Section 4 of the Endangered Species Act: top ten issues for the next thirty years.
I. INTRODUCTION
II. A BRIEF LOOK BACK
A. Eligibility for Protection
B. Factors for Making Listing Determinations
C. Species Conservation in the Face of Limited Resources
D. Creating--and Implementing--a Well-Defined Path to Recovery
E. The Need for Caution
F. Summation
III. THE TOP TEN CHALLENGES TO COME
1. What Does It Mean for a Species to Be "Threatened" or
"Endangered," and Can Science Provide the Answer?
2. Will Recovery Plans Ever Play a Significant Role in the
Real World?
3. Just What Elements of Biodiversity Should the ESA Conserve?
4. How Should Existing Efforts to Conserve a Species Affect
Listing Decisions?
5. Can FWS Get Its Listing and Critical Habitat Designation
Processes Back on Track?
6. What is the Future of Section 4(d)?
7. How Will the Secretaries Choose to Exercise Their Authority
to Exclude Areas from Critical Habitat Designation?
8. Will the Services Develop and Implement Required
Monitoring Systems?
9. Will Listed Species Ever Actually Recover?
10. Will We Remember Why?
IV. CONCLUSION
I. INTRODUCTION In the early years of the twenty-first century, everyone seems fond of lists. There are lists of who's hot and who's not, compilations of the best and worst dressed, the richest, the most powerful, the best-selling, the biggest, and on and on. One venerable list, however, owes its prominence not to popular culture's fondness for rankings, but instead to its seemingly ever-increasing influence at both regional and national levels. For thirty years, the list of species that receive powerful legal protections under the federal Endangered Species Act (ESA) (1) has influenced the decisions of everyone from property owners to U.S. presidents. Like A-list celebrities, threatened and endangered species often tend to create a stir wherever they appear. When a list becomes highly visible or has influence beyond the pages of a tabloid, people become interested not only in the list, but on who makes the list and the process the list-maker employs. (2) This has proven particularly true in the case of the ESA; fights over whether a particular species belongs on the lists, or whether a particular area serves as critical habitat for an imperiled creature, have been legion. Almost equally numerous--but more important overall--have been the controversies over the processes for declaring species threatened or endangered, for designating their critical habitat, and for compiling recovery plans with lists of actions needed to eventually remove species from the protected lists. Though sections 7 and 9 of the ESA contain the procedural and substantive requirements that ultimately shape decisions about actions that affect protected species, high profile public wrangling and litigation involving section 4's provisions for listing, critical habitat designation, recovery planning, and related requirements have equaled or perhaps even eclipsed the number of battles involving the law's prohibitions and other mandates. While disputes involving section 4 began before enactment of the statute itself, (3) three decades of implementing the statute have resolved a number of questions. Congress has stepped into the fray on four occasions, amending the law to deal with issues such as prescribing time lines for responding to listing petitions from the public, establishing a process for critical habitat designation, banning nonscientific considerations in listing decisions (but allowing the implementing agencies to consider such factors in designating critical habitat), specifying the contents of recovery plans, and requiring monitoring of species placed in the statute's "warranted but precluded" category. (4) Most efforts to further amend the ESA--all of which have failed since 1988--have also targeted section 4 for the most extensive changes. Agency regulations and policies have also cleared up aspects of the listing, critical habitat designation, and recovery planning processes. The United States Fish and Wildlife Service (FWS) and National Oceanic and Atmospheric Administration (NOAA) Fisheries (5) (collectively the Services) administer the ESA for the Secretaries of Interior and Commerce, respectively. Since it historically has listed far more species than its sister agency, FWS has developed policy manuals covering the agency's handling of petitions from the public for listing and critical habitat decisions or modifications, the listing process in general, and for recovery plan development. (6) The agencies have also developed policy documents interpreting key aspects of section 4, such as the 1996 policy interpreting their statutory authorization to list "distinct population segments" of vertebrate fish and wildlife, (7) and the 2003 directive governing the extent to which the agencies may consider future conservation efforts in making listing determinations. (8) However, many times in the past thirty years third parties have challenged agency interpretations of their duties and authorities under section 4. Some of the agencies' answers to ambiguities under this section, while providing a clear description as to how FWS and NOAA Fisheries will implement the law, are nevertheless likely to continue to meet with challenges from various parties with keen interests in resulting decisions. Finally, court decisions and scholarly commentary round out the thirty years of accumulated wisdom regarding the ESA's process for identifying species in danger of extinction and charting a course for their conservation. Courts have more or less definitively resolved questions ranging from the way to count deadlines specified for answering listing petitions to the prescriptive force of recovery plans. (9) In addition, a plethora of excellent commentary from legal, scientific, and management perspectives provides insight into the weighty decisions involved in identifying the specific components of the planet's biodiversity at which the federal government will aim its protections and conservation resources. (10) Given three decades of Congress, agencies, courts, and scholars addressing such decisions, one of the most surprising things about section 4 is how many issues still remain unresolved. Many years after Congress set out to outline a comprehensive strategy for conserving endangered and threatened species and the ecosystems upon which they depend, it sometimes seems that agencies' experiences in attempting to identify species and habitats to protect have simply spawned more and more difficult questions. After a brief analysis in Section II of how the years of implementing the ESA have shaped federal policies regarding listing, critical habitat designation, and recovery planning, this Article attempts to look out over the next thirty years, identifying and discussing the issues that are most likely to shape the future of federal policy for implementing section 4. To do so, Section III borrows a page from one of the country's most famous list-makers by compiling the "Top Ten Most Important Unresolved Issues in Section 4 of the ESA." While this list does not pack the comedic punch of Mr. Letterman's late night rankings, (11) it describes and analyzes questions that will likely set the direction of species conservation for many years (and also unlike the Late Show countdown version, this Article's list starts from number one and continues through number ten in descending order of the author's opinion of what are likely to be the most influential issues). As with many lists, some may disagree with the order of the rankings or feel that the list overlooks an important issue. The process used to proclaim this ranking was of course unilateral. However, there can be little doubt that the next thirty years will play a pivotal role in whether modern society can avoid, or at least ameliorate, what some have called the sixth global extinction--the first to result almost exclusively from the actions of a single species. (12) How scientists, managers, and policymakers answer the sorts of questions on the list below will have a substantial influence on the outcome of this struggle. II. A BRIEF LOOK BACK Over decades of implementing section 4 of the ESA, FWS and NOAA Fisheries have grappled with the same sort of issues that all list-makers face: determining eligibility for appearance on a list, identifying criteria for use in making listing decisions, and dealing with the practical challenges of administering an influential rankings system. Lawmakers and federal judges have also occasionally become involved in this area, at times overruling the agencies. Examining how Congress, courts, and agencies have dealt with these issues, this Section discusses five general themes that to date have characterized federal efforts to single out for legal protection elements of imperiled biodiversity. Together, these points serve as important context for understanding the challenges facing similar federal efforts in the future. A. Eligibility for Protection The first issue is the most basic. Despite rhetoric in its purposes section about ecosystem conservation, the ESA provides legal protection only to groups of individual organisms and the habitat upon which they depend. This gives rise to section 4's towering challenge: Of the diversity of life on earth, what groupings of living things are eligible for inclusion on the protected fists? The planet harbors life-forms that, given humanity's current limited knowledge, are literally countless. Biologists and taxonomists have made limited headway in classifying this amazing amalgam of life using the concept of a "species" as their basic tool. Most people know this classification technique by its simplified rule of thumb that a species consists of a group of individuals that can sexually reproduce with one another to produce fertile offspring. (13) There is no doubt that the vast majority of lawmakers had in mind this general concept when in 1973 they enacted a biodiversity conservation scheme aimed at protecting individual species facing extinction. Since the ESA's inception, however, imprecision, confusion, and even contradiction have marked federal attempts to define more precisely eligibility for inclusion on the endangered and threatened lists. Surprisingly complex biology has contributed to this task's difficulty. Taxonomists have identified groupings of organisms below the species level for numerous animals in particular, the most prominent category of which are termed "subspecies." However, life-forms such as plants, many of which reproduce asexually and hybridize readily, do not as easily fall into the "biological species" concept that until recently formed the bedrock of modern taxonomy. (14) Moreover, the scientific concept of species itself has evolved considerably beyond the old rule of thumb, underscoring the difficulties inherent in attempting to impose orderly human-drawn classifications on the messy and complex natural world. (15) Beyond taxonomy, biologists have learned much over the past thirty years about the key roles played by a species' constituent populations--and the interactions among these populations--in maintaining the entire species itself. Early in the statute's history, FWS interpreted the ESA to allow protection of groupings below the species level. For example, FWS extended the law's protections not to grizzly bears (Ursus arctos horribilis) as a species, but only to those bears in the contiguous 48 states. (16) This broad administrative interpretation of "species" eligible for protection reached its apogee in the 1970s when FWS listed American alligators (Alligator mississippiensis) in the southeast by county or parish boundaries; (17) alligators categorized as threatened existed only a few miles and an administrative boundary away from biologically and genetically similar creatures not protected by law. In 1978, Congress ratified listings below the species level by amending the ESA's definition of "species" to include "subspecies and distinct population segments of vertebrate fish and wildlife that interbreed when mature." (18) Despite calls to eliminate the law's authority to protect groupings below the species level, lawmakers reaffirmed the agencies' ability to make such listings only a year later, though Congress admonished administrators to use this authority "sparingly." (19) However, the ESA's new definition did not authorize the Secretaries to list distinct population segments of invertebrates or plants. More significantly, since the scientific literature had never employed the term, the new definition of species raised a crucial issue: just what is a distinct population segment (DPS)? Underlining the difficulty and gravity of this question, FWS and NOAA Fisheries took 18 years to furnish an answer. (20) In 1996, the agencies published an administrative policy (hereinafter the "DPS Policy") holding that groupings would be eligible for consideration for the endangered and threatened lists if they were 1) "discrete" from other populations of the same species, and 2) "significant" to the species as a whole. (21) In a marked departure from their earlier administration of section 4, the agencies stressed that they would make DPS delineations based solely on biology, giving no consideration to administrative or political boundaries with the exception of an allowance for creating DPSs bounded at least in part by an international border. (22) FWS and NOAA Fisheries also made it clear that their DPS inquiries would focus exclusively on the organisms under consideration standing alone; factors such as a population's contribution to ecosystem function or human interest in a population would not constitute relevant factors in making DPS delineations. (23) However, the agencies' description of how they make DPS delineations relies on vague factors such as "marked" differences from other populations and the presence of significant genetic differences from related populations. (24) ESA administrators have had equally difficult experiences formulating policies for line-drawing questions similar to determining DPSs. For example, should hybrids be eligible for protection under the ESA? What about organisms whose life cycle is at least partially artificial, such as fish spawned and reared in hatcheries, but then released into the environment? Indeed, neither FWS nor NOAA Fisheries has yet been able to complete formal guidance documents addressing these thorny issues. Even as they have labored to complete and apply criteria for discerning groupings of species eligible for listing consideration, the agencies have found themselves enmeshed in controversy over their application of these criteria, as well as over the policies themselves. Courts have rejected agencies' line-drawing for several populations under consideration for listing, (25) and both scientific and legal commentators have criticized administrators' formulation of listing eligibility criteria as inconsistent with both sound science and with Congressional intent. (26) For their part, the Services' recent listing decisions have tended to rationalize decisions not to list various groupings as threatened or endangered by reference to eligibility considerations, particularly the DPS Policy. (27) This contrasts with the agencies' tendency during the early years of the ESA to use flexibility in the statute's definition of species to protect additional groups of species, and has likely contributed to environmental advocates' increasing litigation over listing decisions. On the other hand, groups generally opposed to ESA listings have also become more vocal and more litigious, helping to fuel the contentious atmosphere that now surrounds the process of making listing eligibility determinations. All of this uncertainty and controversy demonstrates that despite lists that contain nearly 2,000 threatened and endangered species, a coherent concept of what the ESA seeks to protect remains elusive. Ironically, after thirty years, lawmakers and implementing agencies still have yet to resolve conclusively the most basic issue in section 4: What criteria should delineate the groupings of organisms that the ESA seeks to save? More fundamentally, what should comprise the buildings blocks of the United States's primary biodiversity conservation scheme? B. Factors for Making Listing Determinations In contrast to questions of determining listing eligibility, more clarity has developed over the decades as to the factors the agencies may consider in deciding whether actually to add to the protected lists a species or population that the relevant Secretary deems eligible for listing consideration. This absence of the ambiguity that has plagued eligibility determinations has resulted largely from Congress stepping in to prescribe exactly the factors that the agencies may or must consider in making both listing decisions as well as critical habitat determinations. Section 4(a) sets forth the five factors FWS and NOAA Fisheries may consider in deciding whether to list a species as threatened or endangered; (28) additionally, the statute directs the agencies to consider conservation efforts of states or foreign nations. (29) The stature casts a very broad net for allowable considerations. In addition to sanctioning use of factors such as habitat destruction or overuse for commercial or other purposes, the law allows the Secretaries to take into account any "other natural or manmade factors" that affect a species' existence. (30) The statute also calls for a calculus of whether "the inadequacy of existing regulatory mechanisms" imperils a species' future. (31) However, in the early 1980s, Congress became concerned that the agencies were using this wide latitude for decision making to add into the mix factors relating to potential economic impacts of a listing or political support (or, in most cases, the lack thereof) for a particular listing. A 1979 report by the General Accounting Office confirmed for lawmakers the ample evidence from other sources that such factors had in fact influenced listing decisions. (32) Congress responded forcefully. It amended section 4 to require FWS and NOAA Fisheries to make listing decisions "solely" on the basis of the best science available, stressing in an accompanying House of Representatives committee report that the legislature intended through the amendment to forbid consideration in listing decisions of "any factor not related to the biological status of the species. The Committee strongly believes that economic considerations have no relevance to determinations regarding the status of species...." (33) While there are indications that the Secretaries' compliance with this mandate has been decidedly spotty, (34) no doubt exists that lawmakers intended to preclude weighing political or economic criteria as part of a decision whether to add species to--or remove species from--the protected rolls. In 1982, Congress was quite thorough in its insistence on removing human-related factors from the listing process. Lawmakers had added to the ESA in 1979 instructions to the Secretaries to develop a priority scheme for deciding which species should receive priority consideration for listing given the agencies' limited budget and the plethora of listing candidates. (35) FWS responded by developing a scheme with a classic bias toward the "cute and cuddlies"; the agency's ranking set mammals and birds as top priority for limited listing dollars, with insects, mollusks, and "other invertebrates" bringing up the rear. (36) Finding clearly distasteful and unscientific the agency's ranking of species by perceived importance to humans, legislators directed in the conference report for the 1982 ESA amendments that FWS's priority scheme avoid categories based on so-called "higher" or "lower" life-forms, and instead employ "a scientifically based priority list of species, subspecies, and populations based on their degree of threat." (37) Congress's emphasis on a "scientifically based" priority scheme put an exclamation point on lawmakers' view that the agencies' process for making listing decisions must remain completely free from policy considerations and other nontechnical factors. Interestingly, Congress was just as clear that section 4's process for designating listed species' critical habitat, the areas essential for these creatures' survival and recovery, should include assessment of the economic consequences of the designation "and any other relevant impact." (38) Most likely prompted by controversy surrounding FWS's then-pending proposal to designate ten million acres of land in the West as critical habitat for grizzly bears, lawmakers amended the ESA in 1978 to allow FWS or NOAA Fisheries to exclude land from a critical habitat designation based on these considerations, unless such an exclusion would result in extinction of the affected species. (39) A minority group of House members, however, denounced this amendment as a "startling section which is wholly inconsistent with the rest of the legislation," and emphasized that in their view critical habitat designation required an "objective, scientific assessment." (40) While devoid of the ambiguities that continue to plague the search for clear lines in deciding what groupings of organisms are eligible for protection, section 4's very specific statutory provisions forbidding and authorizing, respectively, consideration of economic or other "nonscientific" factors in listing and critical habitat designations raise their own set of questions that thirty years of ESA implementation has not necessarily settled. For instance, can an agency determine whether current regulatory mechanisms adequately protect a species (the fourth factor in section 4's list of listing considerations) using only "scientific" information? For that matter, is it even possible to make listing decisions using only science? Finally, does section 4's directive to consider economic and other factors in designating critical habitat have any practical effect on the substantive legal protections a species ultimately enjoys, or does this process merely create additional bureaucratic hoops? C. Species Conservation in the Face of Limited Resources From the ESA's inception, it was obvious that lawmakers had tackled a problem whose depth would quickly outstrip the resources those same legislators would likely devote to it. For example, at Congress's request, the Smithsonian Institute in 1974 compiled a list of 2,832 species of plants believed by scientists to be facing extinction; while FWS atone point proposed a mass listing of 1,726 plants on the list, the proposal eventually died. (41) The entirety of the threatened and endangered lists still does not add up to the number of plants in the original Smithsonian tally, and perhaps thousands of additional species today face a very uncertain future with no federal legal protections. The vast scope of modern threats to biodiversity, coupled with both limited agency resources and section 4's process allowing for any interested individual or group to petition the Services to list a certain species, set up inevitable conflict between the huge task of listing all deserving species as threatened or endangered, and the agencies' limited ability to do the job. Congress's 1978 amendment to the statute requiring critical habitat designation concurrent with species listing exacerbated this conflict, an issue that has flared to white-hot intensity in recent years as the environmental community has essentially overturned FWS's unwritten policy to avoid designating critical habitat as a matter of course. Tacitly acknowledging that it will never appropriate sufficient funds to the Secretaries to quickly resolve section 4's listing and critical habitat designation logjams, Congress has designed a variety of procedures that attempt to achieve a balance between biodiversity protection and a realpolitik recognition that listing and critical habitat designation will grind on at rates inadequate to the task at hand for many years. As noted above, the 1979 ESA amendments required the agencies to develop a priority scheme for deciding the order in which they will consider potentially deserving species for inclusion on the protected lists. In 1982, Congress established a strict schedule within which the agencies must respond to listing petitions, but balanced this timeline requirement by allowing FWS or NOAA Fisheries to put warranted listings on indefinite hold if the agencies certify that they are making "expeditious progress" on higher priority listings. (42) Legislators also gave the agencies latitude to delay critical habitat designation for up to a year following a listing decision. (43) Significantly, in striking an administrative balance between expeditious protection and limited resources, Congress attempted to insure that no species falls to its demise through the administrative cracks. In the most recent amendments to the statute in 1988, lawmakers required the Secretaries to develop a system to "monitor effectively" species placed in the so-called "warranted but precluded" category--which provides no statutory protections to species or their habitat--and make use of section 4's emergency listing authority "to prevent a significant risk to the well being" of a warranted but precluded species. (44) Despite modest increases in listing appropriations and lawmakers' efforts to span the dichotomy between monies allocated to section 4 administration and the magnitude of the tasks at hand through statutory fine-tuning, actual on-the-ground implementation of the listing and critical habitat designation programs has at times bordered on chaotic. Species conservation advocates as well as industry and economic groups have employed the statute's petition process, as well as turned to the courts when not satisfied with agency responses. Applying the clear language of section 4, federal judges have routinely held the agencies to statutory deadlines. (45) In particular, litigation since the mid-1990s by environmental groups has led to many court-ordered critical habitat designations, compliance with which was complicated substantially by the Tenth Circuit's rejection of the Secretaries' formula for assessing the economic impact of these designations. (46) FWS has attempted a variety of strategies to cope with the challenges of running its increasingly contentious section 4 programs, some of which have come under heavy criticism from conservationists. The agency has attempted to implement various priority schemes, has asked courts for additional time beyond statutory deadlines to complete listing decisions and critical habitat designations, and even at rimes has announced outright moratoria on these actions. (47) Additionally, FWS has requested so-called "hard caps" on listing appropriations, i.e., language in appropriations bills that preclude the agency from spending more money on listings and critical habitat designations than Congress specifically appropriates for these actions in a given year. Environmentalists have heaped scorn on such requests as evidence of the agency's attempts to use money woes or personnel limitations as an excuse to avoid controversial or politically unpalatable species protections. (48) On the cusp of their fourth decade, the ESA's listing and critical habitat designation programs are more dysfunctional than at any other point in the statute's history. Almost constant litigation, as well as heated rhetoric from the agencies, lawmakers, environmentalists, and industry groups, now characterize the deceptively simple processes set forth in section 4. Bringing some semblance of order to this area continues to present one of the foremost administrative challenges in implementing the entire endangered species program. D. Creating--and Implementing--a Well-Defined Path to Recovery Though the prohibitions triggered by an ESA listing typically garner the most notice, the statute seeks ultimately to conserve, i.e., recover, species on the threatened and endangered rolls. (49) Over time, sometimes building on existing agency practice and sometimes attempting to improve administrative efforts, Congress has modified section 4 to build into the law provisions requiring development and implementation of individualized blueprints for the recovery of listed species. (50) Despite their close connection to the ESA's primary purpose, however, the law's requirements related to recovery planning have received relatively scant attention--and have also had only modest success at actually bringing species to the point at which the protection of the ESA is no longer necessary. In its efforts to encourage more proactive species-conservation efforts in the wake of the Tellico Dam "train wreck," lawmakers in 1978 directed FWS and NOAA Fisheries to "develop and implement" recovery plans for listed species that could benefit from such plans. (51) While this amendment sprang from FWS's efforts already underway for some species, it marked an important new direction for the law--a requirement to specifically chart out species' paths toward a more secure future. (52) Suggesting that it saw recovery planning as benefiting from biological expertise outside the agencies, Congress authorized the agencies to procure the services of "appropriate public and private agencies and institutions, and other qualified persons." (53) This amendment ratified FWS's existing practice of assembling "recovery teams" of federal, state, and other nonagency experts. Interestingly, however, in contrast to section 4's highly specific statutory timelines for the listing and critical habitat designation processes, Congress specified no deadlines by which administrators had to complete recovery plans for listed species. The years following lawmakers' embrace of recovery planning highlighted several flaws in the implementation of the concept. With no deadlines to compel agency action, many listed species still lacked recovery plans, though charismatic species were more likely to have plans--and more likely to receive substantial agency funding for implementing recovery measures--than species with less marquee appeal. Moreover, many of the recovery plans in existence set forth almost comically vague recovery steps; the 1985 version of the Wolf Recovery Plan, for example, sensibly but simplistically called on federal agencies to "minimize direct, man-caused mortality." (54) Finally, the bottom line was the most telling--only a tiny fraction of listed species had actually recovered to the point where they could be delisted. (55) After attempting to rein in agency bias in favor of popular, noncontroversial species in 1982, (56) Congress in its 1988 amendments targeted section 4's recovery planning provisions for the most extensive modification of any portion of the law. One aspect of the amendments aimed at fostering specificity and administrative accountability. The new version of section 4(f) required that recovery plans contain "site specific management actions" needed to achieve the plans' goal of species conservation, and also demanded that recovery plans specify "objective, measurable criteria" by which to measure species recovery. (57) Through this statutory change, lawmakers clearly sought to break with the Services' vague references to both recovery thresholds and recovery actions in many of the then-existing recovery plans, and force the agencies to make it plain to all exactly which entities needed to do which specific activities to accomplish the delisting of a species, as well as exactly how to tell when recovery was in fact achieved. Additionally, Congress sought to encourage better implementation of recovery measures identified in the plans by forcing FWS and NOAA Fisheries to issue biannual reports detailing their progress in writing and implementing recovery plans. (58) Curiously, however, despite their obvious concern about the agencies' failure to prepare recovery plans for many listed species, legislators in 1988 still did not impose statutory timelines for completing recovery plans for listed species, though agency guidelines set an aspirational goal of completing a plan within two and a hall years after listing a particular species. (59) A second thrust of the 1988 amendments consisted of a somewhat curious amalgam of information gathering and reporting requirements. FWS and NOAA Fisheries must provide public notice and comment opportunity before finalizing each new or revised recovery plan, and "consider" all information received during the comment periods in completing the plans. (60) In addition, recovery plans themselves must provide estimates of both the time required and cost of measures needed to achieve recovery, along with similar estimates of steps needed to achieve "intermediate steps" toward that goal. (61) Legislative history suggests Congress did not intend disclosure of recovery costs to introduce economics as a factor in deciding whether or to what extent to attempt to recover listed species, though legislative history accompanying the 1982 amendments to section 4 does refer to the importance of efficiency in allocating recovery funding. (62) Despite consistent congressional attention to the recovery planning process, however, administrative implementation of this element of section 4--and implementation of recovery plans themselves--continues to lag, plagued by many of the same shortcomings that prompted attempts at legislatively driven reform. FWS and NOAA Fisheries have completed recovery plans for the large majority of listed species that occur in the United States. (63) However, a massive project to assess recovery plans and their effectiveness by the Society for Conservation Biology found continuing problems in the program, including bias in favor of popular species, plans' failures to develop steps to address identified threats to the subject species, inadequate monitoring, poor tracking of the availability and use of scarce funding, and significant shortcomings in plans' use of biological information. (64) On the ground, recovery plans have, with few but notable exceptions, had a modest impact at best on the actions of federal agencies, and plaintiffs' efforts to use litigation to force agencies to comply with recovery plan provisions have generally proven spectacularly unsuccessful. (65) On the whole, therefore, section 4's provisions regarding recovery plans present somewhat of a conundrum. Congress has consistently signaled its view of the plans' importance and the agencies have spent considerable time and resources writing them, but administrative problems and a lack of plan implementation continue to limit the recovery program's effectiveness. The incontrovertible proof of these problems' persistence lies in the fact that still only a small handful of threatened and endangered species have in fact recovered. E. The Need for Caution Describing the ESA at its inception in 1973, lawmakers termed it "the institutionalization of caution." (66) Section 4 contains a number of elements consistent with this cautionary approach, and courts have interpreted its provisions with an eye towards Congress's interest in erring on the side of species conservation. Despite its exacting standards and procedures, section 4 contains provisions designed to ensure that procedural hurdles never block protections for a species in peril. Though the ESA's process for adding a given species to the threatened or endangered lists can often take years, the stature affords the Secretaries authority to fist a species immediately upon publication of notice in the Federal Register, as wen as notice to an affected state, in cases of "any