Job's plight revisited: the necessity defense and the Endangered Species Act. .

I. INTRODUCTION

   Behold, I cry 'Violence!' but I get no answer;
   I shout for help, but there is no justice.
   He has walled up my way so that I cannot pass;
   and He has put darkness on my paths. (1)

Founded on absolute faith in God as an omnipotent protector, the Bible relates a tale of numerous adversities suffered by Job, who believed, in the end, God would deliver salvation. (2) A similar plight has befallen ranchers, farmers, and landowners in the face of prohibitions under the Endangered Species Act (ESA or Act). (3) As wild animals cloaked in federal protection freely roam American soil, property owners are asked to entrust faithfully the protection of their interests to the U.S. government. (4) However, unlike God, who ultimately rewarded Job's unfaltering faith, (5) state and federal officials sometimes fail in their attempts to fulfill prescribed duties to individuals while protecting endangered and threatened animals. (6) Placing trust in the American government and the agencies that administer its laws, property owners may find themselves hog-tied while their possessions are foraged and destroyed by animals the government has christened indispensable natural resources.

Although the ESA prohibits "taking" an endangered or threatened species, (7) the statute expressly provides limited exceptions. (8) Section 7 of the ESA authorizes the Secretary of the Interior to grant exceptions where agency interests outweigh the need to protect species and no viable alternative exists. (9) The ESA also precludes criminal and civil liability where defense of self or others is proven. (10) Where animals create a nuisance, the ESA authorizes designated officials to intervene. (11) Finally, the ESA allow taking by permit. (12) However, unlike some environmental laws, the ESA remains silent regarding other common law defenses. (13) Where compliance with the Act fails to balance and protect the interests of a property owner. (14) the ESA fails to offer clear guidance for acceptable lawful recourse, essentially tying the private citizen's hands. (15)

One such defense for which the ESA remains silent is a choice-of-evils or necessity defense. (16) To assert the defense, a defendant must show, among other elements, that the legislature has not already balanced the evils. (17) While expressly providing common law defenses for protecting oneself or the safety of other humans, (18) the language of the ESA does not expressly provide a necessity defense. (19) Therefore, the availability of the defense for alleged violations of the ESA remains unclear. (20)

As a well-established tradition in American jurisprudence, the necessity defense is arguably implied in federal cases. (21) However, the Supreme Court recently affirmed that where a statute expressly provides for exceptions to the law, unless the necessity defense is included in those express exceptions the defense of necessity fails, (22) suggesting a shift in federal jurisprudence. The Court's decision is significant for all federal statutes that do not expressly provide for a necessity defense.

Can the ESA support a necessity defense for the otherwise illegal taking of endangered and threatened species? At first blush, statutory interpretation, legislative history, and judicial precedent appear to foreclose the defense's availability. (23) However, upon closer scrutiny, broad interpretation of the statute permits a court to consider necessity as a viable defense against alleged violations of the ESA taking prohibition. This Comment begins in Part II with a review of the ESA, concentrating on the section 9 prohibition of taking protected species and the statutory exceptions to liability, as well as exemptions authorized under section 7. Part II also describes the backlash for both endangered and threatened species, and private property owners as a consequence of strict interpretation and enforcement of the ESA. Part III examines the necessity defense in terms of its history in the common law, utility in the ESA context, and applicability to federal cases, especially in light of the recent Supreme Court holding in United States v. Oakland Cannabis Buyers' Cooperative (Oakland Cannabis). (24) Finally, by closely examining section 7, the regulatory language, and the ultimate goals of the Act, this Comment concludes that equitable treatment of private citizens requires that the courts consider a necessity defense in response to allegations of unlawfully taking a protected species.

II. THE ENDANGERED SPECIES ACT

In December 1973 President Richard Nixon signed into law the ESA, coined "the pit bull of environmental law." (25) Many regard the statute as the "most powerful environmental law in the nation." (26) Its enactment represented Congress's response to growing concern regarding the diminution and likely extinction of fish, plants, and wildlife indigenous to the United States. (27) The ESA purports "to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, to provide a program for the conservation of such ... species ... and to take such steps as may be appropriate to achieve the purposes of the ... [Act]." (28) For purposes of the ESA, a species is "endangered" when it is in peril of extinction throughout all or most of its natural habitat, (29) and "threatened" when the likelihood of endangered status is foreseeable. (30)

A. Protecting Species under the ESA

Species listed as endangered or threatened enjoy expansive protections under the Endangered Species Act. (31) Through federal land acquisition, (32) strict obligations imposed on federal agencies to avoid actions adversely affecting listed species, (33) and prohibitions on "takings" by private citizens, (34) the ESA strives to preserve the delicate balance of nature. The Act not only prohibits killing, capturing, or directly harming a listed species, but also disallows actions having the potential to disrupt habitats. (35) While an exemption process exists for federal agencies, (36) similar relief is unavailable to private citizens and landowners facing stringent criminal and civil sanctions for ESA violations. Actions by Congress, (37) as well as the judiciary, (38) send a clear message that endangered and threatened species are to be protected, "whatever the cost[s]." (39)

B. Exceptions

Although the ESA wields a heavy sword in protecting species, Congress has recognized several exceptions to its enforcement since its enactment in 1973.

1. Section 7 and the Balancing Test 

While section 7 obligates federal agencies to use their powers to further the purposes of the ESA and ensure actions they undertake, fund, or authorize do not imperil any species or their habitat, (40) a balancing test applies when irresolvable conflicts arise between proposed agency actions and environmental interests. (41) Following Tennessee Valley Authority v. Hill (TVA v. Hill), (42) Congress amended the ESA by creating the Endangered Species Committee (Committee). (43) This seven-member, cabinet-level panel--often referred to as the "God Squad (44)--" mediates and may authorize agency exemptions from compliance with the ESA where administrative interests collide with those of an endangered species. (45)

Since the Committee's creation, agencies have requested intervention only three times to decide whether a federal agency's actions were sufficiently important to tromp prohibitions of the ESA. (46) In regard to the case spawning its creation, the Committee considered whether completion of a multimillion dollar dam construction project warranted foregoing conservation efforts on behalf of the snail darter, a small, endangered fish believed indigenous solely to the Tennessee Valley. (47) The Committee stood by the Court's decision in TVA v. Hill that, despite substantial financial investment and inevitable human costs, "a reasonable alternative to the project" existed, and the benefits of its completion did not outweigh alternative actions likely to protect the snail darter and its habitat. (48)

In 1992, the Committee convened to resolve the dispute between Northwest logging companies and environmental groups concerned with the fate of the northern spotted owl, which makes its home in old growth timber. (49) Although forty-four logging companies requested exemptions under section 7 to log forest land where the owl nested, the Committee granted only thirteen exemptions and appended its ruling to require that a mitigation plan be expeditiously implemented to ensure the final recovery of the northern spotted owl. The Supreme Court subsequently sided with the northern spotted owl, declaring that any modification of habitat constitutes harm, and therefore amounts to a taking under the ESA. (50)

The formation of the Committee met sharp criticism, suggesting that it empowers a select group to pass judgment on the continued existence of a species and undermines the goals of the ESA. (51) However, by exercising self imposed restraint and strict adherence to the exemption process, the Committee's conduct further legitimizes the widely held belief in the ESA as an omnipotent law. (52)

2. Incidental Takings

While the Committee does not convene on behalf of private property owners, (53) the ESA provides a limited alternative for individual citizens by allowing incidental takings of listed species. (54) An incidental taking occurs in conjunction with an otherwise lawful activity, and requires permission from the Secretary of the Interior. (55) The Department of the Interior may grant a permit only after the requesting party prepares a conservation plan, known as a regional habitat conservation plan (HCP), describing specific actions the property owner will take to conserve the listed species. (56) The incidental take permit is intended to respond to concerns expressed by private landowners that ESA prohibitions against taking a listed species prevent "otherwise lawful actions" previously not requiring authorization. (57) A permit allows a taking that is not the "purpose of' the owner's action and will not "appreciably reduce the likelihood of the survival and recovery of the species in the wild." (58)

The incidental permit process is costly, time consuming, and ineffective for private landowners. (59) Pending issuance of a permit, the applicant incurs substantial costs because the issuing agency imposes a moratorium on development. (60) Also, applicants bear the burden of high fees associated with the permit process, as well as land use restrictions and mitigation costs associated with the HCP. (61) A lengthy process further exacerbates the enormous financial burdens of this less-than-certain outcome. (62) Although viewed by some as the most auspicious tool for resolving conflicts under the ESA, (63) the Secretary of the Interior rarely issues permits. (64)

3. Defense of Self and Other Human Beings

Precluded from the exemption process and significantly hindered from legally obtaining an incidental take permit, citizens have an express statutory exception to compliance with the ESA's prohibitions against takings--the limited justification defense. (65) Specifically, the ESA does not impose criminal or civil penalties where an individual commits an otherwise unlawful taking while defending himself or another person against bodily harm. (66) As common law defenses long recognized in the federal courts, self-defense and defense of others require an individual to show that, acting under a good faith belief, his actions were necessary to protect himself or another person from imminent harm. (67)

Since the enactment of the ESA, defendants have raised the defense several times in takings prosecutions. (68) Most recently, in Shuler v. Babbitt, (69) a rancher successfully argued that killing a grizzly bear was justified to protect himself from bodily harm. (70) The facts of the case reveal that confrontation between man and bear came only after numerous unsuccessful attempts to protect his livestock from predation. (71)

When compliance with the provisions of the ESA fails to yield positive results, many private citizens share the frustration experienced by the sheep rancher in Shuler. (72) However, federal courts cling steadfastly to the assertion that the legislature places preservation of species under the ESA above the interests of private individuals. (73) Courts have historically rejected a number of arguments--including a violation of rights afforded by the Fifth Amendment, (74) defense of property, (75) and religious necessity (76)--raised by citizens against allegations of unlawfully taking an endangered or threatened species. In response to judicial history illustrating the failure of the U.S. government to address the misfortunes suffered by individuals as a result of compliance with the ESA, private citizens may indeed equate their predicaments with those of their biblical ancestor Job. (77)

C. Avoiding the Provisions: The ESA Backfires

The heavy-handed, unprecedented mandates of the ESA create extraordinary yet understandable consequences. (78) Although the ESA strives to promote the protection and recovery of threatened and endangered species, given the futility of the exemption process and the sparse protections provided private landowners and individuals, many become foes of the Act. (79) Rather than enlisting the help of private citizens, the ESA forces some to employ "shoot, shovel, and shut-up" strategies to protect their ability to use their property as they choose. (80) Consequently, strictly construed, the ESA potentially "transforms harmless and inherently cute critters ... into enemies of the landowner," promoting their demise rather than their future protection. (81)

Take, for example, the scenario of Norman Hutson, Jr., a tree farm owner in Fort Lewis, Washington. (82) For decades he cut trees from his land for income, leaving all but the most mature growth. However, this conservative practice maintains old growth timber, a potential habitat for the northern spotted owl. Rather than risk allowing the owl to make its home on his property, which would prompt the government to halt all timber harvesting, Mr. Hutson took the drastic step of clear-cutting (83) his farm to avoid losing control of his livelihood and land. In the end, both the owl and the tree farmer lost; Mr. Hutson forfeited a long-held family tradition of tree farming, and the northern spotted owl lost potential habitat. (84)

Similar phenomena occur in other areas of the country, to the detriment of many threatened species. (85) As private land increasingly comes under public control, anxious landowners, perceiving no alternative, take matters into their own hands to protect cherished liberties. Thus, "[t]he [ESA] has failed because it sets up incentives to destroy the very habitat it was designed to protect ... owners who wish to maintain full rights to their property have every incentive to eliminate wildlife habitat before it is targeted by the bureaucracy." (86)

III. THE DEFENSE OF NECESSITY

Necessity represents a common law justification rarely proffered in defense of ESA takings violations. How might Shuler or Christy have fared had a necessity defense been argued and allowed? (87) Under the ESA, is an individual justified in killing an attacking predator when, after exhausting all legal options, the rancher watches helplessly as his livelihood, his property, and his sense of safety are destroyed?

