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Endangered species' slippery slope back to the states: existing regulatory mechanisms and ongoing conservation efforts under the Endangered Species Act.

I. INTRODUCTION

On December 29, 2000, Endangered Species Act (ESA or Act) (1) supporters collectively winced when President-elect George W. Bush nominated Gale Norton to succeed Bruce Babbitt as the Secretary of the Interior. (2) After all, Norton argued before the United States Supreme Court that parts of the ESA were unconstitutional (3) and was a well-known supporter of private property rights movements, (4) a faction often at odds with the ESA. (5) Despite Norton's assurances to Congress during her confirmation hearings that, as Secretary, she would enforce the ESA, (6) it appeared that a weakening of the Act was inevitable.

Ironically, Norton may try to reduce the scope of the ESA by adopting and implementing a policy developed by her predecessors. In June 2000, under the Clinton-Babbitt administration, the United States Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (collectively "listing agencies") proposed a joint draft policy that would permit the Secretary (7) to avoid listing biologically imperiled species under the ESA if state and local conservation efforts to protect those species existed or were planned. (8) If adopted, the proposed policy would formalize a longstanding agency practice of deferring to state and local conservation efforts--even if those efforts are unimplemented, unproven, or voluntary--rather than listing a species under the ESA. (9)

Both the longstanding agency practice and the more recent draft policy are based on two provisions of the ESA--subsections 4(a)(1)(D) (10) and 4(b)(1)(A). (11) Those provisions require the Secreting, in making a listing determination, to consider both the inadequacy of existing regulatory mechanisms (ERMs) and ongoing conservation efforts. (12) Under the listing agencies' interpretation of the Act, state and local conservation efforts can offset other threats to species, such as modification or destruction of habitat, thus bringing the species below the threshold necessary to warrant a federal listing. (13) Rather than providing a boon to species, state and local conservation efforts have almost universally offered false hopes and half measures. As a result, many species that the listing agencies initially declined to list in reliance on those conservation efforts have ultimately been listed, their populations often worse for the delay. (14) Moreover, many species that desperately need the substantive protections that the federal ESA offers remain unlisted because of this policy. (15)

Most courts have disagreed with the listing agencies' interpretation of the Act's listing provisions that allows for consideration of future, unimplemented, or voluntary conservation efforts. (16) As a result, several decisions by the listing agencies not to list species in reliance on state and local conservation efforts have been remanded to the agency for reconsideration. (17) It is not surprising that courts disagree with the listing agencies' overly broad interpretation of what constitutes an "ongoing conservation effort" because a careful reading of the statutory language does not support the agencies' position. (18) Other justifications for the listing agencies' broad construction of ongoing conservation efforts include the principle of federalism, which would, return decision-making power to states and localities, (19) and the difficulty of devising national standards for species' protection. (20) However, Congress carefully considered the federalism question when it enacted the ESA? and chose to satisfy the principle by giving states and localities a voice in management decisions only after the listing decision was made. (21) Moreover, the ESA itself sets out national standards for species protection, which states could incorporate into their conservation efforts. (22)

The Clinton-Babbitt administration viewed this policy as a necessary compromise to protect the ESA. (23) Constantly under siege, the ESA is a favorite target of conservative Republicans who see it as a symbol of an oppressive federal government. (24) States, especially western ones, generally oppose federal ESA listings because they allow the federal government to assume control over what many view as local concerns. (25) Consequently, many ESA supporters felt that in order for the Act to survive Republican attacks the ESA needed to become more flexible in general, and specifically more responsive to state and local concerns. (26) Now in the hands of a Republican administration, the policy may become a tool for further weakening the listing agencies' implementation of the ESA. Regardless of which administration devised the policy and which is implementing it, however, the listing agencies should abandon the policy because it is inconsistent with the language and purpose of the ESA.

This comment argues that Congress intended the ESA to establish federal floors for the protection of biologically imperiled species. Those floors are embodied in the substantive protections that the ESA affords listed species--take prohibitions, critical habitat designation, jeopardy consultation, recovery plans, and civil and criminal enforcement measures. While the listing agencies must consider ongoing conservation efforts at the time of a proposed listing, those efforts should not be sufficient to preclude a listing of a biologically endangered or threatened species unless they are the equivalent of the substantive protections found in the ESA.

Part II of this Comment provides a brief history of federal wildlife regulation leading up to the passage of the ESA. Part II also gives an overview of the listing process, analyzes in detail the role that ERMs and "ongoing conservation efforts" play in listing decisions, and concludes that the listing agencies' interpretation and implementation of these factors is inconsistent with the language of the ESA.

Part III evaluates the listing agencies' draft policy and finds it flawed because it grants the listing agencies too much discretion over how the inadequacy of ERMs and the presence of ongoing conservation efforts factor into listing decisions.

Part IV considers and rejects the principle of federalism as a justification for the listing agencies' policy of permitting state and local conservation efforts to preclude listing otherwise threatened or endangered species. Part IV argues that Congress considered the federalism question when it passed the ESA and expressly chose a strong federal program in direct response to failed state efforts to protect wildlife. This Part also suggests that state and local conservation efforts might be sufficient to preclude listings if they met the minimum standards of protection required by the ESA for listed species.

Finally, Part V concludes that, unless states and localities can demonstrate that their conservation efforts are actually effective in halting a species's decline, the standards of protection afforded by the ESA should be the listing agencies' guidepost when evaluating conservation efforts in listing determinations.

II. UNLOCKING THE ESA: THE LISTING PROCESS IS THE KEY

The ESA has polarized the debate about species and biodiversity preservation since it was enacted in 1973. (27) Supporters of the law triumph the success of the bald eagle and the gray whale--symbolic species rescued from the abyss of extinction by the ESA's intervention. (28) Detractors of the Act invariably recall the snail darter and the gnatcatcher--obscure species, the attempted recovery of which cost taxpayers millions of dollars and delayed federal projects and private development. (29) There is little middle ground on the ESA.

This Part briefly explores the ESA's roots, in an effort to better understand Congress's motivation for passing such sweeping and, ultimately, controversial legislation. Recognizing that the ESA's substantive protections are triggered only when a species is listed as threatened or endangered, the focus is on the Act's listing provision, section 4. This Part also evaluates the critical role that existing regulatory mechanisms and ongoing conservation efforts play in the listing process, and determines that the listing agencies' broad interpretation of these statutory terms, which permits them to deny listings in reliance on state conservation efforts, contravenes congressional intent by abdicating federal responsibility for species preservation.

A. A Brief History of Federal Wildlife Regulation Prior to the ESA

The early 1970s witnessed an explosion of federal environmental legislation as the nation finally began to come to grips with smog, contaminated water, degraded ecosystems, and disappearing species. (30) While most people could appreciate the need for clean air and water and the dangers of hazardous waste, species' extinctions and habitat destruction were further removed from the general public's everyday lives. However, charismatic mega-fauna, (31) such as the bald eagle, proved to be powerful symbols that resonated clearly with an increasingly vocal and political wildlife preservationist constituency. (32) In 1973, the ESA was overwhelmingly enacted (33)--an Act later hailed as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." (34)

In many ways, the ESA was a culmination of almost a century of gradual transfer of wildlife management authority and responsibility from the states to the federal government. (35) Starting soon after the Supreme Court established the baseline doctrine of "state ownership" of wildlife in Geer v. Connecticut (36) in 1896, the federal government began to assert various constitutional powers that enabled it to regulate wildlife. Initially, Congress exercised its Commerce Clause power to assist in enforcing state game laws. (37) By 1912, however, when the federal government attempted to regulate wildlife directly by prohibiting the taking of sponges off the coast of Florida, (38) the Supreme Court limited the federal government's regulatory reach by ruling it could not prohibit the taking of sponges in Florida's territorial water because that action was exclusively under the authority of the state to regulate. (39) The Court's decision would prove to be only a minor setback, however, and marked the last time that the state ownership doctrine precluded federal regulation of wildlife. (40)