emergency posing a significant risk to the well-being of any species of fish or wildlife or plants." (67) Similarly, as mentioned previously, Congress in 1988 required that FWS and NOAA Fisheries implement a system to monitor species on the "warranted but precluded" list, and use this emergency listing authority to protect species facing "significant risk[s]" to their well-being. (68) Finally, in perhaps the best example of section 4's cautious nature, the Secretaries must also set up a system to monitor for at least five years species that they have removed from the lists as recovered, again using section 4's emergency listing authority to prevent significant risks to recovered species. (69) This concern over species that have recovered demonstrates Congress's intention to make doubly certain that no risk of extinction is present before depriving a species of legal attention. While continuing controversies over listing decisions and critical habitat designations cast considerable doubt on whether FWS and NOAA Fisheries have implemented lawmakers' predilection for putting a thumb on the scale in favor of species conservation, federal courts have expressly cited this preference for caution as a guiding principle for interpreting important aspects of section 4. Courts have chastised the Secretaries for imposing too high a threshold for determining when a species deserves legal protection, (70) for interpreting statutory time lines to allow for almost indefinite delay in responding to listing petitions, (71) and for denying requests to list species on the basis of voluntary conservation measures or promises of future benefits for species or their habitat. (72) This judicial willingness to look at section 4 through the lens of Congress's conservative approach has acted as a significant check on the agencies' continued tendency to shy away from controversy in carrying out their administrative responsibilities in making listing and critical habitat decisions. F. Summation Thirty years have demonstrated the scientific, policy, and administrative challenges inherent in designing and running a system to single out for legal protection discrete elements of the unimaginably complex web of biodiversity. Congress has provided a few unambiguous directives to administrators in attempting to carry out this task: Proceed cautiously; do not consider economics or nonscientific factors in making decisions about whether to add a species to the threatened and endangered list, but do consider such factors in designating critical habitat; be specific about both the steps needed to get a species off the lists and how to tell when that task is complete. Other instructions from lawmakers contain more ambiguity--what levels of diversity below the species are worthy of protection? Ironically, despite a three decade learning curve, section 4 administrators probably face more difficult tasks today than ever before. Increasing scientific understanding of life-forms' complexity makes drawing a single line between protected and unprotected all the more difficult, and the gap between available resources to carry out their duties and the magnitude of those tasks continues to grow. Further, increasingly vocal advocates on both sides buffet the agencies, and not infrequently turn to the federal courts. So too, however, the agencies have proven decidedly resistant to lawmakers' attempts at certain reforms, as continuing problems in the recovery program and all-too-frequent political specters in listing and critical habitat decisions attest. In the early years of a new century, the stage is set for the next thirty years of listing, critical habitat, and recovery planning decisions under section 4. With an ever-increasing human population threatening to squeeze out other life, the stakes have never been higher as FWS and NOAA Fisheries grapple with questions both old and new. III. THE TOP TEN CHALLENGES TO COME 1. What Does it Mean for a Species to Be "Threatened" or "Endangered, "and Can Science Provide the Answer? Of all of the decisions the Secretaries must make in implementing section 4, probably the most important is the determination of whether to add a species to, or remove a species from, the threatened and endangered lists. These calls either instantaneously impose--or wipe away--the myriad substantive and procedural protections of the ESA. Unfortunately, for virtually the entire history of the Act, Congress has expected FWS and NOAA Fisheries to make listing decisions using impossible criteria. Further, the agencies' listing track record generally conflicts with the policies that lawmakers have consistently espoused, and individual listing decisions are simply ad hoc and not uncommonly even arbitrary. Both scientists and legal scholars have made a key point that has escaped congressional understanding for three decades: Delineating the threshold that marks whether a given species is secure or in peril of extinction requires a choice that is fundamentally one of policy, not science. (73) All species face some risk of extinction, even if to the best of human knowledge that risk is extremely low (one might think of cockroaches, for example), or has nothing to do with human activities. Some species, of course, such as California condors (Gymnogyps californianus) or black-footed ferrets (Mustela nigripes), face a much greater risk of disappearing, thanks primarily to human-caused population losses or habitat destruction. But scientists have eschewed the notion that there is any sort of "magic number" of individuals or other sort of biological threshold that separates a "healthy" species from those "in danger" of extinction. (74) In the context of the ESA, this means that FWS and NOAA Fisheries quite simply cannot use solely "the best science" to make decisions whether to list species as threatened or endangered, or whether to declare species "recovered." Rather, drawing these lines instead demands a policy choice as to how protective of species society wishes to be, particularly given the fact that protecting species requires expenditures of scarce conservation resources and often entails substantial economic and social opportunity costs. (75) The impossibility of making listing decisions based on section 4's express "science only" mandate raises two important questions. First, has Congress supplied any policy directives that are useful to the agencies in making listing decisions that must involve value judgments, and if so, have the agencies implemented these policies? Second, what are the implications of--and possible solutions to--section 4's science Catch 22? To attempt to answer the first question, one must quickly go beyond the tautological statutory definitions of "endangered" and "threatened." In drafting the ESA, lawmakers did in fact provide a few policy guidelines and clues to managers charged with implementing the statute's listing system. First, with one notable exception, Congress has refused to sanction a policy under section 4 that ranks certain types of species as more important than others on the basis of any criteria other than degree of threat, at one point going so far as to expressly reject FWS's listing priority ranking of "higher" life-forms over "lower" ones. (76) While most biologists would likely frown on placing a higher priority on mammals in general--as did FWS atone point--scientists have in fact singled out some species as playing more important ecological roles than others. (77) Accordingly, Congress's refusal to consider ranking species for listing by anything other than degree of threat embodies a policy judgment as much as a biological one. (78) Lawmakers also expressed in the statute their policy view that recovery threshold decisions should merely be the other side of the same coin as listing decisions. That is, the biological parameters chosen by the agencies to mark the point at which a species becomes listed should be the same ones that determine when a species no longer needs the ESA's protections. (79) Moreover, as lawmakers demonstrated in 1988 by amending section 4's recovery planning provisions, agencies should provide "objective, measurable criteria" to define this threshold. (80) Finally, though more vaguely, Congress has consistently expressed a strong desire to act cautiously--favoring species protection--in implementing both section 4 and the statute as a whole. Unfortunately, empirical evidence and analysis of individual listing decisions indicate quite clearly that FWS and NOAA Fisheries have failed to carry out these policies in administering the listing program. In her doctoral dissertation, Andrea Easter-Pilcher analyzed FWS listing determinations, concluding that the agency typically listed less charismatic species only when these species faced a greater risk of extinction than species of mammals and birds to which the agency extended the Act's protections. (81) Professor Holly Doremus also pointed out the agencies' failure to describe in specific terms the thresholds they apply in making their listing determinations, and the arbitrary listing decisions that often result from what are essentially a series of ad hoc determinations with no explicit guiding standards. (82) A number of decisions also seem at odds with a cautions approach to managing biological resources. (83) Perhaps most amazingly of all, in 1993 a group of scientists analyzed recovery plans and revealed that 28% of the plans set as recovery goals population levels that were lower than when the species were first listed. (84) While the prescription for bringing agency practice into line with congressional policies is simple, the challenges inherent in carrying it out are immense. FWS and NOAA Fisheries need to explicitly define consistent biological thresholds for determining when a species is endangered or threatened, then apply these thresholds to all species alike, regardless of their taxonomic status, popularity, or political support. (85) Additionally, the agencies need to harmonize delisting and listing determinations. The same biological threshold the agency employs to decide that a species is endangered or threatened should determine whether the species can be downlisted from endangered to threatened or taken off the lists altogether. Though simple and straightforward, these actions would require the Secretaries to do things that they have not done in thirty years of implementing section 4. More importantly, they would require the agencies (and likely Congress as well) to confront the listing program's "science charade." (86) For three decades, FWS and NOAA Fisheries have employed the convenient fictions that the agencies make listing and delisting decisions solely by employing their biological expertise, and that variations between listing decisions result merely from differences between species, not from the ad hoc, political nature of the listing process itself. Actually, as soon as one goes beyond this science charade and recognizes that determining listing thresholds demands policy decisions, a raft of difficult questions arise. Most prominently, society (not scientists alone) must wrestle with the question of what degree of security it wishes to provide to biodiversity. (87) How certain does society wish to be that spotted owls (Strix occidentalis), grizzly bears, Riverside fairy shrimp (Streptocephalus woottoni), furbish louseworts (Pedicularis furbishiae), and hundreds of other species will survive to see the twenty-second century? Is society also interested in whether these species will survive to see the fourth millennium? (88) More certainty of survival, as well as longer timeframes by which to measure species' continued survival, typically requires more resource expenditures and results in more opportunity costs. Moreover, who should make these difficult choices, and by what process? Currently, FWS and NOAA Fisheries make these decisions unilaterally by pretending not to make them. The agencies, however, cannot escape the fact that when they delineate the point at which a species is threatened, endangered, or recovered, they necessarily make a policy judgment about the social acceptability of the risks those species all face. (89) Should Congress end the science charade by stepping in to amend the Act, either by specifying more specific thresholds, or by disposing of the unattainable mandate that agencies use only science in the listing process? (90) Recognizing that listing decisions demand policy choices rather than just science, might Congress also wish to revisit its policy of refusing to rank certain species (keystone or umbrella species, for instance) as more valuable than others in the competition for limited listing dollars? These questions do not have easy answers. However, within the next thirty years lawmakers and the agencies will most certainly have to grapple with them. 2. Will Recovery Plans Ever Play a Significant Role in the Real World? Given the ESA's ultimate goal of actually improving the status of listed species rather than merely retarding or halting their slide toward extinction, the significant time and resources FWS and NOAA Fisheries put into developing recovery plans, and the generally paltry impacts of recovery plans on species conservation over the past three decades, this fundamental question looms not only over section 4's future, but over that of the entire stature. Congress has shown a strong willingness to amend the law to improve its recovery process, so potential statutory changes involving recovery plans are perhaps more likely than any other legislative tinkering. In addition to the possibility of continued legislative reform, a number of administrative or even judicial actions could both improve recovery plans and bring them into a position of greater influence. Given its historical interest in fostering and improving recovery planning, Congress is presumably ill at ease with the wobbly state of recovery plan development and implementation at the beginning of the ESA's fourth decade. If they saw fit, lawmakers could most easily influence the latter. With no statutory changes whatsoever, Congress could improve, at least to some extent, implementation of recovery plans simply by increasing appropriations to the agencies' recovery budgets; like other section 4 programs, the agencies' recovery budgets surfer from chronic funding shortages. Beyond this obvious step, more active congressional prodding could focus on changes to section 4(f)'s vague directive that the Secretaries "develop and implement" recovery plans, which courts have interpreted to allow broad agency discretion even in the face of specific recovery plan provisions. (91) Amendments of this directive would need to accomplish two main tasks. First, lawmakers would have to create a means of mandating that all relevant federal agencies, not merely the "Secretary," implement recovery plans. Second, Congress would have to develop some sort of implementation mechanism or mechanisms; in other words, some means by which federal agencies would provide specific information on how, when, and to what extent they would carry out recovery plan measures. Statutory amendments to carry out these tasks need not be overly complicated. Lawmakers could accomplish the first task by amending section 4 to specify that all agencies whose actions may affect listed species have a duty to implement recovery plans a) by refraining from taking actions specifically identified in a recovery plan as detrimental to the recovery of a listed species, except to the extent that refraining from such an action conflicts directly with an agency's statutory responsibilities or is otherwise not consistent with an agency's statutory authority; and b) by carrying out relevant site-specific management actions specified in recovery plans to the maximum extent possible with resources available to the agency to carry out such measures. Structuring a recovery plan implementation duty in this manner recognizes that many actions needed to conserve listed species simply involve refraining from activities harmful to recovery, a brake on federal agency actions that the ESA's section 7(a)(2) jeopardy standard typically does not apply. (92) This formulation of a general implementation duty also takes into account the ever-present problem that funding, personnel, and other resources will always limit agencies' abilities to carry out affirmative mandates. (93) Section 4 amendments could create a recovery plan implementation mechanism by relying principally on existing legal requirements. Congress could require that all agencies whose actions may affect listed species shall specify a strategy for implementing recovery plans for listed species either a) by including within land-use management plans or comprehensive conservation plans provisions that explicitly provide for management actions to implement recovery plans; or b) by developing a written program for conservation of each listed species, as required by section 7(a)(1), (94) that explicitly provides for management actions to implement the species' recovery plan. This provision would require that most land management agencies, including the Forest Service, Bureau of Land Management, and FWS (in its capacity as manager of wildlife refuges), incorporate recovery plan measures into their well-established--and enforceable--land management processes. Other agencies would develop a specific plan for implementing recovery plan measures through the ESA's requirement that all agencies develop programs for using their authorities to conserve listed species, a potentially powerful provision long ignored, save by the United States Court of Appeals for the Fifth Circuit. (95) These relatively modest statutory changes could yield dramatic results. They would bring virtually all federal agencies into the process of recovering species, even if limitations on available resources meant that some agencies merely avoided taking specific actions that were inconsistent with provisions of recovery plans. Moreover, by hitching existing land management planning to recovery plans, agencies would not have to depart from familiar (and enforceable) processes to actually implement recovery actions, greatly increasing the likelihood that such actions would actually occur. With such changes, recovery plans would go from shelf adornments to action blueprints virtually overnight. Finally, a statutory link between recovery plans and section 7(a)(1) could instantly reinvigorate both of these provisions, which for thirty years have never fulfilled their potential. In the absence of legislative changes, administrative reforms or judicial interpretations could provide at least some of the advances discussed above. Legal commentators have suggested that the duty section 7(a)(1) imposes on all federal agencies to conserve listed species may impose a duty to implement recovery plans. (96) Additionally, the priority system of most recovery plans suggests a clear link between the plans' measures and section 7(a)(2)'s twin prohibitions against actions that jeopardize listed species or destroy or adversely modify critical habitat. (97) Plans typically prioritize their measures by reference to a priority system the agencies have employed for many years; this scheme defines Priority 1 measures as actions that "must be taken to prevent extinction or to prevent the species from declining irreversibly in the foreseeable future," and Priority 2 measures as actions that "must be taken to prevent a significant decline in species population/habitat quality." (98) If an agency were to fail to carry out a Priority 1 recovery measure, and possibly even a Priority 2 measure, one could make a credible argument that the species in question faced jeopardy or destruction of critical habitat. The Ninth Circuit relied in part on this reasoning in overturning a Forest Service land management plan that called for extensive logging in grizzly bear habitat. (99) Additional possibilities exist for implementing recovery plans in connection with other statutory provisions. Professor Federico Cheever suggests that recovery plans should serve as guides for interpreting federal agencies' other duties tender the ESA, and shape consultation under section 7(a)(2). (100) He also notes that recovery plans could influence designation of critical habitat and formulation and approval of habitat conservation plans. (101) There are a smattering of examples of such practices. In a controversial 1995 section 7 biological opinion prepared by NOAA Fisheries regarding operation of dams on the Columbia and Snake Rivers, the agency employed its draft recovery plan for Snake River salmon as both a means by which to assess whether the dams caused jeopardy, and as the basis for formulating a reasonable and prudent alternative to avoid jeopardy. (102) Additionally, NOAA Fisheries in 1999 created a technique for assessing jeopardy to salmon and steelhead that featured recovery as a key criterion. (103) If the Services more widely implemented Professor Cheever's suggestions, they could substantially increase the influence of recovery plans by integrating them into their interpretation and implementation of other ESA provisions. In addition to the methods already mentioned, administrators could also use recovery plans to formulate section 4(d) rules (104) and guide enforcement measures. Since both section 4(d) and enforcement center around the ESA's generally applicable prohibitions, most prominently the ban on "taking" listed species, such actions could play a significant role in fostering at least some recovery measures on nonfederal lands. Finally, much room still remains for management and administrative improvements that will eventually yield both higher quality recovery plans and more efficient plan implementation. Recent work in this area provides managers with many excellent suggestions, ranging from more monitoring of the effectiveness of plan measures that have actually been carried out, to understanding the "human factor" in endangered species recovery efforts. (105) FWS and NOAA Fisheries must focus on improving their track record of incorporating such innovations into their recovery programs. 3. Just What Elements of Biodiversity Should the ESA Conserve? Section II summarizes the uncertainty that for nearly three decades bas characterized the attempts of FWS and NOAA Fisheries to delineate groupings of organisms below the species level that they consider eligible for listing consideration. Despite promulgation of the agencies' joint DPS policy in 1996, determinations of species eligibility are today more confused, controversial--and crucial--than ever before. Listing administrators face a steep challenge in building an eligibility policy that moves away from contentious pseudoscientific line-drawing exercises, and instead makes progress toward a coherent strategy that directly addresses the policy concerns, as well as the sometimes profound questions about the relationship of humans and other species, that together make up the rationale behind a national policy that demands strong protections for imperiled biodiversity. Specific examples of recent listing eligibility decisions and controversies bring to light some of the pressing problems in this area of section 4. Elsewhere in this volume, Derek Teaney discusses the DPS Policy's "taxon reflexive" method for determining the significance of a discrete population, i.e., the notion that the agencies will determine a population's significance solely in reference to the entire taxon to which the species belongs. (106) In its petition to list killer whales (Orcinus orca) in southern Puget Sound, the Center for Biological Diversity argued that the population is significant as the largest and most accessible killer whale population in the United States, and that its loss would inflict a "significant blow to the economy and spirit of the Pacific Northwest." (107) Notwithstanding NOAA Fisheries's determination that these whales fulfilled the first of the DPS Policy's criteria in that the southern Puget Sound whales are discrete from other populations, the agency's application of the taxon reflexive test resulted in a decision that this population is not significant to killer whales worldwide. (108) Ironically, this methodology for finding significance also resulted in the Ninth Circuit's decision overturning listing of cactus ferruginous pygmy-owls (Glaucidium brasilianum cactorum) in southern Arizona. (109) In that case, the court rejected as inconsistent with the agencies' DPS Policy FWS's reasoning that the owl population was significant simply because it was the last one remaining in the United States. FWS's unsuccessful argument in the Ninth Circuit pygmy-owl case is telling: Despite agency efforts to portray the DPS Policy as grounded in science, FWS made a purely policy argument that the only remaining domestic population segment of western pygmy owls was "significant" simply because it was in the United States. (110) Through its own actions, FWS revealed that an agency cannot arrive at a decision about the significance of a population without adding into the mix policy reasons why that population might be important--just as agencies cannot base questions of "acceptable" risk to species only on science. After all, FWS and NOAA Fisheries stress that their DPS Policy devises fairly stringent tests for delineating DPSs in response to lawmakers' admonition to use this authority "sparingly," avoiding scenarios where the agencies go so far as to protect a distinct population of "squirrels in a specific city park." (111) Yet this direction to the agencies did not result from a scientific concern on the part of Congress; if one wanted to protect squirrels, it would make sense from a scientific perspective to protect as many individual squirrel populations as possible. Instead, Congress was expressing a policy preference in telling the agencies to be sparing in their use of the authority to protect distinct population segments. Exactly what policy Congress was aiming toward is less than clear, however. Plausible explanations include a desire on lawmakers' part that FWS and NOAA Fisheries be sparing in their use of limited resources to list populations in light of the fact that many full species and subspecies potentially need ESA protections. On the other hand--more cynically--members of Congress might have been concerned the agencies would list "too many" populations that would interfere with development activities. Rather than considering policy reasons advanced by Congress to justify use of section 4's authority to delineate and list distinct population segments, the implementing agencies have created what amounts to a scientists' full employment act. Determinations of DPSs have devolved into arcane efforts to discern potential differences in populations' genetic makeup and the ecosystems they inhabit, followed by attempts to draw lines between populations based on such factors--but without clear standards for differentiating meaningful distinctions from those that are merely trivial. It is hardly surprising that the results are often arbitrary. Recent application of the DPS Policy also indicate that FWS and NOAA Fisheries are, despite their insistence that delineating DPSs rests solely on technical grounds, employing DPS delineations to implement a policy akin to a "museum piece" approach to domestic biodiversity conservation, particularly in instances involving controversial populations. FWS's dealings with a petition to list the Canada lynx (Lynx canadensis) provide a good example. After courts rejected previous FWS decisions not to list the Canada lynx in the contiguous United States, the agency found that the cat's population south of the Canadian border is composed of four distinct population segments, three of which--covering substantial portions of the cats' range in the lower 48 states--had been nearly extirpated. (112) However, 'FWS also concluded that none of the populations standing alone were "significant" for purposes of defining a DPS; only the entire lynx population in the coterminous states met the significance criterion and thus qualified as a DPS. (113) Moreover, FWS determined that the three highly imperiled populations, because they were "naturally rare," did not occupy a "significant portion" of the overall DPS's range. (114) This finding allowed the agency to list lynx as merely threatened rather than endangered since it could effectively ignore the dire plight of lynx in the vast areas it had labeled as not a significant portion of the cats' range. Additionally, FWS found that lynx in these "insignificant" portions of their range do not "contribute substantially to the persistence of the contiguous United States DPS," (115) effectively allowing the agency to write off as a management concern lynx conservation in three quarters of their range in the Lower 48. Thus, through use of its authority to determine the "significance" of lynx populations, FWS attempted to craft a lynx "protection" scheme under which the cats were listed as merely threatened, and all but the least vulnerable populations would receive little benefit of this listing. The United States District Court for the District of Columbia later rejected this approach as inconsistent with the ESA, reasoning that it "would allow the most fragile, at risk species to receive the least protection under the law." (116) In another controversial decision also the subject of a court challenge, FWS downlisted or delisted gray wolves (Canis lupus) in the contiguous United States by dividing the wolf population into distinct population segments, and by delineating another large area within which the agency--in contrast to its earlier listing decisions--now contends wolves never existed. (117) The agency has historically had much difficulty deciding how to list wolves. It listed them throughout the Lower 48 by subspecies in the early 1970s; (118) listed wolves in Minnesota as threatened and all wolves in the rest of the contiguous states as endangered in 1978; (119) and finally in later years established experimental populations in Wyoming, Idaho, Montana, and the southwest. (120) In 2003, however, FWS broke wolves into three DPSs, downlisting two of these to threatened status, and delisting wolves throughout a large portion of the southeastern states where the agency now asserts wolves never existed. (121) By establishing modest population goals for the eastern and western DPSs that approximate their current populations and ranges, FWS also served notice that it would delist these populations altogether in the near future. (122) Like the agency's lynx findings, FWS's DPS decisions regarding wolves resemble an extremely narrow "museum piece" approach to biodiversity conservation. While FWS used existing gaps that make each population discrete to delineate gray wolf DPSs, there is no indication that this fragmentation of the wolf population occurred naturally. However, division of wolves into DPSs allows the agency to declare that wolves have recovered even though the populations exist in isolation from one another in small portions of their historic range. Society may very well wish to save only small isolated segments of a once vast wolf population, or discount as irrelevant a population's occurrence in, or significance to, the United States itself. People may also choose, as the FWS did in the case of the lynx, to discount as insignificant highly imperiled populations that are "naturally rare," preferring instead to spend limited conservation dollars preserving only one or two relatively robust populations in more remote areas where habitat protection presents fewer tradeoffs with human activities. However, these issues present difficult policy choices, not questions of science. In establishing lines separating endangered, threatened, and recovered species, FWS and NOAA Fisheries must acknowledge that delineating species and populations eligible for listing consideration requires value judgments. It must develop a process for explicitly making these calls with participation of interested parties. This step most likely requires the agencies to revisit their DPS Policy, this time abandoning the pretense that DPS delineations are exclusively scientific, and instead grappling with the heady public policy task of deciding which elements of biodiversity should be eligible for the ESA's protections. Other commentators have made valuable suggestions about this dialog, (123) but issues on the table should undoubtedly include the relevance of factors such as domestic status of a species, a population's contribution to ecosystem function, and whether society wishes to recover only small segments of a once-extensive population, or is willing to go to greater lengths to restore animals across larger parts of their former ranges. (124) However, policy issues surrounding the question of which elements of biodiversity to protect go well beyond the confines of the DPS Policy. Should the ESA protect hybrid species, i.e., creatures that contain genetic material from another species? Does it matter whether hybridization occurred naturally or as a result of human activities? Further, does the ESA only protect "natural" members of a species? For example, are fish reared in a hatchery protected when similar--but wild--fish are listed? These difficult issues encompass not just policy decisions, but also questions that veer into the philosophical: What is natural? What is the proper role of humanity in protecting the wild? As with other questions about which elements of biodiversity to conserve, FWS and NOAA Fisheries seek to avoid these difficult and even deep policy and philosophical choices by asserting that science alone provides the answers. Again, however, agency actions belie this simple approach. For example, prior to 1990, FWS had a rigid policy against protecting hybrids under section 4. (125) This stance was, of course, simply a policy choice by FWS, based on advice from its Solicitor's Office as to what policy goals Congress sought to advance through the ESA. In 1996, however, FWS and NOAA Fisheries took a dramatically different approach when the agencies released a draft policy asserting that advances in science had rendered FWS's previous hybrid policy obsolete. (126) Henceforth the agencies would consider on an ad hoc basis--using the best science--whether to extend ESA protections to hybrids, or "intercross progeny," that fell at a certain point on a what the agencies characterized as a "broad continuum" of possible genetic mixing between species and populations. (127) In one fell swoop, the agencies simply bypassed policy and philosophical questions about how to protect biodiversity by categorizing protection of hybrids as a scientific issue. Once again, however, events in the real world revealed that this pat answer is, in fact, not so simple. In 2000, FWS denied a petition to list westslope cutthroat trout (Oncorhyncus clarki lewisi) as threatened or endangered. (128) Though it found that hybridization with other trout species, including species deliberately introduced by humans, was a major threat to cutthroat, (129) FWS nevertheless determined that cutthroat were abundant and thus not in need of protection. (130) In large part, the agency made this determination by including within its census fish populations that had been hybridized. However, FWS had never made an effort, scientifically or otherwise, to define what was an acceptable level of hybridization for fish that the agency would still consider to be cutthroat, a fact prominently cited by a reviewing court