Chapter 4

Wildlife and Biodiversity

Wildlife and Biodiversity• Consider the improbability of our current

biodiversity– One small turn in a different direction at

many points along the evolutionary spectrum might have fundamentally altered the biological world

– The human species is among the most improbable

– See e.g., Stephen Jay Gould, Wonderful Life (1989)

The Nature of Life on Earth• Humans appeared at a very recent point in

the evolution of life

• Biological diversity describes the variability among and between ecosystems and living organisms

• The vast majority of species are insects

Is There an Extinction Crisis?• E.O. Wilson estimates that we are losing

50,000 species/year

• Gregg Easterbrook points out that only 7 listed endangered species have been lost since the Endangered Species Act was passed in 1973– Many species are recovering– Note that insects deemed to be “pests” are not

encompassed by ESA– ESA tends to favor “charismatic mega-fauna”

• Consider how little we know about species– The beetle experiments in Panama

Status of Species

Consider the Relevance of “Hotspots”• According to Wilson, they make up only

1.4% of world’s land surface

• What does this suggest in terms of laws and regulations? – Should we as a society simply buy up all of

the hotspots?

• Nature Conservancy’s “Conservation by Design” program– http://nature.org/aboutus/howwework/about/

Biodiversity and Science

• Species richness relates to habitat area

• Conservation biology, landscape ecology, island biogeography, and fragmentation are scientific concepts or methods used to address biodiversity in land management

Why Preserve Biodiversity?• Biocentric, holistic ethics might say because it is the right thing

to do• Are we protecting the Mona Lisa?

• Anthropocentric ethics might argue for good stewardship. Might also note –– Market value: Food crops, drugs– Non-market values: Ecosystem services– Option values: “To keep every cog and wheel is the first

precaution of intelligent tinkering.” Aldo Leopold, A Sand County Almanac

• Consider scientific uncertainty surrounding biodiversity– What might the precautionary principle suggest?– Are we “rivet poppers”? What “rivets” should we keep?

Valuing Ecosystem Services• A good way to think about these services is suggested

by Gretchen Daily in Note 5 (page 326)

• What species would you bring with you if you were going to colonize the moon?– How difficult would it be to make the choices?

• Consider Biosphere 2– The 3.12-acre Biosphere 2, with an artificial ocean, fake rain

forest, savanna, marsh and desert, in southern Arizona– In 1991, four men and four women entered Biosphere 2 in what

was to be a self-sustaining two-year stint– Hunger, low oxygen levels and high carbon dioxide levels

doomed the experiment

The Prospects for Bioprospecting

• Can we justify biodiversity conservation on the basis of the possible pharmaceutical value of plant and animal species?– Note the utilitarian focus of this approach

• Given the potential for finding life-saving (and lucrative) drugs, why do you think large drug companies have not pursued this possibility more vigorously?

Managing the Biodiversity Commons

• Despite clear federal authority (commerce clause, property clause, treaty power), wildlife management remains largely the province of the States

• States traditionally focused on games species though that has shifted over the past couple of decades

• How should the State and Federal authorities resolve their respective roles when it comes to biodiversity conservation?

The Common Heritage Approach• In the “global commons” – the high seas,

outer space, and Antarctica – international law has developed a principle that we all must share the burdens and benefits of these resources

• Is there a “common heritage” in biodiversity conservation?– Why does this concept create more difficult

problems?– Should we (as a society) allow a private owner

to throw darts at a Rembrandt?

The Common Concern Approach• Why would the developing countries object to

the common heritage approach for biodiversity conservation?– What is “eco-imperialism”?

• What concerns might the U.S. government have over intellectual property rights?

• How does Article 15 of the Convention on Biodiversity address these issues?

Policy Instruments for Managing Wildlife• Restricting access

– Limiting places where hunting is allowed– Imposing “bag” limits

• Landscape management and breeding– Management designed to benefit particular species

• Market instruments– Tax or market-based license requirements– Marketable permits

• Restricting the market for sale– Restricting trade in species or species parts– CITES

The Convention on International Trade in Endangered Species (CITES)

• Species placed on the Endangered Species list through international negotiations – http://www.cites.org/index.html

• Appendix I: Most restrictive for most endangered species– Trade allowed only under special circumstances with export and

import permits

• Appendix II: Trade must be controlled to protect species from becoming endangered– Export permit required

• Appendix III: Placed on the list at the request of host country to help control trade– Export permit required

St. Matthews Island Reindeer

• In 1944, 29 reindeer were moved to St. Matthews Island, without the corrective feedback of such predators as wolves and human hunters.