The debate over the national government's authority to regulate wildlife within state borders eventually came to a head over the plight of migratory birds. In 1918, Congress passed the Migratory Bird Treaty Act, (41) which asserted the federal government's power to regulate migratory birds and prohibited hunting of those birds unless in accordance with federal regulations. (42) The state of Missouri challenged the Act's constitutionality, which the Supreme Court upheld pursuant to federal treaty-making power. (43) Thus, the Court substantially weakened the state ownership doctrine as a bar to federal wildlife regulation pursuant to legitimate constitutional power. (44)

The Migratory Bird Treaty Act was symbolic of early federal legislation aimed at wildlife regulation in that it was limited both in the scope and degree of its protections. (45) States continued to take the lead in wildlife management with occasional but limited interjections by the national government. (46) However, continued declines in popular species and increased media attention to the issue convinced Congress that stronger, more comprehensive national intervention was needed. (47)

In 1966, Congress enacted the Endangered Species Preservation Act (the 1966 Act), (48) the first comprehensive legislation designed to preserve a broad range of species (49) threatened with extinction. (50) The 1966 Act's stated purpose was "to provide a program for the conservation, protection, restoration, and propagation of selected species ... threatened with extinction." (51) In the 1966 Act, Congress gave the Secretary of the Interior the authority to determine, after consulting with affected states, whether a species was endangered. (52) A species would be considered endangered if its survival was threatened by loss or severe modification of habitat, disease, predation, overexploitation, or other factors. (53) The 1966 Act also authorized funds for purchase of property necessary to aid in the preservation of endangered species, and directed federal agencies to further the 1996 Act's purposes where practicable. (54)

Not surprisingly, federalism tensions surfaced during the legislation's consideration. (55) Despite the limited scope of federal authority in the 1966 Act, (56) many legislators guarded the traditional state role in wildlife management, and their concerns were reflected in the 1966 Act's language. (57) In addition to requiring consultation with the states regarding endangered species status, section 3 of the 1966 Act directed the Secretary of the Interior to "cooperate to the maximum extent practicable with the several States." (58) Moreover, the 1966 Act authorized entering into agreements with states to administer and manage areas purchased and designated to carry out its purposes. (59) Thus, Congress expected the states to play a role both before and after a listing determination.

Three years later, Congress amended the 1966 Act in the Endangered Species Conservation Act of 1969 (the 1969 Act). (60) The new legislation broadened the scope of covered endangered species to include invertebrates and subspecies. (61) In addition, the focus of the debate in Congress shifted from the domestic to the international arena. Congress directed the Secretary of the Interior, when making his endangerment determination, to consult with the foreign nations in which the species was normally found. (62) Moreover, Congress required the Interior Secretary, in cooperation with the Secretary of State, to "encourage foreign countries to provide protection to species and subspecies of fish or wildlife threatened with worldwide extinction," and seek to convene "an international ministerial meeting on fish and wildlife" by June 1971. (63)

In addition to its new focus on international affairs, the listing provision of the 1969 Act was different from the provision in the 1966 Act in two significant ways. First, the 1969 Act required the Secretary to make his determination on the basis of the "best scientific and commercial data available," a phrase clarifying that listing determinations were to be made independent of economic considerations. (64) Second, the 1969 Act articulated four factors the Secretary must consider in making his determination:
   (1) the destruction, drastic modification, or severe curtailment, or the
   threatened destruction, drastic modification, or severe curtailment, of its
   habitat, or (2) its overutilization for commercial or sporting purposes, or
   (3) the effect on it of disease or predation, or (4) other natural or
   man-made factors affecting its continued existence. (65)


With these additions, the 1969 Act laid the groundwork for the more precise listing provision to come in the ESA.

B. The Endangered Species Act of 1973

The first Earth Day in April, 1970 added to the momentum for endangered species preservation generated by the 1966 and 1969 Acts. (66) President Nixon erased any doubts that stronger legislation was needed in his Environmental Message of February 8, 1972 in which he criticized the current endangered species protection laws for "not provid[ing] the kind of management tools needed to act early enough to save a vanishing species." (67) Thus, when Congress convened in 1973, the question was not if the legislature would pass a new species protection law, it was when and what form the law would take. (68)

The Endangered Species Act of 1973 replaced both the 1966 and 1969 Acts (69) with a comprehensive species preservation scheme that increased the scope of the earlier legislation in several significant areas. First, the ESA extended protections to species likely to become endangered throughout a significant portion of their range, not just those threatened with worldwide extinction. Congress directed the Secretary to designate such species as "threatened." (70) Second, it broadly defined what constituted a "take" of a species, and expanded take prohibitions beyond federal lands to anywhere in the United States "regardless of state jurisdiction or whether the species was resident (confined within one state) or migratory." (71) Third, the Act required federal agencies to use their authority to conserve listed species, creating a federal mandate not to "jeopardize" threatened or endangered species. (72) Finally, the Act included plants within its protection scheme and added a citizen suit provision to help with enforcement. (73)

The seeds of endangered species preservation planted by Congress in the 1966 Act grew remarkably in the seven years between 1966 and 1973. Compromises, which weakened earlier legislation, were conspicuously absent during the passage of the ESA. (74) The nation awoke to a problem of truly global proportions that could not be easily solved within established political boundaries. On December 28, 1973, President Nixon signed the ESA into law. (75)

C. An Overview of the Listing Process

Congress has called the listing process "the keystone of the Endangered Species Act." (76) This is because none of the ESA's significant protections--take prohibitions, critical habitat designation, "jeopardy consultation" by federal agencies, recovery plans, and the potential for civil and criminal enforcement--are triggered until a species is officially listed as threatened or endangered. (77) Therefore, any interpretation of the ESA that hinders the listing process necessarily threatens the ESA's ability to achieve its purpose at the most fundamental level. It is conceptually important to distinguish between the process by which a species is listed as threatened or endangered, and the effects or results of that listing. The first subsection below describes how FWS or NMFS determines that a species meets the criteria for being listed; the second subsection discusses the substantive protections afforded by an ESA listing.

1. Section 4: The Criteria for Listing a Species as Endangered or Threatened

Section 4 of the ESA governs the listing process--the how, when, and why a species is listed as endangered or threatened. (78) Both the Departments of the Interior and Commerce have authority to list species. (79) Some environmental groups originally opposed giving the Secretary of Commerce jurisdiction over listing species under the ESA because it put the Commerce Department in the position of both regulating and promoting the commercial fishing industry. (80) As a compromise, the ESA forbids the Secretary of Commerce from unilaterally removing a species's listed status or changing its status from endangered to threatened without approval from the Secretary of the Interior. (81)

Interested persons may also petition to list species. (82) If the listing agency makes a finding that the petition presents substantial evidence that listing may be warranted, it must commence a review of the species's status. (83) A review of species status is conducted in the same way, regardless of whether it is initiated by the agency or by a petition from an interested party. Citizen petitions are an important feature of the ESA because they provide a means by which citizens can compel agency action. (84) If the listing agencies fail to perform their statutory duties, including listing species, enforcing take prohibitions, and designating critical habitat, the Act authorizes citizens to commence civil suits in federal court. (85)

Section 4(a)(1) lists five factors for the listing agencies to consider when deciding whether to list a species as endangered or threatened: "(A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence." (86) Congress did not define "existing regulatory mechanisms" or explain how agencies should evaluate them in making listing determinations. The listing agencies and the courts have largely disagreed on how to interpret section 4(a)(1)(D). As a result, the listing agencies have drafted a joint policy to outline their position, perhaps as a way to receive more deferential treatment from the courts. (87)

In addition to these five factors, section 4(b)(1)(A) requires that a listing agency make its determination "solely on the basis of the best scientific and commercial data available." (88) Further, the Act requires the listing agency to consider efforts "being made by any State or foreign nation ... to protect such species whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction, or on the high seas." (89) The listing agencies and many courts have interpreted this provision to work in tandem with section 4(a)(1)(D). (90) However, courts are divided on whether section 4(b)(1)(A) permits the listing agencies to consider federal efforts being made on behalf of species, (91) and no courts have considered the possibility that the provision's language may preclude consideration of conservation efforts on a sub-state level.