in overturning FWS's decision. (131) On remand from the district court, FWS considered explicitly at least some of the difficult questions posed by hybridization. The agency noted that hybridization can result from natural interbreeding between species or subspecies or from anthropogenic causes. (132) It also described what it characterized as a "potential dichotomy" between the ESA's goals of, on one hand, protecting the remaining genetic resources of a species in which some hybridization has occurred, and on the other, protecting species from the threat of hybridization. (133) Ultimately, FWS concluded that the Act did not counsel listing agencies to attempt to make a distinction between natural and human-caused hybridization in considering whether to include hybrids in a population eligible for listing. (134) Additionally, reasoning that scientists separated fish into species and subspecies primarily based on morphological (i.e., physical) characteristics, FWS decided that it would include within its definition of western cutthroat trout all fish within the native range of cutthroat trout that had an appearance similar to the "scientific taxonomic description" of western cutthroat trout; FWS would presume that such fish "express the behavioral, ecological, and life-history characteristics" of native cutthroat. (135) Using this as its primary criterion, FWS once again found that the population of cutthroat was sufficiently large not to qualify as threatened or endangered (though, true to form, FWS never disclosed the specific risk level that it employed in making this call). (136) In its second decision on the western cutthroat petition, FWS could not avoid making policy decisions. Despite advice from one of its scientific advisors to distinguish between natural and anthropogenic hybridization, the agency declined to do so because it felt that Congress had expressed a contrary policy in the statute. (137) Additionally, FWS had to deal with the ESA's "dichotomy" between protecting potentially imperiled genetic resources and guarding against the process of hybridization; FWS decided that the statute took a more inclusive approach and thus weighed more heavily the interest of including populations with some hybrid characteristics within the grouping that it would consider for listing. (138) Finally, FWS chose to look at the significance of hybridization solely in relation to how scientists classified the species under consideration in the first place. Since FWS asserted that fish taxonomists looked primarily at morphological characteristics, the agency did not consider hybridization to be a threat to the integrity of the species until it compromised a fish population's physical appearance. (139) This agency decision presents a mixed bag for progress in the Services' efforts toward crafting a coherent policy for what elements of biodiversity to consider for protection under section 4. It finally acknowledges, at least implicitly, that such decisions require important policy choices by congressional intent. However, as a substantive matter, the agency provides dubious answers to some of these important policy questions. (140) These issues will likely end up in court once again; the judiciary is better equipped to deal with questions of policy than questions of science. Lastly, NOAA Fisheries has also struggled with difficult line-drawing exercises in determining the role of hatchery fish in defining salmon eligible for the ESA's protections. In delineating distinct population segments of salmonids (which NOAA Fisheries terms "evolutionarily significant units" or ESUs), the agency applied its genetically driven ESU policy to include within many ESUs populations of salmon that are reared in hatcheries and then released into the wild to grow and live as adults before returning to the hatchery. (141) However, pursuant to a "hatchery policy" that notes the ESA's preference for wild species and acknowledges that hatchery practices pose a threat to wild fish, NOAA Fisheries excluded from its salmon listings most hatchery populations. (142) However, in response to a judicial challenge by listing opponents, a district court concluded that the agency lacked authority under section 4 to list only a part of a defined distinct population segment. (143) NOAA Fisheries has wrestled with how to deal with hatchery fish in listings for the two years since the court's decision, and to date has released only a "preliminary draft" response. (144) In its draft, NOAA Fisheries takes the position that Congress intended the ESA to conserve "self-sustaining naturally reproducing populations in their natural habitats." (145) However, the agency also suggests a version of FWS's "inclusive" approach to defining species eligible for protection, proposing that species eligible for listing consideration include hatchery populations that are genetically similar to wild stocks, as well as to consider certain hatchery operations as protective efforts when considering whether to actually list an ESU. (146) Final calls on these issues carry high stakes for Pacific salmon and the Northwest. Over the next few years, the agencies, courts, and potentially even Congress must do a better job of facing the task of defining elements of biodiversity to protect than they have in the past. Reform of the DPS Policy--as well as NOAA Fisheries's adjunct ESU Policy covering Pacific salmonids--would constitute a valuable first step. Additionally, FWS and NOAA Fisheries should finalize hybrid and hatchery policies that address how to take into account mixing that occurs between species and populations, whether natural or artificial. Above all, the agencies need to explicitly recognize and deal with the policy choices--supplemented, rather than dominated, by science inherent in these questions. Ultimately, however, the increasingly exacting and contentions line drawing exercises involved in parsing species and populations eligible for listing consideration exposes perhaps one of the central flaws of the ESA. Congress specified as one of the ESA's primary purposes the conservation of the eeosystem8 upon which listed species depend. (147) However, at the beginning of its fourth decade, FWS, NOAA Fisheries, and other interested parties spend vast amounts of time and resources attempting to detect, explain, and categorize often minute and arbitrary differences between populations, with ecosystem conservation often not even a relevant factor. This threatens to be the biological equivalent of fiddling while Rome burns; arguing about genetic differences and their significance hardly seems prudent while entire ecosystems and ecosystem functions crumble. Many have criticized the ESA's species-specific approach to conservation, and many have called for a sort of Ecosystem Protection Act. (148) Thirty years and counting of squabbling about species, subspecies, and distinct population segments may supply perhaps the best rationale for a broader-based biodiversity conservation scheme. 4. How Should Existing Efforts to Conserve a Species Affect Listing Decisions? Many entities--landowners, state and local governments, and even federal agencies--find the prospects of having a local species placed on the threatened or endangered list unappealing. In an effort to head off listings, some have crafted strategies designed to afford future benefits to species whose persistence is in doubt, in effect offering up to FWS and NOAA Fisheries these homegrown protection efforts In lieu of the ESA's statutory mandates and prohibitions. The listing agencies have generally encouraged such efforts as a means of involving nonfederal entities in combating species decline and have altered numerous listing decisions after taking such programs into account. A spate of litigation over the propriety of considering such conservation efforts in making listing decisions, coupled with a recently adopted FWS and NOAA Fisheries policy on this issue, ensures that the extent to which agencies may consider future conservation measures in making listing decisions will continue to be a key question under section 4. As discussed previously, section 4 requires the Secretaries to make listing decisions "solely" on the basis of the best science available. (149) Somewhat curiously, however, Congress added as factors to be considered in this process two elements that arguably have much more to do with law than science. Along with criteria such as habitat destruction, disease, and overuse by humans, lawmakers directed FWS and NOAA Fisheries to consider in making listing calls "the inadequacy of existing regulatory mechanisms," (150) as well as "those efforts, if any, being made by any State or foreign nation, or any political subdivision of any State or foreign nation, to protect" a species under consideration for threatened or endangered status. (151) These provisions raise important issues: What if a state or local jurisdiction suddenly changes its regulations in an attempt to ameliorate threats to a species that its previous regulatory scheme ignored? Can the anticipated future benefits of this change affect a decision as to whether a species in biological trouble presently qualifies as threatened or endangered? Must the agencies consider only efforts to protect species carried out by states and foreign governments? What about conservation measures involving private landowners, for instance? Politics and practicalities play a significant role in how FWS and NOAA Fisheries have answered these questions. Along with the sometimes vicious politics that surround listing decisions with potential social and economic consequences, the agencies charged with implementing the ESA are also keenly aware of its practical limitations. Due to a combination of factors, the seemingly potent and universally applicable prohibitions of section 9, including most prominently the ban on "take" of listed species, often have little real-world impact on the actions of nonfederal entities. (152) Even federal agencies, which bear additional ESA responsibilities under section 7, often prove to be less than enthusiastic in protecting listed species, and implementing the section 7 processes demands significant resources of FWS and NOAA Fisheries as well as from action agencies. As a consequence, the listing agencies see a great deal of opportunity to use the mere prospect of a listing to their advantage. In return for a decision not to declare a species as threatened or endangered, nonfederal entities may agree to enact regulations to protect a species or carry out conservation measures that FWS or NOAA Fisheries may have difficulty securing even in the event of a listing. Moreover, conservation efforts preceding a listing necessarily take place in a more cooperative, less legal atmosphere, typically toning down political pressure and controversy faced by the listing agencies. Finally, FWS and NOAA Fisheries save their own time and resources by gaining "partners" willing to share at least a portion of the burden of protecting a species. Accordingly, the Secretaries have encouraged prelisting conservation efforts and in many cases cited such measures in support of a decision not to list a species. (153) Though billed by the agencies as win-win scenarios, controversy has been no stranger to these attempts to deal with species in peril without invoking the ESA itself. Environmentalists have often criticized--and challenged in court--FWS or NOAA Fisheries decisions that rely on the prospect of future benefits as a rationale for negative findings on listings. A number of such suits have succeeded. (154) Citing Congress's desire to treat imperiled species with the utmost caution, courts have generally found that the Secretaries may not rely on speculative future benefits to a species to support a decision not to list a species that presently faces threats of extinction. (155) In particular, opinions have expressed skepticism over voluntary conservation measures and promises of future actions. (156) Despite this line of cases questioning the practice, FWS and NOAA Fisheries have, through two very different political administrations, refused to back away from encouraging cooperative efforts to avoid ESA listings. Finalizing a Clinton Administration proposal, the Secretaries in 2002 published their "Policy for Evaluation of Conservation Efforts When Making Listing Decisions," which they refer to by the acronym "PECE." (157) The policy and its preamble provide the Services' legal rationale for considering future benefits from conservation programs in making listing decisions, and set forth criteria for evaluating 1) the certainty of implementation, and 2) the effectiveness of formalized prelisting conservation efforts. (158) For species that the listing agencies decide do not warrant listings as a result of non-ESA protection programs, PECE includes a promise that FWS or NOAA Fisheries will monitor implementation of promised conservation efforts. (159) PECE signals that the Services' notion of a prelisting diversion program will play an important role in the next decades of section 4 implementation. Valid but competing interests ensure that controversies and litigation in this area will likely continue. On one hand, there is little question that FWS and NOAA Fisheries have been either unable or unwilling to secure adequate protections for many listed species, particularly from threats posed by nonfederal entities. As a result, there are cases where simply the threat of a listing--coupled with the possibility of avoiding an actual listing itself--could induce such entities to agree to conservation measures that may otherwise not materialize under any circumstances. Moreover, cooperative conservation efforts can channel available resources into conservation activities rather than costly and drawn-out litigation or political battles. On the other hand, these benefits can come at a price. Entities might agree to certain restrictions to protect a species because they perceive that such limitations would be less burdensome than those that would result in the event the species becomes threatened or endangered. Additionally, there is always a risk that agreed-upon conservation measures may not be fully implemented, or if carried out, may not be as effective as anticipated; without a listing, the species bears these risks. Finally, without a listing the possibility of third party enforcement of species conservation measures is unlikely. The Services' clear intention to encourage cooperative conservation strategies to avoid listings practically ensures continued litigation on negative listing decisions. In making listing decisions, the agencies defend the legality of considering conservation programs designed to provide future benefits to species by asserting that "we construe Congress' intent, as reflected by the language of the Act, to require us to consider both current actions that affect a species' status and sufficiently certain future actions--either positive or negative--that affect a species' status." (160) However, the Services' interpretation of the Act as demanding a crystal ball look into both future threats and potential benefits to species under consideration for listing has limited credibility given the agencies' listing track record. Given this view of section 4, one would expect instances where FWS and NOAA Fisheries 11sted as threatened or endangered species whose populations were presently relatively robust, but that faced certain future threats, as well as cases in which the agencies did not list species presently in poor biological shape that would likely benefit from future conservation efforts. While decisions of the latter type are relatively common, those of the former are virtually nonexistent. The Services' primary legal argument undergirding their alleged mandate to look into species' biological futures as well as their present thus stands on shaky legal ground. (161) Other weaknesses in the agencies' listing program raise caution flags. As noted previously, the Services have essentially no clear biological thresholds by which to distinguish between those species that qualify as threatened or endangered and those that are not in need of the Act's protections. As a result, there is virtually nothing to stop FWS or NOAA Fisheries from rewarding cooperative conservation efforts to the extent that they do not list a species that they otherwise would have listed given its biological condition (even considering its future prospects). In other words, with no standard for where they set the listing bar, the agencies can modify it at will; this allows the Services to judge the adequacy of prelisting conservation programs by their political momentum and support as much or more than by any biological merit the programs may have. Additionally, the agencies attempted to allay concerns about the actual implementation of conservation programs once a listing had been avoided by promising in PECE to monitor how well the parties to a prelisting protection effort actually follow through with their commitments. (162) However, the Services' abysmal record in carrying out even statutorily mandated monitoring under section 4 (which goes hand in glove with Congress's abysmal record in funding them) (163) does not inspire confidence in the agencies' assurances of keeping a watchful eye on implementation of these conservation programs. Existing section 4 programs could potentially continue to encourage cooperative approaches to species protection without some of the drawbacks of the Services' implementation of the PECE approach. NOAA Fisheries has pioneered the use of rules to conserve threatened species under section 4(d) as a tool to promote cooperation between the federal government and state and local jurisdictions in working toward recovery of threatened species; this approach allows local design and enforcement of measures to protect a species without depriving the species of protections under the ESA. (164) Additionally, judicious use of candidate conservation agreements with assurances (CCAAs) provides incentives for nonfederal entities to take actions to benefit species under consideration for listing and provide for greater involvement in the design and implementation of the measures by both the Services and the public. (165) Finally, administrative or legislative reforms could also provide a better alternative to PECE. Just as the Services do not delist threatened and endangered species once they write-- and even fund--a good recovery plan, it makes little sense to avoid listing species that presently are in biological trouble merely because their status may improve in the future. However, the Services should take into account a species' future prospects in determining the organism's priority for listing consideration. That is, FWS and NOAA Fisheries should not use a species' future prospects as a factor in their listing decisions (aside from section 4's specific allowance for considering the threatened curtailment of a species' range), but future prospects could reduce the urgency of considering a species for listing. (166) Such an approach might result in warranted but precluded findings for species that are likely to benefit from cooperative conservation efforts. However, unlike under PECE, such species would be subject to statutorily required monitoring, as welt as protected by section 4's mandate that the Secretary use the emergency listing authority to "prevent a significant risk to the well being" of such a species. (167) The Services could implement such a policy by administratively amending PECE and their listing priority scheme, though legislation would be required to extend the monitoring and emergency listing mandates to species under consideration for listing by the Secretaries, but not subject to a listing petition. (168) In implementing section 4 in the future, the Services should look for ways to encourage cooperative efforts to secure species' future. However, the risk that these efforts will eventually fall short should not rest with imperiled species. 5. Can FWS Get Its Listing and Critical Habitat Designation Processes Back on Track? As discussed in Section II, FWS currently faces greater problems in simply running its listing and critical habitat designation programs than at any time in the ESA's thirty year history. While public statements by the agency pin most of the blame for this situation on litigation by environmentalists to force the Secretary to designate critical habitat, the roots of the problem are actually far more complicated. Consequently, there are no easy solutions to the agency's present difficulties. However, assuming that a massive increase in the agency's listing budget will not suddenly emerge from Capitol Hill to save the day, administrative and potentially even statutory reforms, coupled with hard-nosed management, can help get listings and critical habitat designations back on track. In May 2003, FWS issued a press release in which Assistant Interior Secretary Craig Manson warned ominously, "[T]he Endangered Species Act is broken. This flood of litigation over critical habitat designation is preventing the Fish and Wildlife Service from protecting new species and reducing its ability to recover plants and animals already listed." (169) Notwithstanding this rather heated rhetoric, the recent difficulties experienced by FWS's listing program stem from a myriad of sources. The program suffered a substantial initial blow in 1995, when the new Republican congressional majority placed a year-long moratorium on FWS's expenditure of funds for final listings. (170) This action created a listing backlog that hobbled the agency for years and led to a controversial series of listing priority schemes that placed low priorities on responses to listing petitions as well as on critical habitat designations. (171) Frustrated environmental organizations responded with a flurry of lawsuits designed to hold FWS to section 4's clear statutory deadlines for listing, and they successfully challenged the agency's unwritten policy to virtually always find that designation of critical habitat is "not prudent" because it allegedly does not benefit listed species. (172) Finally, having swept away the FWS's legal rationale for refusing to designate critical habitat, species advocates filed over thirty suits to force the agency to actually make such designations without the delay built into the FWS priority scheme. (173) Beyond the procedural wrangling over deadlines and the realities of a limited budget for implementing section 4, the recent controversies over the listing program are symptoms of a fundamental dispute over whether critical habitat designation confers any substantive benefits on listed species---and therefore is worth the time and resources needed to designate it. FWS adamantly maintains that critical habitat designation provides almost no benefits for listed species, though a decision by the Fifth Circuit Court of Appeals--and even previous positions by FWS and the Department of Interior Solicitor's Office--reached an opposite conclusion. (174) Though FWS in 1999 indicated that it wished to settle the issue of critical habitat's role in the ESA, the agency never finalized the process. (175) Meanwhile, as environmentalists have labeled critical habitat designations vital to species conservation, (176) landowner and industry groups have sought to make the designation process include finely detailed economic analyses. (177) While a comprehensive analysis of this issue lies outside the scope of this Article, various parties' perceptions of critical habitat's role in the ESA's substantive protection scheme will continue to put pressure on section 4 implementation until FWS and NOAA Fisheries conclusively resolve legal uncertainties surrounding critical habitat--and maybe even thereafter. (178) FWS has tools at its disposal that could potentially assist the agency in improving its listing program. Despite the serious problems with assessing and designating critical habitat for species currently subject to a petition or court order, the agency has continued its practice of evaluating additional potential listing candidates on its own initiative. While this practice is valuable under normal circumstances, FWS now finds itself in a position that one can hardly call normal. Accordingly, until it can loosen its current section 4 logjam, the Service could devote more resources to resolving its backlog of listing and critical habitat decisions by suspending status reviews or other work on consideration of listings for species that are not the subject of a listing petition or court-ordered critical habitat designation. Additionally, the agency could devise and adopt a streamlined method to assess the economic and other impacts of critical habitat designation; the ESA establishes no particular procedures or required content for the Secretary's economic analyses, so FWS has wide latitude to create a methodology that provides the necessary information quickly and at a relatively low cost. (179) Additionally, FWS could eliminate future section 4 deadline lawsuits by making it an administrative priority to implement section 4's deadlines as a matter of routine; the Service could adopt such a policy as soon as is practicable after current problems abate. This would mean that the agency would designate critical habitat as a matter of course no later than a year after a final listing. The timing of critical habitat designation figures prominently in a potential legislative approach toward resolving administrative difficulties under section 4. In 1997, Congress very nearly passed an amendment to the ESA that would have eliminated the mandate that the Services designate critical habitat concurrent with listing a species (with a possibility of a one year extension). (180) Instead, the proposal would have set a two-year deadline after a species was listed by which the relevant agency would have to both finalize a recovery plan and designate critical habitat. While an odd coalition of left- and right-wing groups succeeded in derailing these ESA amendments principally due to other provisions that the proposal did or did not contain, linking critical habitat designation with a postlisting, date-certain recovery planning process has considerable appeal. By definition, critical habitat must include the areas essential for recovery of a given species (minus any areas the Secretary chooses to exclude for economic or other reasons). Therefore, an official designation of critical habitat at the time of listing--when the listing agency may know relatively little about the species or what it will need to recover--poses significant difficulties. Indeed, many recent critical habitats include little land beyond a species' current range; for species faced with extinction at least in part due to habitat destruction, such limited critical habitat designations are immediately suspect. (181) Moving critical habitat designation to the recovery planning process would allow the Services more time in which to determine a species' habitat needs and to do the required economic analysis of critical habitat designation. Moreover, coordinating critical habitat designation with recovery planning would emphasize the recovery benefits of the former. Lastly, the Services clearly favor such an amendment, and this change may actually garner support from both species advocates and property rights organizations. (182) Such rare approval from all quarters suggests that this change may be the most likely to pass of all the potential legislative tinkerings with section 4. 6. What Is the Future of Section 4(d)? Many people are surprised to learn that the ESA does not itself prohibit either take of, or commercial activities involving, species listed as threatened. However, due to a "blanket" FWS regulation that automatically extends all section 9 prohibitions to most species on the threatened list, threatened species typically enjoy the same protections as the statute applies to those on the endangered list. (183) Technically, however, threatened species receive only the protections granted by the Services through a rulemaking process. Section 4(d) directs the Secretaries to promulgate "such regulations as he deems necessary and advisable to provide for the conservation of such species;" the Secretaries "may" apply any of section 9(a)'s prohibitions to threatened species. (184) Though section 4(d) served as little more than an interesting footnote to the ESA for much of the statute's first thirty years, a flurry of recent activity has revealed its potential to dramatically shape both the type and extent of protections that the ESA affords to threatened species, as well as the entity that implements these protective measures. In particular, since prohibitions imposed under the authority of section 4(d) usually apply to all nonfederal entities, including states and local governments, this section can greatly affect species whose conservation depends to some degree on state and private land. Interestingly, NOAA Fisheries and FWS have taken very different approaches to using section 4(d). Listings of salmon and steelhead along much of the west coast of the United States greatly expanded NOAA Fisheries's workload--and management responsibilities--under the ESA, including obligations to address land-based threats to salmon migration and spawning that occur as far inland as Montana and Idaho, hundreds of miles from the sea. (185) Moreover, a significant amount of salmon habitat occurs on nonfederal land, and state and local governments either carry out or regulate many activities that directly affect salmon conservation. These factors put NOAA Fisheries in a challenging position. The agency faced the prospect of imposing prohibitions that could have substantial economic and social implications throughout the region, while at the same time it hoped to convince states and local jurisdictions to devote regulatory and restoration resources to salmon conservation. NOAA Fisheries turned to section 4(d) in a high-wire balancing effort to reassure nervous landowners and local governments while encouraging broad participation in programs to protect salmon. The idea works as follows: NOAA Fisheries bans "take" of threatened salmonids, but fosters homegrown efforts to benefit these fish by allowing local jurisdictions to develop their own methods for regulating activities that have contributed to salmon decline, including actions such as timber harvest, hatchery programs, and even municipal and industrial land-use decisions. If, upon review, NOAA Fisheries approves a local program regulating these types of activities, it amends its section 4(d) regulations to exempt from the take prohibition actions that are consistent with the approved state or local regulatory scheme. (186) This allows take of threatened salmon without fear of enforcement by NOAA Fisheries or a third-party lawsuit and without the need to apply for an incidental take permit. At least in theory, local governments and property owners benefit by retaining local control of resource regulation, as well as by escaping potential section 9 liability without bothering with the cumbersome incidental take permit requirements of section 10. On the other hand, NOAA Fisheries (and salmon) benefit by avoiding contentious federalism struggles, as well as by gaining the regulatory and enforcement resources of nonfederal partners. Predictably, this effort has experienced mixed success over its four year history. Environmentalists challenged in court the 4(d) rule implementing this scheme, and many jurisdictions showed a noticeable lack of enthusiasm for adjusting local regulations to account for salmon needs. (187) On the other hand, some agencies developed--and had approved by NOAA Fisheries--mechanisms to incrementally improve salmon protections, and large jurisdictions such as the City of Portland, Oregon; Clark County, Washington; and the tri-county region surrounding Seattle created offices for endangered species conservation and began work on ambitions plans to craft municipal land-use and other regulatory schemes that would contribute to salmon recovery. (188) Such actions made experts optimistic about section 4(d)'s promise for encouraging cooperative conservation; in his comprehensive analysis of this issue, for example, Professor Rob Fischman called NOAA Fisheries's 4(d) strategy "[t]he flagship ESA program of the next decade." (189) Despite such pronouncements, barely two years after NOAA Fisheries launched its 4(d) program, the George W. Bush Administration charted a different course for use of this section. NOAA Fisheries appears to have quietly deemphasized its previous drive to enlist local jurisdictions in salmon recovery efforts. (190) In 2003, FWS used section 4(d) to substantially reduce the protections available to the newly designated and downlisted western distinct population segment of gray wolves. (191) At least for the present, this action may signal the future of section 4(d). (192) Gray wolves in the western United States are subject to substantially fewer prohibitions than most threatened species. As noted above, a blanket FWS regulation automatically extends all of section 9(a)'s prohibitions to threatened species. However, when FWS created and then downlisted a western DPS of wolves, the agency also adopted a special 4(d) rule applicable only to this DPS. (193) Rather than containing a general take prohibition, the rule allows a lengthy list of wolf control activities by a variety of parties, including harassment and take by private landowners and federal grazing permittees in response to livestock predation, take by state or tribal officials in response to "unacceptable impacts to wild ungulate populations," (194) and take by federal officials to prevent wolves "with abnormal physical or behavioral characteristics, as determined by the Service, from passing on those traits to other wolves." (195) Additionally, in a portion of the rule without precedent in previous regulations under section 4(d), FWS declared that "no additional land use restrictions on Federal land, except for National Parks or National Wildlife Refuges, will be necessary to reduce or prevent take of wolves solely to benefit gray wolf recovery under the Act." (196) This provision renders section 7 consultation virtually meaningless as a protective mechanism for wolves in the West. (197) Like NOAA Fisheries's innovative use of section 4(d) to pursue policy goals, FWS's actions involving wolves have met with mixed support. Predictably, states and landowners have voiced support for the changes, while environmentalists have challenged in court the 4(d) rule for the western wolf DPS. (198) Judicial decisions have thus far resolved only one key legal question raised by the Services' recent section 4(d) initiatives. In challenging NOAA Fisheries's 4(d) framework rule, environmental plaintiffs argued that section 4(d) did not give the agency authority to allow--or, more properly, authority not to ban--take of listed salmon. (199) Rejecting this contention, the district court stressed the section's wording that regulations to protect threatened species "may" include any of the restrictions set forth under section 9(a), which the judge interpreted as allowing "any number of different varieties of ... take prohibitions," including rules that only banned some, but not all, take of a threatened species. (200) Legal questions remain about the extent to which the Services may use their authorities under section 4(d) to adopt significantly less restrictive regulatory provisions, particularly for take, than those applicable to endangered species under section 9. In the salmon litigation, the court round unripe plaintiffs' contentions that NOAA Fisheries's section 4(d) rule did not adequately provide for the "conservation" of the species. (201) The court found that rather than explicitly allowing certain take of listed fish, the agency had created a "framework" rule that required the Service to approve state or local regulatory schemes before they qualified for what amounts to immunity from incidental take restrictions; the court relied on the need for future agency action in this case in dismissing the plaintiffs' claims on ripeness grounds. (202) Ripeness concerns likely will not play a role in litigation over the wolf 4(d) rule. There, the court will face squarely the issue of whether FWS's regulation provides for the "conservation" of the western DPS of gray wolves. Since the ESA defines conservation to essentially mean recovery, the court must assess whether the section 4(d) rule provides for wolf recovery. The wolfs recovery plan provides an obvious measuring device for this question, but ambiguities still remain. For instance, what if the rule's allowance for some take of wolves merely might slow, but not preclude, recovery? Does section 4(d) allow FWS to balance what it perceives as gains in political support from landowners and states for wolf recovery (or other perceived benefits, including economic gains) against perhaps a slower pace toward recovery? Though the answers to such questions are not immediately obvious, there is evidence that section 4(d) does not give the Secretaries authority to put political, economic, or other such factors on par with promoting recovery of threatened species. Lawmakers' emphasis on caution, (203) as well as their repeated preference that nonbiological factors play no role in section 4 outside of designating critical habitat, (204) suggest that Congress intended the agencies to use the flexibility afforded by section 4(d) only to tailor prohibitions to meet the (presumably) more limited threats faced by threatened species, not to make tradeoffs between species recovery and other human considerations. In addition, two courts struck down hunts of threatened wolves and bears, both rejecting FWS arguments that hunts helped conserve these species by increasing political acceptance of these species and their recovery measures. (205) These decisions suggest that courts will look skeptically at take allowed through a section 4(d) rule that does not have a fairly direct relationship to recovery of a threatened species. More widespread use of section 4(d) rules of either the NOAA Fisheries salmon model or of a type similar to that applicable to the western wolf DPS could have a tremendous influence on the future of the ESA itself. These rules directly affect the substantive protections enjoyed by threatened species under both sections 7 and 9, so they carry tremendous weight. The NOAA Fisheries and FWS models represent very different policy approaches to species protection. By starting with a take ban and potentially allowing exceptions, the former emphasizes a carrot (backed up by a potential enforcement stick) for local jurisdictions to use their authorities to help conserve threatened species. On the other hand, FWS's scheme places more power in the hands of nonfederal parties from the outset by simply eliminating federal prohibitions in favor of actions and decisions by landowners and local jurisdictions. The next decades of section 4 implementation will feature difficult choices by the Services as to which, if either, of these strategies to implement, and what promises to be extensive legal wrangling over whether such uses of section 4(d) meet the section's requirement that 4(d) regulations provide for conservation of threatened species. 