A. Necessity in the Common Law

Long recognized in common law doctrine, a choice-of-evils or necessity defense provides that an individual's otherwise unlawful actions are justified when, in the face of an imminently harmful outcome, a person chooses the lesser of two evils. (88) To raise such a defense, a person must be faced with a "clear and imminent danger" (89) that he reasonably expects to avert through his chosen action. (90) The law requires that the outcome of his action must prove less harmful than that abated, (91) no legal alternative exists, (92) and his hands must be "clean" with regard to the situation he finds himself in. (93) Finally, the necessity defense is precluded where lawmakers have already considered the likelihood of such a choice arising and have established an appropriate balance between competing values. (94)

Tracing back to the late 1800s in The Queen v. Dudley & Stephens (Dudley), (95) recognition of necessity as a defense in our legal system "reflects the judgment that such a qualification on criminal liability ... is essential to the rationality and justice of the criminal law." (96) The necessity defense supports the premise that criminal sanctions must serve a useful purpose, such as deterrence of future acts or to rehabilitate a criminal. (97) To punish someone who, with no legal alternative, acts reasonably in an attempt to avert a greater harm fails to serve this end. (98) "No action can be criminal if it is not possible for a man to do otherwise." (99)

However, courts hesitate to make those moral assessments often required by the necessity defense. (100) This reluctance is pointedly evident where the defense is raised to justify taking another human life. The seminal case, Dudley, involved the killing and cannibalism of a cabin boy by several seamen, all of whom were set adrift in a lifeboat. (101) The defendants claimed that the boy was at death's door and preservation of their own existence necessitated taking his life. (102) As articulated by Lord Coleridge, allowing courts to make comparative value judgments rather than soundly reasoned decisions based on legal principles likely leads to "ad hoc acquittals that are unguided by any discernable standard." (103) Similarly, in United States v. Holmes, (104) the court found a sailor guilty of manslaughter for throwing survivors from an overcrowded lifeboat in an attempt to save others. Justice Baldwin stated that although the law may prove merciful where

   no evil spirit is discerned ... we must bear in mind that man, in
   taking ... life ... assumes an awful responsibility to God and to
   society; and that the administrators of public justice ... assume
   that responsibility if, when called upon to pass judicially upon the
   act, they yield to the indulgence of misapplied humanity. (105)

Both Dudley and Holmes illustrate the judiciary's discomfort with allowing a defendant to assert a necessity defense by "measuring the comparative value of life." (106)

The reluctance to allow a necessity defense is not limited to cases involving loss of human life. For example, in People v. Noble, (107) a prisoner, fearing rape, murder, or other extreme circumstances, escaped from prison. His claim of necessity asserted that he made the correct choice between evils. (108) However, the court hesitated to justify an inmate's knowing violation of the law, even though the court believed his assertions. (109) Similarly, in civil disobedience cases, defendants proffering necessity as a defense frequently face judges whose reluctance to engage in moral balancing leads them to declare an absolute rule against the necessity defense where legislative action has not already precluded its use. (110)

Despite early case law hinting that moral evaluation may be appropriate in specific circumstances, (111) modern courts tend to reject such inquiries and instead balance outcomes and statutory construction to decide whether to allow a necessity defense. In United States v. Schoon, (112) the court characterized necessity as a "utilitarian defense" premised on "maximizing social welfare ... where the social benefits of the crime outweigh the social costs of failing to commit the crime." (113) Similarly, the Model Penal Code suggests that moral evaluations can be reduced to logical measurements. (114) Considering modern legal treatment of necessity, one might perceive that a "thin consequentialist" analysis (115)--which, although ignoring moral inquiries into a defendant's culpability--permits our system of justice to rely on a "comfortable device of weighing social harm," thereby endorsing the independence of moral judgment from law. (116)

B. Necessity in Environmental Litigation 

Occasionally, defendants have proffered necessity as a defense to alleged takings under the auspices of religious necessity. Cases involving the ESA and the Bald and Golden Eagle Protection Act (Bald Eagle Act) (117) have arisen where Native Americans assert their right to use bald and golden eagle parts in theft religious ceremonies. (118) However, Congress has already made a value determination in favor of eagles under the ESA and the Bald and Golden Eagle Act. (119)

Dwight Dion, a member of the Yankton Sioux Tribe, was charged with killing four bald eagles in violation of the ESA. (120) As a defense to charges of violating the prohibition against taking an endangered eagle under the ESA, the defendant claimed a right to hunt without restriction on the reservation, pursuant to the federal government's treaty with the Yankton Sioux Tribe. (121) He further argued immunity from punishment because the eagle parts obtained from the hunt were for use in religious ceremonies, not commercial purposes. (122) The Supreme Court reversed the appellate court's ruling that the treaty protected Mr. Dion's right to hunt eagles on the reservation, finding clear congressional intent to abrogate treaty rights when it amended the Bald Eagle Act in 1962. (123)

The 1962 amendment to the Bald Eagle Act expanded the protection to include golden eagles. (124) However, recognizing the potential hardship befalling Native Americans who rely on eagle parts for religious ceremonies, (125) Congress included a provision whereby the Secretary of Interior may permit the taking of an otherwise protected eagle. (126) In its review of legislative history, the Dion court found that by incorporating an express exception to the Bald Eagle Act, Congress abrogated the rights of Native Americans to take eagles except where allowed by permit for religions use, and that treaty hunting rights were inconsistent with the statute's goal to preserve the species. (127) Therefore, because the defendant could have sought a permit, an available alternative to his illegal act existed. Furthermore, Congress addressed and balanced the choice of evils question when enacting the 1962 amendment to the Bald Eagle Act. Consequently, Dion (128) disallows both a treaty defense and a religious necessity defense in response to alleged taking of eagles under the Bald Eagle Act and the ESA. (129) Similarly, in United States v. Jim, (130) the defendant claimed religious necessity as a defense to charges of illegally killing eagles under the Bald Eagle Act and the ESA. (131) Upon arrest for killing seven golden eagles, Mr. Jim, a member of the Confederated Tribes and Bands of the Yakima Nation, claimed he did so as part of a religious burial ceremony. (132) The defendant testified that for religious purposes, an eagle must be killed by an individual who possesses the "eagle spirit," and that the killing must occur during a religions exercise. (133) Furthermore, his prior experience with the eagle repository system proved fruitless. (134) Arguing that the permit requirement limited his access to eagle feathers and therefore significantly affected his freedom to exercise religious beliefs, Jim proffered a religious necessity defense. (135)

The court agreed that the Bald Eagle Act and the ESA substantially burdened the defendant's right to freely exercise his religions beliefs. (136) However, upon further review, the court found the government's interest in protecting eagles under the two statutes compelling, and therefore disallowed an exemption for Jim's actions as necessary for religious exercise. (137) Citing TVA v. Hill, the court articulated the emphatic goal of the ESA to afford the highest priority to endangered and threatened eagles. (138) In allowing Native Americans access to eagles and their parts through a permit process, the government employs the least restrictive means available to protect golden and bald eagles. (139)

As noted in Dion, the defendant in Jim had a choice of viable legal alternatives to violating the ESA and the Bald Eagle Act. (140) The Jim court opined that by maintaining the eagle repository and affording Native Americans a process by which they may obtain permission to kill eagles for religious use, the legislature definitively answered the choice of evils question in favor of golden and bald eagles. (141) Therefore, in light of necessity as a defense, religious freedom bows to the promotion and protection of threatened and endangered species.

In comparison to the cases where Native Americans have claimed religious necessity, courts disallow asserting the necessity defense where the defendant fails to meet the threshold evidentiary question in response to alleged violations of environmental statutes. For example, charged with illegally operating a snowmobile within a National Forest Wilderness Area, the defendant in United States v. Unser (142) failed to prove by a preponderance of the evidence that it was necessary to enter a restricted area to escape disaster. (143) Although the defendant testified he entered the area in an attempt to find his way out and seek help after encountering the storm, conflicting evidence suggested he entered the area prior to encountering the blizzard. (144) Because the court may place the burden on the defendant to prove each element of an affirmative defense, (145) the Unser court refused to allow the defendant to argue necessity. (146)

Its limited use and even more barren success suggest disfavor of a necessity defense in cases alleging environmental violation. Beyond the initial evidentiary hurdle, and review of legislative history to determine whether Congress already balanced a choice of evils, strict statutory construction creates further obstacles to the utility of the necessity defense.

C. Necessity in Federal Courts: Statutory Construction

Federal courts further distance themselves from moral deliberation by relying on statutory interpretation in response to necessity claims. While courts rely on common law principles to decide issues brought before them, (147) statutes define federal crimes. (148) Where the legislature, in enacting a law, already anticipated and weighed or balanced the harms, the defense of necessity is precluded. (149) Courts examine statutes to determine whether an implied or expressly articulated balancing of harms occurred, and disallow the necessity defense where the legislature foreclosed the choice-of-evils argument.

The Supreme Court considered the availability of the necessity defense on two notable occasions. In both United States v. Bailey (150) and Oakland Cannabis (151) the Court cited statutory interpretation as the basis for its decisions regarding the unavailability of the necessity defense. (152)

1. United States v. Bailey

Frequently cited in cases claiming necessity as a defense, Bailey involved an escape by three federal prisoners. (153) Upon their apprehension, the defendants faced indictments under a federal statute governing escapes from federal custody. 154 The defendants claimed necessity as justification for the prison escape. (155) However, the district court refused to submit the defense to the jury because, as a matter of law, the defendants failed to establish the elements required to assert the defense of necessity. (156) Specifically, the defendants failed to offer credible evidence suggesting that, once freed from the circumstances necessitating an illegal escape, they made efforts to surrender or negotiate surrender to authorities. The United States Supreme Court held that the situation amounted to a continued offense. (157)

Upon review, although agreeing with the lower court finding of insufficient evidence to satisfy the required elements for a necessity defense, the Bailey Court stated that, given the right set of facts, the defense could be appropriately asserted in a federal case. (158) Furthermore, the Court went on to reiterate that its job involves construing and analyzing congressional actions, not drafting statutes. (159) The Court relied on the statute as implying congressional contemplation of a necessity defense when enacting the law, including a balancing of harms. (160) Therefore, the statute, not common law doctrine, dictates the availability of a necessity defense.

2. United States v. Oakland Cannabis

The Supreme Court most recently contemplated availability of a necessity defense in Oakland Cannabis. (161) The Court considered whether seriously ill patients using marijuana medicinally can assert necessity to justify the otherwise illegal act. (162) Under the Controlled Substance Act (CSA), (163) an individual acts unlawfully when manufacturing, distributing, dispensing, or possessing with intent for like purposes a controlled substance. (164) The same subchapter of the CSA delineates specific exceptions. The only express exception for the prohibited uses of marijuana, a Class I controlled substance, involves government-approved research. (165)

The Court dismissed the defendant's argument that common law implies the availability of a medical necessity defense. (166) Opposing the Cooperative's assertion that Bailey affords federal courts authority to recognize the defense absent express statutory provision, (167) Justice Thomas, writing for the majority, reaffirmed the Court's earlier declaration that where the legislature has determined statutory exemptions, judicial inference is inappropriate. (168) The Court referred to a statement in TVA v. Hill that "once Congress ... has decided the order of priorities in a given area, it is ... for the courts to enforce them when enforcement is sought." (169) The Court proclaimed medical necessity unavailable to justify violations involving marijuana because Congress already anticipated and balanced the social harms contemplated by the statute. (170) While the CSA reflects that many drugs "have useful legitimate medical purposes and are necessary to maintain the health and general welfare of the American people," (171) as a Schedule I controlled substance, marijuana bears no attribution of medical benefit. (172)

In his majority opinion Justice Thomas expressed doubt as to whether federal litigation allows the necessity defense at all absent express authorization by Congress. Citing Dudley, he referred to the "controversial" treatment of its use at common law. (173) Furthermore, emphasizing federal criminal law as a system defined by statute, (174) Justice Thomas questioned the applicability of common law doctrines, including necessity, to federal issues outside express statutory provision. (175)

More significantly, the Court rejected the defendant's argument that, for necessity to be unavailable, the statute must specifically preclude its use. (176) The Court stated, "[c]onsidering that we have never held necessity to be a viable justification for violating a federal statute, and that such a defense would entail a social balancing ... better left to Congress, we decline to set the bar so high." (177) In dictum, the Court implied that, unless specifically allowed by the statute, courts shall not enter into social balancing tests required by a necessity defense. (178) Therefore, where litigation involves federal statutes that spell out exceptions to compliance, a common law necessity defense is foreclosed unless expressly provided because Congress already determined the lesser evil.