• In 19 years, the population swelled to 6,000 and then "crashed" in 3 years to a total of 41 females and 1 male, all in miserable shape.

• The primeval carrying capacity of the island was estimated to be about 5 deer per square kilometer. After the crash only 0.126 animals per square kilometer remained, and even this was probably too many once the island was largely denuded of lichens by reindeer browsing.

• Recovery of lichens under zero population condition takes decades. With a continuous resident population of reindeer it may never occur.

• A similar problem occurred on Easter Island with a human population– Easter’s End, Discover, (August, 1995)

http://www.eces.org/articles/000543.php

Current Wildlife Management Issues

• Big game populations are managed to promote greater opportunities for hunters

• Elk at the National Elk Refuge near Jackson, Wyoming are routinely fed hay by Wyoming Game and Fish

• Trout management in New Zealand– Why does the ban on the sale of trout continue?

Wildlife and International Trade

• GATT upheld Mexico’s protest against U.S. restrictions on the sale of tuna in the U.S. caught using gear with high mortality

• Can’t prohibit trade on the basis of process or production methods – in this case the use of dolphin-friendly gear

Wildlife Law Review• The Convention on Biological Diversity (1992)

– U.S. signed but has not ratified• http://www.biodiv.org/default.aspx

• Trade laws – GATT and NAFTA– Mexico’s protest against MMPA upheld under GATT

• The Lacey Act– Prohibits commerce in wildlife taken in violation of state law

• Migratory Bird Treaty Act of 1918– Prohibits “taking” without a permit (But narrower than an ESA

“taking.)• Bald and Golden Eagle Protection Act

– Prohibits “taking” of bald and golden eagles. Limited permits may be issued by the Secretary of the Interior

• Marine Mammal Protection Act– Prohibits takings and other activities affecting marine

mammals without a permit

The Endangered Species Act

• Listing (and critical habitat designation)

• Conservation (and recovery plans)

• Consultation (and biological opinions)

• Takings (and habitat conservation planning)

Listing• A rulemaking process (notice and comment)

– §4(b) BASIS FOR DETERMINATIONS.-(1)(A) The Secretary shall make determinations required by subsection (a)(1) solely on the basis of the best scientific and commercial data available to him

• Note the definition of “endangered” and “threatened” species, 16 U.S.C. §1532(6) and (19)

• Note that species can be listed on the initiative of FWS or NOAA Fisheries or as a result of a petition

• ESA Boxscore– http://ecos.fws.gov/tess_public/html/boxscore.html

The Petition Process• 3)(A) To the maximum extent practicable, within 90 days

after receiving the petition of an interested person … to add a species to, or to remove a species from, either of the lists published under subsection (c), the Secretary shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted.

• If [so]…, the Secretary shall promptly commence a review of the status of the species concerned….

• (B) Within 12 months after receiving a petition … indicating that the petitioned action may be warranted, the Secretary shall make one of the following findings:– (i) The petitioned action is not warranted…– (ii) The petitioned action is warranted – (iii) The petitioned action is warranted but [precluded by other

priorities] (Safeguards apply to avoid extinction)

The ESA and the Black-Tailed Prairie Dog• Is it threatened or endangered?

– More than one million in the wild– Reduced to 1-2% of original range– Environmental groups petitioned to list the species in 1998

• FWS found warranted but precluded in 2000

• Why would the environmental community be so interested in listing the black-tailed prairie dog?– http://www.prairiedogcoalition.org/status.shtml

• Removed from “candidate list” in August, 2004– 69 Fed. Reg. 51217 (2004)

• http://a257.g.akamaitech.net/7/257/2422/06jun20041800/edocket.access.gpo.gov/2004/04-18872.htm

Salmon and Hatcheries• Case study on salmon

– What has happened to the historical salmon runs– Note the statistics: Of 192 Columbia River stocks, 35%

are extinct, 19% are at high risk, 7% at moderate risk, 13% are of concern, and 26% are secure

– What is the worry about hatchery salmon?