7. How Will the Secretaries Choose to Exercise Their Authority to Exclude Areas from Critical Habitat Designation? As noted earlier, section 4(b)(2) directs the Secretaries to consider the economic and "any other relevant" impacts of critical habitat designation, and authorizes the Secretaries to exclude any area from a critical habitat designation based on a finding that the "benefits" of such an exclusion outweigh the benefits of including the area within critical habitat. (206) Because lawsuits in recent years have forced FWS to abandon its unwritten policy of not designating critical habitat, this exclusion authority now has relevance to administration of section 4. How extensively will FWS and NOAA Fisheries use this authority? What criteria and considerations will they employ to make exclusion decisions? While these questions loom in section 4's future, an even more basic query dominates: Does any of this even matter? For those seeking a "through the looking glass" experience without wading through a Lewis Carroll novel, the ESA's critical habitat provisions will suffice quite nicely. In recent years, FWS in particular has adamantly maintained that listed species enjoy nearly identical protections under the ESA whether or not they have designated critical habitat. (207) If true, this reasoning would of course mean that designating critical habitat for a particular species brings with it few, if any, additional restrictions on federal activities. Moreover, since section 7's prohibition against destroying or adversely modifying critical habitat applies only to federal agencies, critical habitat designation should have no effect whatsoever on nonfederal land, except to the extent that a landowner seeks some sort of federal permit or federal funding. Strangely, though, despite its insistence on critical habitat's irrelevance, FWS has exercised its authority to exclude many areas from recent critical habitat designations, citing huge economic impacts to private landowners, significant impacts on essential military training, additional regulatory burdens on nonfederal landowners, and use of resources that could otherwise go to on-the-ground conservation. (208) Almost immediately after listing such litanies, however, the Service invariably does another bizarre 180 degree turn and concludes that the benefits of excluding areas from critical habitat designation--supposedly relieving landowners of these many economic, procedural, and other burdens--outweigh the benefits of including these areas within critical habitat because "loss in protection of the species will be minimal." (209) The Mad Hatter would be proud of such logic. All of this means that one cannot cogently analyze the Services' use of their authority to exclude areas from critical habitat designations without confronting the raging questions about whether or not the ESA's critical habitat provisions provide additional substantive protections for listed species. If FWS is correct in asserting that the ESA's critical habitat provisions are essentially redundant to other statutory protections, the Services in the future will likely make--and be able to easily justify on almost any grounds--significant critical habitat exclusions; stacked up against almost no additional legal protections resulting from designation, almost any reason at all could support agency decisions to exclude area from critical habitat. (210) Recent critical habitat designations suggest that the Secretaries will include in critical habitat exclusions private land, military land, lands whose management priorities already include an identifiable conservation component, tribal land, and areas covered by an existing or even future habitat conservation plan (HCP) pursuant to section 10 of the ESA. (211) On the other hand, if critical habitat provides additional protections for the recovery of listed species, the Services face far more difficult choices in deciding whether to exclude land from critical habitat designation and thereby reduce legal protections for threatened and endangered species. Despite FWS's present interpretation of critical habitat, the agency's final critical habitat designation for northern spotted owls (Strix occidentalis caurina) provides a glimpse into a decision-making process that involves real tradeoffs between a species' conservation needs and economic and other factors. When it finalized that designation in 1992, FWS maintained that section 7's ban on destroying or adversely modifying critical habitat gives listed species additional protections for their recovery over and above those of the jeopardy standard. (212) Accordingly, in deciding whether or not to exclude land from the critical habitat designation for owls, the agency faced a difficult choice between impacting owl recovery efforts and ameliorating social and economic impacts caused by reduced timber harvest. The agency met this challenging decision head-on. It assessed what it believed would be the incremental social and economic costs of additional protections to owl habitat--and resulting lower timber production (over and above restrictions resulting from section 7's jeopardy standard)--resulting from critical habitat designation. (213) The Service then compared these costs against a list of benefits of critical habitat designation. The benefits included: recreational use benefits (because more protected forest would help meet excess demand for unroaded recreational opportunities); aesthetic benefits; additional protection for biodiversity and the forest ecosystem generally; benefits to watersheds and valuable fisheries; and protection of intrinsic values, including a general social interest in (and willingness to pay higher prices for) knowledge that owls and old growth forests exist and are protected. FWS eventually decided to exclude from the critical habitat designation over a third of the acreage originally proposed, including all state land, habitat in thirteen economically stressed counties, and projects already planned or approved. (214) Unlike more recent exclusions, however, FWS recognized that leaving these areas out of the critical habitat designation would adversely affect spotted owl recovery. The agency acknowledged the possibility of "some population losses," and pointedly observed that by leaving areas out of the designation, the agency would have less flexibility under section 7 to allow impacts in the land included within the final designation. (215) The spotted owl critical habitat rule provides a stunning contrast to more recent designations. In the former, the agency not only explicitly wrestled with real tradeoffs inherent in designating or not designating areas as critical habitat, but in so doing also recognized many economic and other benefits in designating land as critical habitat, something the agency has generally ignored in more recent years. Ironically, though, FWS's wrenching experience in making the difficult public policy choices between increased protections for owls and their ecosystem on one hand, and reductions in social and economic impacts on the Northwest's reeling timber industry on the other, likely helped prompt the agency to craft a legal interpretation of the ESA that allows the agency to avoid having to go through similar processes for other species. Nevertheless, if the Services ever adopt, or are forced by a court to adopt, a different interpretation of the statute's critical habitat provisions, the decade-old spotted owl critical habitat designation will provide a glimpse into the future. Finally, recent critical habitat rules indicate that the Services are increasingly crafting methods to narrow critical habitat designations without using section 4(b)(2)'s exclusion authority. FWS has pointed to the definition of critical habitat itself as justification for leaving out many areas from designations; the agency reasons that areas whose management direction has at least some conservation component relevant to the particular species in question do not need "special management considerations or protection," and, since this is part of the ESA's descriptor of critical habitat, these areas do not meet the definition of critical habitat. The only court to examine this issue labeled the agency's interpretation "nonsensical," and held that "[t]he fact that a habitat is already under some sort of management for its conservation is absolute proof that such habitat is 'critical.'" (216) FWS has taken issue with this ruling in subsequent critical habitat rules, but has also simply used its section 4(b)(2) exclusion authority to leave out of critical habitat designations areas that the agency finds are already subject to some type of protections. (217) Perhaps more significantly, FWS has cited what it characterizes as scientific reasons to narrow critical habitat designations. In many recent critical habitat proposals or designations, the agency has identified as critical habitat only areas presently occupied by the species. (218) In its rule designating critical habitat for the Preble's meadow jumping mouse (Zapus hudsonius preblei), for instance, the Service simply asserted without additional explanation that "[b]ased on the best scientific data available, there appears to be no foundation upon which to make a determination that the conservation needs of [the mice] require designation of critical habitat outside the geographic range occupied by the species." (219) However, FWS did not comment on the fact that the agency, when it listed the mice as threatened, cited destruction of habitat as the principal cause of the species' decline. (220) FWS has also applied a highly rigorous standard of scientific certainty to determine which areas meet the definition of critical habitat. For example, in its critical habitat designations for vernal pool species, the FWS designated as critical habitat areas for which "available evidence clearly demonstrated were essential" to the species, but left out "[a]reas for which the evidence available at this time was less certain," even though much of this land has what FWS had determined were the "primary constituent elements" of the species' habitat. (221) Pushing requirements for scientific certainty even farther, the Service asserted that it could only be certain that areas were essential for conservation of Preble's meadow jumping mice if researchers had identified mice occupying a given area as Preble's through genetic or morphological examination; the agency thus left out of the final critical habitat designation all areas where scientists had determined that Preble's meadow jumping mice were present only through identifications in the field. (222) In the future, FWS's use of "science" to narrow critical habitat designations will almost certainly be a target for court challenges, and it may eventually attract legislative or administrative reform efforts. It is both biologically and legally dubious for the Services to identify as essential for species recovery only those areas currently inhabited by a species, particularly when habitat destruction played a key role in the species' decline. However, while limiting critical habitat only to occupied areas no doubt is related to FWS's antipathy toward critical habitat, it also is a function of the agency attempting to delineate areas essential to the recovery of the species without having done any recovery planning. For species having recovery plans when FWS was forced to designate critical habitat, the agency has used the plans to delineate critical habitat. (223) Amending section 4 to mandate critical habitat designation concurrent with finalizing a recovery plan may result in fewer critical habitat designations that merely track occupied habitat. Finally, FWS's recent practice of requiring a high degree of certainty that an area is essential habitat for a listed species before its designation as critical habitat does not square with the cautionary approach lawmakers have consistently taken in designing and amending section 4. If the Service or Congress does not halt this trend, courts will likely do so at some future date. 8. Will the Services Develop and Implement Required Monitoring Systems? Section 4 requires the Services to develop three separate monitoring strategies: one for certain species in the listing pipeline, another for all listed species, and one for recovered species. Incredibly, neither FWS nor NOAA Fisheries has ever developed a system to implement even one of these monitoring systems. Unless finally remedied, this inaction will increasingly cause harmful ripple effects through several important components of the ESA's protections. Because these monitoring systems are important components of its cautions approach toward species conservation, Congress directed the Secretaries to create processes for tracking a species' status at various stages in its relationship with the ESA. As discussed previously, Congress created a mechanism to allow FWS and NOAA Fisheries to put some species in what amounts to a listing holding pattern when the agencies lack resources to add all deserving species to the protected lists. (224) Section 4's required monitoring of "warranted but precluded" species, coupled with its mandate to emergency list those facing serious threats, strives to ensure that these species do not surfer serious conservation setbacks while they lack statutory protections. Lawmakers also wanted to keep tabs on the status of all species on the protected lists, and looked in particular for species whose statuses may have changed to allow less--or require more--protection. Accordingly, section 4 directs the agencies to conduct a comprehensive "review" of all listed species every five years to determine whether any modifications to the lists are needed. (225) Finally, to make doubly sure that the ESA has in fact worked to restore species once on the brink of extinction, the statute requires the Services to monitor "for not less than five years" the status of species removed from the lists upon a declaration that they have recovered. (226) This provision also instructs the agencies to use their emergency listing authorities to "prevent a significant risk to the well being" of any recovered species. (227) Congress clearly contemplated that the Services would devise programs to implement these monitoring and review requirements rather than simply carry out these actions with respect to individual species on an ad hoc basis. In the provisions dealing with both "warranted but precluded" and recovered species, section 4 directs the agencies to create "a system" for carrying out required monitoring of species in these categories; similarly, the subsection requiring comprehensive examination of the lists every five years discusses "a review of all species" and consequent determination of whether to make changes to the lists. (228) This language unambiguously calls for FWS and NOAA Fisheries to develop standardized methodologies and administrative infrastructures for carrying out section 4's required monitoring and review tasks, and then to apply these frameworks to individual species classified as "warranted but precluded" or delisted as recovered, as well as to the lists in general every five years. Such an approach makes a great deal of sense from an administrative standpoint because it would prevent the agencies from having to "reinvent the wheel" for each species, and would ensure consistency in monitoring and status reviews between species. Despite lawmakers' directives, the Services to date have conducted monitoring and reviews only on an ad hoc basis--to the limited extent that they have complied with these requirements at all. Neither FWS nor NOAA Fisheries has developed regulations or policy guidelines for systematically implementing any of section 4's monitoring requirements, though FWS has reportedly begun to devise a policy for monitoring recovered species. (229) There are no indications that FWS has an organized effort to monitor any "warranted but precluded" species on an ongoing basis, though informal assessments may occasionally occur. (230) The agencies have also never conducted comprehensive reviews of their threatened or endangered lists, let alone accomplished this task every five years. However, FWS recently settled a lawsuit brought by a timber industry group by agreeing to conduct a review of the threatened listings for northern spotted owls and marbled murrelets (Brachyramphus marmoratus marmoratus). (231) Finally, the agencies appear to have monitored, on an ad hoc basis, at least three of the small number of recovered species. (232) However, lack of consistency among approaches to these tracking efforts highlights the need for systematic implementation of section 4's monitoring and review requirements. (233) The Services' poor record of implementing section 4's monitoring requirements has important substantive implications. In its 2002 notice of species' listing status, FWS renewed "warranted but precluded" findings for 35 species, a number likely to increase in the future. By definition, these species deserve to be listed, but receive no statutory protections other than the directive that the appropriate Secretary list a species on an emergency basis if monitoring indicates a significant threat. With essentially no monitoring taking place, these species have virtually no protection. Congress likewise manifested its cautions approach toward species conservation in part by providing for the possibility of a need for emergency relisting of a recovered species; without monitoring, however, this protection is also an empty promise. Less obviously, it is section 4's directive that the Services conduct a review of all listed species once every five years that, if implemented, could have the most far-reaching influence over administration of the statute as a whole. Such a review would, as lawmakers intended, detect species whose listing status needs modification, thus correcting cases of underprotection or overprotection. Additionally, reviewing the status of listed species every five years would help the Services maintain up-to-date information on the current status of listed species. This is crucial because, despite direction in their joint section 7 handbook to the contrary, both FWS and NOAA Fisheries lack a system to track the current status of listed species. (234) This lack of information causes potentially huge problems because the agencies base determinations as to whether federal agency actions jeopardize the continued existence of listed species on a comparison between the current status of a listed species and its likely status if the federal project subject to consultation were to proceed. (235) Without reasonably current information on a species' status, this comparison--and correspondingly the resulting biological opinion's "jeopardy" or "no jeopardy" call--become essentially worthless. Implementation of a review of all listed species every five years would assist the Services to maintain a meaningful baseline of biological data from which to base substantive decisions on allowable impacts to listed species. Despite monitoring's importance, two factors are likely to play the largest role in whether the Services' implementation improves: litigation and appropriations. Pressure from both industry and environmental plaintiffs has already pushed FWS to carry out some monitoring and review tasks. Future litigation in this area will almost certainly succeed given the clear mandates of section 4 and will likely force the agencies toward better, albeit piecemeal, monitoring implementation. Browbeating the agencies can only go so far, however. Skimpy appropriations relative to the magnitude of monitoring tasks is the likely root cause of current monitoring woes. In order to solve this problem, Congress must increase future section 4 appropriations and prioritize these resources for monitoring and review programs. For their part, the Services must spend monitoring funds efficiently by developing and administering overall framework systems for the three categories of monitoring under section 4, then implement these systems for individual species. 9. Will Listed Species Ever Actually Recover? In theory, section 4 serves as both a beginning and ending to protections under the ESA. The Secretaries add life-forms in peril to the threatened and endangered lists and, with the help of the statute's series of prohibitions and affirmative recovery efforts, species eventually regain their "healthy" status and the appropriate agency can remove them one by one from the lists as recovery success stories. (236) However, a number of authors have challenged this view. They argue that in many cases a species' improved or stable status may depend on continuing protections of the ESA; particularly on nonfederal land or for activities over which the federal government has no control, removal of these protections may with the stroke of a pen put these species once again in a precarious position. (237) The Services are only beginning to grapple with this issue. Over the next decades of section 4, they will have to confront whether recovery for many species is merely a chimera--and thus the ESA must serve as a primary management tool for many species virtually in perpetuity--or whether the agencies can in fact delist species as no longer needing the statute's sanctuary. The basic problem lies in whether the "solutions" to problems faced by listed species are congruent with threats the species face. For example, as Pagel and Doremus note, many species dwindled to endangered levels due to habitat destruction or fragmentation. (238) Section 7 limitations under the ESA restrict habitat impacts caused by federal agencies. Significantly, the ESA also takes into account the obvious fact that the habitat needs of many species transcend jurisdictional boundaries; the statute has been the center of controversy in large part because its "take" prohibition extends to all "persons" broadly defined, and "take" includes habitat destruction or degradation that kills or injures listed species. (239) As such, the ESA is also a federal land-use law benefiting listed species. Even if a species rebounds to more abundant levels with these protections, however, what happens then? Removing a species from the threatened or endangered list eliminates special restrictions on harmful federal actions within the species' range, as well as gets rid of federal barriers to renewed habitat destruction by nonfederal landowners. Accordingly, delisting a species could simply place it back in harm's way. A 1995 federal court decision has particular relevance to this problem. In Fund for Animals v. Babbitt, (240) environmental plaintiffs challenged the grizzly bear recovery plan, arguing that the plan's numerically based criteria did not adequately address everything required for a delisted grizzly population, especially secure habitat. (241) In agreeing with plaintiffs on this issue, the court said in essence that a recovery plan's "objective, measurable criteria"--and thus the basis for a delisting rule--must address all of the factors that led to the species' listing. (242) For grizzlies, therefore, since habitat destruction was one of the leading factors cited by FWS in listing the bears, the agency's recovery plan was insufficient in that it did not set forth criteria describing the characteristics of secure bear habitat. This decision more or less puts into law the concerns expressed above; the Secretary must, as an integral part of the recovery and delisting process, describe how a species will be secure without the ESA. (243) In addition to habitat destruction, a particularly nettlesome listing factor in delisting decisions for many species will be "the inadequacy of existing regulatory mechanisms," (244) one of the five statutory factors for listing and a reason often cited by the Services in threatened and endangered findings. Given a legal requirement that FWS or NOAA Fisheries may define species as "recovered" only after finding that all of the factors that led to its listing have been addressed, these agencies will have to find that the regulatory situation has changed for the better in order to delist a species imperiled in part by a lack of legal protections. In other words, to delist such a species, the Service would have to find that enough relevant parties--federal agencies, states, local governments, or even private landowners using deed restrictions or easements--have decided to enact "regulatory mechanisms" to adequately protect it after the ESA's provisions no longer apply. Will it be possible for the Services to conclude that other federal and nonfederal parties have taken steps to protect necessary habitat or enacted regulatory protections in order to support a delisting decision? To answer this, one must look at incentives and disincentives that act on entities other than FWS and NOAA Fisheries. Stated another way, why would a federal agency, state or local government, or even private landowner agree to become a participant in conserving a given species? The downsides of such action are clear; habitat protections or regulatory mechanisms for various species impose many potential costs, ranging from economic opportunity costs of land-use limitations to the costs of developing and administering a regulatory scheme to manage and protect a given species. Additionally, federalism concerns and social antipathy toward certain species may also provide disincentives to entities whose cooperation may be required for species recovery. The incentives to cooperate in species recovery present a more complex picture. Though federal agencies may be somewhat reluctant to restrict their activities to allow for species recovery, the prospect of avoiding the time-consuming and procedurally draining section 7 consultation process provides tremendous appeal to most federal agencies. Moreover, given the uncertainties associated with section 7 consultation, federal agencies may view favorably the prospects of trading well-defined limitations on the actions for the surprises that sometimes pop up in a section 7 biological opinion and incidental take statement. These incentives have in fact resulted in several manifestations of other federal agencies' willingness to assist in recovery of listed species and continue to protect species after delisting. In 2001, EPA signed a Memorandum of Agreement with FWS and NOAA Fisheries in which they pledged to take such action on a programmatic basis. (245) There are also species-specific examples of such behavior. For instance, national forests within the range of Mexican spotted owls (Strix occidentalis lucida) have modified their management plans to adopt management direction as specified in the owl's recovery plan. (246) The picture is murkier for nonfederal parties. The prospect of managing a given species free from federal interference may in some cases provide substantial motivation for state or local governments to participate in modifying their regulations to assist in the recovery process. Grizzly bears serve as the best example. The states of Montana, Wyoming, and Idaho are very interested in having full management authority over bears, including authority to carry out control actions and allow hunting, and have thus been willing to enter into a joint federal-state conservation strategy designed specifically to provide adequate protections for grizzlies and their habitat for a delisted population. (247) Similar federal-state agreements are in place or under development for wolves. For less high profile species, however, state and local governments may be considerably more reluctant to invest the time and resources needed to develop, administer, and enforce "regulatory measures" to protect species whose conservation is currently the federal government's responsibility under the ESA. Other ESA programs pushed by FWS or NOAA Fisheries in recent years may or may not be able to serve as part of a post-delisting package of habitat protections or adequate regulatory measures to support delisting decisions. Actions taken by local jurisdictions pursuant to NOAA Fisheries's 4(d) program should qualify as supporting a delisting rule because such regulations must meet section 4(d)'s conservation standard. (248) On the other hand, habitat conservation plans, which nonfederal landowners and regulators do have some incentive to develop in order to avoid liability for "take" of listed species, are in many cases likely to be inadequate to form the primary basis for ongoing protection of recovered populations. (249) Finally, recovery plans should provide a blueprint for the habitat protections and regulatory changes needed to allow the appropriate Service to support a finding that a given species has recovered. (250) This would at least provide other entities with a clear idea of what it would take on their part to lead to a delisting. Whether or not they would take such action would depend on resource availability to do so, as well as their weighing of incentives and disincentives. So, will the next decades of section 4 see many species removed from the threatened and endangered rolls as recovered? FWS and NOAA Fisheries have both political incentive and institutional desire to portray the ESA as a "success" by pointing to species that have recovered and have been delisted. (251) However, given the pervasiveness of habitat loss and the inadequacy of other regulatory protections as factors for listings in the first place, coupled with the likely reluctance of nonfederal landowners and state and local jurisdictions to modify their actions or regulations to provide long-term protection for recovered populations in the absence of the ESA, it seems more likely that, with a few high profile exceptions, delisting will fulfill Professor Holly Doremus's prediction as "an aspirational goal, not a realistic expectation." (252) 10. Will We Remember Why? Amidst legal arguments over the finer points of delineating distinct population segments or formulating 4(d) rules, one can sometimes lose sight of the point of section 4 and the purpose of the ESA as a whole: This thirty year experiment in caution, a rare statutory manifestation of human humbleness, seeks to identify those creatures in danger of being wiped out of existence, to attempt a last minute reprieve, and finally to return them to their evolutionary path as functioning members of the biosphere. While the Services and various factions of the interested public are often caught in increasingly contentious struggles over the ESA's future, perhaps a key to better implementation of section 4 and the statute as a whole in the decades ahead lies in remembering losses in the past. In his lyrical book Hope Is the Thing With Feathers: A Personal Chronicle of Vanished Birds, (253) Christopher Cokinos examines the natural history and ultimate demise of six extinct North American bird species. One of the things he found most surprising was how quickly society forgot those "vanished birds." (254) Though Carolina parakeets (Conuropsis carolinensis), for example, beautiful birds of green, yellow, and red, only 150 years ago ranged from Kansas to the Eastern Seaboard, Cokinos found that few people today had even heard of them. (255) In telling the story of their existence and demise, Cokinos argues that remembering such species, rather than producing merely nostalgia or melancholy, can foster hope and determination:
I take a journey into the past and emerge, sobered and saddened,
but also fascinated. And resolved to grapple with hope in this
environmentally complicated time: The birds taught me that we can
learn from these losses, take comfort in what remains, and redefine
hope from "wish" to "work." (256)
...