Finally, the Act directs the listing agency to "give consideration to species which have been (i) designated as requiring protection ... pursuant to any international agreement; or (ii) identified as in danger of extinction, or likely to become so within the foreseeable future, by any State agency." (92) This provision suggests that the listing agencies should give special consideration to federally listing species that have been identified by states and foreign nations as being in danger of extinction. If so interpreted, this provision would appear to conflict with the listing agencies' current policy of relying on state conservation efforts to deny federal listings. How all of these provisions interact to inform agency listing decisions lies at the core of the debate over how much weight state and local conservation efforts should be given in the listing process and, specifically, whether such efforts can ever be sufficient to preclude a listing.

Congress intended section 4 listing to be an inclusive process. (93) Congress's concern was for the health of the species, and it designed the listing scheme so that species could have quick access to the ESA's substantive protections. (94) Despite this focus, FWS and NMFS listed a total of only eight species in the two years following the passage of the Act. (95) In 1976, however, the listing agencies significantly picked up the pace resulting in forty final listings for that year. (96) Subsequently, the listing rate has ebbed and flowed, often responding to political change. (97)

Although the rate of listings has varied, the basic formula for listing--consideration of the five section 4 factors, on the basis of the best scientific information available, and ongoing conservation efforts--has remained relatively constant. (98) The listing agencies' inconsistent implementation of the basic formula, however, has caused difficulty for biologically imperiled species. Specifically, by misapplying the inadequacy of ERMs factor and broadly interpreting ongoing conservation efforts, the listing agencies have undermined Congress's intent for the listing process to be inclusive by limiting opportunities for species listings. (99) As a result, the listing agencies have denied many species the substantive protections of the Act, or significantly delayed those protections until forced by a court order to list the species. (100)

2. The ESA's Standards of Protection

Listing a species as endangered or threatened triggers a wide array of substantive and procedural protections offered by the ESA that are designed to conserve and recover the species so that it may eventually be removed from the list. Section 4 requires the Secretary to designate critical habitat for the species, (101) promulgate protective regulations for threatened species, (102) and develop and implement recovery plans. (103) Section 7 requires federal agencies to ensure that their actions will not jeopardize the continued existence of a listed species or result in the destruction or modification of designated critical habitat. (104) Section 9 prohibits the public and private taking of species. (105) Section 11 sets out the civil and criminal penalties for violations of these protections (106) and also provides for citizen enforcement of the ESA through civil lawsuits in federal courts. (107) However, none of these protections are available to species until they are listed as threatened or endangered.

a. Take Prohibitions

Section 9 of the ESA prohibits any person from raking an endangered species of fish or wildlife in an area under United States jurisdiction or on the high seas. (108) The Act defines person as any "individual, corporation, partnership, trust, association, or another private entity." (109) The ESA defines "take" broadly to encompass both direct and indirect harm to a species. (110) Although section 9 take prohibitions specifically pertain only to endangered species of fish and wildlife, the listing agencies have generally extended the prohibition to threatened species of fish and wildlife in the form of protective regulations promulgated under section 4(d) (4(d) rules). (111) Section 9 take prohibitions do not apply to plant species; however, section 9 does afford endangered plants some minimal protections from destructive acts aimed directly at eliminating or possessing the species. (112)

Section 7 prohibits federal actions or private actions requiring federal approval from jeopardizing the continued existence of any listed species. (113) The Act requires federal agencies to consult with the listing agencies to ensure that jeopardy to the species does not occur. (114) The listing agencies define jeopardizing the continued existence of a species as reducing "appreciably the likelihood of both the survival and recovery of a listed species." (115) Federal actions rarely result in a jeopardy finding under section 7. (116)

b. Critical Habitat Designation

The importance of habitat to species' survival cannot be overstated. (117) While prohibition on take of endangered species and requirements to avoid jeopardy, contained in sections 9 and 7 respectively, implicitly protect those species' habitats, (118) the ESA also requires that listing agencies designate critical habitat for listed species. (119) Despite this requirement, the listing agencies rarely designate critical habitat, (120) although it remains a flashpoint of controversy for industry and development interests. (121)

The ESA defines critical habitat as those geographical areas considered "(I) essential to the conservation of the species and (II) which may require special management considerations or protection." (122) Once a species has been listed, the listing agency must designate critical habitat for the species based on the "best scientific data available" after considering the relevant impacts of such designation, including economic impacts. (123) In addition, critical habitat designation must occur concurrently with a listing to the maximum extent prudent and determinable. (124) A listing agency may exclude areas from critical habitat designation if it determines that the benefits of doing so would outweigh the benefits of designation. (125) The only exception to this discretion is if the listing agency determines that "failure to designate such area as critical habitat [would] result in the extinction of the species." (126)

The listing agencies' failure to consistently designate critical habitat for listed species critically undermines the value of the Act's protection. (127) Moreover, the listing agencies define the prohibition on federal activities that would result in the destruction or adverse modification of critical habitat contained in section 7 in such a way as to equate it with the jeopardy standard for take of species. (128) Thus, the listing agencies have arguably eliminated the inquiry, required by the Act, as to whether federal actions properly protect critical habitat. (129) Nonetheless, where the listing agencies have designated critical habitat for listed species, it has often made a difference for a species's survival. (130)

c. Jeopardy Consultation

One of the most significant procedural and substantive protections offered to a listed species is the ESA's section 7 "jeopardy consultation" requirement. (131) Section 7 requires federal agencies to ensure that their actions are "not likely to jeopardize the continued existence" of a listed species or "result in the destruction or adverse modification" of critical habitat. (132) In addition, section 7 imposes an affirmative duty on all federal agencies to consider and conserve listed species when implementing agency actions. (133)

The jeopardy consultation requirement involves potentially a three-step process. (134) First, the federal agency proposing the action must consult with either FWS or NMFS to determine whether it is likely that endangered or threatened species reside in the affected area. (135) This initial consultation is usually informal and often conducted over the telephone. (136) If there are listed species in the affected area, the action agency must prepare a biological assessment to determine whether the species is likely to be affected by the proposed agency action. (137) A biological assessment determining that the proposed action will affect a listed species triggers a formal consultation, resulting in a Biological Opinion (BiOp) issued by the relevant listing agency. (138) If the BiOp determines that the proposed action will jeopardize a listed species or adversely modify critical habitat, the agency action may not proceed (139) absent an exception granted by the Endangered Species Committee (140) or mitigation to minimize the adverse consequences. (141)

d. Recovery Plans

For every species listed as threatened or endangered, the ESA directs the listing agency to develop and implement a recovery plan, unless such a plan would not promote the conservation of the species. (142) These plans help the listing agencies set long-term and interim recovery goals for listed species. Recovery plans are to include site-specific management measures necessary to ensure the species's survival, measurable criteria that will help determine when the species may be delisted, and estimates of how long it will take and how much it will cost to recover the species. (143) The Act also requires, "to the maximum extent possible," that recovery plans be developed first for those species most likely to benefit from them, "particularly those species that are, or may be, in conflict with ... development projects or other forms of economic activity." (144) Finally, the listing agencies must report to Congress every two years on the status of efforts to develop recovery plans for all listed species, as well as the status of species for which recovery plans have been implemented. (145)

e. Civil and Criminal Penalties

The listing agencies may enforce significant civil and criminal penalties under the ESA against any person who knowingly violates a provision of the Act. (146) In civil cases, fines can reach as high as $25,000 per violation; (147) in criminal cases, violators may face fines as high as $50,000, one year in prison, or both. (148) Such harsh penalties can be mitigated in three ways: 1) the availability of a defense for defendants who can show they acted on a good faith belief that they were protecting themselves, a member of their family, or another individual from bodily harm by a listed species, (149) 2) the availability of incidental take permits under both sections 7 and 9, (150) and 3) a lack of funding for listing agencies to strictly enforce these penalties. (151)