3. Bailey, Oakland Cannabis, and the Endangered Species Act

Both Bailey and Oakland Cannabis avoided moral evaluations in deciding whether an actor's choice of evils justifies his actions and instead relied on congressional intent and statutory interpretation. In particular, given that statutes define federal crimes, (179) by rejecting the argument that a common law necessity defense is available where not expressly precluded by statute, (180) the Court in Oakland Cannabis appeared to foreclose the availability of the necessity defense in federal prosecutions where the statute remains otherwise silent. (181)

The Oakland Cannabis decision adds considerable support to the unyielding and powerful mandates of the ESA. While other environmental laws expressly provide the use of common law defenses, (182) the ESA speaks only to defense of self and other human beings as an allowable exception. (183) In the wake of Oakland Cannabis one reasonably could argue that a necessity defense may not be afforded a rancher in the same circumstances as Shuler, (184) given that the ESA expressly affords exceptions to liability for alleged violations, but does not expressly allow a choice-of-evils defense. (185) Furthermore, a strong argument exists that, although not expressly precluded, the ESA does not imply availability of a necessity defense. (186)

IV. AVAILABILITY OF THE NECESSITY DEFENSE UNDER THE ESA

Despite strong precedents opposing its use, closer scrutiny reveals the availability of a necessity defense under the ESA. Although the Oakland Cannabis Court established that where a statute delineates exceptions to statutory compliance, those not expressly provided are unavailable, the Oakland Cannabis holding does not control where necessity is raised in defense of ESA violations because the statute's amended provisions expressly allow a balancing test. (187) Specifically, section 7 closely resembles a choice-of-evils defense, and public policy dictates that the section 7 exemption afforded agencies likewise extends to individual citizens facing comparable scenarios. Regulatory language reflects the congressional recognition that extreme situations may arise requiring action beyond the scope anticipated by statutory provisions. Finally, a more equitable and forgiving interpretation of individual predicaments is warranted to promote rather than circumvent the full intent of the ESA.

A. Section 7: Extending Equitable Treatment to Individuals

Under section 7, the ESA affords agencies an exemption to the taking prohibition if they demonstrate that the anticipated benefits of a proposed project outweigh the need to conserve a species. (188) On close examination, this statutory provision nearly mirrors the common law necessity defense. (189) Consequently, principles of fairness and equality require extension of the exemption to private citizens. Arguably, the ESA provides the necessity defense under the guise of section 7. (190)

1. Balancing Test

As with the necessity defense requiring that the prohibited act abate a greater harm, (191) section 7 employs a balancing test or choice-of-evils scrutiny to determine whether the anticipated benefits of a proposed agency action sufficiently outweigh threats to a species' existence. (192) The section 7 balancing test parallels the choices confronting a defendant similar to Shuler who, when faced with the economic loss of livestock and livelihood, employed a balancing test to determine the lesser of two evils: killing a protected grizzly bear or allowing the predatory animal to continue attacking his sheep. (193) By specifically providing an exception to statutory compliance utilizing a balancing test, (194) Congress expressly allowed a necessity defense to be raised. (195)

In TVA v. Hill, the Court declared that endangered species must be protected "whatever the cost[s]," (196) and that Congress rather than the judiciary must undertake any balancing of interests. 19v By amending the ESA to allow balancing, Congress expressed its intent to allow a more flexible interpretation of the ESA. (198) Although the amendments to the ESA came in response to an agency's conflict with the statutory goals, (199) individual citizens face similar conflicts. (200) The balancing test should extend to private individuals as well as agencies (201) because the legislature, in amending the ESA, mandated striking a balance between conservation of endangered and threatened species and "providing for the expanding needs of society." (202)

2. Avert a Greater Harm?

To raise a necessity defense, the harm averted must be greater than that caused by the defendant's action. (203) Traditionally, courts disallowed economic loss as grounds for the necessity defense. (204) However, because the ESA provides an exception on the basis of economic as well as other factors for agencies, (205) fairness dictates that the same allowance extend to private individuals raising the defense. Specifically, in situations where ranchers such as Shuler face loss of property and livelihood, (206) because the statute allows agencies to weigh economic factors, (207) the ability to demonstrate that economic benefit outweighs the need to preserve a species should also extend to the rancher. Furthermore, because section 7 provides an agency exemption from ESA mandates where factors such as economic interests outweigh the need to preserve a threatened species, Congress declared that under appropriate circumstances, economic loss may constitute the greater harm. (208)

Section 7 also requires that a proposed action be in the public's interest. (209) Public policy promotes an individual's right to pursue an avocation and earn a living. (210) Furthermore, by protecting an individual's right to earn a living, the public as a whole benefits because the burden of supporting an unemployed citizen is not passed on to taxpayers. Allowing a rancher to protect his livestock against predation also benefits the public by providing byproducts (meat, leather, wool, etc.) at competitive prices, (211) as well as income and employment opportunities for local residents, which promotes the country's economic health. (212) Furthermore, just as the ESA reflects society's interest in protecting plants and animals from extinction, (213) promoting the protection of an individual's livelihood achieves a similar end for the general public good by ensuring that time-honored vocations such as ranching continue to flourish. Although the Court declared that endangered and threatened species must be protected "at all costs," (214) congressional response to TVA v. Hill--in adding the exemption process under section 7--mandates weighing the impact such protections may have on the public. Because protecting individual interests benefits the public, it follows that allowing a necessity defense where a defendant acts to protect his livelihood supports policy and promotes public interest. (215)

3. Reasonable Expectation That Action Will Avert Harm

The assertion of a necessity defense further requires that the defendant reasonably expect his actions will avert the imminent harm. (216) The exemption process prescribed in section 7 demands a showing by agencies that is analogous to that required of individuals claiming a necessity defense. (217) To grant an exemption from the requirements of the ESA, the Committee must determine that the anticipated benefits of a proposed action not only outweigh the benefits of preserving an endangered species, (218) but that such action supports the public interest (219) and has "regional or national significance." (220) An exemption under section 7, therefore, requires the same analysis as a necessity claim because the agency applicant must reasonably expect that its action will result in the projected benefit. (221)

4. No Reasonable and Prudent Legal Alternative

The section 7 requirement that no reasonable and prudent alternative exist also mirrors the general rules of the necessity defense. (222) To qualify for an exemption, an agency must demonstrate the presence of irresolvable conflicts between economic and environmental interests. (223) The Committee then balances these interests in an attempt to resolve the impasse, ultimately determining whether to allow a taking. (224) Similarly, after exhausting all avenues of legal recourse, where the balance of harm tips in her favor, the ESA should allow an individual to raise a necessity defense against allegations of taking a listed species. In Shuler, despite seeking assistance from appropriate authorities as the regulations prescribed, the defendant continued to face threats to his safety and that of his livestock from predatory bears. (225) Having pursued all reasonable legal alternatives, the defendant should be able to avail himself of the same balancing test afforded agencies under section 7; (226) that is, he should be allowed to assert a necessity defense. (227)

Section 7 provides alternatives to taking an endangered or threatened species. (228) By requiring the Committee to identify steps necessary to mitigate harm to protected species before granting an exemption, Congress articulated its intent that takings be permitted only after careful consideration of alternatives. (229) Although an individual arguing necessity cannot claim that a committee carefully considered the benefits and alternatives to her actions, she must assert that all mitigating steps were exhausted and no reasonable, legal alternative to a prohibited action existed. (230) Because the required elements of a necessity defense mandate the same exhaustive contemplation that goes into granting an exemption under section 7, (231) the ESA appears to allow individuals to raise the analogous necessity defense.

Similarly, the ESA allows private individuals to take a listed species by permit, (232) thus providing a legal alternative to violating ESA prohibitions. However, to assert necessity the claimant must prove that no "reasonable and prudent" legal alternatives existed. (233) Because the permit process proves onerous for individuals whose interests are at odds with provisions of the ESA, (234) a defendant raising necessity might successfully argue that seeking a permit is not a reasonable legal alternative, (235) and therefore the defense is available.

5. Has the Legislature Made a Choice of Evils?

Where the legislature has already employed a balancing test and determined the lesser evil, a necessity defense is precluded. (236) Section 7 of the ESA requires the Committee to consider each specific set of circumstances, applying the balancing test to decide whether agency interests outweigh those of a species. (237) Because the statute expressly delegates the balancing test to the Committee, courts may reasonably conclude that Congress has not weighed the alternatives, and the necessity defense is therefore available.

Section 7 allows the Committee to balance competing interests between conserving the environment and agency actions. (238) Narrowly interpreted, the ESA precludes the necessity claim by individuals because Congress determined that taking is only the lesser evil when done by agency action. Following the Court's holding in TVA v. Hill, one reasonably reaches this conclusion. (239) However, Congress also voiced its intent that courts undertake a more flexible interpretation of the ESA by adding a balancing test to the statute. (240) By delegating authority to the Committee, chaired by the Secretary of the Interior, to grant exemptions, (241) Congress implied that the balancing of evils was best left to those closer to the conflict than Congress. (242) Thus, because the Committee undertakes a balancing test with each individual conflict, Congress has rot weighed the harms and determined the lesser evil under the ESA.

6. Imminence 

The same rigid standards required of an agency seeking exemption under section 7 are demanded of an individual asserting a necessity defense. History evinces that few situations merit placing the economic benefits of an agency's project above the ESA goals of preserving our natural resources. (243) Similarly, in the ESA context an individual has a high burden of showing necessity after exhausting all other avenues of recourse and balancing the harm to be averted with the need to protect endangered and threatened species. (244)

For a necessity defense to succeed, the harm averted must be clear and imminent. (245) Agencies claiming exemptions under section 7 must show imminent harm to the public should statutory prohibitions against taking a listed species forestall their actions. For instance, the agency in TVA v. Hill claimed enjoining construction of the Tellico Dam and Reservoir Project to protect the endangered snail darter would create significant economic losses to the community. (246) Similarly, in Sweet Home, the Committee considered whether logging interests outweighed the need to preserve old growth forests, habitat to the northern spotted owl. Timber companies sought an exemption because compliance with the ESA would cause imminent and significant economic harm to the community whose residents predominantly relied on the timber industry for employment. (247)

Unlike the necessity defense, however, which requires the defendant to prove the harm averted was imminent, section 7 has no such requisite. (248) An individual asserting a necessity defense in response to ESA violations must prove more than an agency seeking exemption under section 7. It follows that, where a necessity defense is allowed, a private individual must comply with a more stringent set of requirements than those demanded of an agency under the ESA. (249)

The imminence requirement of a necessity defense further supports its availability under the ESA to private citizens in situations similar to Shuler, not only as a matter of law, but as a matter of practicality and public policy. Section 7 requires an agency to obtain approval before taking an endangered or threatened species, (250) while an individual raises a necessity defense only after the unlawful taking occurs. Congress established the exemption process following the Court's decision in TVA v. Hill, recognizing the inevitability of competing public interests between projects that support the needs of an expanding society and the desire to conserve endangered and threatened species, (251) Private individuals experience similar conflicts with the mandates of the ESA. (252) However, requiring an individual to seek prior approval for taking an endangered species, when faced with imminent harm, will lead to results both unjust and lacking value; (253) by the time an individual obtained an exemption or permit, the imminent harm to be avoided by such permission would have already occurred. (254) This result rings inconsonant with Congress's purpose behind the section 7 amendment--to require a balancing of benefits so as to avoid conflicts between society and the goals of the ESA. (255) The legislature, by amending the ESA, intended to provide a mechanism that balanced the benefits of an action against the harm such action might cause a species. (256) The distinction, therefore, between section 7 requiring prior approval for a taking and a necessity defense raised after the take occurs carries negligible import beyond imposing a greater burden on an individual asserting the defense. (257)

Strictly construed, section 7 precludes individuals from asserting a necessity defense against alleged ESA violations. (258) However, by amending the ESA in response to the Court's strict statutory interpretation in TVA v. Hill, Congress expressed its intent for balance between public interests and the need to conserve endangered and threatened species. (259) Conflicts between individuals and the goals of the ESA raise issues that potentially impact the public interest. (260) Therefore, legislative intent that these conflicts be balanced against the needs of society warrants broad interpretation of the ESA to include individuals claiming necessity.

