)(2) Protections--Consultation Process
Because most federal agencies will not be able to determine if their action would
violate § 7, Congress created a consultation process to assist the agencies. There
is little chance for citizen involvement in the process. It is usually done privately
and no information is released to the public until after a final decision is
reached. When an agency contemplates an action that might affect a species that
is listed or proposed for listing, the agency asks the FWS whether such a species
might be present in the action area. If a species might be present, the agency is
obligated to undertake a biological assessment to determine whether the planned
activity “is likely” to affect it.
However, biological assessments are only required for agency actions that are so
significant that they trigger the requirement to prepare an environmental impact
statement under the National Environmental Policy Act. The content of the
biological assessment is at the discretion of the agency, but it must consider the
effects on both critical habitat and the listed species. Once the assessment is
submitted, FWS has 30 days to determine whether it agrees with the applying
agency.
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§ 7(a)(2) Protections--Consultation Process
If FWS concludes that the action is likely to affect the listed species or
critical habitat, then, the applying agency must engage in consultation
with FWS to determine wither the action will comply with the jeopardy
and habitat modification protections of § 7. If it violates the
prohibitions, FWS must suggest “reasonable and prudent alternatives” to
the proposed action that would eliminate the violation.
During the consultation, the agency applying must refrain from
commencing its proposed activity, technically from making “any
irreversible and irretrievable commitment of resources” that might
foreclose alternative courses of action that could avert violation of §
7(a)(2).
If the affected species is not yet listed or the critical habitat is not just
designated, but it has been proposed, then a different, less formal process
is used. The agency is required to “confer” with FWS rather than
consult, and the ban on committing resources during a consultation does
not apply.
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§ 7(a)(2) Protections--Consultation Process
The outcome of an inter-agency consultation generally is an informal
approval by FWS of what the agency plans to do, particularly when the
action directly complies with § 7(a)(2) or when the agency alters its
proposal in response to FWS suggestions to bring it into compliance.
If the consultation is not resolved informally, it leads to the issuance of a
biological opinion which contains a conclusion on whether the proposed
action complies with § 7(a)(2) and, if appropriate, an explanation of
reasonable and prudent alternatives. It also includes a detailed Incidental
Take Statement, authorizing the agency to engage in activities that would
incidentally “take” listed species which would otherwise violate § 9.
If after receiving approval from FWS, the applying agency discovers
new, relevant facts or decides to alter its planned action, the consultation
process must be reinitiated.
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§ 7(a)(2) Protections--Consultation Process
It is up to the applying agency to decide whether
its planned activity will comply with § 7(a)(2); the
FWS opinion is merely advisory. However,
agencies will routinely defer to the judgment of
FWS, due to the agency’s expertise in interpreting
the ESA.
Courts have generally allowed action agencies to
rely on FWS’ opinion so long as the agency is
forthcoming in explaining its activity to FWS and
complies with recommendations it receives in
response.
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§ 7(a)(2) Protections--The God Squad
The God Squad is composed of six cabinet level officials and the
governor of the state in which the proposed activity would
occur. This Squad has the ability to authorize exemptions to § 7,
including exemptions that would result in the extinction of a
species.
An exemption can be issued as long as at least 5 of the 7 members
agree that:
• there are no reasonable and prudent alternatives to the action;
• the action is of regional or national significance; and
the benefits of the action clearly outweigh the benefits of
alternative courses of action consistent with conserving the listed
species or its critical habitat.
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§ 7(a)(1) Conservation Duties
§ 7(a)(1) of the ESA instructs the Interior and Commerce
Departments to “utilize” all of their departmental programs to
promote the purposes of the ESA. All other units of the federal
government are instructed to “carry[] out programs for the
conservation of [listed] species” in consultation with FWS. Courts
have found this section to impose an obligation on agencies to
develop programs to protect listed species.
More recently, courts have interpreted § 7(a)(1) to only require
that agencies develop conservation “programs,” not that agencies
give weight to species conservation in every action that they take
as it may have been previously interpreted.