As an alternative means of enforcement, section 11 provides for citizen suits. (152) The citizen suit provision allows any person (153) to bring a civil action to enjoin another person, including governmental entities (to the extent permitted by the Eleventh Amendment) (154) from violating the ESA. (155) Citizens can also sue to compel the listing agencies to perform non-discretionary duties under the Act. (156) However, the Act restricts the scope of the citizen suit provision in two ways: 1) citizens must provide 60-day notice of their intent to sue, and 2) the Act precludes citizen suits if the listing agency has commenced a civil action or the United States has commenced a criminal action against the alleged violator. (157)

D. Analyzing the Role of Existing Regulatory Mechanisms and Ongoing Conservation Efforts in the Listing Process

Congress did not define the phrase "inadequacy of existing regulatory mechanisms" in the ESA. Congress also did not elaborate how the efforts to protect species referred to in section 4(b)(1)(A) should be taken into account in making a listing determination. (158) The listing agencies have only recently attempted to provide some formal guidance on how these terms should be interpreted and how they apply to listing decisions. (159) In the interim, the listing agencies' application of the terms to listing decisions has been inconsistent, at best, and contrary to the statute, at worst. Moreover, courts have almost universally remanded agency decisions not to list species based on the existence of state conservation efforts. (160) As a result, states and communities are uncertain as to how to best direct their species preservation efforts, and valuable recovery efforts for biologically imperiled species have been delayed. (161)

This subpart begins with an examination of how the listing agencies and the courts interpret the two provisions. It concludes that the listing agencies--and some court--have given the terms in both provisions overly broad interpretations in the face of the ESA's plain language and legislative history. By doing so, they have improperly precluded listings and are contravening Congress's intent that the listing process be an inclusive one based primarily on the biological health of the species.

1. Section 4(a)(1)(D): The Inadequacy of Existing Regulatory Mechanisms Factor

Section 4(a) contains a list of five potential threats to a species that, individually or in concert, may result in a species's listing. (162) The inadequacy of ERMs factor was the only one new to the 1973 ESA--the four other factors were present in the 1969 Act. (163) The legislative history was silent as to why the inadequacy factor was added. A House Committee report merely stated that "[section 4] is drawn broadly to allow the Secretary to declare endangered or threatened any species for any legitimate reason." (164) However, the perception that state and local regulations to protect wildlife were inadequate was a major impetus for the passage of the ESA, (165) and it is conceivable that Congress included the factor in an effort to prod states and localities into adopting more adequate laws to protect imperiled species and their habitat.

Despite the negative phrasing of the factor--inadequacy as opposed to adequacy--and its inclusion in the list of potential threats to a species, the listing agencies have interpreted the provision to allow them to consider "adequate" ERMs as mitigating other threats to a species. (166) Therefore, under the listing agencies' interpretation, they may avoid listing a species that is threatened by one of the other four factors--for example, destruction or modification of habitat--if they identify adequate ERMs. (167) Of course, this begs the question: How can a species be threatened if adequate regulatory mechanisms already exist to protect it? (168) Arguably, the listing agencies should not be permitted to consider ERMs unless they are "inadequate;" (169) however, most courts have also accepted this interpretation, (170) and the distinction will not be the focus of this analysis.

Instead, this subpart assumes that consideration of "adequate" ERMs in listing determinations is valid and examines how the listing agencies have expanded the scope of what constitutes an "adequate" ERM. First, this subpart discusses the listing agencies' interpretation of "existing" to include promised conservation efforts--an interpretation with which a majority of courts disagree. Second, it examines the listing agencies' interpretation of "regulatory mechanisms." Although some courts have interpreted this phrase to require mandatory conservation measures in order to preclude a listing, (171) the listing agencies permit voluntary measures to suffice. (172) This subpart concludes that the listing agencies' interpretation of ERMs is at odds with the plain language of the ESA, as well as with most courts' interpretations of the provision.

a. "Existing" in the Future?

The plain meaning of the word "existing" suggests, in this context, a mechanism that is already in place. (173) The listing agencies, however, continue to insist that they may consider the adequacy of future regulatory mechanisms. (174) In contrast, most courts adhere to the plain meaning of the word "existing," and the listing agencies are often overruled when they rely on unimplemented regulatory mechanisms in their listing determinations. (175)

Arguably, even regulations that are simply "existing" do not meet the necessary standard because the statute requires the listing agencies to judge the adequacy (or inadequacy) of the regulation. The only way to truly determine whether a regulatory mechanism is adequate to preclude a listing is to examine whether the regulation has a proven track record of effectiveness, (176) or whether it affords protections equivalent to those afforded by the ESA. (177) Because most regulatory mechanisms will be unlikely to have a proven track record of success in protecting the imperiled species (otherwise, the listing agencies would not be considering the species for federal listing in the first place), "adequate" regulatory mechanisms sufficient to preclude a federal listing should be as protective as those available under the ESA.

From a policy perspective, this approach would add regulatory certainty for states that are sincerely trying to develop programs to protect species while avoiding further federal ESA listings. Without some standard of proven effectiveness for the regulatory mechanisms the listing agencies consider, however, many states and localities are likely to continue to attempt to implement eleventh hour conservation schemes that the listing agencies can then call "existing" for the purpose of a listing determination. This solution is both disingenuous and ineffective. (178) Alternatively, a qualitative standard for ERMs that goes beyond simply "existing" might prod states and communities into taking more proactive approaches to species protection, rather than waiting for the federal government to initiate the process.

b. What Is a "Regulatory Mechanism?"

The other issue that section 4(a) raises is the interpretation of a "regulatory mechanism." The plain meaning of the phrase suggests something enforceable--something more than voluntary. (179) Otherwise, Congress could have used a phrase such as "conservation efforts" as it did in section 4(b). (180) Here, too, the listing agencies appear to overlook the plain meaning by considering purely voluntary conservation actions in their listing determinations. (181) As a result, most courts have remanded agency decisions not to list species based on "regulatory mechanisms" that were not enforceable at the time of the listing determination. (182)

2. Section 4(b)(1)(A): Ongoing Conservation Efforts

While section 4(a) contemplates threats to the species, section 4(b)(1)(A) directs the listing agency to make determinations regarding those threats "solely on the basis of the best scientific and commercial data available." (183) Further, the listing agency is required to "tak[e] into account those efforts, if any, being made" on behalf of the species "by any State or foreign nation ... within any area under its jurisdiction, or on the high seas." (184) Efforts that the listing agency can consider include "predator control, protection of habitat and food supply, or other conservation practices." (185)

While the ESA does not define "conservation efforts" mentioned in section 4(b)(1)(A), the Act does define conservation as "the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary." (186) The definition provides a detailed list of "methods and procedures" that might be used to conserve a species, including "all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live-trapping, and transplantation." (187) Significantly, take prohibitions are not specifically mentioned, reinforcing the idea that Congress considered conservation as more than just hunting bans.

Section 4(b)(1)(A) requires the listing agency to consider conservation efforts "being made" in making a listing determination. (188) This directive raises at least two questions: 1) Can state and local conservation efforts ever be sufficient to preclude a federal listing if a species was biologically in need of being listed? and 2) What does "being made" mean?

a. Can State and Local Conservation Efforts Ever Be Sufficient to Preclude a Federal Listing?