• Alsea Valley Alliance v. Evans– Why does the court reject the NMFS decision to the

Oregon Coast Evolutionary Significant Unit as “threatened”

– When the NMFS includes hatchery fish will it necessarily change the decision that the fish are “threatened”?

Critical Habitat Designation• §4(b)(2) [Must designate concurrently or at least within one year

after listing.] The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless … the failure to designate will result in the extinction of the species….

• Secretary Babbitt resisted critical habitat designations because of the significant costs involved

• Does critical habitat designation add any protection?

• Note that listing decisions are generally exempt from NEPA compliance because the ESA requires listing when certain standards are met; the cost/benefit provision for critical habitat designation, however, affords sufficient discretion such that at least one court has required NEPA compliance (see. P. 356)

Problem Exercise (off-book)

• Grizzly bear is listed as threatened. Roads are known to harm grizzly bear habitat because bears avoid roads and roads provide access for the bear’s deadliest predator – humans

• Suppose you want to challenge a decision to allow oil and gas leasing on National Forest lands in grizzly bear habitat. Roads will have to be built into the area to facilitate development. The Forest Service “consulted” under §7 of the ESA with the FWS and the FWS determined that the development would not “jeopardize” the survival of the species– If you are challenging the decision to allow the

development, how would your case be impacted if the agency had designated the area as critical habitat, as opposed to a situation where the bear was listed but no critical habitat was designated?

Conservation• § 7(a)(1) All … Federal agencies shall … utilize their

authorities … by carrying out programs for the conservation of endangered species and threatened species

• Conservation is defined to mean the use of “all methods and procedures … necessary to bring and endangered or threatened species to the point” that the Act’s protections are no longer needed

• Recovery plans are the chief vehicle used to achieve recovery– A road map to recovery

Consultation

• §7(a)(2) Each Federal agency shall, in consultation with and with the assistance of the Secretary, 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 which is determined by the Secretary, after consultation as appropriate with affected States, to be critical

• TVA v. Hill made clear that ESA was not discretionary

The Consultation Process• Agency action proposed

– Will it occur where there are or may be listed species? • If so, prepare a biological assessment (BA) and determine

whether it “may affect” the listed species

• If the action agency finds it “may affect”, it must “consult” with FWS– Consultation requires a “biological opinion”– Used to determine whether there will be jeopardy or adverse

habitat modification– May issue incidental take statement with opinion

• If jeopardy, the FWS will suggest reasonable and prudent alternatives (RPAs) that will not cause jeopardy

Informal Consultation

• 50 C.F.R. §402.13– An optional process that allows the FWS

and the action agency to provide for changes to a proposed action that would avoid adverse impacts to listed species

– Comparable to an EA under NEPA

• According to Professor Ollie Houck, the vast majority of consultations (97.3%) are informal

Informal Consultation• § 402.13 Informal consultation.• (a) Informal consultation is an optional process that

includes all discussions, correspondence, etc., between the Service and the Federal agency or the designated non‑Federal representative, designed to assist the Federal agency in determining whether formal consultation or a conference is required. If during informal consultation it is determined by the Federal agency, with the written concurrence of the Service, that the action is not likely to adversely affect listed species or critical habitat, the consultation process is terminated, and no further action is necessary.

• (b) During informal consultation, the Service may suggest modifications to the action that the Federal agency and any applicant could implement to avoid the likelihood of adverse effects to listed species or critical habitat.

Tennessee Valley Authority v. Hill• TVA had nearly completed construction of a dam on the Little

Tennessee River

• After a NEPA lawsuit had failed, the FWS discovered a 3 inch fish – the snail darter – living in a stretch of the river that would be inundated by the dam – It was the only known population of this darter subspecies

• FWS listed the snail darter and designated the Little Tennessee as critical habitat

• Note that the case pitted two federal agencies against each other

• Analyze under Section 7(a)(2)

SW Center for Biological Diversity v. U.S. Bureau of Reclamation

• Lake Mead delta– Is it “natural”?– What happened to promote this habitat?