Thus, a litigant can only challenge an agency for failing to
develop programs.
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§ 4(f) Recovery Plans
FWS must “develop and implement” a recovery plan for each listed species
unless the preparation of such a plan would not promote conservation of the
species. Its goal is to provide an overarching plan outlining the efforts to
achieve conservation.
The plan must include:
• a description of the “site-specific management actions” that are needed to
achieve conservation of the species;
• “objective, measurable criteria” for determining when recovery has taken
place; and
estimates about how long it will take and how much it will cost to achieve full
recovery and to achieve “intermediate steps” toward recovery. Implementation
can be tough when a species is located on private land.
Courts have determined these plans are not legally binding, just
advisory. Therefore, a citizen cannot sue to compel enforcement and FWS
cannot require that other parties comply.
Another federal agency however must have a justification for not complying
with a plan.
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Delisting
If conservation efforts succeed, or if information
surfaces that the plight of a species is not as severe
as was suspected, the FWS can take steps to
downgrade or entirely remove a species from the
lists. An individual can also petition for delisting,
following procedures similarly to listing.
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Additional Provisions
Additionally, the ESA contains provisions limiting the
import and export of listed species; it bans the taking of
species “upon the high seas”; and bans the possession, sale,
delivery, transport, and so on of the species by any means.
There is also a large exemption for Alaskan Natives who
take species for subsistence purposes, including animals
and plants used to make “authentic native articles of
handicrafts and clothing.”
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Penalties--§ 11
The ESA provides for civil and criminal penalties
for noncompliance, depending on the status of the
species involved, endangered or threatened, and
whether the violator acted with knowledge.
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The ESA and Other Laws
CITES – the Convention on International Trade in Endangered
Species provided the impetus for the passage of the ESA. CITES
created regulates international commerce in endangered species.
Congress implemented the ESA to comply with the US’s
obligations under CITES.
Natural Resource Protections – CERCLA, the Comprehensive
Environmental Response, Compensation and Liability Act, and the
Clean Water Act. After the ESA was used to protect the snail
darter, the Department of the Interior issued regulations stating that
entities that disrupt the habitat of an endangered specie must pay a
certain some of money corresponding to the worth of the resources
destroyed. However, in Ohio v. Department of the Interior, the
D.C. Circuit invalidated this regulation, stating that Congress
intended for endangered species to be considered incalculably
valuable. Hence, instead of paying monetary damages, the entity
must restore the habitat.
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The ESA and Other Laws
NEPA – various courts have grappled with the question:
when the FWS designates a critical habitat, must the FWS
include an Environmental Impact Statement ("EIS") under
NEPA. The 9th Circuit held that the government need not
engage in a NEPA study when designating a critical habitat
because critical habitat designation does not itself change the
physical environment. The federal government must only
draft an EIS for actions which change the physical
environment. On the other hand, the 10th Circuit concluded
oppositely, stating that the NEPA study should serve to
compliment the ESA's habitat designation process. According
to the 10th Circuit, habitat designation does alter the physical
environment by, for example, limiting flooding and erosion
to protect a species, and, thus, the FWS must comply with
NEPA when designating a critical habitat.
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The ESA and Other Laws
The ESA is also bolstered by several other acts, such
as the Federal Power Act, and the Pacific Northwest
Electric Power Planning & Conservation Act which
force federal actors to consult with the Bureau of
Fisheries before building a damn or taking other
action that may threaten fish populations. The
Anadrous Fish Act authorizes the secretary of the
interior to enter into cooperative agreements with
states to protect and restore fish populations. While
these laws compliment the purpose of the ESA, they
also may prevent species from being listed. If a
species is already receiving adequate protection under
one of these other act, the FWS is less likely to list it.
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The ESA and Other Laws
The ESA is also bolstered by several other acts, such
as the Federal Power Act, and the Pacific Northwest
Electric Power Planning & Conservation Act which
force federal actors to consult with the Bureau of
Fisheries before building a damn or taking other
action that may threaten fish populations. The
Anadrous Fish Act authorizes the secretary of the
interior to enter into cooperative agreements with
states to protect and restore fish populations. While
these laws compliment the purpose of the ESA, they
also may prevent species from being listed. If a
species is already receiving adequate protection under
one of these other act, the FWS is less likely to list it.