Congress significantly amended section 4(b)(1)(A) in 1982. (189) The original language of the provision stressed consulting with affected states, and the "efforts ... being made" language referred only to foreign nations. (190) This was consistent with the international concerns for wildlife protection that influenced the ESA's enactment. (191) But in amending section 4(b)(1)(A) in 1982, Congress collapsed the consultation and "efforts ... being made" requirements into one provision. (192) As a result, listing agencies are no longer required to consult formally with states prior to listing determinations, but they must take into account state efforts to protect species proposed for listing. (193)

Nowhere, either in the 1973 Act or in the current version, does the language expressly indicate that the listing agencies may defer to ongoing state and local conservation efforts to preclude a listing. The legislative history does indicate that Congress was very concerned that federal listings not disrupt a state conservation program that would be more protective of the species than what would be required by federal regulation. (194) This concern implies two things about Congress's conception of the protective standards afforded by the ESA. First, the Act was meant to establish federal floors for wildlife protection--the legislative history is replete with language supporting this proposition. (195) Second, Congress did not intend for federal regulations to preempt state programs that were more restrictive than the federal floors, and reserved for states the right to enact more protective regulations. (196) Thus, state and local conservation efforts that do not meet minimum federal standards arguably' would never be sufficient to preclude a listing. (197)

b. What Does "Being Made" Mean?

While on its face section 4(b)(1)(A) appears to contemplate conservation efforts already underway, the listing agencies often ignore this requirement in their determinations and consider efforts yet to be implemented. (198) When such determinations are challenged, courts have almost universally rejected the agencies' interpretation. (199) However, a more problematic category of conservation efforts exists--those that have been implemented but have not yet been proven effective. In the case of the flat-tailed horned lizard, the Ninth Circuit recently reversed a district court's decision upholding FWS's decision to withdraw a proposed rule to list the species. (200) FWS had relied on a Conservation Agreement between several federal agencies and the states of California and Arizona that had been implemented only one month prior to the decision to withdraw the proposed rule. (201) The District Court for the Southern District of California held that FWS's reliance on the agreement was reasonable and, in a footnote, concluded that because the agreement was the result of over two and one half years of planning, it was reasonably foreseeable. (202)

In reversing, the Ninth Circuit concluded that FWS had improperly relied on the management agreements (MAs) covering five areas identified as critical habitat for the lizard because, in at least three of the areas, the designation of the MAs was "either incomplete or wholly unstarted" at the time FWS withdrew the proposed rule. (203) Because FWS did not account for the effects of delay or failure to designate MAs, the court found its reliance on them to preclude listing the lizard unreasonable. (204) With this ruling, the Ninth Circuit impliedly affirmed several other district court cases in the Ninth Circuit that held conservation efforts need to be "currently operational" in order to be considered in listing decisions. (205)

In rejecting the "currently operational" standard, the California district court reasoned that it would discourage states from engaging in any conservation efforts because a subsequent federal listing could result in their efforts being wasted. (206) This rationale suffers from two potentially flawed assumptions. First, it assumes that states and localities develop conservation plans only to avoid federal listings, not out of concern for the species. Second, it assumes that an ESA listing and an already existing, more locally based conservation effort cannot work in tandem to conserve a species, but rather views the two as mutually exclusive. While states often initiate efforts to conserve species under the shadow of a federal listing, their efforts are not wholly motivated by a desire to keep the federal government from regulating within state boundaries. In fact, allowing states to implement conservation plans days before a listing determination gives states an incentive to delay their efforts on behalf of imperiled species for as long as possible. (207) A more stringent requirement of proven protective standards would be more faithful to the intent of the ESA. Rather than discouraging states from taking action, such standards would energize those motivated by concern for the species to act sooner and perhaps adopt stricter species protection laws. Alternatively, the ESA authorizes cooperative agreements with states after a species is listed for which states could receive federal funding. (208)

III. THE LISTING AGENCIES' DRAFT POLICY: CONTINUING A FLAWED INTERPRETATION

In June 2000, the listing agencies jointly issued a draft policy for evaluating conservation efforts when making listing decisions under the ESA. (209) While the goal of the draft policy is admirable--to inject consistency into the process of evaluating conservation efforts of states and localities and their effects on listing decisions (210)--the proposed policy falls short of achieving its goal for several reasons. First, the draft policy expands the term "conservation effort" well beyond the statutory language by allowing the listing agencies to consider efforts undertaken by entities other than states or foreign nations. (211) Second, the draft policy unlawfully permits future, unimplemented conservation efforts to preclude listings under certain circumstances. (212) Third, the draft policy sanctions the voluntary conservation effort loophole, invoking strained logic that assumes, because threats to a species are often the result of voluntary human actions, voluntary beneficial human actions must, therefore, also be considered in the listing process. (213) Finally, the draft policy explicitly declines to identify a minimum federal standard for conservation efforts sufficient to make a listing unnecessary. (214)

The draft policy recognizes that relying on unproven and voluntary programs is speculative. However, it rationalizes this reliance by a commitment to monitor the status of those species that are not listed. (215) The listing agencies will reevaluate the species's status if the conservation measure is not implemented on schedule, if it fails to achieve its goals, or if it is not modified to address an increased threat. (216) The promise to reevaluate provides little consolation to species that continue to decline and must wait years for legitimate protections. (217) Ultimately, adoption of this draft policy may result in delays that dwindling species cannot afford.

A. Expanding "Conservation Efforts" Beyond the Statutory Language

In the draft policy, the listing agencies expand the scope of the types of conservation efforts the Act requires them to consider in making a listing determination. The listing agencies interpret section 4 of the ESA to require that they consider "all conservation efforts being made to protect a species." (218) Thus, the draft policy includes conservation efforts being made by "Federal agencies, State and local governments, Tribal governments, businesses, organizations, and individuals," (219) when actually, section 4(b)(1)(A) requires the listing agencies to take into account only those efforts being made by "any State or foreign nation" or their political subdivisions. (220) Courts are divided on whether this language includes efforts being made by other federal agencies, (221) but the statute does not even remotely contemplate conservation efforts undertaken by businesses, organizations, or individuals.

As authority for this expansive reading, the listing agencies rely on section 4(a)(1)(E) of the ESA, which requires them to consider "other natural or manmade factors affecting [a species's] continued existence." (222) However, this general phrase is grouped with four other threats to species that the listing agency must consider, and does not refer to conservation efforts undertaken on the species behalf. (223) The ESA provides for consideration of potentially beneficial conservation efforts only in section 4(b)(1)(A), and such efforts are limited to those undertaken by states or foreign governments. (224)

B. Allowing Future, Unimplemented Conservation Programs to Preclude Listings

The listing agencies follow a remarkable logical chain in the draft policy, which concludes that future, unimplemented conservation efforts may preclude a listing. First, they distinguish section 4(a)(1) from section 4(b)(1)(A) by describing the section 4(a)(1) listing factors as those that negatively affect a species's existence, while interpreting section 4(b)(1)(A) to allow for consideration of efforts that benefit a species. (225) Then, the agencies observe that the ESA's definitions of threatened and endangered species (threatened species are those likely to become endangered in the foreseeable future, and endangered species are those species in danger of extinction) and section 4(a)(1)(A)'s mention of "the present or threatened destruction of habitat" among the listing factors contemplate future actions. (226) Therefore, the draft policy concludes that section 4(b)(1)(A) must also encompass future beneficial actions. (227)

This analysis ignores the plain language of the statute. Section 4(b)(1)(A) requires the listing agency to take into account those efforts "being made." (228) Congress could have required that the listing determination take into account "planned" efforts to protect a species, but specifically chose to use the present tense. The fact that listing agencies must consider future threats to a species does not logically lead to consideration of future beneficial human actions as grounds for denying statutory protection, especially given the plain language of the statute. In the absence of legislative history directly addressing this issue, the most logical implication of Congress's choice of language is that Congress intended that only ongoing conservation efforts being implemented should be weighed against listing a species that otherwise would qualify as threatened or endangered. (229)

