By Matthew King

In 1973, Congress enacted the Endangered Species Act (“ESA”)1 to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the [international] treaties and conventions.”2

The ESA directs that the Secretary of Commerce or the Secretary of the Interior shall by regulation determine whether any species is endangered or threatened because of: (1) the present or threatened destruction, modification or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence.3

An “endangered species” is any species in danger of extinction throughout all or a significant portion of its range (other than a species of the class Insecta determined to constitute a pest whose protection under the ESA would present an overwhelming and overriding risk to man).4 A “threatened species” is one that is likely to become an endangered species within the foreseeable future.5

The decision to list a species as endangered or threatened must be based solely on the best scientific and commercial data available after a review of the status of the species and after taking into account any efforts being made by any state or foreign nation to protect the species.6

The government also must consider species that have been designated as requiring protection from unrestricted commerce by any foreign nation or pursuant to any international agreement, or which have been identified as in danger or likely to become in danger of extinction, by any agency of a state or a foreign nation responsible for the conservation of fish, wildlife or plants.7

If the government fails to take action, citizens may petition to have a species added to or deleted from the lists of endangered or threatened species required to be published under the ESA.8

The Orca Controversy
The listing of the “Southern Resident” orca whales illustrates the power citizens have to force listing of endangered or threatened species. The Center for Biological Diversity (“CBD”) petitioned to list the Southern Resident orcas as endangered in May 2001. In August 2001, the National Marine Fisheries Service (“NMFS”) found that a listing of Southern Residents might be warranted.9

The NMFS conducted a status review of the Southern Residents to determine whether listing was appropriate. On July 1, 2002, the NMFS concluded that the Southern Residents did not meet the significance criterion of the “distinct population segment” policy10 and declined to list the species as endangered.

On December 18, 2002, CBD filed an action challenging the NMFS’s decision on grounds that its actions were arbitrary, capricious and an abuse of discretion. On December 17, 2003, the U.S. District Court, Western District of Washington, issued a written opinion finding that the NMFS erred: (1) by not relying on the best available scientific evidence; and (2) to the extent it based its finding that the loss of Southern Residents whales would not result in a significant gap in the orcas’ range, which was founded on the possibility that other orcas would repopulate the range of the whales. The court also ordered the NMFS to consider whether the Southern Residents whales differed from other populations and whether the species was in danger of extinction in a significant portion of its range.11

In response to this case, along with further review of the scientific evidence, as required by the court, the NMFS officially placed the Southern Residents on the endangered species list on February 14, 2005.12

Impact of the Listing
Once a species is designated as endangered or threatened, there are a variety of limits on activities that impact that animal and its habitat. The government must develop and implement recovery plans for its conservation and survival, unless it finds that such a plan will not promote conservation of the species.13

In developing and implementing recovery plans, the government is required to give priority to those endangered or threatened species most likely to benefit from such a plan, particularly those species that are, or may be, in conflict with construction or other development projects or other forms of economic activity.14 All other federal agencies must, in consultation with the Secretary, utilize their authorities to further the purposes of the ESA by carrying out the programs developed by the Secretary for the conservation of endangered or threatened species.15 n

1 16 U.S.C.A. ¤¤ 1531-1544.

2 16 U.S.C.A. ¤ 1531(b).

3 16 U.S.C.A. ¤ 1533(a)(1).

4 16 U.S.C.A. ¤ 1532(6).

5 16 U.S.C.A. ¤ 1532(20).

6 16 U.S.C.A. ¤ 1533(b)(1)(A).

7 16 U.S.C.A. ¤ 1533(b)(1)(B).

8 16 U.S.C.A. ¤ 1533(b)(3).

9 66 Fed. Reg. 42,499 (Aug. 13, 2001).

10 See 61 Fed. Reg. 4722 (Feb. 7, 1996).

11 Center for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223 (2003).

12 70 Fed. Reg. 69,903 (Nov. 18, 2005).

13 16 U.S.C.A. ¤ 1533(f)(1).

14 16 U.S.C.A. ¤ 1533(f)(1)(A).