7. Oakland Cannabis v. the Endangered Species Act: Express Provision Under Section 7

Although Oakland Cannabis foreclosed the necessity defense in federal cases where not expressly provided among statutory exceptions, (261) cases brought under the ESA are distinguishable because the statute provides for its assertion. (262) On close examination, the exemption available to agencies under section 7 is analogous to a choice-of-evils defense. (263) Extending the exemption to individuals leads to the reasonable conclusion that the statute supports a necessity defense. Furthermore, Congress's swift response to the Court's ruling in TVA v. Hill requires broader construction of the ESA to balance public interest against actions necessary to conserve endangered and protected species. (264) Therefore, while the holding in Oakland Cannabis is binding where statutes such as the Controlled Substance Act (265) specifically delineate exceptions, (266) it does not control where necessity is raised in defense of alleged ESA taking violations, because the statute expressly allows the defense under section 7. (267)

Furthermore, in Oakland Cannabis the Court held that the Controlled Substance Act precluded assertion of the necessity defense because Congress had "made a value determination." (268) In contrast, Congress amended the ESA to include a balancing test under section 7, delegating authority to grant exemptions to the Committee, chaired by the Secretary of the Interior. (269)

B. Regulatory Language

Regulations promulgated to enforce the ESA further suggest Congress contemplated extreme situations outside the scope of the statute, that could necessitate taking a listed species. (270) Specifically, the regulations articulate exceptions to the taking prohibition in response to depredation. (271) Because Congress recognized that a private individual could find himself in an extreme situation where the regulatory requirements fail to remedy predatory destruction, the courts could, as a "supplement to legislative judgment," (272) justifiably allow an individual to take a listed species. (273)

For example, the Secretary of the Interior anticipated that grizzly bears, an endangered species under the ESA, could at some point pose significant safety and predatory problems for private citizens and landowners. (274) The regulations allow an otherwise prohibited taking where a grizzly bear's behavior constitutes a "demonstrable but non-immediate" safety threat or significant depredation toward livestock, crops or beehives. (275) Under these circumstances, taking a nuisance bear must be done humanely by state, federal, or tribal authorities, (276) and only where live capture and relocation has been unsuccessful. (277) However, as was evident in Shuler, regulatory compliance may prove fruitless, with the nuisance bear continuing to plague a private citizen. (278) Because regulatory language recognizes the need for intervention where nuisance bears pose a threat, (279) one may reasonably conclude that Congress intended to afford private citizens a necessity defense where legal alternatives are exhausted, forcing a choice between evils.

C. Ultimately Protecting Species under the ESA

The goal of the ESA is to "provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved ... and to take such steps as may be appropriate to achieve the purposes of the ... Act." (280) The Supreme Court read this aim of the ESA to mean conservation of endangered and threatened species, "whatever the cost[s]." (281) Interpretation of the statute should reflect this goal, recognizing that extreme situations will arise that pit landowners against the very resources the ESA was designed to protect. (282) If Congress and the judiciary adhere to a strict, literal interpretation of the statute, employment of "shoot, shovel, and shut-up" (283) strategies by private citizens and landowners will likely increase. (284) In turn, these strategies defeat the purpose set forth in the ESA by further endangering species and their habitats rather than ensuring their preservation. (285) "Whatever the cost[s]," (286) interpreted liberally, includes allowing an otherwise prohibited taking of a listed species under extreme circumstances so that the majority of that species continues to thrive with society's support under the protection of the ESA. (287) Reading the ESA to allow a necessity defense for private citizens, as well as agencies, respects the inevitable conflict between man and the environment, and provides private citizens like Shuler an alternative to the avoidance strategies likely to result from precluding the defense.

V. CONCLUSION

In 1973, Congress sent a clear message that endangered plants and animals, as invaluable resources, should be afforded the utmost priority and protection in American society. (288) Even proposals limiting these protections where human life is imperiled met fierce opposition. (289) Awe-inspiring visions of a majestic eagle soaring gracefully overhead, or a giant grizzly bear plucking salmon from a roaring river elevate the importance of preserving these threatened and endangered species above the time-honored rights of landowners and private citizens in this country. (290) Thirty years after its enactment, the ESA continues to live up to its reputation as the most powerful environmental law ever passed to protect wildlife.

Following in the footsteps of Congress, the courts have championed the cause of threatened and endangered species. In the aftermath of decisions such as TVA v. Hill and Sweet Home, little doubt exists that individuals confront seemingly insurmountable disadvantages when protecting rights and private property against the forces of nature. One can certainly understand why property owners, once committed to preserving forests and other natural resources, are instead destroying anything that may entice an animal to call their property home. The overall purpose of the ESA seems to have backfired in these instances.

At first blush, the Court's decree in Oakland Cannabis appeared to erase yet another avenue of defense against the sweeping impacts of the ESA. However, a closer reading of the statute and reflection on legislative action raise the possibility for the necessity defense. The burden an agency must meet before the Committee will grant an exemption under section 7 of the ESA parallels the requisite analysis of a necessity defense. In the interest of fairness and equality, the ESA should allow courts to extend to private individuals the same consideration allowed agencies with respect to exceptions to prohibited acts. Regulatory language further supports congressional recognition that in certain extreme situations preservation of a species takes a back seat to the needs of humans. Finally, the ultimate mission of the ESA--to preserve our nation's natural resources--warrants broad statutory interpretation, keeping such goals in sight when deciding if necessity justifies the otherwise unlawful taking of an endangered or threatened species.

When confronted with undeterred predatory animals, ravaging private property and threatening individual liberties, defendants such as Shuler should not remain confined to inaction under threat of criminal prosecution in the name of protecting and promoting the continued existence of a species. Like the pious Job, who steadfastly believed in God as his inevitable savior and protector, private property owners and individual citizens can trust that their adversities have been recognized and their prayers answered by Congress in its amendment to the ESA by recognizing a choice-of-evils defense.

(1) Job 19:7 (New American Standard Bible). As a test of his faith, God inflicted upon Job illness, tragedy, and loss of possessions. Throughout his ordeal, Job called upon God to help him. However, it was not until the last of Job's adversities was dealt that God responded.

(2) Id. Job remained faithful as God allowed Satan to destroy his home and livestock, kill his family, and inflict a painful and disfiguring illness upon him. Id.

(3) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000).

(4) Id. [section] 1540(f). The Secretary of the Interior, as well as the Secretaries of Commerce and the Department in which the Coast Guard operates are authorized to promulgate regulations to enforce the ESA. Id.

(5) Job 42:10 (New American Standard Bible).

(6) See Shuler v. Babbitt, 49 F. Supp. 2d 1165, 1166-67 (D. Mont. 1998) (considering a rancher's take of a grizzly bear after the rancher reported predatory attacks to local FWS officials on four separate occasions yet nuisance grizzly bears continued to enter private property and attack livestock).

(7) 16 U.S.C. [section] 1538(a) (2000). "Taking" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. [section] 1532.

(8) See generally id. [section] 1539 (allowing exceptions to prohibitions of ESA); see also [section] 1536(h) (granting exemptions to federal agencies); id. [section] 1540(a)(3), (b)(3) (barring civil liability or criminal prosecution where self defense or defense of another human being is proven).

(9) Id. [section] 1536(h).

(10) Id [section] 1540(a)(3), (b)(3).

(11) See, e.g., 50 C.F.R. [section] 17.40(b)(i)(C) (2001) (taking a grizzly bear is allowed where a "demonstrable but non immediate threat" to human safety or livestock exists); id. [section] 17.40(d)(2)(i)(B)(4) (allowing designated official to take gray wolf in response to "depredations ... on lawfully present domestic animals").

(12) See id. [section] 17.40(g)(2) (allowing Utah prairie dog take on private land by permit).

(13) See, e.g., Clean Air Act, 42 U.S.C. [section] 7413(c)(5)(D) (2000) ("All general defenses, affirmative defenses, and bars to prosecution that may apply with respect to other Federal criminal offenses may apply ... and shall be determined by the courts of the United States according to principles of common law as they may be determined in the light of reason and experience."). The ESA, while expressly allowing a defense of serf and others, does not articulate a position regarding other defenses, such as defending one's property. Cf. Resource Conservation and Recovery Act of 1976, 42 U.S.C. [section] 6928(f)(4) (2000) (amending Solid Waste Disposal Act, Pub. L. No. 89-272, 79 Stat. 992) (using the same statutory language as the Clean Air Act).

(14) See Shuler, 49 F. Supp. 2d 1165, 1166 (D. Mont. 1998) (notifying proper authorities failed to diminish predatory threat to livestock).

(15) In the case of grizzly bears and gray wolves, for instance, the ESA and the regulations that enforce its provisions do not specify what should be done if an official fails to remove or deal with "nuisance" animals constituting a demonstrable threat to humans and livestock. See 50 C.F.R. [section] 17.40(b) (2001) (allowing a "taking" of a "nuisance" bear by an authorized official if in defense of self or another human being, but not speaking to what actions are allowed if an official is unable to remove the predatory animal); id. [section] 17.40(d) (containing a similar deficiency as section (b)).

(16) See JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 285 (3d ed. 2001) (explaining that a defense of necessity suggests the justification of an otherwise unlawful act where balancing of evils averts a greater harm).

(17) Id. at 288.

(18) Endangered Species Act of 1973, 16 U.S.C. [section] 1540(a)(3), Co)(3) (2000).

(19) In a recent decision, the Supreme Court held that where exceptions to statutory compliance are allowed, the defense of necessity is foreclosed if not expressly provided. United States v. Oakland Cannabis Buyers' Cooperative (Oakland Cannabis), 532 U.S. 483, 491 (2001).

(20) While ruling necessity unavailable under the Controlled Substance Act, the Oakland Cannabis Court did not foreclose its use where not expressly provided by federal statute. Id.

(21) See United States v. Bailey, 444 U.S. 394, 409-11 (1980) (considering whether to instruct on the defense of necessity within a common law framework).

(22) Oakland Cannabis, 532 U.S. at 491.

(23) See infra Part III.

(24) 532 U.S. at 491.

(25) See Timothy Egan, Strongest US. Environmental Law May Become the Endangered Species Act, N.Y. TIMES, May 26, 1992, at A1 (quoting World Wildlife Fund Vice President Donald Barry). Mr. Barry further described the ESA as "short, compact [with] a hell of a set of teeth. Because of its teeth, the act can force people to make the kind of tough political decisions they wouldn't normally make." Id.

(26) Ike Sugg, Caught in the Act: Evaluating the Endangered Species Act, Its Effects on Man, and Prospects for Reform, 24 CUMB. L. REV. 1, 2 (1993).

(27) H.R. REP. NO. 95-1804, at 5 (1978).

(28) Endangered Species Act of 1973, 16 U.S.C. [section] 1531(b) (2000).

(29) Id. [section] 1532(6).

(30) Id. [section] 1532(20).

(31) See Tenn. Valley Auth. v. Hill (TVA v. Hill), 437 U.S. 153, 180 (1978) (describing the ESA as "the most comprehensive legislation for the preservation of endangered species enacted by any nation").

(32) 16 U.S.C. [section] 1534 (2000) (authorizing the Secretaries of Interior and Agriculture to "acquire by purchase, donation, or otherwise, lands, waters, or interest therein," for the conservation of fish, wildlife, and plants).