Based on the questionable premise that the ESA allows consideration of future, unimplemented conservation efforts, the draft policy proceeds to articulate criteria by which the listing agencies must evaluate future efforts to determine whether such efforts will contribute to making a listing unnecessary. (230) The draft policy requires that these future efforts must be 1) sufficiently certain to be implemented and 2) sufficiently certain to be effective. (231) It then lays out several factors to consider in determining the certainty of both requirements. (232) In addition, listing agencies must consider conservation efforts on a case-by-case basis and evaluate them solely by how adequately they remove or reduce one or more of the 4(a)(1) threats. (233)

The flaw in this scheme is that there is no way to know with sufficient certainty whether a species-specific conservation effort will be implemented or effective unless it has had a chance to operate. (234) Moreover, evaluating conservation efforts on a case-by-case basis with no minimal standards provides no regulatory certainty for those trying to develop state and local conservation efforts, or for those petitioning to list the species under the ESA. The alternative to relying on conservation efforts that are uncertain to be implemented or effective, which is discussed in Part IV, is to require state and local efforts to be as protective as those required by the ESA in order for those efforts to be sufficient to preclude a listing. Similar to the federal-state relationship under other environmental statutes, (235) such a scheme would allow states and localities to retain control over implementation of protective mechanisms as long as they met minimum federal standards.

C. Authorizing the Voluntary Measure Loophole

The draft policy uses similarly flawed logic to justify the consideration of voluntary conservation measures in listing determinations. (236) The rationale for this policy derives from the fact that threats to species that lead to listings are, themselves, often the result of voluntary human actions. (237) Accordingly, the draft policy asserts that voluntary beneficial human actions can also have the opposite effect of precluding a listing. (238) If the listing agency determines those measures are sufficiently certain to be effective, they may forestall a listing. (239) The draft policy lists several factors for evaluating a voluntary program's effectiveness, including the level and length of commitment by landowners and the potential effects of the program on species. (240)

At least two courts have determined that voluntary efforts are not adequate ERMs that can influence a listing decision because a "regulatory mechanism" requires something more than a promise to protect the species. (241) In addition, although section 4(b)(1)(A) does not specify that conservation efforts "being made" must be mandatory, few of the substantive protections that the ESA does afford listed species are voluntary, (242) implying Congress's intent that voluntary efforts would not be effective enough to protect and recover species. Allowing voluntary conservation measures to serve as grounds for denying a listing ignores the very problem that led to the ESA's enactment--species were going extinct at an alarming rate because states and private landowners were not voluntarily implementing programs to protect the species and their habitats. (243) Thus, allowing voluntary conservation efforts to preclude listings, no matter how certain they are to be implemented, is not supported by the statute, the legislative history, or the majority of courts interpreting this issue.

D. Providing No Standard for Conservation Efforts

The draft policy defines "conservation efforts" as "specific actions, activities, or programs designed to eliminate or reduce threats or Otherwise improve the status of the species." (244) Although this definition seems to comport with the requirements under the ESA necessary to remove a species from the list, the draft policy requires no substantive protections equivalent to those found in the ESA to be present in conservation efforts considered in making listing determinations. Instead, under the draft policy, conservation efforts "may involve ... protection of habitat; reduction of mortality or injury; or other beneficial actions." (245) Although the draft policy seeks to determine whether unimplemented conservation efforts will be effective enough to preclude a listing, this finding continues the listing agencies' informal policy of refusing to directly link ongoing state and local conservation efforts with the substantive protections a species would receive if listed.

The draft policy's fallback position is a promise to monitor any species that the listing agencies decline to list based on the presence of ongoing conservation efforts. (246) If the conservation efforts relied on fail to halt the species' decline, the listing agencies will reevaluate the status of the species to determine whether a listing is necessary. (247) This approach places the risk of failed state and local conservation efforts--a significant risk considering the history of failure of such efforts--squarely on the species already imperiled. (248) A better approach would be to list the species, and then, if conservation efforts prove effective, the species would qualify for removal from the list. (249) Such an approach would bring imperiled species under the umbrella of protections the ESA offers, at least until state and local conservation efforts were sufficient to delist the species. Alternatively, if states adopted and enforced protections equivalent to those found in the ESA, precluding a federal listing would be appropriate because the species would, theoretically, be receiving equivalent protections that, it would have received had it been listed.

IV. AN ALTERNATIVE: FEDERAL FLOORS FOR CONSERVATION EFFORTS CONSIDERED DURING LISTING DETERMINATIONS

There is no question that the federal government needs the cooperation of states and localities to protect and preserve imperiled species. (250) But rather than straining to interpret statutory language to avoid their duty to list species, the listing agencies should use the protective standards in the ESA (251) as a measuring stick for state and local conservation efforts. This approach is consistent with the statutory language and legislative history of the Act. (252) Moreover, the ESA's substantive protections provide meaningful standards toward which state and local conservation efforts can strive, in contrast to the current regulatory uncertainty created by the listing agencies' case-by-case evaluation of state conservation efforts. The result will be more effective state and local laws to protect imperiled species and subsequently fewer species being added to the federal endangered species list.

When states must adhere to federal minimum standards of environmental protection, federalism concerns can and often do arise. (253) This Part begins by examining the federalism tensions underlying the listing agencies' treatment of conservation efforts in listing determinations. (254) Opponents of the ESA often raise the principle of federalism to justify fewer listings and subsequently less federal control over wildlife and habitat regulation. This Part concludes, however, that federalism principles, specifically the recognition of traditional state police powers over wildlife and land use regulation, do not support the listing agencies' policy of broadly construing the statutory language to avoid listing species that otherwise would be considered threatened or endangered. (255) The Part suggests that, if listing agencies are to consider state and local conservation efforts sufficient to preclude a listing, states and localities must incorporate the protective standards of the ESA into such efforts. The Part then explores how states can accomplish this goal, and later examines several already-existing state laws that other states can use as models.

A. Federalism: A Hollow Justification for a Flawed Policy

The principle of federalism will often tug at federal regulation of an area once primarily regulated by states. (256) However, the federal government must resist the temptation to relinquish its responsibilities when the regulated activity is one of truly national proportions, and where Congress has acted pursuant to its constitutional powers. The ESA meets both of these criteria. Few would argue that species extinction and loss of biodiversity has no national, or even international, implications. (257) Many of those implications substantially affect interstate commerce, giving Congress the power, under the Commerce Clause, to enact laws to address the problem. (258) Thus, state control of species and their habitat must give way to the compelling national interest of preventing species' extinctions, the regulation of which is legitimately grounded in the Constitution.

Congress was not blind to the federalism concerns the ESA presented. Federalism issues were central in the debate leading up the passage of the ESA. (259) Opposition to federal control over resident species within states played a role in limiting the scope of the 1966 and 1969 Endangered Species Acts, and the reluctance of states to part with any of their authority over wildlife continued after Congress passed these acts. (260) By the time deliberations on the ESA began in earnest, however, most stakeholders agreed that more federal control was necessary. (261) Ultimately, Congress's chief concern was that the federal scheme not preempt already efficient state conservation programs. (262)

The national government found itself on familiar but still uneasy ground. On the one hand, it was demanding that states hand over some of their control over wildlife, specifically identification and management of threatened and endangered species. On the other hand, the federal government had neither the desire nor the capability to assume full responsibility for these species and, therefore, was asking for the states' help in administering the ESA. (263) In the air and water pollution contexts, Congress had solved this problem by creating schemes by which the Environmental Protection Agency (EPA) would authorize states to implement their own pollution prevention programs as long as they met certain minimum federal standards and were subject to federal operational oversight. (264) States were then free to enact stricter standards than those imposed by the federal government if they desired. (265)

The ESA contains no delegation scheme, at least with respect to listing or delisting species; that authority rests solely with the federal government. (266) Conceivably, Congress could have given the states veto power over listing of resident species. However, Congress considered and rejected such an approach. (267) Instead, Congress determined that state authority could be accommodated after a species was listed through 1) management and cooperative agreements under section 6, (268) 2) promulgation of regulations for threatened species under section 4(d), (269) and 3) the development of habitat conservation plans (HCPs) under section 10. (270) Thus, both the legislative history of the ESA and the Act's express provisions indicate that, while federalism was a concern for the drafters of the ESA, it did not override the need for federal standards for preventing species' extinctions.