... These days hope asks much from us. (257)
Unfortunately, section 4 perpetuates society's tendency to put out of mind those species that human actions have rendered extinct. When a species on the endangered or threatened lists, or somewhere in the process of being added to the lists, becomes extinct, the Services either delists it or simply administratively drops it from the section 4 process. (258) Accordingly, like the creatures themselves, the legal record of these species simply vanishes from administrative and public consciences; nothing reminds the Services and, more importantly, society in general of the steep cost of failing to identify and protect life-forms in danger of extinction. Few people realize that of the forty species taken off the threatened and endangered lists over the past twenty years, seven were removed because they no longer exist. (259) So too, the ivory-billed woodpecker (Campephilus principalis), one of the subjects of Cokinos' book, (260) remains extant only in wishful obscurity on the ESA's endangered list. (261) It is never the subject of section 7 consultations or recovery planning because it no longer exists in the United States, and has likely disappeared from its last known location in Cuba as well. Yet these impressive birds' quiet demise has attracted little popular notice, and FWS's perpetual section 4 funding crisis is probably the only barrier to its disappearance from the ESA's lists as well. As noted in the introduction, the ESA's lists, like other high-profile compilations, attract public attention, and as such carry influence beyond the substantive reasons for the lists' existence (or lack thereof in some cases). Perhaps it is time to harness section 4's notoriety to bolster the hope and dedication to avoid extinction that sometimes get lost in the ESA's subsections and day-to-day administrative battles. Congress could amend section 4 to create a third list: When FWS or NOAA Fisheries declares a species extinct, rather than simply consigning that species to the obscurity of a Federal Register notice, the agency would place it on the list of extinct species. Such a listing would trigger no substantive or even procedural duties, and would obviously demand no monitoring. It would simply serve as a reminder of creatures the world has lost, and hopefully as a source of public and governmental resolve that a similar fate not befall other species in danger of meeting a similar fate. Society remembers things for many reasons, not all of which are pleasant. Wars, calamities, and episodes of genocide are seared in society's collective memory in museums, memorials, books, and other cultural expressions, in part to remember victims, and in part to remind society of the tragedy and horror of these occurrences in an effort to prevent similar ones in the future. However, there are few, if any, reminders of extinct species. Therefore, as Cokinos points out, people quickly and unfortunately become accustomed to a biotic landscape that no longer has clouds of passenger pigeons (Ectopistes migratorius) numbered in the millions or billions, or huge ivory-billed woodpeckers, called by some the "Lord God Bird," (262) drumming on huge trees deep in Southern swamps. Other monuments have demonstrated the power of a simple list of names of the fallen as a spare, yet potent, means of keeping memories and knowledge alive. A list of extinct species could perhaps do likewise. It may be an uncomfortable reminder of human and agency failures. Yet it would almost undoubtedly serve as a source for interest in species that no longer exist, and in the causes of their demise. And with this interest, increased resolve to protect and restore the biosphere's biological heritage, and thus hope for the future of all species on the threatened and endangered lists, may follow. IV. CONCLUSION The compilations of threatened and endangered species have become perhaps the most influential--as well as controversial--lists in land and wildlife management. Not surprisingly, therefore, the rules for adding and removing species from these lists have generated immense interest and substantial conflicts. Yet despite three decades of section 4 implementation, amendments, and litigation, a number of vitally important issues remain to be resolved. The Services, lawmakers, and courts, with guidance from a look back at the precepts imbedded in this section by Congress over the years, must meet and resolve these issues head-on in order for the Endangered Species Act to remain the United States's--and likely the world's--premier legal tool for conserving biological diversity. (1) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000). (2) William Bennett, a self-appointed national moralist who became well-known more for his books compiling lists of virtues than for his cabinet post in the administration of President George H.W. Bush, realized this fact to his chagrin when various publications broke the news of his astonishing losses at various forms of gambling. See, e.g., Katharine Q. Seelye, Relentless Moral Crusader is Relentless Gambler, Too, N.Y. TIMES, May 3, 2003, at A12 (reporting on Bennett's $8 million in gambling losses over a ten-year period). Similarly, as those in the academic community know all too well, U.S. News and World Report's annual rankings of educational institutions has not only had tremendous impact on schools and their admission practices, but has generated copious criticism of and defense of--the ranking process itself. See STEPHEN P. KLEIN & LAURA HAMILTON, THE VALIDITY OF THE U.S. NEWS AND WORLD REPORT RANKING OF ABA LAW SCHOOLS (1998) (discussing the validity of and problems with U.S. News and World Report's law school rankings), at http://www.aals.org/validity.html. (3) See STEVEN LEWIS YAFFEE, PROHIBITIVE POLICY: IMPLEMENTING THE ENDANGERED SPECIES ACT 52-56 (1982) (discussing 1972 hearings on the then proposed ESA that disclosed significant disagreement over who should administer the statute and whether or not plants should be included within its protections). (4) For an overall discussion of section 4 and the amendments to this section, see J.B. RUHL, Section 4 of the ESA: The Keystone of Species Protection Law, in ENDANGERED SPECIES ACT: LAW, POLICY, AND PERSPECTIVES 19-41 (Donald C. Bauer & William Robert Irvin eds., 2002); DANIEL ROHLF, THE ENDANGERED SPECIES ACT: A GUIDE TO ITS PROTECTIONS AND IMPLEMENTATION 25-58 (1989). (5) The National Marine Fisheries Service (NMFS), an agency within the Commerce Department's National Atmospheric and Oceanic Administration (NOAA), implements the ESA for most marine species. In 2000, the agency began referring to itself as NOAA Fisheries rather than NMFS. See NMTN Is Now: NOAA Fisheries, 19/20 MMPA BULLETIN 1, 1 (2000) (describing reasons for name change). (6) See U.S. FISH & WILDLIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR, POLICY AND GUIDELINES FOR PLANNING AND COORDINATING RECOVERY OF ENDANGERED AND THREATENED SPECIES (1990); U.S. FISH & WILDLIFE SERVICE AND NATIONAL MARINE FISHERIES SERVICE, ENDANGERED SPECIES PETITION MANAGEMENT GUIDANCE (1996), available at http://endangered.fws.gov/listing/Petition_guidance.pdf; U.S. FISH AND WILDLIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR, ENDANGERED SPECIES LISTING HANDBOOK: PROCEDURAL GUIDANCE FOR THE PREPARATION AND PROCESSING OF RULES AND NOTICES PURSUANT TO THE ENDANGERED SPECIES ACT (1994). (7) Policy Regarding the Recognition of Distinct Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722 (Feb. 7, 1996) [hereinafter DPS Policy]. (8) Policy for Evaluation of Conservation Efforts When Making Listing Decisions, 68 Fed. Reg. 15, 100 (Mat. 28, 2003). (9) See infra notes 45, 65 and accompanying text. See also Section II and accompanying footnotes for additional discussion of issues involving section 4 that courts or the agencies themselves have settled. (10) There is a wealth of such commentary in legal and scientific journals, a portion of which is cited throughout this Article. For starters, however, see Holly Doremus, Listing Decisions Under the Endangered Species Act: Why Better Science Isn't Always Better Policy, 75 WASH. U. L.Q. 1029 (1997). See also J.B. Ruhl, Who Needs Congress? An Agenda for Administrative Reform of the Endangered Species Act, 6 N.Y.U. ENVTL. L.J. 367 (1998) (discussing FWS's efforts at administrative reform of the ESA, and outlining an agenda for additional reforms of the Act); Jakki McDonald, Rethinking the Endangered Species Act: Moving Beyond Conflicts and Promoting Positive Efforts for Conservation, 26 ENVIRONS ENVTL. L. & POL'Y J. 147 (2002) (analyzing the conflicts inherent in the ESA's provisions, and proposing a solution that promotes biodiversity conservation). (11) It is probably unfair to co-opt the "Top Ten" format for serious purposes without offering at least a small nod to its comedic roots. With the hope that humor may make it easier to read an entire law review article, the author offers the following additional Top 10 Steps to Strengthen Protection of Endangered Species: 10: Legislative attacks on ESA cease as result of out-of-court settlement in elephants' copyright infringement suit against GOP 9: Invasive exotic species now classified as "foreign ecoterrorists" 8: Areas outside of the Beltway finally recognized as critical habitat 7: New federal sentencing guidelines--conviction for trafficking in endangered species parts results in trafficker's loss of corresponding body part 6: Suffrage for furbish louseworts 5: Zyg Plater takes up body-building, adopts funny accent, and campaigns to recall Secretary of Interior Gale Norton 4: Get rid of politicians unless they have ideas that are "discrete" and "significant" 3: Wooing swing vote, World Wildlife Fund discards cure panda logo, adopts Justice Kennedy as new mascot 2: Two words: President Suckling And the Number One step to strengthen protection of endangered species: Beleaguered insect hires new PR firm, changes name to Delhi Sands freedom-loving fly. (12) See Niles Eldredge, The Sixth, Extinction, http://www.actionbioscience.org/newfrontiers/eldredge2.html (2001); see also David Michel & Irving Mintzer, Climate Change, Rights of Future Generations and Intergenerational Equity: An In-expert Exploration of a Dark and Cloudy Path, 1 INT'L J. GLOBAL ENVTL. ISSUES 203 (2001). (13) For a discussion of concepts of "species" and their evolution, see Doremus, supra note 10, at 1088-92. (14) Id. at 1099. (15) Id. at 1100-01. (16) Amendment Listing the Grizzly Bear of the 48 Coterminous States as a Threatened Species, 40 Fed. Reg. 31,734, 31,734 (July 28, 1975). (17) See Endangered and Threatened Wildlife and Plants; Reclassification of the American Alligator and Other Amendments, 40 Fed. Reg. 44,412, 44,412 (Sept. 26, 1975) (reclassifying American alligators in the Louisiana parishes of Cameron, Vermillion, and Calcasieu from "endangered" to "threatened due to their similarity of appearance" to endangered alligators); Endangered and Threatened Wildlife and Plants; Subpart A--Introduction and General Provisions, 40 Fed. Reg. 44,415, 44,428 (Sept. 16, 1975) (establishing special rules allowing a controlled harvest of American alligators within Cameron, Vermillion, and Calcasieu parishes in accordance with state law). (18) 16 U.S.C. [section] 1532(16) (2000). (19) S. REP. NO. 96-151, at 7 (1979). (20) Though FWS went through various draft policies attempting to interpret this phrase, NOAA Fisheries was actually the first to finalize such a policy in 1991, when it published a methodology for delineating distinct population segments of Pacific salmonids, which NOAA Fisheries termed Evolutionarily Significant Units (ESUs). Policy on Applying the Definition of Species Under the Endangered Species Act to Pacific Salmon, 56 Fed. Reg. 58,612, 58,618 (Nov. 20, 1991). Prompted at least in part by litigation over listing eligibility of northern goshawks (Accipiter gentilis), FWS worked with NOAA Fisheries to finalize a joint interpretation of "distinct population segment" in 1996. See Southwest Ctr. for Biological Diversity v. Babbitt, 980 F. Supp. 1080, 1085 (D. Ariz. 1997) (discussing history of DPS Policy). (21) DPS Policy, supra note 7, at 4722. (22) Id. (23) Id. at 4724. (24) Id. at 4725. (25) See Defenders of Wildlife v. Norton, 239 F. Supp. 2d 9, 18-21 (D.D.C. 2002) (evaluating the Canada lynx (Lynx canadensis) listing decisions); Friends of the Wild Swan, Inc. v. U.S. Fish & Wildlife Serv., 12 F. Supp. 2d 1121, 1132-36 (D. Or. 1997) (reviewing the bull trout (Salvelinus confluentus) listing decision); Southwest Ctr. for Biological Diversity v. Babbitt, 980 F. Supp. 1080, 1085 (D. Ariz. 1997) (reviewing the Goshawk listing decision). Such questions surrounding Pacific salmon alone have engulfed the entire Northwest in heated litigation and administrative turmoil for several years. See Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154 (D. Or. 2001) (discussing the history of then-NMFS's policy on Pacific salmon), appeal dismissed, Alsea Valley Alliance v. Dep't of Commerce, 358 F.3d 1181 (2004). (26) See Daniel Rohlf, There's Something Fishy Going On Here." A Critique of the National Marine Fisheries Service's Definition of Species under the Endangered Species Act, 24 ENVTL. L. 617 (1994); Doremus, supra note 10; D. Pennock & W. Dinunick, Critique of the Evolutionarily Significant Unit as a definition for "Distinct Population Segment" Under the US. Endangered Species Act, 11 CONSERVATION BIOLOGY 611 (1997). (27) See, e.g., Endangered and Threatened Wildlife and Plants: 12-Month Finding for a Petition to List Southern Resident Killer Whales as Threatened or Endangered Under the Endangered Species Act (ESA), 67 Fed. Reg. 44,133, 44,136 (July 1, 2002) (declining to list Southern Resident population of killer whales (Orcinus orca) because it is not "significant" to the larger taxon); Endangered and Threatened Wildlife and Plants; Status Review and 12-Month Finding for a Petition to List the Washington Population of the Western Gray Squirrel, 68 Fed. Reg. 34,628, 34,639 (June 10, 2003) (declining to list the Washington population of the western gray squirrel (Sciurus griseus griseus) because it is not "significant" to the taxon as a whole). See also Ctr. for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223, 1226 (W.D. Wash. Dec. 17, 2003) (remanding NOAA Fisheries's determination that killer whales in Puget Sound are not eligible for listing to the agency for reevaluation). (28) 16 U.S.C. [section] 1533(a)(1)(A)-(E) (2000). (29) Id. [section] 1533(b)(1)(A). (30) Id. [section] 1533(a)(1)(E). (31) Id. [section] 1533(a)(1)(D). (32) U.S. GENERAL ACCOUNTING OFFICE, REP. NO. 79-65, ENDANGERED SPECIES: A CONTROVERSIAL ISSUE NEEDING RESOLUTION, 12-20 (1979). (33) H.R. REP. No. 97-567, at 20 (1982), reprinted in 1982 U.S.C.C.A.N. 2820. (34) See Ivan Leiban, Political Influences on USFWS Listing Decisions Under the ESA: Time to Rethink Priorities, 27 ENVTL. L. 1323, 1359 (1997) (criticizing FWS's usage of the rive listing criteria by noting that they have allowed politics to influence the listing process); Defenders of Wildlife v. Norton, 239 F. Supp. 2d 9, 11-12 (D.D.C. 2002) (holding FWS inappropriately listed the Canada lynx as "threatened" instead of "endangered," and rejecting FWS's reliance on the perceived rarity of the lynx as a factor in the listing decision). (35) See 16 U.S.C. 1533(h)(3) (2000) (requiring Secretary to establish "a ranking system to help identify species that "should receive priority review" for listing determinations). (36) See Endangered and Threatened Species Listing and Recovery Priority Guidelines, 48 Fed. Reg. 16,756, 16,757 (Apr. 19, 1983) (describing 1981 FWS ranking system). (37) H.R. CONF. REP. NO. 97-835, at 19-21 (1982), reprinted in 1982 U.S.C.C.A.N. 2860. (38) 16 U.S.C. [section] 1533(b)(2) (2000). (39) Id. However, the provision limiting this authority if it would cause extinction of the species is virtually nonsensical. The ESA's section 7 prohibition against actions that jeopardize the continued existence of listed species takes effect upon listing, so even if the lack of a critical habitat designation for a particular species threatened to allow a federal action to occur that would result in extinction of that species, the jeopardy standard would preclude the action. (40) H.R. REP. NO. 95-1625, at 69 (1978), reprinted in 1978 U.S.C.C.A.N. 9483. (41) NATIONAL RESEARCH COUNCIL, SCIENCE AND THE ENDANGERED SPECIES ACT 48-49 (1995). For a complete listing of the proposed species, see Endangered and Threatened Wildlife and Plants, Proposed Endangered Status for Some 1700 U.S. Vascular Plant Taxa, 41 Fed. Reg. 24,523, 24,523-72 (June 16, 1976). For the withdrawal of the proposed listing, see Endangered and Threatened Wildlife and Plants; Notice of Withdrawal of Five Expired Proposals for Listing of 1,876 Species, and Intent to Revise 1975 Plant Notice Which Includes Most of These Species, 44 Fed. Reg. 70,796, 70,796 (Dec. 10, 1979). (42) 16 U.S.C. [section] 1533(b)(3)(B)(iii)(II) (2000). (43) Id. [section] 1533(b)(6)(C)(ii). (44) Id. [section] 1533(b)(3)(C)(iii). (45) See Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1169 (9th Cir. 2002) (holding section 4's 12-month deadline for making warranted, not warranted, or warranted but precluded findings on listing petitions establishes a firm deadline for agency action on listing petitions, regardless of whether FWS or NOAA Fisheries has made an initial "90-day finding" under section 4(b)(3)(A)); see also Or. Natural Res. Council v. Kantor, 99 F.3d 334, 339 (9th Cir. 1996) (determining that the ESA required the Secretary to publish a final regulation within 12 months of the date of publication of a proposed listing for coho salmon (Oncorhynchus kisutch)); Ctr. for Biological Diversity v. Norton, 208 F. Supp. 2d 1044, 1050-51 (N.D. Cal. 2002) (stating that the Secretary should have made a final listing determination on California spotted owl (Strix occidentalis occidentalis) within one year of receipt of petition); Am. Lands Alliance v. Norton, 242 F. Supp. 2d 1, 3 (D.D.C. 2003) (holding Secretary failed to make mandatory findings on Gunnison sage grouse (Centrocercus minimus) within one year of receiving petition). (46) Courts have routinely entered orders requiring FWS to designate critical habitat for listed species after the agency failed to do so. See, e.g., Natural Res. Defense Council v. United States Dep't of the interior, 113 F.3d 1121, 1127 (9th Cir. 1997) (requiring FWS to designate critical habitat for a threatened Coastal California gnatcatcher (Polioptila californica californica) DPS); Forest Guardians v. Babbitt, 174 F.3d 1178, 1193 (10th Cir. 1998) (determining that the Secretary must designate critical habitat for the silvery minnow (Hybognathus amarus)); Conservation Council for Haw. v. Babbitt, 24 F. Supp. 2d 1074, 1078 (D. Haw. 1998) (ordering critical habitat designation for over 200 Hawaiian plant species); Ctr. for Biological Diversity v. Norton, 212 F. Supp. 2d 1217, 1227 (S.D. Cal. 2002) (commanding FWS designation of critical habitat for eight species of plants). However, the Services have had to take a closer look at the economic consequences of designating critical habitat after the Tenth Circuit rejected FWS's longstanding theory that critical habitat has no economic impact over and above financial consequences that flow from a listing decision itself. See N.W. Cattle Growers Ass'n v. United States Fish & Wildlife Serv., 248 F.3d 1277, 1285 (10th Cir. 2001) (rejecting FWS's baseline approach to economic analysis in critical habitat designation). (47) See Leiban, supra note 34, for a discussion of FWS's problems with its listing program and its efforts to solve those problems with priority guidelines and refusals to address listing petitions. See also Final Listing Priority Guidance for Fiscal Year 2000, 64 Fed. Reg. 57,114, 57,115 (Oct. 22, 1999); Press Release, U.S. Fish & Wildlife Service, Flood of Court Orders Preclude New Listings of Threatened and Endangered Species in FY 2001 (Nov. 22, 2000), available at http://www.sw-center.org/swcbd/activist/ESA/fws_pr.html; see generally U.S. FISH & WILDLIFE SERVICE, CRITICAL HABITAT QUESTIONS AND ANSWERS 3 (2003) [hereinafter CRITICAL HABITAT QUESTIONS AND ANSWERS], available at http://endangered.fws.gov/criticalhabitat/ch_qanda.pdf (describing the process for designating critical habitat as broken). (48) See CENTER FOR BIOLOGICAL DIVERSITY ET AL., BUSH ADMINISTRATION ATTACKS THE ENDANGERED SPECIES ACT 1 (2003) (criticizing administration's policies minimizing and avoiding designation of critical habitats), available at http://www.sw-center.org/swcbd/Programs/policy/ESA_attack.pdf; CENTER FOR BIOLOGICAL DIVERSITY, REGAN REDUX: A REVIEW OF THE BUSH ADMINISTRATION CRITICAL HABITAT RECORD 3 (2003) (accusing the Bush Administration of using "budget shortfalls" as an excuse to delay redesignating critical habitat it revoked to settle lawsuits with industry), available at http://www.sw-center.org/swcbd/Programs/policy/Bush_CH_record.pdf. (49) The statute recounts as its key purpose conservation of listed species and the ecosystems upon which they depend. 16 U.S.C. [section] 1531(b) (2000). The law defines "conservation" of listed species to include an actions necessary to bring them to the point at which ESA protections are no longer necessary, i.e., recovery. Id. [section] 1532(3); see also 50 C.F.R. [section] 402.02 (2004). (50) For an excellent overall analysis of the ESA's recovery planning requirement, see Federico Cheever, The Road to Recovery: A New Way of Thinking About the Endangered Species Act, 23 ECOLOGY L.Q. 1 (1996). See also John M. Volkman, Recovery Planning;, in ENDANGERED SPECIES ACT: LAW, POLICY, AND PERSPECTIVES 71 (Donald C. Baur & Wm. Robert Irvin eds., 2002). (51) 16 U.S.C. [section] 1533(f)(1)(A) (2000). (52) From the ESA's inception, Congress recognized that the statute's success at halting and reversing species' slide toward extinction would require more than simply prohibiting various activities that could further imperil listed species. The original version of the law in 1973 included section 7(a)(1)'s affirmative mandate that the Secretaries, as well as all other federal agencies, use their authorities to take actions to conserve, i.e., recover, listed species. Endangered Species Act of 1973, Pub. L. No. 93-205, [section] 7(a)(1), 87 Stat. 884, 892. However, even 30 years later, FWS and NOAA Fisheries have developed no regulations to systematically implement this requirement, and this general exhortation to do good things for threatened and endangered species remains mostly inert. See J.B. Ruhl, Section 7(a)(1) of the "New" Endangered Species Act: Rediscovering and Redefining the Untapped Power of Federal Agencies Duty to Conserve Species, 25 ENVTL. L. 1107, 1126 (1995) (describing section 7(a)(1)'s potential as "untapped" and "untested"); Cf. Sierra Club v. Glickman, 156 F.3d 606, 618-19 (5th Cir. 1998) ("[A federal agency] simply cannot read out of existence [section] 7(a)(1)'s requirement...."). (53) 16 U.S.C. [section] 1533(f)(2) (2000). (54) See ROHLF, supra note 4, at 90 (arguing recovery plans lacking specific directives are difficult to enforce or evaluate). (55) In 1988, the General Accounting Office reported that only five listed species had recovered--the same number that had become extinct. See VOLKMAN, supra note 50, at 81. (56) Demonstrating that it expected agencies not to shy away from controversy in developing these specific recovery blueprints, Congress directed administrators to give priority in developing recovery plans to those species that "are, or may be, in conflict with construction or other development projects or other forms of economic activity." 16 U.S.C. [section] 1533(f)(1)(A) (2000). Also, once again demonstrating its distaste for agency bias toward charismatic species, lawmakers specified that the recovery plan priority scheme be "without regard to taxonomic classification." Id. (57) 16 U.S.C. [section] 1533(f)(1)(B)(i)-(ii) (2000). (58) Id. [section] 1533(f)(3). (59) See Jason M. Patlis, Recovery, Conservation, and Survival Under the Endangered Species Act: Recovering Species, Conserving Resources, and Saving the Law, 17 PUB. LAND & RESOURCES L. REV. 55, 75 (1996) (discussing agency guidelines for recovery planning). (60) 16 U.S.C. 1533(f)(4) (2000). (61) Id. [section] 1533(f)(1)(B)(iii). (62) In the conference report accompanying the 1988 amendments, the committee specified that "the content of the recovery plans will continue to be based solely on biological considerations." H.R. CONF. REPORT NO. 100-928, at 21 (1988), reprinted in 1988 U.S.C.C.A.N. 2739. In 1982, the House report accompanying that year's ESA amendments noted that "with limited resources, the Secretary must judiciously choose where those resources win accomplish the maximum amount of recovery for a depleted species. H.R. REP. NO. 97-567, at 22 (1982), reprinted in 1982 U.S.C.C.A.N. 2812. (63) U.S. FISH & WILDLIFE SERVICE, THREATENED AND ENDANGERED SPECIES SYSTEM (TESS): L1STED SPECIES WITH RECOVERY PLANS, at http://ecos.fws.gov/tess_public/TESSWebpageRecovery?sort=1 (last visited Apr. 11, 2004). (64) See J. Alan Clark, et al., Improving U.S. Endangered Species Act Recovery Plans: Key Findings and Recommendations of the SCB Recovery Plan Project, 16 CONSERVATION BIOLOGY 1510, 1516-18 (2002) (discussing recommendations for better use of agency resources). (65) See Federico Cheever, Recovery Planning, The Courts and the Endangered Species Act, 16 NAT. RESOURCES & ENV'T 106, 108 (2001) (discussing environmental groups' unsuccessful attempts in federal courts at showing that provisions of recovery plans are enforceable); Eric Helmy, Teeth for a Paper Tiger: Redressing the Deficiencies of the Recovery Provisions of the Endangered Species Act, 30 ENVTL. L. 843, 851-52 (2000) (noting Inadequacies of legal remedies to date). (66) H.R. REP. NO. 93412, 5 (1973). (67) 16 U.S.C. [section] 1533(b)(7) (2000). Such a listing expires after 240 days unless the agency compiles with the normal section 4 listing process in the interim. Id. (68) Id. [section] 1533(b)(3)(C)(iii). (69) Id. [section] 1533(g). (70) See Defenders of Wildlife v. Norton, 239 F. Supp. 2d 9, 20 (D.D.C. 2002) (finding FWS's interpretation of "significant portion of its range" erroneous). (71) See Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1177-78 (9th Cir. 2002) (holding that FWS violated the ESA by failing to comply with deadlines for initial findings on petitions). (72) See infra notes 154 and 156. (73) See Michael E. Soule, Introduction to VIABLE POPULATIONS FOR CONSERVATION 5 (Michael E. Soule ed., 1987) ("[T]here ix no single value or 'magic number' that has universal validity." (emphasis in original)); Mark Shaffer, Minimum Population Sizes for Species Conservation, 31 BIOSCIENCE 131 (1981) ("Aside from [habitat conservation], the most pressing need facing conservationists is development of a predictive understanding of the relationship between a population's size and its chances of extinction."); R. EDWARD GRUMBINE, GHOST BEARS: EXPLORING THE BIODIVERSITY CRISIS 40 (1992) ("Science cannot tell us much about the likelihood of the [northern spotted owls'] survival without first being given tire answers to two questions: What degree of risk is socially acceptable? and How does society define long-term persistence? These questions will be answered differently by different people depending on their environmental values."); Daniel Rohlf, Six Biological Reasons Why the Endangered Species Act Doesn't Work--And What to Do About It, 5 CONSERVATION BIOLOGY 273, 276 (1991) ("Society in essence must choose the amount of 'insurance' it wishes to purchase against the risk of extinction."). Finally, Professor Holly Doremus provided the most comprehensive discussion of this issue in the context of the ESA, as well as observed that policy issues must play a similarly important role in determining what groups of organisms should be eligible for listing consideration. See Doremus, supra note 10, at 1148-52. Significantly, Professor Doremus notes that even NOAA Fisheries has acknowledged that listing decisions involve subjective determinations of what extinction risk "is too high to be acceptable to society." Id. at 1123 (quoting NOAA Fisheries's proposed rule to reclassify Steller sea lions (Eumetopias jubatus)). (74) See, e.g., GRUMBINE, supra note 73, at 34-36 (1992) ("Such numbers are not forthcoming."); Soule, supra note 73, at 3-7 (discussing the difficulties in determining viable populations). (75) Despite the weighty citations in note 73, supra, in the author's experience many people, both scientists and others, tend to react extremely skeptically to the assertion that defining "secure" populations requires a policy judgment, including consideration of costs. Hopefully, the following example, based on a passage in Dr. Michael Soule's work, will convince such skeptics. Dr. Soule notes that some people would say that the "optimum" viable populations of wolves should be their pre-human density and range. Soule, supra note 73, at 4. As a scientific matter, there is no doubt whatsoever that such wolf populations would be vastly more secure against extinction than the remnant populations of wolves today. Despite its biological advantages, Dr. Soule rejects this definition of "healthy" wolf populations as ridiculous because it would require restoring wolves to parts of their former range now occupied by cities such as Chicago and Moscow. Id. However, if economics or other policy-based judgments were irrelevant to the definition of "secure" wolf populations, why should anyone scoff at the scientifically sensible notion of getting rid of a few big cities to improve wolves' likelihood of survival? Once one admits that the continued existence of major cities must of course play a role in determining the extent of habitat required to support what society will define as a "secure" population of a particular species, one is irretrievably on the slippery slope; asking whether a certain level of timber harvest or other human activity is compatible with a "secure" population of a certain species is simply a matter of degree different from asking whether to obliterate major cities in the name of species conservation. While it may be easy or obvious to make the policy call not to move Chicago, the decision whether spotted owls are "threatened," which will affect whether logging continues in some of the birds' remaining habitat, necessarily also involves a policy choice--albeit a less obvious one--as to the social value of owls (and old growth forests) versus timber harvest and its associated social and economic benefits. (76) H.R. CONF. REP. No. 97-835, at 19, 21 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2862 (noting that the "principal purpose of these amendments is to ensure that decisions in every phase of the process pertaining to the listing or delisting of a species are based solely upon biological criteria and to prevent nonbiological considerations from affecting such decisions"). On the other hand, Congress arguably put leas priority on protecting plants and invertebrates by amending the ESA's definition of species to allow listing of distinct population segments of only vertebrate species. 