• Draft BO and proposed RPA would have required change in operation of Hoover Dam to protect the delta and willows

• Final BO offered a new RPA that required Reclamation to procure and protect 1,400 acres of unused habitat. Why the change?

• On what basis do plaintiff’s sue?

• Would continued operation of the dam jeopardize the flycatcher?

SW Center Decision• Note that both federal agencies are located within

the Interior Department. How might that impact the outcome?

• How should the FWS balance adverse impacts on competing species? – Consider conflict between razorback sucker and

flycatcher

• Would it have made any difference if the willows had been designated critical habitat for the flycatcher?

• Should the Center have sued under §7(a)(1)?

Extraterritorial Application of the ESA

• No clear decision on this but Justice Stevens found in the Lujan case that the ESA did not apply in foreign jurisdictions

• Current rules require consultation on the in territorial U.S. and on “high seas”– What about Antarctica?

• What about actions in the U.S. that impact species in another country?– Colorado River Delta

Takings under the ESA

• 16 U.S.C. § 1533(19) – The term “take” means to harass, harm, pursue,

hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.

• Palila decisions– Feral goats and mouflon sheep are eating mamane

shoots that prevent development of the mamane forest necessary to the survival of the Palila.

– State of Hawaii had brought the animals to the island to promote sport hunting

– Did the State’s action constitute a “taking”?

Babbitt v. Sweet Home• “Harm” in the definition of “take” means an act which

actually kills or injures wildlife . Such act may include significant habitat modification where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. 50 C.F.R. §17.3

• Plaintiffs claim – (1) that congress chose not to include habitat modification in definition; (2) §5 ESA contemplates buying property; (3) “harm” added on Senate floor

• Court finds – (1) ordinary meaning of “harm”; (2) broad purposes of ESA; (3) provision for incidental take contemplates expansive definition of harm.

Babbitt Decision• Why does Justice Connor concur?

– How would her “proximate cause” test limit the decision? Was Palila correctly decided under this test?

• Justice Scalia dissented based upon his interpretation of the meaning of the word “harm”. Applying the doctrine noscitur a sociis, Scalia found that harm required a direct use of force against a species. Why does the majority reject this argument?

Q & D: “Harm”• “Harm” in the definition of “take” means an act which actually

kills or injures wildlife . Such act may include significant habitat modification where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. 50 C.F.R. §17.3.

• See the cases at Note 9: Do the activities “significantly impair essential behavioral patterns” in such a way as to actually kill or injure wildlife?

• Note 10: Does the definition of “harm” essentially adopt an “adverse modification of habitat” standard for “takings”?– Note that you need significant habitat modification that significantly

impairs essential patterns

• Note that “harm” under the MBTA has sometimes been construed not to include indirect harm– But consider toxic pool cases

“Nature in the Dock”

• Should courts allow parties to bring lawsuits in the name of a species or an inanimate object?

• Why do plaintiffs do this?

Problem Exercise p. 388• Train derailment spills corn which attracts grizzly

bears

• Trains are killing grizzlies near spill site

• Is train company liable for a take?– Is the spilling of the corn the proximate cause of the injury

to bears?– Suppose a different train company spilled the corn than

the one that killed the bear allegedly taken. Would this matter?

• Suppose these were non-endangered migratory birds– Would the train company be liable for a under the MBTA?

Problem Exercise: Pygmy Owls

• Friends of the Owl sue the Double R Ranch over a plan to increase grazing

• Do you need to locate active nesting sites to show a taking?

• If the rancher needs a state water permit, or a federal right-of-way how will that impact the problem?

Reintroduction of Wolves• Wolves reintroduced into the Greater Yellowstone

Ecosystem as a nonessential, experimental population– What is an “experimental population? §10(j).– How does it affect the Secretary’s management authority?

• Wolves were migrating down from Montana into the ecosystem– If Interior had waited a few more years, the wolves would

likely have come back to Yellowstone on their own. – Why do you think they chose to reintroduce them rather

than letting them return naturally?

• Why did the district court rule as it did? Why did the Court of Appeals overturn the district court?

Vicarious Takes• What do we mean by a vicarious take?

– Why does it typically arise in the context of government action?