By misapplying the "inadequacy of ERMs" factor and broadening the scope of what constitutes a "conservation effort ... being made," however, the listing agencies are shifting the responsibility for management of the threatened and endangered species back to the states. This shift represents the creation of a quasi-state delegation system that the ESA did not include, or the granting to states of an informal listing veto power that Congress expressly rejected. (271) In doing so, the listing agencies ignore one of the primary reasons for which Congress enacted the ESA: states and localities were ineffective at providing sufficient protections for wildlife within their borders. (272) They also ignore the fact that there is little evidence that much has changed in the last twenty-five years; to the contrary, the evidence supports a policy of greater federal intervention. (273) The federal government has given states more chances to protect imperiled species than the statutory language suggests they deserve. Yet, state conservation efforts have time and again failed to achieve the necessary goal of halting species decline, much less assist in their recovery. (274)

B. Using the ESA's Protective Standards as Federal Floors for Evaluating Conservation Efforts

Although states and local entities should be permitted--indeed, encouraged--to experiment with different species-protection schemes, imperiled species should not have to bear the risk that such schemes may fail. The risk is better borne by society as a whole. This allocation of risk would occur if the listing agencies used the standards of protection in the ESA as a federal floor for conservation efforts to preclude a listing. Such a scheme would mirror other environmental statutes by allowing states to develop and oversee regulatory programs and conservation efforts that better address local needs so long as such programs are at least as protective as the ESA standards. Risk allocation would also encourage states to be more proactive in addressing species protection and to adopt stricter state ESA laws.

Section 9 take prohibitions are probably the easiest federal standards for states and localities to mimic, at least as far as the prohibitions apply to direct harm of species. Some state endangered species laws already include prohibitions against takes of state-protected species. (275) However, most state laws do not define the term "take" as broadly as federal regulations--to include harm to species through habitat destruction. (276) Therefore, insisting that take prohibitions in state laws meet the federal standards under the ESA would require (most) states to significantly amend their current endangered species laws or adopt new ones. States would be able to issue incidental take permits just as the ESA allows the listing agencies to do under section 9. (277)

States are also well suited to designate critical habitat for imperiled species. Traditionally, states and localities have had authority over land use regulation and zoning laws. (278) So, really the question is not whether states can protect habitat, it is whether they have the political will to do so. (279)

Arguably, it is in the states' and local landowners' best interests to focus on habitat and ecosystem protection rather than protecting single species. (280) In addressing single species, states and private landowners might take the steps necessary to protect that species only to discover another potentially threatened or endangered species residing in a similar geographical area that also needs habitat protection. Such a discovery would necessitate further planning and result in more delay for any planned development in the area.

Some states have recognized this dynamic and have shown a willingness to proactively protect habitat. In response to the impending listing of the California gnatcatcher and as many as ninety other species dependent upon the rapidly disappearing coastal sage scrub habitat along the California coast, the state initiated the Natural Communities Conservation Planning (NCCP) program in 1991. (281) The program was based on an unprecedented voluntary effort by private landowners, comprised primarily of developers who owned large tracts of land, to set aside needed habitat "before the landscape [became] so fragmented or degraded by development that the listing of individual species [was] required." (282)

Environmental groups were involved in the NCCP process and supported the program. (283) However, the Natural Resources Defense Council--the group principally responsible for petitioning FWS to list the gnatcatcher under the federal ESA--eventually resigned from the NCCP panel because the state was providing no interim protections for the species while the program was being developed. (284) California's Fish and Game Commission was unwilling to list the gnatcatcher under the state's endangered species act, and by the time interim controls were developed, these contracts fell far short of the protections that critical habitat designation under the federal ESA would have offered. (285)

Like Oregon's plan to protect salmon, (286) the interim controls devised by the NCCP program were largely voluntary, partially due to the lack of a state listing. (287) The state simply did not have an operative legal mechanism for asserting direct regulatory control over the gnatcatcher's habitat. (288) By not listing the gnatcatcher under its own endangered species act, California demonstrated its unwillingness to fully commit to protection and recovery of the species. Instead, like Oregon's salmon plan, the NCCP relied on voluntary actions by private landowners. As the few courts that have addressed this issue have held, voluntary measures are insufficient conservation efforts to preclude a listing. (289) Not surprisingly, the gnatcatcher was eventually listed as threatened under the federal ESA. (290)

As the NCCP program example illustrates, habitat protection is a crucial component for the conservation of species. Few states have the direct legal authority necessary to set aside critical habitat under their existing endangered species laws. (291) Thus, most states would need to enact new laws or strengthen current ones in order to find such authority. States that are serious about wanting more control over imperiled species can demonstrate their commitment by developing legal authority to prohibit takes by defining takes to include habitat destruction and designating critical habitat for potentially threatened or endangered species.

Even if state and local conservation plans develop the power to define take prohibitions to include habitat destruction and designate critical habitat, they would lack authority to require consultation by federal agencies prior to federal actions. Such consent, however, is not unthinkable. For instance, in 1994, twelve federal agencies voluntarily entered into a Memorandum of Understanding (MOU) with the listing agencies to coordinate species conservation efforts in areas under their management authority. (292) Some states already use section 7 as a model to require consultation by state agencies for individual identified species. (293) In addition, for certain confined species it might be possible to identify relevant federal agencies that might engage in activities within the species' range. States, with the backing of the Departments of the Interior and Commerce, could then enter into agreements with those federal agencies to require them to consult with the states before taking action that might adversely affect the species. (294) For the most part, this would not impose a significant additional burden on the federal agency because biological assessments under the ESA often overlap with Environmental Assessments or Environmental Impact Statements that the federal agency is required to perform under the National Environmental Policy Act (NEPA). (295) Such an arrangement would ensure that biologically-depleted species the listing agencies declined to list based on the existence of ongoing conservation efforts would get substantially similar protections to those afforded under section 7 of the ESA.

Finally, recovery plans and criminal and civil enforcement protections provided by the ESA could also be incorporated into state conservation plans. Recovery plans are crucial to the long-term health of the species and would be made up of many of the protections already mentioned (such as take prohibitions, critical habitat designation, and consultation with federal agencies). Just as with those protections, recovery plans are effective only if regulators are willing to carry them out. (296) Similarly, civil and criminal penalties are only effective if they are enforced regularly. States and localities have the authority to implement and enforce these protections for species within their borders. So far, they have generally been unwilling to do so for unlisted species.

