Under the Endangered Species Act (ESA), species[REF] that are determined to be endangered or threatened with extinction are included on a list of federally regulated species, commonly referred to as being “listed.”[REF]
Under the ESA, an endangered species is “in danger of extinction throughout all or a significant portion of its range,” while a threatened species is “likely to become an endangered species within the foreseeable future.” Essentially, the ESA provides two different levels of regulation, with the status “endangered” reserved for species determined to be facing a more immediate danger.[REF]
Critical habitat for species is usually designated by regulation.[REF] Critical habitat is supposed to be specific habitat occupied by the species that has physical or biological features essential to the species’ conservation, and which may require special management or even unoccupied habitat.[REF]
Put more simply, the ESA is used to identify species that do, or may, face extinction, add them to a list, and then recover them so that they may be removed from that list.[REF] The ESA provides two primary regulatory mechanisms to conserve species.[REF]
One mechanism is the ESA’s Section 7 and is known as “consultation.” Under consultation, federal agencies are required to ensure that any discretionary actions undertaken do not jeopardize a species or adversely modify designated critical habitat.[REF]
The second mechanism is Section 9’s prohibition against “take.” The take prohibition includes actions that “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct.”[REF] The take prohibition applies to endangered animals and, by “special rule,” may be selectively applied to threatened animals if it is “necessary and advisable.”[REF]
According to the U.S. Fish and Wildlife Service (FWS), there are 1,652 listed U.S. species, of which 209 are threatened animals—and of these 55 currently have a special rule.[REF] The National Marine Fisheries Service has also issued special rules for threatened animals it regulates including, for example, multiple pacific coast salmonids.[REF]
A Bureaucracy Serves Itself
Creating two listing levels was not an arbitrary or capricious congressional decision. The manner in which Congress paired these different listing levels with regulatory mechanisms provides logically distinct regulatory regimes for each.
The ESA prohibits federal actions that could adversely affect the species as a whole by adverse modification of critical habitat, or by otherwise jeopardizing the endangered or threatened species. The actions trapped by consultation tend to be larger in scope or scale, and consequently have effects that are unlikely to be limited to a single specimen.
For example, the construction of the Tellico Dam by the Tennessee Valley Authority was a discretionary federal action that some argued would imperil the existence of a certain species, a small fish now synonymous with the ESA, the snail darter. Construction of the dam was near complete when halted by a famous Supreme Court ruling finding that Congress’ intent was to “halt and reverse the trend toward species extinction whatever the cost.”[REF] Ultimately, another act of Congress exempted and allowed completion of the dam while the snail darter was subsequently discovered to be more numerous and more widely distributed and was eventually downlisted from “endangered” to “threatened” status.[REF]
Congress’ stricter regulatory regime for endangered species couples the requirement for consultation with the take prohibition. In essence, the take prohibition indicates that if a species’ future is possibly precarious enough that the loss of a single specimen could be detrimental to the species as a whole, then every last specimen must be protected.
The California condor is a good example. California condors, huge vultures with wingspans of eight feet to ten feet, were and remain so rare that each specimen is considered potentially essential to the species’ survival. There was a “planned extinction” in the wild, meaning that the remaining 27 condors were captured for captive-breeding programs.[REF] (This was carried out despite early opposition by environmental organizations that argued the condor should be allowed “death [meaning extinction] with dignity.”[REF]) The captive condors are used to propagate offspring that are then reintroduced into the wild. Although large hurdles to condor recovery may remain, three decades into the breeding program carried out by zoos have shown significant successes, with more than 400 condors now roughly split between captive and wild populations.[REF]
It is, by far, the exception that an endangered species would have a population as small as that of the condor. Congress’ default regulatory regime for threatened species that might become endangered in the “foreseeable future” is therefore less severe.[REF] The foundation of the regulatory program for threatened species is the requirement for consultation, and only when it is necessary and advisable is the take prohibition applied to a specific threatened animal by a specific special rule. The default position is that the population of these animals is generally secure enough that the incidental loss of some specimens would not push the species over the edge.
Along the U.S. eastern seaboard, for example, loggerhead sea turtles are designated as threatened. As a species, this turtle occurs throughout the temperate and tropical regions of the Atlantic, Pacific, and Indian Oceans. It requires decades for females to reach sexual maturity, but when they do, each female may nest three to five times a year, laying some 35 pounds of eggs in a year.[REF] They repeat this incredible exercise in propagation every year for well over a decade. Counts of nesting females indicate that there are two areas where more than 10,000 turtles nest, four areas where 1,000 to 9,999 turtles nest, and at least 10 areas where 100 to 999 turtles nest.[REF] Unlike the condors that are assigned numbers and names, no one has any idea how many loggerhead sea turtles there are.