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Any interested person may petition
the agency to list a species and
thereby start the review process.
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Benefits of Outside Petition Process
• Gives individuals a chance to take interest
in particular species and work to protect
them.
• Reduces FWS’ workload by providing
them with free information from outside
parties.
• Curbs bias by checking agencies’
tendency to avoid listing a species for
political reasons.
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Petition Process
Submit a petition that provides “substantial scientific or
commercial information indicating that” listing “may be
warranted.”
The FWS must decide within 90 days of the receipt of a
petition whether it presents enough information to satisfy
the legal standard. If the evidence is inadequate, the FWS
can reject the petition.
If the evidence is sufficient to indicate that listing “may be
warranted,” the agency must “promptly commence” a study
of the species to determine whether to list it.
If the FWS finds that the petition warrants investigation, it
must make a listing determination within 12 months of
receiving the petition.
The agency’s decision to list or not list a species is
published in the Federal Register, and can be challenged in
court.
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Proposal To List Species
Published as a proposed regulation in the Federal Register
Includes a detailed summary of the species’ threats and
conservation status.
The proposal invites public comment and may include
information about a scheduled public hearing.
The FWS also notifies the states in which the species is
present and publishes a summary of the proposal in
newspapers of general circulation.
A listing proposal cannot take effect for at least 90 days.
The FWS must either list the species or withdraw the
proposal within 1 year.
o ...Unless an extension of up to 6 months is warranted in
order to resolve substantial disagreement about the
scientific data.
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“Warranted but Precluded”
When handling a petition, the agency can decide
that the listing was probably warranted, but that the
agency is simply too busy with other work to
proceed with the listing process.
The FWS must review the petition at least annually,
to decide again whether it should issue a proposed
listing regulation, or reissue a finding of warranted
but precluded.
The FWS must monitor the status of the “warranted
but precluded” species “to prevent a significant
risk” to its well-being.
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Delisting
Downgrading or removing a species from
threatened or endangered status can be
initiated by an individual’s petition,
following largely the same procedures and
standards involved in listing a species.
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ESA § 7(a)(2)
Courts treat an FWS opinion issued as a result of section 7(a)(2) as an independent
agency action, which citizens can challenge directly in court. Therefore, citizens
seeking to challenge compliance with section 7(a)(2) should bring suit directly
against FWS rather than the agency proposing the action.
If an agency receives a “no jeopardy” ruling from the FWS, a citizen should directly
challenge the FWS.
It is possible to challenge through litigation:
• The biological opinion issued following FWS consultation under § 7
• The review process involved.
• The initial decision about the geographic or temporal scope of the planned
action that FWS examines
• The decision of where the environmental baseline exists (which is then used to
compare to the proposed action and its effects)
• FWS’ conclusion that jeopardy or adverse modification will not occur, if critical
information was overlooked in the process
• The alternatives proposed by FWS
The incidental take statement that is sometimes issued along with the biological
opinion (under § 9)
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ESA § 10
When the FWS issues a incidental take permit
under 10(a)(1)(B), the permit can be challenge
based on whether the HCP (habitat conservation
plan) met the requirements of the ESA and on the
standards used by the FWS in reviewing them.
Under the § 10 process for obtaining an
incidental take permit, the public has the chance
to comment and to attend hearings regarding
whether an HCP will be approved.
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ESA § 7(a)(1)
Litigants can challenge an agency for failing to
develop programs that promote the conservation
of listed species.
However, one cannot attack an agency for
failing to be successful; as long as a program
exists, one can’t challenge an individual action
under the program. One can just attack an
agency for failing to develop a program at all.
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ESA § 4(f)
Under § 4(f), you can challenge…
• Whether a recovery plan includes all of the
required information and
• The validity of the science underlying the
plan
The scientific community as a whole needs to
disagree with the validity of the science to
increase the chance of success of this type of
challenge.