(33) Id. [section] 1536 (proscribing a series of procedures that all federal agencies must comply with to ensure that "any action authorized ... by such agency ... [does not] jeopardize the continued existence of any endangered species or threatened species").

(34) Id. [section] 1538 (making it unlawful for any person to take any endangered or threatened species).

(35) 50 C.F.R. [section] 17.3 (2001). The Secretary of the Interior defines "harass" within the definition of "take" in the Act as an "act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include ... breeding, feeding, or sheltering." Id. "[S]ignificant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns" is included in the meaning of harm. Endangered and Threatened Wildlife and Plants; Final Redefinition of "Harm," 46 Fed. Reg. 54,748, 54,750 (Nov. 4, 1981) (codified at 50 C.F.R. pt. 17).

(36) 16 U.S.C. [section] 1539(a) (2000).

(37) See Donald J. Barry, Amending the Endangered Species Act, the Ransom of Red Chief, and Other Related Topics, 21 ENVTL. L. 587, 590 (1991) (stating that in 1987, 266 members of Congress voted in opposition to an amendment that would have allowed the Secretary of the Interior to waive provisions of the ESA when necessary to protect human life).

(38) See TVA v. Hill, 437 U.S. 153, 172-73 (1978) (enjoining construction of the Tellico Dam, which threatened the snail darter, an endangered fish); Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or. (Sweet Home), 515 U.S. 687, 704-08 (1995) (logging of old growth forest modifies habitat of northern spotted owl, constituting harm, and therefore violates ESA prohibition of taking an endangered species).

(39) TVA v. Hill, 437 U.S. at 184 (declaring the value of an endangered species "incalculable").

(40) 16 U.S.C. [section] 1536(a) (2000).

(41) Id. [section] 1536(h)(1)(A)(ii).

(42) 437 U.S. 153 (1978).

(43) See 16 U.S.C. [sections] 1536(e) (2000) (outlining the requirements, membership, and processes adhered to by the Committee).

(44) Jared des Rosiers, Note, The Exemption Process Under the Endangered Species Act: How the "God Squad" Works and Why, 66 NOTRE DAME L. REV. 825, 833 n.55 (1981). The Committee is nicknamed the "God Squad" because of its power to determine whether a species will be allowed to survive, a power not attributed to mere mortals. Id.

(45) 16 U.S.C. [section] 1536(h) (2000).

(46) See des Rosiers, supra note 44, at 845-47. Following enactment of the exemption process in 1978, the Committee was called upon to review the Tellico Dam and Reservoir Project, which threatened the snail darter, and the Grayrocks Dam and Reservoir Project, which threatened the whooping crane. Id. The Committee granted the exemption for the Grayrocks Dam and Reservoir Project because there were no reasonable alternatives and the public interest benefits of its completion outweighed any alternative. Id. The Committee ordered the project to take various actions intended to minimize negative impact on the whooping crane. Id.; see also John Lowe Weston, The Endangered Species Committee and the Northern Spotted Owl: Did the "God Squad" Play God? 7 ADMIN. L.J. AM. U. 779, 806-16 (1994) (noting that the Committee convened in 1992 regarding the dispute between logging interests and the northern spotted owl).

(47) TVA v. Hill, 437 U.S. at 172-73. Environmental groups sought to enjoin construction of the nearly complete Tellico Dam and Reservoir Project because it threatened to eradicate the snail darter, a minnow-like fish, by destroying its only known habitat. Id. at 164.

(48) David B. Liner, Environmental Law--The Endangered Species Act Amendments of 1978. Congress Responds To Tennessee Valley Authority v. Hill, 25 WAYNE L. REV. 1327, 1338 (1979).

(49) Weston, supra note 46, at 807.

(50) Sweet Home, 515 U.S. 687, 699-700, 707-08 (1995). The Court, referring to the ESA's intent as reversing "the trend toward species extinction, whatever the cost," TVA v. Hill, 437 U.S. at 184, equates habitat modification with a violation of the ESA goal to conserve the "ecosystem upon which endangered and threatened species depend." 16 U.S.C. [section] 1531(b) (2000).

(51) See des Rosiers, supra note 44, at 843-44 (explaining the Committee was formed following the rigid and controversial Supreme Court decision halting construction of the Tellico Dam to protect the snail darter); see also id. at 833 n.55 (discussing how the Committee's nickname, the "God Squad," signifies man's ability to play God by deciding which species will survive and which will not); Lawrence Mosher, Endangered Species Act May Be Off Endangered Species List, at Least for 1982, NAT. J., Apr. 24, 1982, at 722 (suggesting formation of the Committee was intended to allow exemptions when other interests outweigh the importance of protecting endangered plants and animals); Sugg, supra note 26, at 37 (explaining that the Committee was formed to provide agencies a means to "circumvent the otherwise ironclad" prohibitions of the ESA).

(52) See Zygmunt J.B. Plater, In the Wake of the Snail Darter' An Environmental Law Paradigm and Its Consequences, 19 U. MICH. J.L. REFORM 805, 828-30 (1986) (suggesting that although originally thought to weaken the ESA by providing a means for federal agencies to circumvent the Act, the stringent exemption process actually has strengthened the ESA's power to protect species); Weston, supra note 46, at 791 (explaining how the Committee, although it has the potential to overcome mandates of the ESA, adheres closely to the exemption processes and requirements).

(53) See 16 U.S.C. [section] 1536(e) (2000) (pertaining strictly to federal agencies).

(54) Id [section] 1539(a)(1)(B).

(55) Id An incidental take permit authorizes actions otherwise deemed a threat to a listed species.

(56) Id. [section] 1539(a)(2)(A).

(57) H.R. REP. NO. 97-567, pt. 1 (1982).

(58) 16 U.S.C. [section] 1539(a)(1)(B), (a)(2)(B)(iv) (2000).

(59) For example, five years of negotiations occurred before a conservation plan for listed species in North Key Largo was finalized. Sugg, supra note 26, at 37-40. However, a permit was never issued, and land developers and citizens became so enraged that "government cares more about animals than it does about people," they mounted an attempt to secede from the nation as the "Conch Republic." Id.

(60) See J.B. Ruhl, Regional Habitat Conservation Planning Under the Endangered Species Act: Pushing the Legal and Practical Limits of Species Protection, 44 Sw. L.J. 1393, 1407 (1991) (commenting on how emergency listing of the desert tortoise in Nevada halted development around Las Vegas); Jeanne Boyer, Rat Race Gnaws at the Nerves of Riverside County Home Builders, L.A. TIMES, June 18, 1989, at pt. 8, 1(describing development in Riverside County, California that was interrupted while a plan was developed to preserve the Stephens' kangaroo rat); see generally Sugg, supra note 26, at 37-39 (explaining application process and consequences of moratorium).

(61) Sugg, supra note 26, at 37-38. Costs of the regional HCP in Riverside County are estimated to reach more than $300 million. Id. at 39-40. Where approved, private property owners are required to fund conservation plans through fees levied on a per acre basis. Id. at 38. For example, in Riverside County, each new homeowner pays an assessment fee intended to mitigate future threats to the Stephen's kangaroo rat. See Boyer, supra note 60 (estimated costs of the HCP in Riverside County could reach $350 million).

(62) See, e.g., Sugg, supra note 26, at 38 (explaining that property owners likely face years of negotiations, local referenda, and legal and scientific disputes before a conservation plan is accepted). Few HCPs have been completed, permitted, and funded. Id.

(63) See John C. Sawhill, Saving Endangered Species Doesn't Endanger the Economy, WALL ST. J., Feb. 20, 1992, at A15 (describing the incidental takings permit process as a promising conflict resolution mechanism).

(64) Sugg, supra note 26, at 37-38.

(65) While justification defenses include self-defense, defense of others, defense of property, and necessity, the ESA only expressly provides for defense of self and other human beings. 16 U.S.C. [section] 1540(a)(3), (b)(3) (2000).

(66) Id.

(67) DRESSLER, supra note 16, at 221.

(68) See, e.g., United States v. Clavette, 135 F.3d 1308, 1311-12 (9th Cir. 1998) (holding defendant did not act in self-defense when killing grizzly bear); but see Christy v. Hodel, 857 F.2d 1324, 1327-30 (9th Cir. 1988) (declaring self-defense not allowed where defendant killed grizzly bear to protect sheep).

(69) 49 F. Supp. 2d 1165 (D. Mont. 1998).

(70) Id. at 1168-69.

(71) Id. at 1166. Grizzly bears attacked Mr. Shuler's sheep four times. After each attack, the rancher notified proper authorities, but attempts to capture and relocate the bears were unsuccessful. Shuler successfully argued self-defense despite the FWS ruling that the defense was unavailable because the rancher was the aggressor. Id at 1167-69.

(72) See Christy, 857 F.2d at 1326 (discussing how despite the rancher's appeals for assistance from FWS, his livestock continued to be attacked nightly by grizzly bears, resulting in a loss of approximately 20 sheep).

(73) See TVA v. Hill, 437 U.S. 153, 184 (1978) (stating that, under the ESA, listed species must be protected, "whatever the cost").

(74) The Fifth Amendment to the U.S. Constitution provides that "[n]o person shall be ... deprived of life, liberty or property, without due process of law." U.S. CONST. amend. V; see Christy, 857 F.2d 1324, 1331 (9th Cir. 1988) (prohibiting the killing of predatory grizzly bear in defense of property does not deprive rancher of property without just compensation); see also New York v. Sour Mountain Realty, Inc., 714 N.Y.S.2d 78, 84 (N.Y. App. Div. 2000) (enjoining construction of fence which altered habitat of protected timber rattlesnake did not constitute a taking of private property without just compensation).

(75) See Christy, 857 F.2d at 1329-30 (rejecting constitutional right to kill federally protected species in defense of property).

(76) See United States v. Jim, 888 F. Supp. 1058, 1065 (D.Or. 1995) (promoting survival of golden and bald eagles prevails over statutory right to religions freedom).

(77) Job 19:7 (New American Standard Bible).

(78) John A. Baden, Landowners Aren't Foes of Endangered Species, SEATTLE TIMES, Oct. 12, 1995, at B9.

(79) Id.

(80) Id.; see also Editorial Writers Desk, The Law That Seemingly Pits Owls Against People and Jobs, L.A. TIMES, Jan. 3, 1993, at M4 (explaining that the "scorched earth approach" is the process of eliminating endangered or threatened species from private property before discovery by authorities).

(81) Baden, supra note 78, at B9.

(82) Rob Taylor, Preserving Forests May Pay off: Landowners Would Benefit from the Plan to Protect Wildlife, SEATTLE POST-INTELLIGENCER, Oct. 13, 1993, at B1. See Albert Gidari, The Endangered Species Act: Impact of Section 9 on Private Landowners, 24 ENVTL. L. 419, 438-39 (1994) (providing several illustrations of how protection of the northern spotted owl impacts private landowners).

(83) "Clear-cut" is defined as "pertaining to a section of forest where all trees have been cut down," as opposed to thinning some trees while leaving others undisturbed. RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY 384 (2d ed. 1999).

(84) Taylor, supra note 82, at B1.

(85) See Robert H. Nelson, Shoot, Shovel, and Shut Up, FORBES, Dec. 4, 1995, at 82 (arguing that environmental activism compels landowners to destroy rather than protect valuable commodities on their property).

(86) Jerry Taylor, Species Law Is Useless, USA TODAY, May 14, 1992, at 8A.

(87) See supra notes 68-72.

(88) DRESSLER, supra note 16, at 285.

(89) Id. at 287; see also id. at 229 (defining imminent as "immediate" or "at once").

(90) Id at 287 (quoting Commonwealth v. Brugmann, 433 N.E.2d 457, 461 (Mass. Ct. App. 1982) (nuclear power plant posed imminent danger to community). See, ag., United States v. Paolello, 951 F.2d 537, 542 (3d Cir. 1991) (holding necessity defense valid where convicted felon risked prosecution for possession of a firearm when he chose to disarm a man threatening to shoot him).