16 U.S.C. [section] 1532(16) (2000). (77) Some species have impacts on their communities or ecosystems that are disproportionately large compared to the abundance, or lack thereof, of the species itself. For example, due to their important role as pollinators, bats are keystone species in some ecosystems; without bats, key plant species would be unable to reproduce, producing a chain-reaction of negative effects throughout the ecosystem. For additional discussion of keystone species, see Norman Myers, Global Biodiversity II: Losses, in PRINCIPLES OF CONSERVATION BIOLOGY 129-30 (Gary K. Meffe & C. Ronald Carroll eds., 1997). (78) There are a number of policy reasons that Congress may have consistently preferred to rank species only by degree of threat, even if some species play more important ecological roles than others. In addition to ecological importance, the ESA recounts that lawmakers consider species important for their esthetic, educational, historical, recreational, and scientific value to "the Nation and its people." 16 U.S.C. [section] 1531(a)(3) (2000). Bald eagles (Haliaeetus leueocephalus), for example, play a modest role in most ecosystems, but are of clear esthetic and historical value to many Americans. Additionally, the ESA's legislative history demonstrates lawmakers' interest in conserving genetic resources for potential future use by humans. See Rohlf, supra note 26, at 626-30 (discussing the policy considerations of species diversity). On the other hand, Congress's refusal to consider whether some species ought to receive priority over others in the competition for scarce listing dollars might be the biological equivalent of being penny wise and pound foolish. Placing priority on so-called keystone species would help insure the continued existence of the suite of other life dependant on the keystone species. Additionally, protecting so-called umbrella species, i.e., those species whose habitat also supports a wide variety of additional creatures, would also help conserve substantial biological diversity with relatively few listing expenditures. Professor Oliver Houck, for example, noted that ESA protection for certain wide-ranging species led to ecosystem planning exercises that resulted in broad benefits for biodiversity conservation efforts. Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869, 954-60 (1997). (79) In addition to being logical, this policy stems from the statute itself. The ESA provides that its purpose is to provide a program for conserving threatened and endangered species; the definition of conservation means everything necessary to get species to the point at which they no longer need the Act's protections. 16 U.S.C. [subsection] 1531(b), 1532(3) (2000). Therefore, the point at which a species no longer needs ESA protection must be simply the reverse of the point at which the species needed protection in the first place. (80) Id. [section] 1533(f)(1)(B)(ii). (81) Andrea Easter-Pilcher, Implementing the Endangered Species Act, 46 BIOSCIENCE 355, 358-59 (1996). (82) See Doremus, supra note 10, at 1122-29. (83) For example, NOAA Fisheries decided to list as endangered only those steelhead (Oncorhyncus mykiss) stocks that had experienced 80-90% population declines over 30 years (Endangered and Threatened Species: Proposed Endangered Status for Five ESUs of Steelhead and Proposed Threatened Status for Five ESUs of Steelhead in Washington, Oregon, Idaho, and California, 61 Fed. Reg. 41,541, 41,553 (Aug. 9, 1996). (84) See T.H. Tear et al., Status and Prospects for Success of the Endangered Species Act." A Look at Recovery Plans, 262 SCIENCE 976 (1993) (analysis of recovery goals for species from original recovery plans that were stated in numerical terms). (85) The Services have virtually never taken either of these steps. As Easter-Pilcher found--and as reading virtually any listing decision win confirm--FWS and NOAA Fisheries virtually never make explicit the standard of security they are supposedly applying in deciding whether to list a species as threatened or endangered. Easter-Pilcher, supra note 81, at 355. Moreover, there are virtually no instances in which an agency refers to a previous listing decision as establishing some sort of consistent security standard applicable to other listing decisions. It is thus hardly surprising that listings decisions are essentially ad hoc. (86) Borrowing a term coined by Professor Wendy Wagner, Professor Doremus described as a "science charade" FWS's and NOAA Fisheries's pretense of making listing decisions solely on scientific grounds--as required by Congress--when in fact the choice of an acceptable level of risk to species necessarily requires policy judgments. Doremus, supra note 10, at 1034 (citing Wendy Wagner, The Science Charade in Toxic Risk Regulation, 95 COLUM. L. REV. 1613 (1995)). (87) One difficult question arises immediately upon recognizing that Congress has directed the Secretaries to make listing decisions "solely" on scientific grounds when in fact this is impossible: What happens now? Though this author will address this issue in a forthcoming article, one could make a case that directing an agency to make a decision, but then expressly preventing the agency from considering factors necessary to make the decision, violates the Nondelegation Doctrine. (88) As scientists have noted, specifying a standard of species security requires choice of both risk and probability (how certain does society wish to be that a species will continue to exist?) and time (what is the time frame we are concerned with?). See, e.g., Mark Shaffer, supra note 73, at 132 (1981) (discussing methods of establishing minimum viable population levels). Obviously, the higher degree of certainty and the longer the time frame one chooses, the greater number of individuals and habitat society must protect. FWS and NOAA Fisheries have at times suggested that establishing a broadly applicable standard of species security should not be expected because of biological differences between species. See Doremus, supra note 10, at 1124. This assertion is not credible. Toxic chemicals have unique properties and mechanisms for harming humans, but the Environmental Protection Agency (EPA) has at least attempted to develop consistent standards through risk assessment procedures. Notice of Availability: The Office of Solid Waste (OSW) is Announcing the Availability of a New Draft Guidance Document Entitled Human Health Risk Assessment Protocol for Hazardous Waste Combustion Facilities, 63 Fed. Reg. 58,381, 58,381 (Oct. 30, 1998); Notice of Availability: Announcing the Availability of a New Draft Guidance Document Entitled Screening Level Ecological Risk Assessment Protocol for Hazardous Waste Combustion Facilities, 65 Fed. Reg. 7012, 7012 (Feb. 11, 2000). FWS and NOAA Fisheries could work to develop a standardized method for estimating species security or vulnerability to extinction, then use this tool to make more consistent listing decisions. For example, the agencies could develop a biological risk index applicable to all species that considers factors such as population size, habitat availability, population connectivity, genetic security, and the immediacy and magnitude of identified threats, and express that risk on a scale of, say, one to ten, with ten being the most secure and one representing population nearly extinct. In essence, such a scale would be a sort of risk assessment procedure for estimating species security. Then, much as EPA chooses a level of "acceptable" risk to humans in establishing exposure limits for chemicals, FWS and NOAA Fisheries could list as threatened and endangered those species that fall below a chosen number on the biological risk index. Of course, choosing the specific numbers to mark these thresholds would, unlike designing and applying the index itself, require policy decisions. (89) While conservative commentators, scattered politicians, and so called "free market environmentalists" have usually taken the lead in caning for consideration of economics and social factors in making listing decisions, to say that such factors must indeed be considered when delineating listing thresholds is not to be anti-conservation or assert that conserving biodiversity is not important; describing all of the factors one must consider in a decision says nothing about how to make the decision itself. Once Congress establishes--or specifies a process for how the agencies should establish--thresholds for listing, it would make sense for lawmakers to continue to ban politics or nonscientific decisions from actual listing decisions because the policy choices would have already been made in delineating the listing thresholds. (90) Professor Doremus provides some ideas for addressing these issues, including suggestions for legislative change and processes to allow more open discussion of--and public participation in--policy choices inherent in setting listing thresholds. See Doremus, supra note 10, at 1141-52. (91) It is presently not even clear to whom this recovery plan implementation mandate applies. The statute specifies that the "Secretary" develop and implement recovery plans, and in turn defines this term as the Secretaries of Interior and Commerce, depending on the species at issue. (16) U.S.C. [sebsection] 1532(15), 1533(f)(1) (2000). Accordingly, agencies not within the Departments of Interior or Commerce clearly have no duty under section 4(f) to implement recovery plans. It is less apparent, however, whether an agency within one of the departments other than FWS or NOAA Fisheries bas such an implementation duty. It is not even clear whether divisions of FWS or NOAA Fisheries that are not directly concerned with the ESA must implement recovery plans. For example, FWS manages national wildlife refuges, but it is questionable whether all refuge managers have a duty under section 4(f) to implement recovery plans. In one case involving the National Park Service, an agency within the Interior Department, a federal district court held that the Park Service had discretion to choose how to carry out recovery actions for grizzly bears, even if that meant the agency ignored a very specific recovery plan provision calling for closure of a campground notorious for human-bear conflicts. Nat'l Wildlife Fed'n v. Nat'l Park Serv., 669 F. Supp. 384, 388 (D. Wyo. 1987). (92) Determinations of whether an action jeopardizes the continued existence of a listed species in violation of section 7(a)(2), 16 U.S.C. [section] 1536(a)(2) (2000), focus on impacts to species' bare "survival"; there are indications that impacts on recovery formerly played a role in the so-called jeopardy standard, but administrative actions beginning In the early 1980s specifically sought to eliminate recovery as a relevant criterion. See Daniel Rohlf, Jeopardy Under the Endangered Species Act." Playing a Game Protected Species Can't Win, 41 WASHBURN L.J. 114, 131 (2001) ("[A]n action that merely threatens recovery but does hot threaten the survival of the entire listed species or population does hot warrant a jeopardy opinion."). (93) It might be possible for an agency to always allocate its resources in a manner that left nothing for species recovery measures; however, a citizen suit could challenge such a pattern as inconsistent with an agency's duty to act :to the maximum extent possible." Otherwise, allocating resources to recovery efforts is a problem with which Congress must always wrestle; section 4(f)'s present requirement that recovery plans provide an estimate of the time and money required to carry out recovery measures gives lawmakers an indication of the resources full recovery plan implementation requires, and thus at least allows them to understand how much (or how little) conservation a given level of funding will purchase. (94) See 16 U.S.C. [section] 1536(a)(1) (2000) ("Federal agencies shall ... utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species...."). (95) See Sierra Club v. Glickman, 156 F.3d 606, 616-18 (5th Cir. 1998) (discussing the United States Department of Agriculture's failure to affirmatively conserve species at issue as required by section 7(a)(1), or to develop programs for conservation of listed species). (96) See ROHLF, supra note 4, at 98-99 ("[R]ecovery plans are the only other easily identifiable potential triggers for application of section 7(a)(1)."); Ruhl, supra note 52, at 1151-52 ("The most aggressive approach FWS and NMFS could take under section 7(a)(1) would ... require an federal agencies to maximize their use of programmatic and project-specific authorities to implement recovery plans."). (97) 16 U.S.C. [section] 1536(a)(2) (2000). (98) FISH & WILDLIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR, POLICY AND GUIDELINES FOR PLANNING AND COORDINATING RECOVERY OF ENDANGERED AND THREATENED SPECIES app. I at 1-14 (1990) (on file with author). (99) See Res. Ltd. v. Robertson, 35 F.3d 1300, 1304 n.3 (9th. Cir. 1994) (rejecting the Forest Service's view that application of guidelines governing management of grizzly habitat was optional, noting that "[a]ccording to the Grizzly Bear Recovery Plan, application of these Guidelines to the Northern Continental Divide Ecosystem is necessary 'to prevent extinction' of the species'); see also Cheever, supra note 50, at 47-48 (explaining that although the Forest Service argued it did not have to adhere to the grizzly guidelines because they provided for recovery, the Ninth Circuit used language from the Grizzly Bear Recovery Plan to show that FWS had imposed the guidelines to prevent extinction). (100) See Cheever, supra note 50, at 73-77 ("Recognizing the role of recovery in shaping agency and judicial views of the Act's enforcement mechanisms would legitimate this process and, incidently, demonstrate the importance of high quality recovery planning."). (101) Id. at 56-58; 71-72. (102) NAT'L MARINE FISHERIES SERVICE, BIOLOGICAL OPINION: REINITIATION OF CONSULTATION ON 1994-1998 OPERATION OF THE FEDERAL COLUMBIA POWER SYSTEM AND JUVENILE TRANSPORTATION PROGRAM IN 1995 AND FUTURE YEARS (1995), available at http://www.nwr.noaa.gov/1publcat/bo/1995/hydro-bo.htm. (103) See Rohlf, supra note 92, at 135-36 (discussing NOAA Fisheries's position and the importance of recovery, and ultimately delisting). (104) See infra Section III.6 for a discussion of section 4(d) rules. (105) See Clark et al., supra note 64 (analyzing the Society for Conservation Biology's recent review of a large sample of ESA recovery plans); Richard L. Wallace et al., An Interdisciplinary Approach to Endangered Species Recovery: Concepts, Applications, Cases, 19 ENDANGERED SPECIES UPDATE 68 (2002) 0tighlighting new developments in endangered species conservation that integrate research, policy, and management). (106) Derek O. Teaney, Comment, The Insignificant Killer Whale: A Case Study of Inherent Flaws in the Wildlife Services' Distinct Population Segment Policy and a Proposed Solution, 34 ENVTL. L. 647, 651, 655-56 (2004). (107) CENTER FOR BIOLOGICAL DIVERSITY ET AL., PETITION TO LIST THE SOUTHERN RESIDENT KILLER WHALE (ORCINUS ORCA) AS AN ENDANGERED SPECIES UNDER THE ENDANGERED SPECIES ACT 16 (2001), available at http://www.sw-center.org/swcbd/species/orea/Petition.pdf.; Teaney, supra note 106, at 664. (108) Endangered and Threatened Wildlife and Plants: 12-Month Finding for a Petition to List Southern Resident Killer Whales as Threatened or Endangered Under the Endangered Species Act (ESA), 67 Fed. Reg. 44, 133, 44, 136 (July 1, 2002). (109) Nat'l Ass'n of Home Builders v. Norton, 340 F.3d 835, 852 (9th Cir. 2003). (110) Id. at 845-51. (111) When it amended the ESA in 1979, Congress rejected the General Accounting Office's suggestion of eliminating the Secretaries' authority to list populations. However, in a committee report accompanying the 1979 amendments, lawmakers cautioned the agencies to use this authority "sparingly," using a hypothetical listing of squirrels in a city park as an example of taking the authority to list populations too far. S. REP. No. 96-151, at 6-7 (1979). (112) Endangered and Threatened Wildlife and Plants, Determination of Threatened Status for the Contiguous U.S. Distinct Population Segment of the Canada Lynx, 65 Fed. Reg. 16,052, 16,052-54 (Mar. 24, 2000). (113) Id. at 16,065. (114) Id. at 16,061. (115) Id. (116) Defenders of Wildlife v. Norton, 239 F. Supp. 2d 9, 19 (D.C. Cit. 2002) (emphasis in original). (117) Endangered and Threatened Wildlife and Plants, Removing the Western Distinct Population Segment of Gray Wolf from the List of Endangered and Threatened Wildlife, 68 Fed. Reg. 15,879, 15,879-82 (Apr. 1, 2003). (118) See, e.g., Endangered and Threatened Wildlife And Plants; Endangered Status for 159 Taxa of Animals, 41 Fed. Reg. 24,062, 24,066 (June 14, 1976). (119) Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical Habitat in Michigan and Minnesota, 43 Fed. Reg. 9607, 9611 (Mar. 9, 1978). (120) Endangered and Threatened Wildlife and Plants, Establishment of a Nonessential Experimental Population of Gray Wolves in Yellowstone National Park in Wyoming, Idaho and Montana, 59 Fed. Reg. 60,252, 60,252 (Nov. 22, 1994); Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of the Mexican Gray Wolf in Arizona and New Mexico, 63 Fed. Reg. 1752, 1752 (Jan. 12, 1998). (121) Endangered and Threatened Wildlife and Plants, Final Rule to Reclassify and Remove the Gray Wolf From the List of Endangered and Threatened Wildlife in Portions of the Conterminous United States, Establishment of Two Special Regulations for Threatened Gray Wolves, 68 Fed. Reg. 15,803, 15,808 (Apr. 1, 2003). (122) See Endangered and Threatened Wildlife and Plants, Removing the Eastern Distinct Population Segment of Gray Wolf from the List of Endangered and Threatened Wildlife, 68 Fed. Reg. 15,876, 15,976-79 (Apr. 1, 2003) (proclaiming that "the wolfs progress toward recovery in the Eastern Gray Wolf DPS, together with our determination that management of threats to the wolf within the DPS will be adequate, enable us to propose delisting in the near future"). The population goal for the Eastern DPS was 1250-1400 wolves in Minnesota and 100 wolves for five successive years in the more easterly states. Id. at 15,887. See also Endangered and Threatened Wildlife and Plants, Removing the Western Distinct Population Segment of Gray Wolf from the List of Endangered and Threatened Wildlife, 68 Fed. Reg. 15,879, 15,881 (Apr. 1, 2003) (announcing that "the wolfs progress toward recovery in the Western Gray Wolf DPS, together with our expectation that management of threats to the wolf within the DPS will be adequate, lead us to believe that we will be able to propose delisting of the Western DPS in the near future"). The Western DPS population goal was "thirty breeding pairs of wolves [defined as an adult male and an adult female that raise at least two pups until December 31 of the year of their birth], comprising some 300 or more individuals in a metapopulation with some genetic exchange between subpopulations, for three successive years." Id. at 15,880-81. (123) Doremus, supra note 10, at 1134-41; Teaney, supra note 106, at 690-702. (124) It is also arguable that FWS has backed itself into a corner on the issue of protecting populations by assuming that the only way it can list a grouping of organisms below the subspecies level is by finding that it is a DPS. The ESA's definitions of "endangered species" and "threatened species" define these terms as a species facing extinction "throughout all or a significant portion of its range." 16 U.S.C. [section] 1532 (2000). This could arguably be construed to allow the Services to list a species only in the portion of its range in which it faces significant threats, thus resulting in listings of only populations rather than full species or subspecies. The Ninth Circuit's decision in Defenders of Wildlife v. Norton, 258 F.3d 1136, 1146 (9th Cir. 2001), in which the court overturned FWS's denial of a listing petition after determining that the agency did not consider the status of the flat-tailed horned lizard (Phrynosoma mcallii) in a significant portion of its range, suggests that the Services have authority to promulgate such listings. See Marbled Murrelet v. Lujan, No. C91-522R, 1992 U.S. Dist. LEXIS 14645, at *3 (W.D. Wash. Sept. 15, 1992) (concluding FWS did not need more rime to determine whether the U.S. population of the murrelet was a DPS, because FWS had already determined that the birds' range in the Northwest constituted a "significant portion" of the species' range); Endangered and Threatened Wildlife and Plants; Proposed Threatened Status for the Marbled Murrelet in Washington, Oregon and California, 56 Fed. Reg. 28,362, 28,366 (June 20, 1991)); Rohlf, supra note 26, at 657-58. (125) Endangered and Threatened Wildlife and Plants; Proposed Policy and Proposed Rule on the Treatment of Intercrosses and Intercross Progeny (the Issue of "Hybridization"); Request for Public Comment, 61 Fed. Reg. 4710, 4710 (Feb. 7, 1996). (126) Id. (127) Id. at 4711. (128) Endangered and Threatened Wildlife and Plants: 12-Month Finding for an Amended Petition to List the Westslope Cutthroat Trout as Threatened Throughout Its Range, 65 Fed. Reg. 20,120, 20,120 (Apr. 14, 2000). (129) See Am. Wildlands v. Norton, 193 F. Supp. 2d 244, 253 (D.D.C. 2002) (citing U.S. FISH & WILDLIFE SERVICE, U.S. DEP'T OF INTERIOR, STATUS REVIEW FOR WESTSLOPE CUTTHROAT TROUT IN THE UNITED STATES 20, 158 (1999), available at http://www.r6.fws.gov/endspp/fish/wct/cutthroat1.pdf). (130) Endangered and Threatened Wildlife and Plants: 12-Month Finding for an Amended Petition to List the Westslope Cutthroat Trout as Threatened Throughout Its Range, 65 Fed. Reg. 20,120, 20,122 (Apr. 14, 2000). (131) See Am. Wildlands, 193 F. Supp. 2d at 256 ("Without a scientifically based explanation of the decision, the Court cannot but find that the decision to include hybrid stock in the [westslope cutthroat trout] population considered for listing was not supported by the best available science."). (132) Endangered and Threatened Wildlife and Plants: Reconsidered Finding for an Amended Petition to List the Westslope Cutthroat Trout as Threatened Throughout Its Range, 68 Fed. Reg. 46,989, 46,991 (Aug. 7, 2003). (133) Id. at 46,993 (134) Id. at 46,994. The FWS noted that the "Act is to be inclusionary, not exclusionary. Consequently, any natural population conforming to the scientific taxonomic description of WCT, as conditioned by the criteria state previously, will be considered WCT tender the Act." Id. at 46,995. (135) Id. at 46,994. (136) Id. at 47,006. (137) Id. at 46,993. (138) Id. at 46,994. (139) Id. at 46,997. (140) For example, it is far from clear that the ESA counsels against drawing a distinction between natural and human-caused hybridization. FWS cites in favor of this proposition section 4(a)(1)'s reference to "other natural or manmade factors" affecting a species' continued existence. Id. at 46,995. However, one could also persuasively argue that Congress intended that the ESA combat primarily human-caused threats to wildlife; the statute's first finding generally recounts the extinction of species as a result of human actions. 