In designing a system that would deal with the disparate threats facing condors and loggerhead sea turtles, Congress was sensible. However, just a few years after the ESA was enacted, the regulatory agencies adopted a rule turning Congress’ system upside down. With a 1975 rule, the stringent take prohibition was applied to all threatened animals for all acts that could be considered a “take.”[REF] The rule applies to any threatened species added to the list unless a specific special rule is issued for that species.
Under the rule’s complex, sweeping scheme, the agencies may, on a case-by-case basis, promulgate a special rule to exempt actions that would otherwise be considered illegal. Consequently, everything is illegal that “takes” any threatened animal, unless the agency issues a special rule allowing the particular action with regard to a particular species, say harvesting a kind of tree where the species may nest, or plowing a field where the species may burrow. This is the opposite of Congress’ design that everything is legal, unless the agency promulgates a special rule prohibiting a specific action with respect to a specific threatened animal.
The Pacific Legal Foundation (PLF), counsel to petitioners seeking rescission of this regulation, points out that the ESA’s structure clearly supports the conclusion that Congress did not intend for the take prohibition to be applied in this manner. Further, the PLF documents that the legislative history, including the Senate’s ESA floor manager statements, legislative report text, and early Department of the Interior statements support this conclusion.[REF]
The “Take” Prohibition’s Aggravating Factors
The take prohibition is more severe than other ESA prohibitions in that it strictly prohibits any act that takes a single member of a listed species. Those found guilty of “taking” a single threatened snail species (of which there are about a dozen) could “be fined not more than $50,000 or imprisoned for not more than one year, or both.”[REF]
A prohibition with such potentially drastic consequences is a more severe restriction than the consultation prohibitions against jeopardizing an entire species or destroying its critical habitat that apply to both endangered and threatened species. It makes sense to generally limit such severe regulations only to endangered species.
Additionally, while many elements of the take prohibition might seem to be avoidable bright lines that, when crossed, would reveal malicious intent, this is not necessarily so. One can be engaged in otherwise perfectly legal, ethical, moral and, in fact, laudable and socially essential, activity like providing food or water, energy, fiber, minerals, transportation, or shelter for humanity, and still illegally “kill” a listed animal species. This is because the ESA is a “strict liability law,” under which someone can be held legally responsible for his actions regardless of his intent or mental state.
A farmer on his tractor could unwittingly plow a snake’s burrow or could put his cow in a pasture where it steps on salamanders in a seasonal puddle. The law does not require the farmer to intend to hit the snake with his plow, or the rancher to intend for his cow to step on salamanders, to potentially become felons. It is enough under the ESA for the rancher to know that he put his cow in the pasture, the farmer to know that he was driving his tractor, or even the homeowner to know that he was mowing his lawn. For example, the U.S. FWS outlined a raft of extraordinary rules for homeowner’s association members on a Lake Erie island to follow in order to make sure that they would not be prosecuted for accidentally “taking” a threatened water snake: Homeowners were not allowed to let their pet cats outside, they are forbidden from spraying poison ivy with weed killer if a snake was within 20 feet, they had to pay for government research and allow researchers to access their property (including the two artificial snake dens constructed on each property), and they could not mow certain portions of their lawns unless it is at least 60 degrees Fahrenheit.[REF] The ESA’s prohibitions no longer apply to the Lake Eirie watersnake, as it was delisted.[REF]
It is bad policy to criminalize these otherwise lawful and socially beneficial activities. For criminal violations, there should be a heightened mens rea requirement, meaning that the government should have to prove that violators were knowingly flouting the law and were not law-abiding people who wound up becoming unwittingly snared by the criminal law because they had no idea that an otherwise lawful act was illegal.
It is also unwise to arm enforcement officials with the ability to pursue criminal prosecution for normal, reasonable behavior and, consequently, the ability to use the threat of doing so to extract concessions.
“Harm”—the Most Expansive Take Prohibition
Additionally, innumerable actions essential to farming, ranching, mining, energy production, building roads, bridges, homes, and other vital activities can easily run afoul of the “harm” prohibition. The terms “harm,” and “harass” to some degree, are more subjective than the other elements making up the take prohibition, and harm has been interpreted particularly broadly.
Harm is defined as
an act which actually kills or injures fish or wildlife. Such an act may include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.[REF]
While this may appear rather clear cut, to prove “actual” injury, the U.S. FWS explains that evidence used can include population studies, laboratory studies, model-based procedures, and information and data in the scientific literature.[REF] Further, an act could violate the take prohibition even if, on its own, it would only constitute a contributor to the “injury.”[REF]
The golden-cheeked warbler, for example, is a bird that nests in juniper trees. Nesting, by definition, is part of its breeding, rearing, and sheltering behavior. There may be a few juniper trees on someone’s property where the owner wants to plant different trees, and so cuts down the junipers. This particular action may not have amounted to causing actual injury to a golden-cheeked warbler. However, if the action is considered, along with the actions of other people who cut down other juniper trees, the U.S. FWS could conclude that the property owner contributed to actual injury and thus harmed a golden-cheeked warbler. The agency could argue that warblers nest in juniper trees at a density of X birds per acre, and that the total acreage of juniper trees has diminished by Y, so the warblers must have been reduced by Z. The property owner could face serious legal jeopardy for cutting down some trees.