(91) DRESSLER, supra note 16, at 288. See, e.g., Paolello, 951 F.2d at 542 (finding risk of death or serious injury from firearm sufficient to justify necessity defense); Toops v. State, 643 N.E.2d 387, 390 (Ind. Ct. App. 1994) (allowing defense of necessity for defendant who took control of automobile while intoxicated to avoid serious injury or death as a result of imminent collision); Commonwealth v. Leno, 616 N.E.2d 453, 456 (Mass. 1993) (holding distribution of clean hypodermic needles did not avert a greater harm where that harm was debatable and the defendants' actions were in anticipation of future public benefit).

(92) DRESSLER, supra note 16, at 288; Paolello, 951 F.2d at 540, 542 (finding defendant had no opportunity to avert harm by legal means); State v. Tate, 505 A.2d 941, 946 (N.J. 1986) (holding marijuana use not justifiable because legal alternative available).

(93) DRESSLER, supra note 16, at 289; Paolello, 951 F.2d at 541 (stating defendant may not recklessly place himself in a situation requiring criminal conduct).

(94) DRESSLER, supra note 16, at 289. See, e.g., Tate, 505 A.2d at 946 (finding that the legislature already weighed whether a medical necessity defense was available for the illegal use of marijuana).

(95) 14 Q.B.D. 273 (1884) (holding defense of necessity unavailable to justify taking human life). See George C. Christie, The Defense of Necessity Considered from the Legal and Moral Points of View, 48 DUKE L.J. 975, 1019-23 (1999) (discussing the Dudley court's analysis).

(96) AMERICAN LAW INSTITUTE, MODEL PENAL CODE AND COMMENTARIES, [section] 3.02 cmt. 9 (1985).

(97) See DRESSLER, supra note 16, at 14 (describing the utilitarian principle of criminal punishment as one that minimizes crime by placing unpleasant consequences on the actor, thus providing a benefit to society).

(98) Toops, 643 N.E.2d 387, 388 (Ind. Ct. App. 1994).

(99) Id. (quoting JOHN H. GILETT, GILLETT ON CRIMINAL LAW [section] 7 (2d ed. 1895)).

(100) See John T. Parry, The Virtue of Necessity: Reshaping Culpability and the Rule of Law, 36 Hous. L. REV. 397, 405 (1999) (exploring the role that morals might play when applying the defense of necessity).

(101) 14 Q.B.D. 273, 274 (1884).

(102) Id. at 275.

(103) Id. at 287.

(104) 26 F. Cas. 360 (E.D. Pa. 1842) (No. 15,383).

(105) Id. at 366.

(106) Parry, supra note 100, at 405.

(107) 170 N.W.2d 916 (Mich. Ct. App. 1969).

(108) Id.

(109) See id. at 918 (contemplating a "rash of escapes, all rationalized by unverifiable tales of sexual assault" and urging penal reform rather than judicial sanction); State v. Green, 470 S.W.2d 565, 567 (Mo. 1971).

(110) Parry, supra note 100, at 408. See United States v. Schoon, 971 F.2d 193, 196 (9th Cir. 1991) (necessity unavailable for indirect disobedience); Commonwealth v. Capitolo, 498 A.2d 806, 807-08 (Pa. 1985) (necessity defense unavailable to justify trespass in protest of nuclear power plant construction); United States v. Lucero, 895 F. Supp. 1421, 1425-26 (D. Kan. 1995) (necessity defense unavailable as justification for trespass to protest abortion clinic).

(111) See Dudley, 14 Q.B.D. 273, 287 (1884). Although the court refused to compare the value of life, it did, however, consider the fact that three lives were saved by taking one, and cautioned that "absolute divorce of law from morality would be of fatal consequence." Id.

(112) 971 F.2d 193 (1991).

(113) Id. at 196.

(114) MODEL PENAL CODE [section] 3.02(1)(a) (1985) (relying on weighing or balancing harms).

(115) Parry, supra note 100, at 403-07. Professor Parry describes a consequentialist view of necessity as the "moral evaluation of the correctness or desirability of the defendant's conduct, choices, and character," going beyond "actual and potential consequences of the defendant's actions" and considering the defense within the context of each case. Id at 403. According to Parry, today's legal system practices "thin consequentialism," which relies on balancing social harms, and either bars the defense or places strict elemental requirements on its use. Id. at 408-09.

(116) Id. at 413-14.

(117) Bald and Golden Eagle Protection Act, 16 U.S.C. [section] 668 (2000).

(118) See United States v. Dion, 476 U.S. 734, 736 (1986) (asserting treaty and religious necessity defense to charges of killing four eagles); United States v. Lundquist, 932 F. Supp. 1237, 1239 (D. Or. 1996) (claiming Native American descent, defendant argued possession of eagle parts was necessary for religious practices); United States v. Top Sky, 547 F.2d 486, 487 (9th Cir. 1976) (claiming Bald Eagle Protection Act violates Chippewa-Cree defendants' First Amendment guarantee of freedom to exercise religious beliefs with respect to the Original Native American Church).

(119) See Dion, 476 U.S. at 736; Lundquist, 932 F. Supp at 1239; Top Sky, 547 F.2d at 487. Whether a professed religious belief warrants constitutional protection presents additional problems for courts when determining if a necessity defense is available--a slippery slope courts are hesitant to entertain. Interview with Susan Mandiberg, Professor, Lewis & Clark School of Law, in Portland, Or. (April 23, 2002); see also Oregon v. Smith, 494 U.S. 872, 887 (1990) ("Judging the centrality of different religious practices is akin to the unacceptable business of evaluating the relative merits of differing religious claims."). Rather than require affiliation with "an organized church," courts consider First Amendment protection where an individual proves "he genuinely practices and lives his religious tenets." Maier v. Besser, 341 N.Y.S.2d 411, 414 (N.Y. Sup. Ct. 1972). Even when a legitimate religious belief is found, the necessity defense requires courts to judge whether the unlawful act was necessary to avert a greater harm. DRESSLER, supra note 16, at 288. Arguably, commission of an illegal act constitutes greater harm than restriction of religious exercise. See Peyote Way Church of God, Inc. v. Meese, 698 F. Supp. 1342, 1348 (N.D. Tex. 1988) (finding the control of narcotic and psychotropic drugs under the Controlled Substance Act to protect the public from the "growing menace of drug abuse" outweighs the need to expand exceptions for religious use of peyote). In Peyote Way Church of God, the court held that a "free exercise of religious beliefs challenge is not enough to circumvent the exercise of legislative power to regulate behavior which may be harmful to individuals or the public at large." Id. at 1345.

(120) Dion, 476 U.S. at 734.

(121) Treaty between the United States and the Yankton Tribe of Sioux Indians, Apr. 19, 1858, 11 Stat. 743. In exchange for ceding 400,000 acres of land to the United States, the Yankton Sioux Tribe was assured sovereignty on its reservation, including unrestricted hunting rights. Id.; see also Dion, 476 U.S. at 737 ("The treaty did not place any restrictions on the Yanktons' hunting rights on their reserved lands.").

(122) Dion, 476 U.S. at 736.

(123) Id. at 736.

(124) Id at 740-42. The original Eagle Protection Act did not prohibit hunting golden eagles. 54 Stat. 250 (1940) (current version at 16 U.S.C. [section] 668).

(125) Dion, 476 U.S. at 741-42. The amendment was proposed because large numbers of golden eagles were being killed for the purpose of acquiring feathers for religious ceremonies, and for sale to tourists. To protect the birds from extinction, the original draft of the amendment prohibited any taking of a golden eagle. However, the Assistant Secretary of the Interior, Frank Briggs, submitted a letter to the Subcommittee outlining the religious and emotional significance of the eagle to many Indian tribes with respect to ancient beliefs, customs, and ceremonies. Similar testimony before the Senate led to an additional provision allowing the Secretary of Interior to grant permits authorizing Indians use of eagles for religious purposes. See H.R. REP. No. 1450, at 2-5 (1962).

(126) Bald and Golden Eagle Protection Act, 16 U.S.C. [section] 668a (2000).

(127) Dion, 476 U.S. at 745.

(128) Id at 743-44.

(129) Id. at 744-46 (holding that because the Bald and Golden Eagle Act divested the defendant of a treaty right to hunt eagles, he is barred from such a defense against charges under the ESA).

(130) 888 F. Supp. 1058 (D. Or. 1995).

(131) Id. at 1060.

(132) Id. at 1059-60. Jim testified that religions elders requested he gather eagle feathers for burial use. He further claimed that killing eagles itself is a religious ceremony allowed by the "Creator." Id at 1060.

(133) Id. at 1062. (134) Id. FWS collects and sends dead eagles from around the nation to the national eagle repository in Ashland, Oregon. Id at 1060. A Native American can secure eagle parts from the repository through application to FWS. Id. The defendant in Jim had experienced 14-to-15 month delays in receiving requested eagle parts. Id. at 1060, 1062.

(135) Id. at 1062. While Jim never applied for a permit, the court stated that, had he done so, it was unlikely that a permit would have been granted to kill 12 eagles a year--the number Jim claims his "Creator" allowed. Id. at 1060.

(136) Id. at 1062.

(137) Id. at 1065.

(138) Id.

(139) Id. at 1064.

(140) See 50 C.F.R. [section] 22.22 (1998) (concerning eagle permit requirements for religious purposes). Jim had previously availed himself of the eagle repository, and could have applied for a permit to take eagles in furtherance of his religious beliefs. Jim, 888 F. Supp. at 1062.

(141) Jim, 888 F. Supp. at 1064-65 (holding that despite shortcomings in the permit process, it accomplishes the goals of the Bald and Golden Eagle Act and the ESA in the least restrictive manner available).

(142) 165 F.3d 755 (10th Cir. 1999).

(143) See id. at 765 (holding evidence that defendant entered federally protected forest land while operating a snowmobile recreationally, in violation of 16 U.S.C. [section] 55, to avert a greater harm was insufficient to raise necessity as a defense).

(144) Id. at 765-66.

(145) See Morrison v. California, 291 U.S. 82, 91 (1934) (establishing that where an affirmative defense is asserted, the burden of proof to each element of the defense may properly be placed on the defendant).

(146) Unzer, 165 F.3d at 765.

(147) Bailey, 444 U.S. 394, 415 n. 11 (1980) ("Congress in enacting criminal statutes legislates against a background of Anglo-Saxon common law.").

(148) United States v. Hudson, 11 U.S. 32, 34 (1812).

(149) DRESSLER, supra note 16, at 289.

(150) 444 U.S. 394 (1980).

(151) 532 U.S. 483 (2001).

(152) See id. at 491, 498-99 (congressional balance of harms implicit in the Controlled Substance Act); see also Bailey, 444 U.S. at 415 (analyzing federal statute governing escape).

(153) Bailey, 444 U.S. at 396.

(154) Escape and Rescue, 18 U.S.C. [section] 751(a) (2000).

(155) Bailey, 444 U.S. at 398.

(156) Id. at 399-400.

(157) Id. at 401. The government reasoned that once safely beyond the prison walls, the imminent danger required for a necessity defense ceased to exist. Id. at 411. As long as the defendants remained at large, the commission of a crime was ongoing. Id. at 413. To satisfy the elements of necessity, therefore, the defendants had to prove that the situation forcing a "choice of evils" continued after their successful escape. Id. at 410.

(158) Id. at 415.

(159) Id. at 415-16 n.11.

(160) See id. at 415 (reasoning that because the express intent of the statute is to punish escape from federal custody, a duty to return must be an "essential element" for a necessity defense).

(161) Oakland Cannabis, 532 U.S. 483, 490 (2001).

(162) Id.

(163) Controlled Substance Act, 21 U.S.C. [subsection] 801-904 (2000).

(164) Id. [section] 841(a)(1)

(165) Id. [section] 863(f).