16 U.S.C. 1531(a)(1) (2000); see generally Holly Doremus, Restoring Endangered Species: The Importance 01"Being Wild, 23 HARV. ENVTL. L. REV. 1 (1999). This would counsel in favor of distinguishing between naturally hybridized species and hybridization resulting from human actions. Additionally, FWS's method of looking to the original basis for taxonomic classifications for determining how much hybridization is too much arguably makes little sense. Since physical characteristics are the easiest to observe, most existing taxonomic classifications are based on morphology. However, to simply presume, as did FWS, that a fish's spot patterns indicate that they had similar behavioral, ecological, and life-history patterns as native fishes is too great a leap. (141) For a concise summary of how NOAA Fisheries delineated distinct population segments of Pacific salmonids, see Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154, 1161-62 (D. Or. 2001), appeal dismissed, Alsea Valley Alliance v. Dep't of Commerce, 358 F.3d 1181 (9th Cir. 2004). (142) Id. at 1158-59. (143) Id. at 1163-64; see also Alsea Valley Alliance v. Dep't of Commerce, 358 F.3d 1181, 1182 (9th Cir. 2004) (court concluded that it lacked jurisdiction to hear environmental groups' appeal of district court ruling). (144) Se NAT'L MARINE FISHERIES SERVICE, ENDANGERED AND THREATENED SPECIES: PROPOSED POLICY ON THE CONSIDERATION OF HATCHERY PRODUCTION IN ENDANGERED SPECIES ACT LISTING DETERMINATIONS FOR PACIFIC SALMON AND STEELHEAD (2002), available at http://www.nwr.noaa.gov/HatcheryListingPolicy/DraftPolicy.pdf. As of the time of this writing, NOAA Fisheries has not published a final policy. (145) Id. at 6. (146) Id at 14-15. (147) 16 U.S.C. [section] 1531(b) (2000). (148) See Julie B. Bloch, Preserving Biological Diversity in the United States: The Case for Moving to an Ecosystems Approach to Protect the Nation's Biological Wealth, 10 PACE ENVTL. L. REV. 175, 217-22 (1992) (discussing an Ecosystem Protection Act model as a method to protect biodiversity in the United States); see also Holly Doremus, Patching the Ark: Improving Legal Protection of Biological Diversity, 18 ECOLOGY L.Q., 265, 318-24 (1991) (discussing alternatives to the current ESA policy such as directly protecting ecosystems, expanding the public trust to include biological diversity, and including a consideration of biological diversity under the National Environmental Policy Act); J.B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Time for Something Completely Different?, 66 U. COL. L. REV. 555, 650-52 (1995) (predicting Bloch's ecosystem Protection Act would fail). (149) See supra note 33 and accompanying text. (150) 16 U.S.C. [section] 1533(a)(1)(D) (2000). (151) Id. [section] 1533(b)(1)(A). (152) The lack of real-world impact stems in part from the fact that the ESA does not fully define what constitutes a "take," as well as from strong lobbying from property rights advocates. See Douglas T. Cohen, Taking Words for Granted: Why Congress Should Expressly Define Terms Within De ESA's Takings Provision, 3 Mo. ENVTL. L. & POL'Y REV. 200, 213-15 (1996) (describing efforts by the property rights movement to use the ambiguity in section 9 to bolster the argument that limits on land use required by the listing of a species constitute a Fifth Amendment taking of private property for public use); see also Paul Boudreaux, Understanding "Take "in the Endangered Species Act 34 ARIZ. ST. L.J. 733, 744-47 (2002) (arguing that section 9 is ineffective due to lack of clarity and uncertainty of the meaning of the word "take'). Perhaps most importantly, however, under both Democratic and Republican administrations the federal government has been decidedly unenthusiastic about prosecuting almost anyone for violations of section 9, save individuals who deliberately kill listed species. See GENERAL ACCOUNTING OFFICE, GAO/RCED-95-16, ENDANGERED SPECIES ACT: INFORMATION ON SPECIES PROTECTION ON NONFEDERAL LANDS 13 tbl.2 (1994) (noting that between 1988 and 1993, the federal government only obtained seven convictions for violations of section 9 related to habitat modification). (153) Endangered and Threatened Wildlife and Plants; Notice of Reclassification of Nine Candidate Taxa, 65 Fed. Reg. 63,044, 63,045 (Oct. 20, 2000) (removing McCloud River redband trout (Oncorhynchus mykiss) from candidate species status based on a 1996 conservation agreement among federal agencies); Endangered and Threatened Wildlife and Plants; Withdrawal of Proposed Rule to List the Flat-tailed Horned Lizard as Threatened, 62 Fed. Reg. 37,852, 37,860 (July 15, 1997) (withdrawing proposal to list the lizard as threatened based in part on a conservation agreement). (154) See Or. Nat. Res. Council v. Daley (ONRC), 6 F. Supp. 2d 1139, 1154 (D. Or. 1998) (concluding that "the Secretary may not rely on plans for future actions to reduce threats and protect a species as a basis for finding that listing is not currently warranted"); Save Our Springs v. Babbitt, 27 F. Supp. 2d 739, 748 (W.D. Tex. 1997) (rejecting reliance on state conservation agreement that had arisen after the public comment period closed for the proposed listing of the Barton Springs salamander (Eurycea sosorum)); Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 254 F. Supp. 2d 1196, 1213 (D. Or. 2003) (holding 2000 Biological Opinion invalid because of reliance on uncertain future conditions). (155) See, e.g., Friends of the Wild Swan, Inc. v. United States Fish & Wildlife Serv., 945 F. Supp. 1388, 1398 (D. Or. 1996) (holding that FWS's reliance on newly promulgated legislation, in deternfining whether to list the bull trout, was arbitrary and capricious). (156) See ONRC, 6 F. Supp. 2d at 1159 (determining that NOAA Fisheries's coho salmon (Oncorhyncus kisutch) listing policy was arbitrary and capricious because it relied on "future, voluntary and untested habitat measures premised upon an admittedly inadequate [Oregon Coastal Salmon Restoration Initiative] and a [Memorandum of Understanding] that can be terminated with 30 days notice"). (157) Policy for Evaluation of Conservation Efforts When Making Listing Decisions, 68 Fed. Reg. 15,100, 15,110 (Mar. 28, 2003) [hereinafter PECE] ("We will monitor the status of the effort, including the progress of implementation of the formalized conservation effort."). (158) Id. at 15,101. (159) Id. at 15,110. (160) Id. at 15,107-08. Specifically, the Services assert that "[t]he definitions for both 'endangered species' and 'threatened species' connote future condition." Id. at 15,107. They also point to the first factor in section 4(a)(1), directing the Secretaries to consider "the present or threatened destruction, modification, or curtailment of [the species'] habitat or range" as support for looking into the future to assess both threats and benefits to a species. Id. Building on this language, FWS and NOAA Fisheries contend that in making listing decisions "Congress did not intend for us to consider future actions affecting a species's habitat or range, yet ignore future actions that will influence overutilization, disease, predation, regulatory mechanisms, or other natural or manmade factors." Id. However, the agencies cite no specific support for the latter. (161) In addition, if Congress in section 4 did in fact intend to require the Services to look into the future In implementing the listing process, the agencies should also carry out this directive by moving to delist species now classified as threatened or endangered, but which in the agencies' judgment are likely to benefit from ongoing recovery efforts and attain their recovery goals in the future. Perhaps sensing that such a reading of section 4 had little chance of legal success, the Services declined to apply PECE to downlisting or delisting, though they did note that they would consider such an approach in the future. Id. at 15,101. The agencies' reluctance to carry their interpretation of section 4 to its logical extent suggests that their argument as to the section's focus on the future proves too much. (162) PECE, supra note 157, at 15,110 (promising to "monitor the status of the effort, including the progress of implementation of the formalized conservation effort"). (163) See infra Section III.8. (164) See infra notes 188-89 and accompanying text. (165) Candidate Conservation Agreements with Assurances are agreements between landowners and FWS or NOAA Fisheries that provide benefits for species under consideration for listing in exchange for assurances from the Services that ff the species does in fact become listed in the future, the landowner win not have obligations under the ESA to take actions beyond those specified in the agreement. Announcement of Final Policy for Candidate Conservation Agreements with Assurances, 64 Fed. Reg. 32,726, 32,734-35 (June 17, 1999) (codified at 50 C.F.R. 17.32 (2004)). Unlike less formal conservation strategies contemplated by PECE, CCAAs require forma] approval by one or both of the Services and are thus subject to public notice requirements. Id. at 32,729. (166) In fact, FWS's existing scheme that the agency applies to determine which species deserve priority for scarce listing resources clearly allows the agency to consider a species' future prospects; the priority system's first two factors are magnitude of threat and immediacy of threat, both of which may well be influenced by cooperative conservation strategies. Endangered and Threatened Species Listing and Priority Recovery Guidelines, 48 Fed. Reg. 43,098, 43,103 (Sept. 21, 1983). (167) 16U.S.C. [section] 1533(b)(3)(C)(iii)(2000). (168) Section 4's directive that the Secretary monitor candidate species and use the ESA's emergency listing authority to prevent a significant risk to such a species' well being applies only to species subject to a listing petition that FWS or NOAA Fisheries have determined is "warranted but precluded." Id. However, there are many other species for which the agencies, acting on their own initiative, have round to warrant listing, but are not of high enough priority to receive funds for an actual listing. See Endangered and Threatened Wildlife and Plants; Review of Species That Are Candidates or Proposed for Listing as Endangered or Threatened; Annual Notice of Findings on Recycled Petitions; Annual Description of Progress on Listing Actions, 67 Fed. Reg. 40,657, 40,657 (June 13, 2002) (presenting updated list of new "warranted but precluded" species). These species are also considered "candidates" for listing but are not subject to any statutory monitoring requirements. It makes sense both biologically and as a matter of policy to change section 4 so that the agencies must monitor all candidate species and use their emergency listing power for those facing a significant threat. (169) Press Release, United States Dep't of Interior, Endangered Species Act "Broken"--Flood of Litigation Over Critical Habitat Designation Hinders Species Conservation (May 28, 2003), available at http://endangered.fws.gov/criticalhabitat/Ch_pressrelease.pdf. (170) See Leiban, supra note 34, at 1333-34. (171) For a detailed discussion and criticism of the Listing Priority Guidelines adopted by FWS in response to listing backlog created by the moratorium, see id. at 1333-41. (172) In addition to many suits to force FWS to make findings on individual petitions to list a particular species, which the agency often settled by a stipulated schedule, environmental plaintiffs convinced the Ninth Circuit to halt FWS's practice of avoiding section 4's 12-month deadline for resolving listing petitions by delaying the required initial finding on petitions. Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1171 (9th Cit. 2002). Another Ninth Circuit decision signaled the beginning of the end for routine findings by FWS that designations of critical habitat are not "prudent." Natural Res. Def. Council v. United States Dep't of Interior, 113 F.3d 1121, 1127 (9th Cir. 1997) (rejecting state's "no benefit" argument). (173) In 2003, FWS provided a tally of these critical habitat suits, as well as the agency's progress on issuing the court-ordered designations. U.S. FISH & WILDLIFE SERVICE, STATUS OF COURT-ORDERED CRITICAL HABITAT ACTIONS (2003), available at http://endangered.fws.gov/criticalhabitat/ch-actions.pdf. (174) The Fifth Circuit soundly rejected FWS's argument that critical habitat designation does not give species additional protections, citing statutory language In concluding that critical habitat provides protection for listed species' recovery, and declaring invalid (in an as-applied--rather than facial---challenge) FWS's regulation defining "destruction or adverse modification" of critical habitat. Sierra Club v. United States Fish & Wildlife Serv., 245 F.3d. 434, 441-42 (5th Cir. 2001). Other courts are in line with this holding. See N.M. Cattle Growers Ass'n v. United States Fish & Wildlife Serv., 248 F.3d 1277, 1283 (10th Cit. 2001) (requiring the agency, contrary to FWS's previous interpretation, to consider economic impacts as part of "adverse modification"); see also Natural Res. Def. Council, Inc. v. Evans, 279 F. Supp. 2d 1129, 1179 (N.D. Cal. 2003) (finding NOAA Fisheries illegally used regulatory definition of "adverse modification" rejected by the Fifth Circuit when it terminated consultation regarding critical habitats of sea turtles); Natural Res. Def. Council, Inc. v. United States Dep't of Interior, 275 F. Supp. 2d 1136, 1148 (C.D. Cal. 2001) (finding critical habitat designations for Coastal California gnatcatcher and fairy shrimp (Branchinecta sandiegonensis) Invalid because FWS's baseline approach to economic impact analysis under section 4Co)(2) was invalid). In the early 1990s, after losing a lawsuit involving FWS's failure to designate critical habitat for northern spotted owls (Strix occidentalis caurina), FWS issued a draft policy to all of the agency's regional directors asserting that critical habitat gives listed species additional protections for their recovery--citing a legal opinion by the Interior Solicitor's Office. United States Fish & Wildlife Serv., Draft Guidance on Designating Critical Habitat for Endangered and Threatened Species (June 26, 1992) (on file with author); Rohlf, supra note 92, at 119 n.14. FWS implemented this draft policy in a few rules; for example, the final rule designating critical habitat for northern spotted owls provided as follows:
Survival and recovery, mentioned in both the definition of adverse
modification and jeopardy, are directly related. Survival may be
viewed as a linear continuum between recovery and extinction of the
species. The closer one is to recovery, the greater the certainty
in the species continued survival.
The Act's definition of critical habitat Indicates that the
purpose of critical habitat is to contribute to a species'
conservation, which by definition equates to recovery. Section 7
prohibitions against the destruction or adverse modification of
critical habitat apply to actions that would impair survival and
recovery of the listed species, thus providing a regulatory means
of ensuring that Federal actions within critical habitat are
considered in relation to the goals and recommendations of a
recovery plan. As a result of the link between critical habitat and
recovery, the prohibition against destruction or adverse
modification of the critical habitat should provide for the
protection of the critical habitat's ability to contribute fully to
a species' recovery. Thus, the adverse modification standard may be
reached closer to the recovery end of the survival continuum,
whereas, the jeopardy standard traditionally has been applied nearer
to the extinction end of the continuum.
Endangered and Threatened Wildlife and Plants; Determination of Critical Habitat for the Northern Spotted Owl, 57 Fed. Reg. 1796, 1822 (Jan. 15, 1992). However, FWS soon reverted back to its practice of arguing that critical habitat provides no benefits to listed species. See, e.g., Endangered and Threatened Wildlife and Plants; Determination of Whether Designation of Critical Habitat for the Coastal California Gnatcatcher Is Prudent, 64 Fed. Reg. 5957, 5958 (Feb. 8, 1999) (finding designation not prudent where there was no "federal nexus'). (175) See Endangered and Threatened Wildlife and Plants; Notice of Intent to Clarify the Role of Habitat in Endangered Species Conservation, 64 Fed. Reg. 31,871, 31,871 (1999) (declaring that "identification of the habitat needs of listed species and the conservation of such habitat is the key to [recovery]"). (176) The Center for Biological Diversity, principal plaintiff in many suits to force FWS to designate critical habitat, released a report claiming that species with designated critical habitat enjoy greater protections than those species without it. DR. MARTIN TAYLOR ET AL., CENTER FOR BIOLOGICAL DIVERSITY, CRITICAL HABITAT SIGNIFICANTLY ENHANCES ENDANGERED SPECIES RECOVERY: ANALYSIS OF THREE MOST RECENT U.S. FISH AND WILDLIFE SERVICE BIENNIAL REPORTS TO CONGRESS ON THE RECOVERY OF THREATENED AND ENDANGERED SPECIES (2003), available at http://www.biologicaldiversity.org/swcbd/programs/policy/ch/CHSEER9-2003.pdf. However, it is not clear that these greater protections, if they in fact exist, stem from legal--as opposed to practical--restrictions. See, e.g., infra note 169. (177) N.M. Cattle Growers Ass'n, 248 F.3d at 1280 (industry appellants arguing that the FWS's "baseline approach" to measuring the economic impact of flycatcher critical habitat designation violates the ESA); see also NATIONAL ASSOCIATION OF HOMEBUILDERS, DRAFT ECONOMIC ANALYSIS FOR CRITICAL HABITAT DESIGNATION UNDER THE ENDANGERED SPECIES ACT: A RECOMMENDED METHOD (2002), available at http://www.nahb.org/fileUpload_details.aspx?contentID=17405 (proposing a method for identifying economic impacts of critical habitat designation and for weighing costs against benefits of the designation). (178) It may very well be the case that critical habitat provides extra-legal benefits to listed species simply because federal agencies or even other entities are more likely to go to greater lengths to avoid impacts on an area labeled as critical to a particular species. It is also quite possible that FWS, when it engages in the section 7 consultation process for individual projects, is inclined to force action agencies to adopt more stringent limitations on their projects. In addition, other federal and state regulatory schemes accord areas designated as critical habitat greater protections. For example, land designated as critical habitat is considered unsuitable for surface mining of coal. 43 C.F.R. [section] 3461.5(0 (2004). Similarly, both Washington and Nevada prohibit expanding or siting municipal landfills in federally designated critical habitat. WASH. ADMIN. CODE [section] 173-304-130(2)(j) (2003); NEV. ADMIN. CODE ch. 444 [section] 679 (2003). Consequently, no matter what legal benefits critical habitat designation gives or does not give listed species, environmentalists are likely to continue to seek designation and landowners and industry groups are likely to continue to oppose it. (179) In the short run, even immediate adoption of such administrative options may be insufficient to allow FWS to meet all court-ordered timelines, much less to be able to meet statutory deadlines applicable to species going through the process, which are not subject to a court ordered schedule. At least for a time, therefore, the agencies may have little choice but to continue to seek additional time from judges, as well as attempt to reach new settlements with environmental plaintiffs. (180) A proposal for amending the ESA, sponsored by then-Senator Dirk Kempthorne (R-Idaho) and supported by the Clinton Administration, nearly passed through Congress in the late 1990s. It would have changed the timing of the critical habitat designation decision to allow the agency to delay final designation for thirty months after listing or until adoption of a recovery plan. S. 1180, 105th Cong. [section] 5(c), (n) (1997); S. REP. No. 105-128, at 13, 19 (1997); 143 Cong. Rec. S9411, 9414-17 (daily ed. May 22, 1997). (181) In the last two years, FWS has issued several critical habitat designations that include only land currently occupied by the listed species. See, e.g., Endangered and Threatened Wildlife and Plants; Final Rule Designating Critical Habitat for Preble's Meadow Jumping Mouse (Zapus hudsonius preblei), 68 Fed. Reg. 37,276, 37,284 (June 23, 2003) (to be codified at 50 C.F.R. pt.17) (designating critical habitat for Preble's meadow jumping mouse); Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon, 68 Fed. Reg. 46,684, 46,698 (Aug. 6, 2003) (to be codified at 50 C.ER. pt.17) (designating critical habitat for fifteen vernal pool species). FWS cited habitat destruction in listing several of these species; logic would therefore seem to dictate that more than their currently occupied habitat is "essential to the conservation" (i.e., recovery) of such species. See 16 U.S.C. [section] 1532(5)(A)(i)(I) (2000) (defining critical habitat to include areas "essential to the conservation of the species"). (182) In 1998, FWS strongly supported the idea of coordinating critical habitat designation with recovery planning, and other advocacy groups on both sides of ESA issues endorsed the concept as well. See U.S. FISH & WILDLIFE SERV., TESTIMONY OF JAMIE RAPPAPORT CLARK, DIRECTOR, FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, BEFORE THE SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, SUBCOMMITTEE ON FISHERIES, WILDLIFE, AND DRINKING WATER, ON S. 1100 (May 27, 1999), available at http://laws.fws.gov/TESTIMON/1999test/esamay27.html. In its most recent statements, FWS supported moving critical habitat to "a point at which there is better science on the needs of the species than is generally available at the time of listing," but preferred that the designation requirement be "without the strict deadlines." See, CRITICAL HABITAT QUESTIONS AND ANSWERS, supra note 47, at 3. (183) 50 C.F.R. [subsection] 17.31, 17.71 (2004). However, note that NOAA Fisheries does not have a similar regulation. Accordingly, no protective prohibitions apply to marine species listed as threatened until the agency goes through the rulemaking process to adopt such restrictions. This can have significant consequences. For example, numerous West Coast salmonids did not have protective regulations for over two years after listing, and at that point NOAA Fisheries acted as a result of pressure from a lawsuit. Endangered and Threatened Wildlife and Plants; Final Rule Governing Take of 14 Threatened Salmon and Steelhead Evolutionary Significant Units (ESUs), 65 Fed. Reg. 42,422 (July 10, 2000). (184) 16 U.S.C. [section] 1533(d) (2000). (185) Snake River sockeye salmon (Oncorhyncus nerka) spawn in Redfish Lake high in the Rockies of Idaho, hundreds of miles from the ocean. See Endangered and Threatened Wildlife and Plants; Endangered Status for Shake River Sockeye Salmon, 56 Fed. Reg. 58,619, 58,619 (Nov. 20, 1991) ("Current production of [Shake River sockeye salmon] is limited to Redfish Lake in the Salmon River Basin, Idaho."). (186) See, e.g., Restrictions Applicable to Threatened Marine & Anadromous Species, 50 C.F.R. [section] 223.203, 223.203(b) (2004); see also NAT'L MARINE FISHERIES SERVICE, 4(D) RULE IMPLEMENTATION BINDER FOR THREATENED SALMON AND STEELHEAD ON THE WEST COAST (2000) ("A central goal of this 4(d) rule is to encourage ... state and local efforts by providing the means for NMFS to approve local efforts and thereby limit take liability under the ESA."), available at http://www.nwr.noaa.gov/1salmon/salmesa/4ddocs/impbinder.pdf. (187) See Wash. Envtl. Council v. Nat'l Marine Fisheries Serv., No. C00-1547R, 2002 WL 511479, at *6 (W.D. Wash. Feb. 27, 2002) (holding claim against take exemptions unripe, since no factual basis had arisen to support claim, and that NMFS had not acted arbitrarily and capriciously in conducting an EIS and informal consultation before concluding that the rule would not adversely affect listed species). While large urban areas initiated salmon conservation efforts, see infra note 188, virtually no rural counties or small rural cities followed suit. (188) See CITY OF SEATTLE, SALMON FRIENDLY SEATTLE, at http://www.cityofseattle.net/seattle/salmon/default.htm (last visited Apr. 11, 2004) (discussing Seattle's attempts to aid in chinook salmon recovery); see also CITY OF SEATTLE, SEATTLE'S SALMON RECOVERY POLICY FRAMEWORK (2001), available at http:// www.centerforlakewashingtonstudies.com/nsr/pdf/RecoveryPolicyFramework.pdf; Jim Labbe, Salmon in the City and Healthy Portland Streams, PORTLAND ALLIANCE, Nov. 2002, at http://www.theportlandalliance.org/2002/nov/salmon.html; Kara Briggs, Urban Creek Holds Good News: Salmon, OREGONIAN, Apr. 14, 1999, at B1, available at 1999 WL 5334295. (189) R. Fischman & J. Hall-Rivera, A Lesson for Conservation from Pollution Control Law: Cooperative Federalism for Recovery Under the Endangered Species Act, 27 COLUM. J. ENVTL. L. 45, 48 (2002). (190) NOAA Fisheries's highly publicized public "roll-out" of its 4(d) rule and voluminous accompanying documents, handbooks, and press kits stands in stark contrast with the agency's virtual silence on its 4(d) rule only three years later. (191) See Endangered and Threatened Wildlife and Plants; Final Rule to Reclassify and Remove the Gray Wolf from the List of Endangered and Threatened Wildlife in Portions of the Conterminous United States; Establishment of Two Special Regulations for Threatened Gray Wolves, 68 Fed. Reg. 15,804, 15,828-29 (Apr. 1, 2003) (codified at 50 C.F.R. [section] 17.40(n) (2004)) (allowing landowners and permittees on federal grazing lands to harass gray wolves in a noninjurious manner at any time, and further authorizing injurious harassment, including lethal takes, in certain circumstances pursuant to a federal permit). (192) In addition to the 4(d) rule applicable to wolves, discussed infra notes 193-96 and accompanying text, FWS also proposed a 4(d) rule applicable to California tiger salamanders (Ambystoma californiense) in Sonoma County, California that would not apply section 9's take prohibition to grazing activities; the agency supported this rule by asserting that grazing is "neutral or beneficial" to the salamanders. Endangered and Threatened Wildlife and Plants; Listing of the Central California Distinct Population Segment of the California Tiger Salamander; Reclassification of the Sonoma County and Santa Barbara County Distinct Populations From Endangered to Threatened; Special Rule, 68 Fed. Reg. 28,648, 28,648 (May 23, 2003). This proposal is curious, however, because if grazing is actually neutral or beneficial to the species, there would be no reason for FWS to exempt grazing in effect from the take prohibition since grazing would not result in take of salamanders. (193) This special rule actually has somewhat limited application in the West because two significant wolf populations--located in Yellowstone National Park and central Idaho--were established by reintroduction efforts pursuant to ESA section 10(j). Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Gray Wolves in Yellowstone National Park in Wyoming, Idaho, and Montana, 59 Fed. Reg. 60,252, 60,252 (Nov. 22, 1994). Such nonessential experimental populations are automatically treated as threatened. 