• Strahan v. Coxe– DMF regulates fishing in Massachusetts

• Limits the use of gillnets and lobster pots in certain areas

– What’s the standard for a preliminary injunction?– Is there any doubt that fishing practices are causing

“harm” to Northern right whales?• If there is harm, how is it happening?

– If there is harm, how is the DMF causing it?• Are they the “proximate cause”?

Vicarious Takes• Loggerhead Turtle v. County Council of

Volusia City– County had authority to impose limited

regulation of artificial beach lights– Did the County “take” the turtles?– Did the owners of the lights “take” the turtles?

• Does the decision to hold government regulators liable impose disincentives to regulate?– Would the agency be liable if they simply had

the authority but chose not to regulate?

Takings and Incentives

• The prohibition on takings can promote habitat destruction and provide incentives to manage lands so that listed species avoid it– This does not help listed species

• Section 10 was designed to allow people to take listed species subject to certain constraints– It helps avoid some habitat loss but perverse

incentives remain

• How does §10 work?

Habitat Conservation Plans, §10• § 1539. Exceptions [ESA § 10]• (a) Permits• (1) The Secretary may permit, under such terms and

conditions as he shall prescribe — … (B) any taking otherwise prohibited by § 1538(a) (1) (B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.

• (2)(A) No permit may be issued by the Secretary authorizing any taking referred to in paragraph (1) (B) unless the applicant therefore submits to the Secretary a conservation plan … [that describes the impacts, how they will be minimized and mitigated, the alternatives considered and reasons not adopted, and any necessary and appropriate other measures as determined by the Secretary.]

HCP Permit Standards• §10(a)(2)(B) If the Secretary finds, after opportunity for

public comment, with respect to a permit application and the related conservation plan that — – (i) the taking will be incidental; – (ii) the applicant will, to the maximum extent practicable,

minimize and mitigate the impacts of such taking; – (iii) the applicant will ensure that adequate funding for

the plan will be provided; – (iv) the taking will not appreciably reduce the likelihood

of the survival and recovery of the species in the wild; and

– (v) the measures, if any, required under subparagraph (A)(iv) [authorizing the Secretary to impose general measures] will be met;

– and he has received such other assurances as he may require that the plan will be implemented, the Secretary shall issue the permit.

Are “Takings” the Achilles Heel of the ESA?

• Secretary Babbitt decided to promote large ecosystem wide HCPs largely funded and developed by federal land management agencies and encompassing substantial federal lands– See e.g., West Mojave HCP

• http://www.ca.blm.gov//cdd/wemo.html

• Other measures designed to minimize friction– “No Surprises” Landowner with approved HCP

won’t be required to do more. “A deal is a deal.”– “Safe Harbor” Policy If you undertake voluntary

improvements to your land that benefit species, you can go back to the baseline without violating ESA

Consider the Fort Irwin Expansion • Fort Irwin in California is the army’s primary desert

training area

• A resident “op force” engages in battle with a group of trainees who come in for a month-long field training exercise

• The Army wanted to expand Fort Irwin so they could run two exercises at the same time

• The Problem: The desert tortoise (and the Lane milkvetch)

– http://www.tortoise.org/conservation/ntc/ftirwin15.html

How has Section 10 Worked?• After a slow start, HCPs became prominent during the Clinton

years

• 400 HCPs approved covering 200 listed species and over 30 million acres of land– An area larger than Ohio (about 26 million acres)

• Spirit of the Sage Council decision– Struck down “no surprises” on notice grounds– Court order to complete rulemaking by December 10, 2004

• http://endangered.fws.gov/hcp/NoSurprises/no-surprises-memo-6-28-04.pdf

• Will it lead to less habitat for listed species? If so, why?

• What about public process?– Does NEPA apply? What problems with applying NEPA?

Delhi Sands Flower-Loving Fly

• County agreed to set aside an 8.35 acre preserve for the fly and fence off two corridors

• You are an attorney with the Solicitor’s office at Interior and you represent the FWS– What are your goals?– Can County go forward without violating the ESA– Does Section 7 apply?– Can the FWS give the County an incidental take

permit? Should it approve an HCP?– How do you deal with bad publicity?