(166) Oakland Cannabis, 532 U.S. at 490. The Oakland Cannabis Buyers' Cooperative argued that the Controlled Substances Act did not foreclose a medical necessity defense because necessity, along with other collateral defenses, "is implicit in a sensible construction [of the Act] to avoid injustice, oppression, or absurd consequences." Brief for Respondent at 10, Oakland Cannabis, 532 U.S. 483 (2001) (No. 00-151). The Cooperative also pointed to examples where the government acquiesced to the "compassionate" use of marijuana by select patients who demonstrated medical necessity. Id. Finally, the Cooperative argued that "to interpret the CSA as foreclosing a claim of medical necessity would raise substantial doubts as to its constitutionality." Id. In asserting this argument, they reference the limited powers of Congress to regulate interstate commerce and an infringement on individual liberties provided by the Due Process Clause, and the rights under the Fifth, Ninth, and Tenth Amendments. Id at 10-11.

(167) Oakland Cannabis, 532 U.S. at 490.

(168) Id. In holding a necessity defense unavailable under the CSA, the Court declined to address whether federal courts have authority to allow a necessity defense absent statutory provision. Id. Characterizing the defense as "controversial ... under our constitutional system, in which federal crimes are defined by statute," the Court acknowledged its prior consideration of necessity without rejecting its use. Id.

(169) TVA v. Hill, 437 U.S. 153, 194 (1978).

(170) Oakland Cannabis, 532 U.S. at 499. The statute prohibits the manufacture and distribution of various drugs by "even those who have what could be termed a medical necessity." Id.

(171) Controlled Substance Act, 21 U.S.C. [section] 801(1) (2000).

(172) Oakland Cannabis, 532 U.S. at 491-92.

(173) Id. at 490.

(174) Id. (citing Hudson, 11 U.S. 32, 34 (1812)).

(175) Id. Although casting doubt as to whether federal courts have the authority to consider necessity as a defense, Justice Thomas did not reject the defense's availability altogether, but rather noted that the courts' authority to recognize the defense is an "open question." Id.

(176) Id. at 491 n.4.

(177) Id.

(178) Id. The Court went on to confirm that the job of federal courts is to "interpret, rather than author" statutes. Id. at 494 n.7. The court further stated that, in exercising discretion, a court of equity must adhere to the will and intent of Congress, and may not undertake a balancing of social interests beyond the constraints of the statute. Id. at 497-98.

(179) See id. at 490 (noting that statutes define federal crimes "under our constitutional system" (citing Hudson, 11 U.S. 32, 34 (1812)).

(180) Id. at 491 n.4.

(181) Id. By rejecting the argument that, unless a statute expressly prohibits a defense such as necessity, common law doctrine infers its availability, the Court essentially held that where Congress has spoken regarding exceptions, the judiciary allows a defendant to assert only those defenses expressly provided for by the statute. A court must rely solely on the statute to drive its interpretation, leaving no room for common law influence.

(182) See Clean Air Act, 42 U.S.C. [section] 7413(c)(5)(D) (2000) ("[All] general defenses, affirmative defenses, and bars to prosecution that may apply with respect to other Federal criminal offenses may apply ... and shall be determined ... in the light of reason and experience."); see also Resource Conservation and Recovery Act of 1976, 42 U.S.C. [section] 6928(f)(4) (2000) (amending Solid Waste Disposal Act, Pub. L. No. 89-272, 79 Stat. 992) (providing the same common law defenses as the Clean Air Act).

(183) Endangered Species Act of 1973, 16 U.S.C. [section] 1540(a)(3), (b)(3) (2000).

(184) See supra notes 68-71 and accompanying text.

(185) See 16 U.S.C. [section] 1540(a)(3) (2000) (providing a specific exemption from liability for self defense and defense of other humans, but silent to other common law defenses).

(186) See Oakland Cannabis, 532 U.S. 483, 491 n.4 (2001) (rejecting the respondent's argument that, because the CSA does not expressly prohibit the availability of a medical necessity defense, the defense is available under common law doctrine).

(187) Responding to the Court's holding in TVA v. Hill, Congress amended the ESA to include a balancing test to resolve conflicts between conservation efforts and various agency projects. Liner, supra note 48, at 1335; see 16 U.S.C. [section] 1536(h)(1)(A), (B) (setting out a balancing test, as well as other requisite elements for granting an exemption).

(188) 16 U.S.C. [section] 1536(h)(1)(A) (2000). The Court's ruling in TVA v. Hill halted the Tellico Dam and Reservoir Project, the recipient of investments totaling more than $70 million. TVA v. Hill, 437 U.S. 153, 166 (1978). In response, Congress proposed a number of bills, and finally amended the ESA by adding the section 7 exemption process. des Rosiers, supra note 44, at 843-45. By enacting the exemption process, Congress intended to "introduce flexibility into the Act" and avoid future conflicts "between the interests of particular projects and the protection of endangered species" by employing a balancing test where irresolvable clashes arise. Id. at 844 (quoting Liner, supra note 48, at 1335). Arguably, policy and fairness extend this "flexibility" to individuals facing similar conflicts.

(189) See discussion infra Part IV.A.4 (analyzing the parallels between requirements of a section 7 exemption and a necessity defense).

(190) See id. (noting that because section 7 mirrors the requirements of a necessity defense, the statute expressly provides for its use); see also Liner, supra note 48, at 1335 (arguing that in response to the Court's strict interpretation of the ESA, Congress amended the statute to include a balancing test to solve irresolvable conflicts between the interests of agencies and the goals of the ESA to allow courts more flexible statutory interpretation).

(191) DRESSLER, supra note 16, at 288. A balancing, or choice-of-evils, test judges which harm is greater. Id.

(192) 16 U.S.C. [section] 1536(h)(1)(A)(ii) (2000).

(193) Schuler, 49 F. Supp. 2d 1165, 1166 (D. Mont. 1998). Shuler did not proffer the necessity defense. Rather, the defendant successfully argued serf-defense. This Comment uses Shuler to illustrate a set of facts supporting a necessity defense had it been argued. Id. at 1169.

(194) The Court held that, unless amended by Congress, the ESA did not permit balancing. TVA v. Hill, 437 U.S. 153, 194-95 (1978). Congress responded by adding the section 7 exemption process, allowing a balancing test to resolve conflicts between agency and ESA interests. 16 U.S.C. [section] 1536(h)(1)(A)(ii) (2000); see Liner, supra note 48, at 1335-41 (discussing the Court's initial interpretation of the ESA and the aftermath of TVA v. Hill).

(195) While arguably the defining element of a necessity defense, a balancing of harms constitutes only one of several elements a defendant must demonstrate for a court to allow the defense. See DRESSLER, supra note 16, at 287-89 (setting out the six required elements for assertion of a necessity defense).

(196) TVA v. Hill, 437 U.S. at 184.

(197) Id. at 194-95.

(198) See Liner, supra note 48, at 1340 (explaining that as amended, the ESA "can carry out its purpose of striking a balance between preserving the environment and providing for the expanding needs of society").

(199) Id. at 1335.

(200) See Shuler, 49 F. Supp. 2d 1165, 1166-67 (D. Mont. 1998) (using necessity as a defense where a rancher faced loss of sheep by predatory grizzly bear); Christy, 857 F.2d 1324, 1326 (9th Cir. 1988) (same).

(201) See discussion infra Part IV.A.4 (discussing the impact of individual actions on public interest).

(202) Liner, supra note 48, at 1340.

(203) DRESSLER, supra note 16, at 288.

(204) Id. at 289. See State v. Moe, 24 P.2d 638, 639-40 (Wash. 1933) (rejecting an economic necessity defense raised by impoverished defendants accused of stealing groceries from local store).

(205) See Endangered Species Act of 1973, 16 U.S.C. [section] 1536(h)(1)(A)(ii) (2000) (granting an exemption where it has been established that the benefits of an agency's actions outweigh the benefits of any alternate course of action intended to promote the preservation of an endangered species); see also des Rosiers, supra note 44, at 843-44 (arguing that Congress responded to the Court's "rigid interpretation" of the ESA in TVA v. Hill by adding an exemption process that allowed a balancing test to weigh economic benefits of an agency's actions against preservation of an endangered species).

(206) Shuler, 49 F. Supp. 2d 1165, 1166-67 (D. Mont. 1998).

(207) See des Rosiers, supra note 44, at 845-48 (explaining that the Endangered Species Committee considered economic as well as other factors in determining whether to grant an exemption).

(208) 16 U.S.C. [section] 1536(h)(1)(A)(ii) (2000). See des Rosiers, supra note 44, at 845-48 (the Committee's decision to exempt the Grayrocks Dam and Reservoir Project took into consideration economic, as well as other factors); see also Liner, supra note 48, at 1339 n.74 (discussing the benefits of Grayrocks Dam and Reservoir Project, which included providing power to customers in eight states).

(209) See 16 U.S.C. [section] 1536(h)(1)(A)(ii) (2000) ("such action is in the public interest").

(210) "[T]here are powerful considerations of public policy which mitigate against sanctioning the loss of a man's livelihood." Purchasing Assoc. Inc. v. Weitz, 196 N.E.2d 245, 247 (N.Y. 1963).

(211) As part of the Missouri Basin Power Project, the Grayrocks Dam and Reservoir Project provides the cooling water for the Laramie Power station, which in turn provides power to customers in eight states. Liner, supra note 48, at 1339 n.74. Had the Committee not granted the exemption, power customers would likely have experienced increased costs due to a supply shortage. Similarly, if a rancher is prevented from raising livestock, the public as consumers will realize greater costs where demand exceeds supply.

(212) Continued depredation forced a sheep rancher to abandon his ranching endeavor and vacate his land lease with the Blackfeet Indian Tribe. Christy, 857 F.2d 1324, 1326 (9th Cir. 1988). This loss of revenue undoubtedly hurt the Tribe.

(213) See des Rosiers, supra note 44, at 827-34 (discussing the four arguments underlying the goals of the ESA).

(214) TVA v. Hill, 437 U.S. 153, 172-73 (1978).

(215) For example, disallowing the defense where a private citizen's interest in protecting his or her livelihood conflicts with the ESA goal to preserve endangered plants and animals violates public policy. In Shuler, continued depredation of livestock threatened the rancher's livelihood. Shuler, 49 F. Supp. 1165, 1166-67 (D. Mont. 1998). In Christy, after losing 84 sheep to predatory grizzly bears, a rancher terminated his lease with the Blackfeet Indian Tribe. Christy, 857 F.2d at 1326. The rancher then removed the surviving livestock, effectively ending his attempt to earn a living by raising sheep. Id.

(216) DRESSLER, supra note 16, at 287.

(217) Endangered Species Act of 1973, 16 U.S.C. [section] 1536(h)(1)(A)(ii) (2000).

(218) Id.

(219) Id.

(220) Id. [section] 1536(h)(1)(A)(iii).

(221) See id. [section] 1536(h)(1)(A) (requiring that the benefits of a proposed action outweigh the benefits of actions aimed at conserving species, that such action promote public interest, and that it be of "significant regional or national significance"). As part of the application process, the Secretary of the Interior must submit a report detailing "appropriate reasonable mitigation and enhancement" efforts to be considered by the Committee. Id. [section] 1536(g)(5)(C).

(222) DRESSLER, supra note 16, at 287-89.

(223) 16 U.S.C. [section] 1536(h)(1)(A)(i) (2000) (demanding that "there are no reasonable and prudent alternatives to the agency action"). Following the amendments, the Committee granted an exemption to the Grayrocks Dam and Reservoir Project, finding no reasonable alternative. Liner, supra note 48, at 1338-39. However, the Committee denied a similar exemption to the Tellico Dam and Reservoir Project, citing alternatives to its completion; these included partial removal of the dam creating a free flowing river with development of the Little Tennessee River Valley around it. Id. at 1338. River development would allow the snail darter to migrate upstream and spawn. Id.

(224) 16 U.S.C. [section] 1536(h)(1).

(225) Shuler, 49 F. Supp. 2d 1165, 1166 (D. Mont. 1998).

(226) 16 U.S.C. [section] 1536(h)(1)(A)(i)-(ii)(2000).

(227) See Shuler, 49 F. Supp. at 1166-69 (suggesting that the defendant could have raised a necessity defense).

