Created by Congress in 1973 to protect imperiled animal and plant species, the Endangered Species Act remains a well intentioned but confusing law that leaves environmentalists and developers baffled.
Twenty-five years ago, the Endangered Species Act (ESA) wasn’t controversial, “probably because most people envisioned that bald eagles and other charismatic species” would be protected, observes John Copeland Nagle in a recent report, “The Meaning of the Prohibition on Taking an Endangered Species.” But the image changed quickly, when the US Supreme Court decided that Congress also intended to protect mundane species such as the snail darter, and prohibited the construction of a federal dam in Tennessee.
“Since that time, Congress, the courts, executive agencies and private parties have all struggled with the unparalleled stringency” of the act’s provisions, writes Nagel for the National Legal Center for the Public Interest, a Washington DC-based non-profit group committed to protecting individual rights, free enterprise and private ownership of private property.
The confusion begins with Section 3 of the ESA, which defines “take” to mean “to harass, harm, pursue, shoot, wound, kill, trap, capture, or collect or to attempt to engage in any such conduct.” Then Section 9 of the act makes it “unlawful for any person subject to the jurisdiction of the United States to . . . take any (endangered) species within the United States or the territorial sea.”
The key words associated with defining a take — words that can lead to fines of up to $50,000 and one year imprisonment– include knowledge, intent, causation and omissions. The nation’s courts have helped to further confuse the issues with their interpretations of these words, notes Nagle, an associate professor at the Seton Hall University Law School.
Among the more notable absurdities stemming from ESA regulations was the case of a Montana rancher who was fined $8,000 for shooting a grizzly bear in self-defense. Only recently did a federal judge overturn the fine.
Growing concerns from developers, local governments and others who could break the law have not gone unnoticed, but despite recent efforts by other federal agencies to clarify ESA, developers and environmentalists are left with incompatible sets of guidelines.
For example, the Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) each create their own take guidelines every time the EPA issues a new list of threatened species.
Using EPA’s final listings between January 1997 and May 1998, Nagle said that according to the FWS and NOAA, the following activities could be defined as “takes”: bulldozing, livestock grazing, grass mowing, plowing, road construction, mining and brush removal. Those not considered “takes” include: mining, road construction, pesticide use and livestock grazing.
In other words, certain activities are prohibitive in some instances, but not in others.
In short, Nagle concludes, developers and environmentalists alike are in the same boat when trying to determine what constitutes an illegal “take.” A better understanding of these regulations depends on further action from the courts system and federal government, he said.