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The ESA applies to fish and other marine
species as well as to other animals in the
jurisdiction of the United States. However, its
real effect on the protection of fishes and their
habitat is hard to prove.
For example, the ESA prohibits catching of
endangered fish as a take. However, this
protection hard to apply when, for example,
one is fishing for other species and accidentally
catches an endangered fish.
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Interference with breeding is also a take under the
ESA, but to what degree can it be enforced in the case
of fish? Just scaring male bass off eggs can cause all
eggs to be killed. While a take doesn't need to be
intentional to be penalized, enforcing a rule that would
keep fish from ever being frightened off of nests might
prevent any human activity on a body of water.
Dams can interfere hugely with fish and their habitat,
but the ESA includes an exemption for water
diversions, so it doesn't interfere with state's ability to
divert water.
Pollution could technically be covered, but no federal
administration has ever enforced § 9 at all.
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Numerous, Confusing Details
For example, the decision of whether to designate critical
habitat. The key factor is whether habitat is critical is whether it
is “essential” for the “conservation” of a species. Conservation,
to repeat, means recovery of the species to the point where
protection under the ESA is no longer necessary. It is thus not
enough to designate habitat that is sufficient to ward off
immediate extinction. At times, however, it is difficult to decide
whether particular habitat is essential, even when a species
needs to expand its range in order to recover. If a species could
expand its range in several alternative directions, or if various
places could serve as locations to reintroduce the species, how
can the FWS state that habitat in one place is essential when
habitat in another might serve just as well?
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Complex Intent of the Act
The Act was intended to “conserve” both “the ecosystems upon
which endangered species and threatened species depend” and
the species themselves. Congress also explicitly stated that rare
species possess “aesthetic, ecological, educational, historical,
recreational, and scientific value.” Only options that fulfill all
of these goals are useful, but they are difficult to effect as a
whole without protecting the species' entire habitat.
Individually, the goals of the ESA could be more easily fulfilled
– for example, “it is plainly inadequate to keep species alive in
zoos or as frozen genetic material. Indeed, species protection in
simply a few locations would be inadequate when particular
species are needed to perform ecological functions in many
locations, including regions of the country that the species once
occupied and no longer does.
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Politics
The Act specifies that decisions about listing are to be
made using the best available scientific data available
and that the listing agency cannot take account of the
economic, social, and political consequences that might
come from the classification. But the FWS has the
option of leaving a species in “warranted but
precluded” limbo if they are too busy to deal with it.
A major reason why the FWS forgoes designating
habitat is because designation could trigger a backlash.
The fear of litigation is one concern; the longer that
habitat designation is snarled up in litigation, the longer
the time period before it takes effect.
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Lack of Resources
Political opposition has been strong enough to
keep the FWS (and NMFS) from having
enough money to carry out their many duties.
For a time, Congress even insisted that the FWS
spend literally no money on listing – not even
money donated for that purpose by private
parties.
For the FWS, money spent studying and
designating habitat is, for the most part, money
not available to study species on the lengthy
candidate list.
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Loopholes
The ESA prohibits taking or harming an
endangered species. The prohibition applies not
only to intentional and unintentional harms but
also to certain types of habitat modification.
Although this statutory provision is stated as an
absolute prohibition on taking a listed species,
various permit programs nonetheless allow
citizens and agencies to engage in activities that
incidentally harm species.
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Compensation For Government “Taking” of Private
Land
Critics say that the restrictions imposed by the ESA on the
owners of land that is found to be critical habitat for
endangered species may actually discourage landowners
against protecting the animals. They may have an
incentive to make their land as uninhabitable for the
endangered species as possible, or even to kill specimens,
in order to resume using the land in ways that the ESA
would restrict in the presence of endangered species..
A solution may be to compensate landowners for their
efforts to protect endangered species on their property.
While this would be another stretch on the ESA's
constrained budget, it might save money in the long run if
landowners were more cooperative and had a reason to
assist in the species' protection.
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