(228) See 16 U.S.C. [section] 1536(h)(1)(B) (2000) (requiring the Committee to establish "reasonable mitigation and enhancement measures" when granting an exemption to the ESA taking prohibition).

(229) See Liner, supra note 48, at 1339 (discussing the Committee's grant of an exemption to the Grayrocks Dam and Reservoir Project, provided that the project limit water withdrawals, make water releases during specific times of the year, and establish a trust fund to maintain the whooping crane's critical habitat).

(230) See DRESSLER, supra note 16, at 287-89 (noting that to assert necessity, a defendant must show that no reasonable, legal alternative existed).

(231) Id. (stating that a defendant must establish all six elements to argue necessity, including that no legal alternative existed and that the defendant weighed the harms).

(232) 16 U.S.C. [section] 1539(a)(1)(B) (2000) (requiring an individual taking to be "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity").

(233) Id. [section] 1536(h)(1)(A)(i).

(234) See supra notes 60-65 and accompanying text (discussing difficulties encountered by private individuals requesting a permit pursuant to the ESA provisions).

(235) See, e.g., Jim, 888 F. Supp. 1058, 1062 (D. Or. 1995) (showing permit process was not a reasonable option for a defendant claiming religious necessity for killing 12 golden eagles).

(236) Id.; see also Tate, 505 A.2d 941, 946 (N.J. 1986) (precluding medical necessity defense where lawmakers have "anticipated the choice of evils and determined the balance to be struck between competing values").

(237) 16 U.S.C. [section] 1536(h)(1)(A)(ii)(2000).

(238) Id.

(239) TVA v. Hill, 437 U.S. 153, 194-95 (1978) (interpreting the ESA strictly, holding that no balancing was permitted unless Congress amended the statute).

(240) See Liner, supra note 48, at 1335 (arguing that Congress amended the ESA to include a balancing test following the Court's ruling in TVA v. Hill).

(241) 16 U.S.C. [section] 1536(e)(2) (2000).

(242) Authorized to grant exceptions under section 7, the Committee includes the Secretary of Agriculture, the Secretary of the Army, the Chairman of the Council of Economic Advisers, the Administrator of the Environmental Protection Agency, the Secretary of the Interior, the Administrator of the National Oceanic and Atmospheric Administration, and an individual from the state affected by the project, to be appointed by the President. Id. [section] 1536(e)(3).

(243) See des Rosiers, supra note 44, at 845-47 (following enactment of the exemption process, the Committee considered exemptions for two projects, ultimately granting only one); Weston, supra note 45, at 806-16 (convening to consider whether an exemption for logging companies should be granted, the Committee granted only 13 of 44 applications).

(244) See DRESSLER, supra note 16, at 287-89 (setting out the six required elements for assertion of a necessity defense and its subsequent limitations).

(245) Id. at 287; see Paolello, 951 F.2d 537, 542 (3d Cir. 1991) (defining "imminent" as "immediate," and holding that evidence of an immediate threat of death or serious bodily injury was sufficient to meet the imminence requirement for a necessity defense).

(246) See TVA v. Hill, 437 U.S. 153, 166 (1978) (finding that the Tellico Dam was 80 percent complete, and that "scrapping" the project would result in loss of $53 million in unrecoverable obligations).

(247) Sweet Home, 515 U.S. 687, 692 (1995).

(248) See Endangered Species Act of 1973, 16 U.S.C. [section] 1536(h)(1)(A) (2000) (delineating the requirements an agency must establish before an exemption from compliance with ESA provisions can be granted).

(249) Compare id. with DRESSLER, supra note 16, at 287-89 (describing the six requisite elements for asserting a necessity defense).

(250) 16 U.S.C. [section] 1536(g) (2000).

(251) Liner, supra note 48, at 1335.

(252) Numerous cases have raised issues where the interests of individual citizens conflict with the mandates of the ESA. See Shuler, 49 F. Supp. 2d 1165, 1166-69 (D. Mont. 1998) (describing conflict between rancher's desire to protect livestock from predatory grizzly bear and protection of endangered grizzlies pursuant to the ESA); Christy, 857 F.2d 1324, 1325-26 (9th Cir. 1988) (pointing out that rancher's need to protect sheep from predatory grizzly bear conflicted ESA mandated protection of endangered bears); Jim, 888 F. Supp. 1058, 1059-61 (D. Or. 1995) (declaring protection of golden and bald eagles conflicted with right to exercise religious freedoms).

(253) See Shuler, 49 F. Supp. 2d at 1166-67 (finding that although the defendant notified FWS authorities, his sheep were still attacked by bears on five separate occasions over a two month period); Christy, 857 F.2d at 1326-27 (showing that despite employing a number of strategies to prevent depredation, including attempts by FWS authorities to capture and relocate culprits, grizzly bears attacked rancher's sheep nightly during July 1982, killing a total of 84 sheep).

(254) See supra notes 58-60 and accompanying text (discussing the time-intensive permit process available to private landowners).

(255) 16 U.S.C. [section] 1536(g) (2000) (outlining the extensive application process for exemption under section 7).

(256) See Liner, supra note 48, at 1335 (noting ESA amendment intended to avoid conflicts between interests of society and the protection of endangered species).

(257) Compare DRESSLER, supra note 16, at 287-89 (demonstrating the six necessary elements to prove necessity: 1) defendant faces imminent harm, 2) action averts a greater harm, 3) reasonable expectation that action will succeed in averting harm, 4) no reasonable legal alternative, 5) legislature has not balanced the harms, and 6) clean hands), with 16 U.S.C. [section] 1536(h)(1)(A) (2000) (granting of exemption does not require demonstration of imminent harm).

(258) Section 7 expressly affords a grant of exemption where the benefits of a proposed agency action outweigh the benefits of conservation efforts. 16 U.S.C. [section] 1536(h) (2000).

(259) See Liner, supra note 48, at 1335 (discussing Congress's response to the Court's holding in TVA v. Hill).

(260) See supra Part IV.A. 1 (discussing the public impact where conflicts arise between individuals and efforts to protect endangered and threatened species).

(261) See Oakland Cannabis, 532 U.S. 483, 491 (2001) (recognizing that because Congress determined "marijuana has no medical benefits worthy of an exception," necessity is unavailable under the Controlled Substances Act).

(262) Interpreting section 7 of the ESA strictly, the Supreme Court stated that the ESA could allow for balancing only if amended by Congress. Liner, supra note 48, at 1335. Congress subsequently amended section 7 by adding a balancing test to resolve conflicts and determine whether the "interest promoted by a proposed project outweighs that of protecting an endangered species." Id. Amending the statute to include a balancing test reflects Congressional intent to allow a more flexible interpretation of the ESA. des Rosiers, supra note 44, at 843-44.

(263) See generally supra Part W.A. (arguing that the ESA provides a necessity defense for individuals).

(264) See Liner, supra note 48, at 1335 (noting that Congress amended the ESA to include a balancing test after the Court held the statute disallowed a balancing test absent legislative action).

(265) Controlled Substance Act, 21 U.S.C. [subsections] 801-904 (2000).

(266) Id. [section] 863(f).

(267) See generally Part IV.A. 1-6 (arguing that section 7 of the ESA, as well as principles of fairness and equality expressly allow a necessity defense by inserting a balancing test into the exemption process).

(268) Oakland Cannabis, 532 U.S. 483, 491 (2001) (citing 1 W. LAFAVE & A. SCOTT, SUBSTANTIVE CRIMINAL LAW [section] 5.4, 629 (1986)). Because the statute stated that "marijuana has no medical benefit worthy of an exception," the Court concluded Congress had weighed the values and foreclosed a necessity defense for its medicinal use. Id.

(269) See Endangered Species Act of 1973, 16 U.S.C. [section] 1536(e)(2) (2000) (describing the Committee and its authority).

(270) See 50 C.F.R. [section] 17.40 (1998) (providing special rules for mammals that allow taking a listed species for reasons such as predatory behavior, posing a demonstrable risk to human safety, or scientific research).

(271) See id. [section] 17.40 (b)(i)(C) (allowing taking a grizzly bear for predatory behavior toward livestock, crops, or beehives); id. [section] 1740 (d)(2)(i)(B)(4) (allowing taking a gray wolf in response to predatory behavior toward domestic animals).

(272) DRESSLER, supra note 16, at 2.86 (quoting KENT GREENAWALT, CONFLICTS OF LAW AND MORALITY 289 (Tony Honore & Joseph Raz, eds., 1989)).

(273) See id. (describing necessity as the principle that an individual, when faced with a choice between two evils, should not be punished for choosing the least harmful alternative); see also id. at 288 (stating that a necessity defense applies where no "effective" legal alternative exists to avoid the harm).

(274) See 50 C.F.R. [section] 17.40(b)(i)(C) (1998).

(275) Id.

(276) Id. [section] 17.40(b)(i)(C)(2).

(277) Id. [section] 17.40(b)(i)(C)(1).

(278) Shuler, 49 F. Supp. 2d 1165, 1166 (D. Mont. 1998) (finding despite notifying the appropriate authorities, Fish and Wildlife officers were unable to capture and remove the nuisance grizzly bears, and depredation of the rancher's sheep continued).

(279) 50 C.F.R. [section] 17.40(b)(i)(C) (1998).

(280) Endangered Species Act of 1973, 16 U.S.C. [section] 1531(b) (2000).

(281) TVA v. Hill, 437 U.S. 153, 184 (1978).

(282) See, e.g., Shuler, 49 F. Supp. 2d at 1166 (resolving a conflict between rancher's desire to protect sheep and statutory goal to conserve endangered grizzly bear population); TVA v. Hill, 437 U.S. 153, 158-59 (1978) (resolving a conflict between construction of Tellico Dam and preservation of the endangered snail darter); Sweet Home, 515 U.S. 687 (1995) (resolving a conflict between timber industry and preservation of habitat for the northern spotted owl).

(283) See Nelson, supra note 85.

(284) See Baden, supra note 78, at B9 (suggesting the ESA transforms endangered species into "enemies of the landowner," prompting individuals to preemptively modify their land to make it less attractive rather than protecting potential habitats).

(285) Id. The author postulates that the ESA "encourages landowners to break the spirit and the letter of the law," an "unsustainable policy" that fails to promote the statute's ultimate goal to conserve species. Id. See John Andrew Zucotti, Note: A Native Returns: The Endangered Species Act and Wolf Reintroduction to the Northern Rocky Mountains, 20 COLUM. J. ENVTL. L. 329, 331-32 (1995) (describing ranchers' sentiment in response to reintroduction of the Gray Wolf in Yellowstone National Park and Central Idaho).

(286) TVA v. Hill, 437 U.S. 153, 184 (1978).

(287) See, e.g., Zucotti, supra note 285, at 349-50 (noting that regulations pertaining to the reintroduction of Gray Wolves to the Northern Rocky Mountains allow wolves to be killed if caught "in the act" of attacking livestock (citing U.S. FISH & WILDLIFE SERV., THE REINTRODUCTION OF GRAY WOLVES TO THE YELLOWSTONE NATIONAL PARK AND CENTRAL IDAHO, FINAL ENVIRONMENTAL IMPACT STATEMENT 2-16 (1994)).

(288) See H.R. REP. No. 93-412, 4-5 (1973) (conserving endangered and threatened species serves mankind's best interest).

(289) See Barry, supra note 37, at 590 (reporting that 266 members of Congress opposed an amendment that would have allowed the Secretary of the Interior to waive provisions of the ESA when necessary to protect human life).

(290) See des Rosiers, supra note 44, at 832 (citing aesthetic considerations as one of many justifications for preserving plant and animal species).

ANNE LINDQUIST *

* [c] 2003 Anne Lindquist. Form & Style Editor, Environmental Law, 2002-2003; J.D. expected 2004, Lewis & Clark Law School; M.Ed. 1983, University of Washington; B.S. 1981, University of Puget Sound. The author thanks Professor Mandiberg for her perspective, insight, and demand for perfection. She also thanks her husband Jay for encouragement and support in pursuit of a life-long dream.