16 U.S.C. [section] 1539(j)(2)(C) (2000). FWS adopted special 4(d) rules for these populations in the 1990s that allow take under some circumstances, particularly when related to livestock predation. These rules remain applicable to some experimental populations. See 50 C.F.R. [section] 17.40(n)(1) (2004) (applying portions of the rule to experimental populations in Idaho, Montana, and Wyoming). The other two wolf DPSs created in 2003 also have special 4(d) rules. Though less dramatic than the rules for the western DPS, these 4(d) rules also include unique approaches to managing a federally listed species, most notably authorizations for state and tribal officials to carry out control measures against wolves believed to be preying on livestock. See 50 C.F.R. [section] 17.40(o)(2)(iv) (2004) (allowing FWS or the relevant state wildlife conservation service to take Gray wolves in North Dakota, South Dakota, Nebraska, Kansas, Iowa, Missouri, Wisconsin, Illinois, Michigan, Indiana, and Ohio for the purpose of depredation control); see also id. [section] 17.40(d)(2)(i)(A)(4) (allowing FWS and Minnesota Department of Natural Resource officials to take gray wolves in response to depredation on lawfully present domestic animals). (194) 50 C.F.R. [section] 17.40(n)(3)(v) (2004). (195) Id. [section] 17.40(n)(3)(xi)(H). (196) Id. [section] 17.40(n)(5). This regulation makes an exception for restrictions to prevent the take of wolves at active den sites between April 1 and June 30. Id. (197) See ROHLF, supra note 4, at 81 (noting that FWS's limited interpretation of the section 7 jeopardy standard means that virtually all protections provided to listed species in the section 7 consultation process stem from "reasonable and prudent measures" to minimize incidental take). (198) Defenders of Wildlife v. Norton, No. 03-1348-BR (D. Or., filed Oct. 1, 2003). (199) Wash. Envt'l Council v. Nat'l Marine Fisheries Serv., No. C00-1547R, 2002 WL 511479, at *6 (W.D. Wash. Feb. 27, 2002). The plaintiffs argued that the ESA's detailed processes for obtaining permission to incidentally take listed species meant that Congress did not intend to allow the Services to simply not ban some take of threatened species through section 4(d). Id. at *7. (200) Id. at *8. (201) Id.. at *5-6. (202) Id. at *10. (203) See supra notes 66-69 and accompanying text. (204) See supra note 33 and accompanying text. (205) See Sierra Club v. Clark, 755 F.2d 608, 615 (8th Cir. 1985) (rejecting a limited sport hunt of wolves because FWS had produced no evidence of population pressure that justified take under 16 U.S.C. [section] 1532(3)); Fund for Animals, Inc. v. Turner, No. C92-2201, 1991 WL 206232, at *7 (D.D.C. Sept. 27, 1991) (rejecting hunting of grizzly bears). (206) 16 U.S.C. [section] 1533(b)(2) (2000). (267) CRITICAL HABITAT QUESTIONS AND ANSWERS, supra note 47, at 3. Additionally, FWS includes in all critical habitat designation notices standard language detailing the supposedly redundant nature of critical habitat. See, e.g., Endangered and Threatened Wildlife and Plants; Final Rule Designating Critical Habitat for Preble's Meadow Jumping Mouse (Zapus hudsonius preblei), 68 Fed. Reg. 37,276, 37,276 (June 23, 2003) ("In 30 years of implementing the ESA, the service has found that the designation of ... critical habitat provides little additional protection to most listed species, while consuming significant amounts of conservation resources."); Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon, 68 Fed. Reg. 46,684, 46,684 (Aug. 6, 2003) (same redundancy language). However, FWS has acknowledged that critical habitat designation in habitat currently unoccupied by a listed species may trigger section 7 consultation in cases where consultation otherwise may not occur. CRITICAL HABITAT QUESTIONS AND ANSWERS, supra note 47, at 3. (208) See Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon, 68 Fed. Reg. at 46,750 (discussing the benefits of excluding military lands for vernal pool species critical habitat outweighing inclusion). See also Endangered and Threatened Wildlife and Plants; Final Rule Designating Critical Habitat for Preble's Meadow Jumping Mouse (Zapus hudsonius preblei), 68 Fed. Reg. at 37,299 (discussing Department of Defense lands and determining benefits of excluding the land from designation greatly exceeded benefits of inclusion); Endangered and Threatened Wildlife and Plants; Determination of Critical Habitat for the Northern Spotted Owl, 57 Fed. Reg. 1,796, 1,814-19 (Jan. 15, 1992) (discussing impacts on timber-based revenues, employment, and revenue sharing for affected counties). (209) See, e.g., Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon, 68 Fed. Reg. at 46,746 (concluding "we do not believe that these exclusions will result in the extinction of the [vernal pool] species'). (210) Given section 4's broad phrasing of the Secretaries' authority to exclude areas from critical habitat, courts are unlikely to often question agencies' exclusions. The only court that has examined this issue to date upheld FWS's decision to exclude tribal land from critical habitat for Mexican spotted owls (Strix occidentalis lucida), holding that FWS's desire to maintain a good working relationship with the tribe was a "relevant" impact that the agency could consider in making its exclusion decision. Ctr. for Biological Diversity v. Norton, 240 F. Supp. 2d 1090, 1105 (D. Ariz. 2003), amended in part by No. 01-409, 2003 WL 22849594 (D. Ariz. Feb. 19, 2003). (211) See Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon, 68 Fed. Reg. at 46,746 (discussing the relationship between designating critical habitat for vernal pool species to approved habitat conservation plans); see also Endangered and Threatened Wildlife and Plants; Final Rule Designating Critical Habitat for Preble's Meadow Jumping Mouse (Zapus hudsonius preblei), 68 Fed. Reg. at 37,296 (discussing the relationship between designating critical habitat for Preble's meadow jumping mouse and approved habitat conservation plans). (212) See Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Northern Spotted Owl, 57 Fed. Reg. 1796, 1822 (Jan. 15, 1992) (stating that "the prohibition against destruction or adverse modification of the critical habitat should provide for the protection of the critical habitat's ability to contribute fully to a species' recovery"). See supra note 174 for an extensive quotation of the specific language in this notice. (213) Id. at 1818. (214) Id. at 1808. (215) Id. (216) Ctr. for Biological Diversity v. Norton, 208 F. Supp. 2d 1044, 1080 (N.D. Cal. 2002). (217) See, e.g., Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Seven Bexar County, TX, Invertebrate Species, 68 Fed. Reg. 17,156, 17,182 (Apr. 8, 2003) (dismissing the reasoning of an Arizona court's decision, asserting "it essentially reads the special management clause out of the definition [of critical habitat]. Thus, under [the court's] interpretation, critical habitat would include all areas within the range of the species on which are round features essential to the conservation of the species, notwithstanding the additional requirement in the language of the Act. In contrast, our interpretation of the language, as described above, gives independent meaning to the special management clause because there will be some areas with features essential to the conservation of the species that will not require special management because they already have such management."); see also Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon, 68 Fed. Reg. 46,684, 46,746-47 (Aug. 6, 2003) (to be codified at 50 C.F.R. pt. 17) (excluding from critical habitat consideration several areas covered by existing conservation strategies and a habitat conservation plan based on the Secretary's authority to consider "other relevant impacts" of critical habitat designation); see also Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for Astragalus magdalenae var. peirsonii (Peirson's milk-vetch), 68 Fed. Reg. 46,143, 46,147 (proposed Aug. 5, 2003) (to be codified at 50 C.F.R. pt. 17) (noting "if we believe, based on an analysis, that an area determined to be biologically essential has an adequate conservation management plan that covers the species and provides for adaptive management sufficient to conserve the species, then special management and protection are already being provided, so those areas do not meet the second provision of the definition and are also not proposed as critical habitat"). (218) See, e.g., Endangered and Threatened Wildlife and Plants, Designation of Critical Habitat for the Preble's Meadow Jumping Mouse (Zapus hudsonius preblei), 68 Fed. Reg. 37,276, 37,302 (June 23, 2003) (to be codified at 50 C.F.R. pt. 17) (identifying critical habitat as those areas in which the mouse occurs and those areas judged likely to support the species); see also Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for Astragalus Magdalenae var. peirsonii (Peirson's milk-vetch), 68 Fed. Reg. at 46,145 (limiting consideration of critical habitat to current known geographical range of Peirson's milk vetch); Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon, 68 Fed. Reg. at 46,715 (identifying as critical habitat those areas within the historical and current ranges of the vernal pool species). (219) To further support this narrow view of critical habitat, the agency cited its regulation based on language in the statutory definition of critical habitat. Endangered and Threatened Wildlife and Plants, Designation of Critical Habitat for the Preble's Meadow Jumping Mouse (Zapus hudsonius preblei), 68 Fed. Reg. at 37,295 (citing 50 C.F.R. [section] 424.12(e) (2001)). (220) Endangered and Threatened Wildlife and Plants; Final Rule to List the Preble's Meadow Jumping Mouse as a Threatened Species, 63 Fed. Reg. 26,517, 26,523 (May 13, 1998) (to be codified at 50 C.F.R. pt. 17). The first factor listed as affecting species was "[t]he present or threatened destruction, modification, or curtailment of its habitat or range." Id. (emphasis original). FWS went on to say: After reviewing the best scientific data currently available, the Service believes that Preble's meadow jumping mouse has undergone a decline in range and that populations within its remaining range have been lost. Habitat loss and fragmentation resulting from human land uses have adversely impacted Preble's populations, and continue to do so. Armstrong ... concluded that the meadow jumping mouse, in this region as elsewhere, is a habitat specialist, and that its specialized habitat is declining. Id. (221) Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon, 68 Fed. Reg. at 46,713, 46,715. (222) Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Preble's Meadow Jumping Mouse (Zapus hudsonius preblei), 68 Fed. Reg. at 37,294. (223) Endangered and Threatened Wildlife and Plants; Final Designation and Nondesignation of Critical Habitat for 46 Plant Species From the Island of Hawaii, HI, 68 Fed. Reg. 39,624, 39,686 (July 2, 2003) (to be codified at 50 C.F.R. pt. 17). (224) See supra notes 42 and 44 and accompanying text. (225) 16 U.S.C. [section] 1533(c)(2) (2000). On the basis of the required review, the appropriate Secretary must decide whether listed species should be removed from the lists, or whether they should be reclassified from endangered to threatened or vice-versa. Id. [section] 1533(c)(2)(B). (226) Id. [section] 1533(g)(1). (227) Id. [section] 1533(g)(2). (228) Id. [section] 1533(b)(C)(iii), (c)(2)(A). (229) At a meeting attended by the author in Portland, Oregon on February 3, 2003 regarding the monitoring plan for peregrine falcons (Falco peregrinus anatum), FWS officials mentioned that the agency's Oregon office was drafting what will eventually become an agency-wide protocol for monitoring recovered species. However, to date the agency has not published any notice or other document relating to such a policy. (230) The most logical place to find evidence of monitoring activities involving "warranted but precluded" species is in emergency listings; such a listing might indicate that the relevant agency had in fact been monitoring such a species and, pursuant to 16 U.S.C. [section] 1533(b)(3)(C)(iii) (2000), was using its emergency listing authority to eliminate threats to the well being of the species. However, the small number of emergency listings of "warranted but precluded" species have not mentioned any monitoring efforts and appear to have been prompted by petitions or litigation rather than resulting from agency monitoring. See, e.g., Endangered and Threatened Wildlife and Plants, Listing the Sonoma County Distinct Population Segment of the California Tiger Salamander as Endangered, 67 Fed. Reg. 66,377, 66,377 (Oct. 31, 2002) (emergency listings of California tiger salamander); see also Endangered and Threatened Wildlife and Plants, Emergency Rule to List the Sierra Nevada Distinct Population Segment of California Bighorn Sheep as Endangered, 64 Fed. Reg. 19,300, 19,300 (Apr. 20, 1999) (to be codified at 50 C.F.R. pt. 17) (emergency listing for Sierra Nevada distinct population segment of desert bighorn (Ovis canadensis californiana)). (231) See Michael Milstein, Private Firm to Review Status of Owl, Murrelet, OREGONIAN, Sept. 12, 2003, at A1. The industry plaintiffs hope that new information will reveal that these birds' habitat requirements are broader than primarily old growth forests, perhaps resulting in the species being dropped from the protected lists. Id. Interestingly, FWS contracted with a private consulting firm to perform the reviews in order to avoid any perception that the agency itself was "biased" toward listing the species. Id. (232) NOAA Fisheries established a monitoring plan for gray whales (Eschrichtius robustus) when it delisted the species in 1994. Marine Mammals; Gray Whale Research and Monitoring Plan, 59 Fed. Reg. 28,846 (June 3, 1994). Five years later, after holding a workshop on the whale's status, the agency reported that monitoring did not suggest a need to relist the species, but decided to continue the monitoring effort for another five years. Marine Mammals; Gray Whale Research and Monitoring, 64 Fed. Reg. 54,275 (Oct. 6, 1999). When it delisted arctic peregrine falcons (Falco peregrinus tundrius), FWS set forth a framework for monitoring the birds' population, though the agency never published any additional information indicating that it had in fact carried out the monitoring or reporting the results. Endangered and Threatened Wildlife and Plants, Removal of Arctic Peregrine Falcon From the List of Endangered and Threatened Wildlife, 59 Fed. Reg. 50,796 (Oct. 5, 1994). Three years after delisting American peregrine falcons, FWS published a proposed monitoring plan for the species, though it has yet to be finalized. Proposed Monitoring Plan for American Peregrine Falcons in the United States, 66 Fed. Reg. 49,395, 43,395 (Sept. 27, 2001). Finally, FWS's endangered species web site claims that the agency is monitoring or has monitored other recovered species, but there is no information indicating that such studies have in fact taken place. See, e.g., U.S. FISH & WILDLIFE SERVICE, SPECIES PROFILE FOR PALAU FANTAIL FLYCATCHER (indicating that the Palau fantail flycatcher (Rhipudura lepida) is "[b]eing [m]onitored in [its] [e]ntire [r]ange," but providing no detail on this monitoring), at https://ecos.fws.gov/species_profile/SpeciesProfile?spcode=B086 (last updated Feb. 22, 2004). (233) The monitoring programs discussed supra note 232 differ substantially in approach. NOAA Fisheries consulted over twenty whale researchers to design its monitoring strategy, sponsored a workshop for invited experts to discuss monitoring results after the five year study period, published findings in the Federal Register based on the initial monitoring, and extended the monitoring program for another five years. See Marine Mammals; Gray Whale Research and Monitoring, 64 Fed. Reg. at 54,275-76. In contrast, FWS's monitoring strategy for arctic peregrines relied primarily on the agency receiving information from outside studies. Endangered and Threatened Wildlife and Plants, Removal of Arctic Peregrine Falcon From the List of Endangered and Threatened Wildlife, 59 Fed. Reg. at 50,804. FWS also never provided the public or ornithological experts with any information about the results of the monitoring, or even reported that it had completed its monitoring program. Moreover, the proposed monitoring plan for American peregrine falcons adopted a unique interpretation of section 4's mandate to monitor recovered species for five years; rather than monitoring peregrines for five consecutive years, the plan proposes monitoring the birds for five seasons, each spaced three years apart. Proposed Monitoring Plan for American Peregrine Falcons in the United States, 66 Fed. Reg. at 49,395. (234) See U.S. FISH & WILDLIFE SERVICE AND NAT'L MARINE FISHERIES SERVICE, ENDANGERED SPECIES ACT CONSULTATION HANDBOOK: PROCEDURES FOR CONDUCTING SECTION 7 CONSULTATIONS AND CONFERENCES 9-1(1998) (directing the Services to implement monitoring programs to track and assess a project's effects on listed species), available at http://endangered.fws.gov/consultations/s7hndbk/ch5-9.pdf. (235) In a nutshell, when one of the Services enters into section 7 consultation with another federal agency regarding the impacts on a listed species likely to result from a proposed agency action, the Service makes a "jeopardy" or "no jeopardy" call on a species-wide basis by asking whether the project's likely impacts to the species, considering that species' current range-wide status, will be so great that they will result in jeopardy to the species as a whole. See Rohlf, supra note 92, at 120, 137. Obviously, if the Service does not go into this process with accurate knowledge of the species' current status, the entire consultation process is undermined. For additional discussion o<this issue, see id. at 155-58. (236) The language of the ESA itself supports this progression as the scenario lawmakers had in mind. The statute's first section lists as the law's primary purpose the "conservation" of species and their ecosystems. 16 U.S.C. [section] 1531(b) (2000). "Conservation" in turn means to bring listed species to the point at which they no longer need ESA protections. Id. [section] 1532(3). (237) See Holly Doremus & Joel E. Pagel, Why Listing May Be Forever: Perspectives on Delisting Under the US Endangered Species Act, 15 CONSERVATION BIOLOGY 1258, 1261 (2001) (proposing that unless other "background law" protects species in peril, most species will require the "continuing protection of the ESA"); Holly Doremus, Delisting Under the Endangered Species Act: An Asiprational Goal, Not a Realistic Expectation, 30 Envtl. L. Rep. (Envtl. L. Inst.) 10,434, 10,446 (June 2000) (arguing that in many cases, species have no protection outside the ESA, and that such species "are likely to need the special protections of the ESA forever"); Federico Cheever, The Rhetoric of Delisting Under the Endangered Species Act: How to Declare Victory Without Winning the Was, 31 Envtl. L. Rep. (Envtl. L. Inst.) 11,302, 11,306 (Nov. 2001) (The idea that the government can help a species more away from the brink of extinction sufficiently to require no further protection "implies that once the magic delisting level has been achieved, species habitat may be destroyed and species members killed without any legal ramifications. For the vast majority of species, this notion is a complete delusion."). (238) Doremus, supra note 237, at 10,446. (239) 16 U.S.C. [section] 1538(a)(2) (2000); see also id. [section] 1531(19) (defining "take" as to "harass, harm, pursue, hunt, shoot, wound, kin, trap, capture, or collect, or to attempt to engage in any such conduct"); 50 C.F.R. [section] 17.3 (2004) (defining "harm" as "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering"); Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 700 (1995) (finding reasonable the Secretary of Interior's inclusion of habitat destruction that results in the actual mortality or injury of listed species in the regulatory definition of "harm," and, thus, "take'). (240) 903 F. Supp. 96 (D.D.C. 1995). (241) See id. at 116 (describing plaintiffs attacks on FWS's recovery plan for inadequate specificity, lack of measurable criteria for recovery, reliance on inappropriate population targets, and inadequate monitoring of human encroachments on habitat). (242) Id. at 112 n.7 ("[B]ecause past habitat loss was one of the factors specifically relied on by the FWS in listing the grizzly bear, and, because under the statute that factor alone may have been sufficient to justify listing the bear, 50 C.F.R. [section] 424.11(c), the FWS must consider the historic habitat loss in its assessment of the quantity and quality of grizzly bear habitat."). (243) Given these delisting challenges, it is not surprising that virtually none of the delisting to date have involved species that were originally listed due to habitat destruction or other complex factors that cut across jurisdictional boundaries. See Doremus and Pagel, supra note 237 at 1263-65 (contending that, despite FWS's assertion that twelve species were delisted because of recovery, no more than eight may be considered truly recovered). (244) 16 U.S.C. [section] 1533(a)(1)(D) (2000). (245) See ENVTL. PROTECTION AGENCY ET AL., EPA-823-F-01-002, MEMORANDUM OF AGREEMENT BETWEEN THE ENVIRONMENTAL PROTECTION AGENCY, FISH AND WILDLIFE SERVICE, AND THE NATIONAL MARINE FISHERIES SERVICE REGARDING ENHANCED COORDINATION UNDER THE CLEAN WATER ACT AND THE ENDANGERED SPECIES ACT (2001) (recommending closer integration between EPA CWA oversight and the Services' obligations to fulfill aquatic species recovery goals), available at http://midwest.fws.gov/RockIsland/activity/env_cont/Files/CWA_MOA.pdf (246) See, e.g., Management Guidelines and Inventory Protocols for the Mexican Spotted Owl in the Southwestern Region, 54 Fed. Reg. 27,416, 27,416 (June 29, 1989) (adopting interim management guidelines for protection of the owl); Environmental Impact Statements; Notice of Availability, 60 Fed. Reg. 55,841, 55,842 (Nov. 3, 1995) (availability notice for EIS for Southwestern Region Amendment of Forest Plans for New Mexico and Arizona to incorporate guidelines for northern goshawk and mexican spotted owl); Supplement to the Final Environmental Impact Statement for Amendment of National Forest Management Plans, 69 Fed. Reg. 4920 (Feb. 2, 2004) (notice of preparation of supplement to the EIS); sec also U.S. FISH AND WILDLIFE SERVICE, RECOVERY PLAN FOR THE MEXICAN SPOTTED OWL (1995), available at http://ifw2es.fws.gov/Documents/r2ES/MSO_Recovery_Plan.pdf. (247) INTERAGENCY CONSERVATION STRATEGY TEAM, FINAL CONSERVATION STRATEGY FOR THE GRIZZLY BEAR IN THE YELLOWSTONE ECOSYSTEM (2003), available at http://www.fs.fed.ns/r1/wildlife/igbc/ConservationStrategy/final_cs.pdf. However, the fact that such a Conservation Strategy exists says nothing about the strategy's adequacy to support delisting of grizzly bears; past controversies over grizzly management suggest that this is likely to be a highly controversial issue. Moreover, whether a given post-delisting conservation strategy in fact provides sufficient protection for a "recovered" population depends on how one defines recovery. Sec supra Section III.1. For an excellent discussion of delisting issues involving grizzlies, see Philip Kline, Grizzly Bear Blues." A Case Study of the Endangered Species Act's Delisting Process and Recovery Plan Requirements, 31 ENVTL. L. 371 (2001). (248) See supra note 184 and accompanying text. (249) HCPs may not be sufficient to constitute adequate regulatory mechanisms to protect recovered populations of formerly listed species because the Services do not hold these plans to a recovery standard. U.S DEP'T OF INTERIOR ET AL., HABITAT CONSERVATION PLANNING & INCIDENTAL TAKE PERMIT PROCESSING HANDBOOK 3-30, 31 (1996), available at http://endangered.fws.gov/HCP/hcpbk3.pdf. In other words, under current policy, the Services will approve an HCP even though it does not contribute to a species' recovery, so long as it does not jeopardize the continued existence of a listed species. Whatever this policy's legal merit, it means that HCPs approved as merely not jeopardizing a listed species cannot serve as the primary post-ESA basis for management of the species and its habitat since the HCPs were not designed with recovery in mind. However, in cases where regulatory provisions on federal land provide for recovery, HCPs may supply sufficient protection for a limited numbers of species or for habitat for migration so that they could be considered as part of a "package" for protecting a species at recovery levels. (250) The grizzly bear recovery plan provides an example of inclusion of a post-delisting protection blueprint as part of a recovery plan. Specifically, the plan specifies that grizzly bear recovery can be achieved only by attaining the plan's biological goals, and by "development and completion of an interagency conservation strategy that will ensure that adequate regulatory mechanisms will continue to be present after delisting. Adequate regulatory mechanisms are those regulations, policies, and guidelines that will ensure that the grizzly bear population and the habitat of the species within the recovery zone win be conserved after delisting." U.S. FISH & WILDLIFE SERV., GRIZZLY BEAR RECOVERY PLAN 16 (1993), available at http://ecos.fws.gov/docs/recovery_plans/1993/930910.pdf. However, the plan does not specify what this conservation strategy should contain or how FWS will know whether or not a conservation strategy it is able to negotiate with the states is adequate. This lack of standards in the recovery plan itself makes it difficult for other parties to know what recovery requires of them, and it makes it easy for FWS to simply pronounce as adequate whatever conservation strategy is politically achievable. (251) See generally Cheever, supra note 237 at 11,302 ("Unfortunately, under the provisions of the law and the logic of politics there is great pressure to measure the success of recovery efforts in terms of species delisting."). (252) See generally Doremus, supra note 237 (examining the obstacles and controversies surrounding efforts to delist species as a demonstration of the ESA's success). (253) CHRISTOPHER COKINOS, HOPE IS THE THING WITH FEATHERS: A PERSONAL CHRONICLE OF VANISHED BIRDS (2000). (254) Id at 1. (255) Id. at 12 (discussing the fact that few people remembered these striking birds, Cokinos stated, "I realized, forcefully, what I suppose I knew abstractly. Histories, like species, can go extinct."). (256) Id. at 2. (257) Id. at 58. (258) See, e.g., Endangered and Threatened Wildlife and Plants; Deregulation of the Longjaw Cisco and the Blue Pike, 48 Fed. Reg. 39,941, 39,941 (Sept. 2, 1983) (delisting the blue pike (Stizostedion vitreum glaucum) and the longjaw cisco (Coregonus alpenae) after concluding the species were extinct). (259) U.S. FISH & WILDLIFE SERVICE, THREATENED AND ENDANGERED SPECIES SYSTEM (TESS): DELISTED SPECIES REPORT AS OF 3/09/2004, at http://ecos.fws.gov/tess_public/TESSWebpageDelisted?listings=0. (260) COKINOS, supra note 253, at 59-117. (261) CONSERVATION OF ENDANGERED SPECIES AND OTHER FISH OR WILDLIFE; Appendix D--United States List of Endangered Native Fish and Wildlife, 35 Fed. Reg. 16,047, 16,047 (Oct. 13, 1970) (adding the Ivory-billed woodpecker (Campephilus principalis) to the endangered species list); U.S. FISH & WILDLIFE SERVICE, SPECIES PROFILE FOR IVORY-BILLED WOODPECKER (noting that the ivory-billed woodpecker is listed as endangered in its entire range, but may only exist in Cuba), at http://ecos.fws.gov/species_profile/SpeciesProfile?spcode=BO3Q (last visited Apr. 11, 2004). (262) See COKINOS, supra note 253, at 61. DANIEL J. ROHLF, [c] 2004 Daniel J. Rohlf. Associate Professor of Law, Lewis and Clark Law School. The author wishes to thank Kelly O'Brien for her research assistance, as well as Eric Nagle for Iris thorough review and helpful comments on an earlier draft of this article. The author is also grateful to the excellent editorial staff of Environmental Law for their work on this Article. |
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