Bad Incentives Made Worse
The arbitrary application of the take prohibition to all threatened animals has a number of negative consequences.
While this regulatory sleight of hand indiscriminately applied the take prohibition, it did not change the threshold for listing a threatened species. Since the bar for listing threatened animals is lower, but the regulatory powers accrued are the same, it creates an incentive to list threatened animals for those seeking expanded regulatory authority or seeking to thwart economic activity.
In fact, regulatory agencies arguably increase their authority more with a “threatened” listing than with an “endangered” listing. With threatened animals as now managed, regulatory agencies may seek to permit selected activities, such as specific farming, ranching, or forestry practices (whatever they choose), under a subchapter of law titled “prohibitions,” essentially setting up a system where licenses are doled out.
Environmental activists who seek to use the ESA’s citizen-suit provisions to extract concessions, or to delay or outright block productive activities, understand the significance of the rule. According to the PLF’s Jonathan Wood, during the 1990s environmental groups launched three times as many lawsuits against the U.S. FWS about the listing of threatened species than about the listing of endangered species.[REF]
The regulation also creates a disincentive for landowners to make agencies aware of threatened animals or suitable habitat on their property: Doing so is more likely to invite a regulatory regime with severe consequences. The disincentive may result in less information, which could be valuable to evaluating and managing species, provided to the agencies. As private property is recognized as providing crucial habitat, this is not an inconsequential consideration.[REF]
Perverse incentives under the ESA have been long recognized. A former FWS official addressing the availability of the juniper habitat for golden-cheeked warblers and another listed bird, the black-capped vireo, stated that the “incentives are wrong here. If I find a rare metal on my property the value goes up. But if a rare bird occupies the land, the value disappears.”[REF] This perverse structure gave rise years ago to the phrase “shoot, shovel, and shut up.” Decades before Michael Bean became the Obama Administration’s Principle Deputy Assistant Secretary for Fish, Wildlife and Parks, he acknowledged that there is “increasing evidence that at least some private landowners are actively managing their land so as to avoid potential endangered species problems” and that these were “fairly rational decisions, motivated by a desire to avoid potentially significant economic constraints.”[REF]
The twisted regulatory regime may discourage landowners from taking part in conservation activities to prevent a threatened animal from being “uplisted” to endangered. Unless a special rule would be eliminated, having the species uplisted may make no difference to a landowner. In fact, a landowner could conclude that extinction is more likely to alleviate a burden.
Similarly, there is less incentive to help improve an animal’s status from endangered to threatened if the change does not eliminate take prohibitions. Under the system designed by Congress, the default outcome eliminates the take prohibition, while under the twisted system currently in place it requires a special rule. The landowner, however, can have no assurance that a downlisting would include the special rule.
The structure this rule creates likely contributes to increased conflict between landowners and regulators, as more acts potentially run afoul of more species, and the species, being threatened as opposed to being endangered, are generally more likely to be more numerous or widespread. Further, this contortion exacerbates a fundamental flaw of the ESA in that it increases the burden imposed on private landowners. Landowners are forced to bear a national conservation program’s costs—which can be likened to having to provide property for national parks without compensation.
Recommendations
As the Administration seeks to identify regulations that “are outdated, unnecessary, or ineffective,” the “take” regulation should itself be endangered.[REF] If this rule is rescinded, it could require the issuance of some special rules for some threatened species that have been wrongly regulated up to this point, but the convenience of continuing to regulate arbitrarily and capriciously is not a persuasive argument. No matter what changes are proposed to this law or its implementation, there will be opposition. To avoid such confrontation is, at best, to accept the fallacy that the current law and its implementation are fine. Ample evidence shows that is not the case.
Therefore, the Administration should implement the following recommendations:
- Do not apply the blanket take prohibition to any future threatened species listings.
- Ensure that any necessary and advisable specific prohibitions against take of a species are identified in special rules that accompany future listings of threatened species or future downlistings of endangered species to threatened status.
- Rescind the rule generally applying the take prohibition to threatened species. This will likely require issuance of new special rules for some of the currently listed threatened species.
Conclusion
Whether preferred by regulatory agencies or not, the indiscriminate application of the take prohibition to threatened species and the scheme it establishes contradict the system created by Congress, and create conservation disincentives. Restoring the distinction between endangered and threatened species as called for in law would reduce conservation disincentives and constitute a significant improvement in the endangered and threatened species recovery program.
—Rob Gordon is a Senior Fellow in the Thomas A. Roe Institute for Economic Policy Studies, of the Institute for Economic Freedom, at The Heritage Foundation.