V. CONCLUSION

The substantive protections the ESA affords listed species have proven to be the most effective methods for halting species' decline and beginning the recovery process. If listing agencies are relying on state and local conservation efforts to preclude federal listings, those efforts must give species a realistic chance at survival, rather than act as just another way to delay or avoid a listing. Congress intended the protections of the ESA to act as minimum federal standards for listed species. Those minimum standards should be extended, through incorporation into state and local conservation efforts, to species that would otherwise be listed but for the presence of those efforts. The listing agencies current and proposed policies do not accomplish this; rather they place the risk that the state and local conservation efforts will fail--a significant risk given the states' poor track record--squarely on the already imperiled species. Such a burden is more than those species should have to bear and is contrary to the goals and requirements of the ESA. Moreover, by evaluating conservation efforts on a case-by-case basis with no set minimum standards by which to measure them, listing agencies make it extremely difficult for states and communities to know what efforts, if any, will be sufficient to preclude federal listings. Finally, most courts have soundly rejected the listing agencies' current policy as contrary to the language and purpose of the ESA. (297) The Draft Policy formalizes an already flawed interpretation, so the listing agencies should receive no higher degree of deference from the courts in the future if it is adopted as currently proposed. (298)

By incorporating minimum federal standards into state and local conservation efforts, those efforts will be able to take into account local needs while still protecting and recovering species to the level needed to ensure their existence for future generations. Only in this way will state and local conservation efforts rise to the standard necessary to address the continuing crisis of species' extractions and loss of biodiversity that threatens the delicate balance of nature in the twenty-first century.

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

(2) Seth Borenstein, Interior Choice Stirs Cries, Song in Opposing Camps, PITT. POST-GAZETTE, Dec. 30, 2000, at A6

(3) Brief of Amicus Curiae State of Arizona ex rel. M.J. Hassell, Arizona State Land Commissioner and State of Colorado in support of Respondents, at 3-5, 11-29, Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 689 (1995) (No. 94-859) (Norton, as the Attorney General of Colorado, filed an amicus curiae brief in favor of striking a regulation defining "harm" under the ESA as unconstitutional).

(4) Judd Slivka, Interior Pick Sets Off `Alert', ARIZ. REPUBLIC, Dec. 30, 2000, at A1 (describing Norton's ties to property rights groups, including her position on an advisory board to Defenders of Property Rights).

(5) See generally Jon Roush, Freedom and Responsibility: What We Can Learn from the Wise Use Movement, in LET THE PEOPLE JUDGE: WISE USE AND THE PRIVATE PROPERTY RIGHTS MOVEMENT 1-2, 7-8 (John D. Echeverria & Raymond Booth Eby eds., 1995) [hereinafter LET THE PEOPLE JUDGE] (describing the controversial nature of the ESA).

(6) Gale Norton Nomination, Nominee to be Secretary of the Department of Interior: Hearings Before the S. Comm. on Energy and Natural Res., 107th Cong. 46 (2001) (Norton saying she supported the goals of the ESA and promising to "apply that Act as it is within, and as the courts have interpreted it").

(7) Unless otherwise noted, "Secretary" refers to both the Secretary of the Interior and the Secretary of Commerce, both of whom are authorized to list species as threatened or endangered under the ESA. 16 U.S.C. [subsection] 1532(15), 1533(a) (2000).

(8) Announcement of Draft Policy for Evaluation of Conservation Efforts When Making Listing Decisions, 65 Fed. Reg. 37,102 (June 13, 2000) [hereinafter Draft Policy]. For a discussion of how the proposed policy continues the listing agencies' inappropriately broad construction of existing regulatory mechanisms and ongoing conservation efforts, and therefore, why it should not be adopted, see infra Part III.

(9) See, e.g., Withdrawal of Proposed Rule to List the Flat-tailed Horned Lizard as Threatened, 62 Fed. Reg. 37,852, 37,858--60 (July 15, 1997) (declining to list the fiat-tailed homed lizard as threatened primarily in reliance on state and local conservation efforts); Withdrawal of Proposed Rule to List a Distinct Population of Atlantic Salmon as Threatened, 62 Fed. Reg. 66,325, 66,327 (Dec. 18, 1997) (emphasizing the presence of state and local conservation efforts in rule withdrawing a population of Atlantic salmon from listing consideration).

(10) 16 U.S.C. [section] 1533(a)(1)(D) (2000) ("The Secretary shall ... determine whether any species is an endangered species or threatened species because of any of the following factors: ... the inadequacy of existing regulatory mechanisms.").

(11) Id. [section] 1533(A)(1)(A). "The Secretary shall make determinations required by subsection (a)(1) of this section ... after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices." Id.

(12) Id. [subsection] 1533(a)(1)(D), (b)(1)(A).

(13) See, e.g., Withdrawal of the Proposed Rule to List the Fresh Virgin Spinedance as Threatened and Withdrawal of the Proposed Rule to Designate Habitat for the Virgin Spindance, 61 Fed. Reg. 4401, 4404, 4406 (Feb. 6, 1996) (finding that a state conservation agreement will reduce the actual and potential threats to the virgin spinedance and determining listing was therefore not warranted).

(14) For example, in 1987, NMFS declined to list as threatened or endangered the winter-run Chinook salmon on the Sacramento River in California, despite continuous, long-term population declines. Winter Run Chinook Salmon, 52 Fed. Reg. 6041, 6047 (Feb. 27, 1987). Instead, NMFS relied on new agreements between water supply agencies and water users to improve the salmon's chances for survival. Id. at 6047 ("Although [the salmon have] declined persistently over the past 17 years, NMFS thinks that State and Federal resource management agencies are addressing the habitat problems that contributed to the decline of the run."). Five years later, after an environmental lawsuit and a 99% decline in the population in the last 25 years, NMFS listed the winter-run Chinook salmon as endangered. Endangered Status for Winter-Run Chinook Salmon, 57 Fed. Reg. 27,416, 27,416 (June 19, 1992); Oliver A. Houck, The Endangered Species Act and Its Implementation by the U.S. Departments of Interior and Commerce, 64 U. COLO. L. REV. 277, 287-88 (1993).

(15) Salmon seem to have borne the brunt of this policy. For example, in 1994, several environmental groups petitioned to list certain species of west coast salmon and steelhead, including the Klamath Mountains Province (KMP) steelhead population. Threatened Status for Two ESUs of Steelhead in Washington, Oregon, and California, 63 Fed. Reg. 13,347, 13,348 (Mar. 19, 1998). Three years later NMFS published a final rule listing five populations as threatened or endangered, but deferred its decision on the KMP steelhead for six months to gather more data. Id. At the end of the six-month extension, NMFS issued a final rule determining that the KMP steelhead population did not warrant listing under the Act. Id. NMFS based its decision primarily on the presence of state conservation efforts, some existing and some yet-to-be implemented. Id. at 13,366 ("NMFS believes existing conservation efforts implemented by the states of Oregon and California have reduced threats to this species."). NMFS's "not warranted" finding was quickly challenged in federal district court. On October 24, 2000, the District Court for the Northern District of California held that NMFS's decision not to list the KMP steelhead population was arbitrary and capricious because it relied heavily on existing and recently implemented conservation efforts in California and Oregon to ameliorate significant threats to the species identified by the agency's own Biological Review Team. Fed'n of Fly Fishers v. Daley, 131 F. Supp. 2d 1158, 1166-69 (N.D. Cal. 2000). On remand, NMFS, again relying heavily on state and local conservation efforts, declined to list the KMP steelhead population under the ESA. Final Listing Determination for Klamath Mountains Province Steelhead, 66 Fed. Reg. 17,845, 17,856 (Apr. 4, 2001). Thus, the KMP steelhead population is still without the substantive protections afforded by the ESA, leaving its survival up to state and local entities, which, up to this point, have been unable to arrest its decline.

(16) See Defenders of Wildlife v. Norton, 258 F.3d 1136, 1146 (9th Cir. 2001) (rejecting the agency's and lower court's reliance on a California Conservation Agreement (CA) to justify withdrawing a proposed listing of the fiat-tailed horned lizard because, in at least three areas designated as management areas for the species, "the designation process was either incomplete or wholly unstarted [and] [n]owhere [did] the Secretary account for the effects of failure to implement the CA immediately in those areas where delay was expected."); Or. Natural Res. Council v. Daley (ONRC), 6 F. Supp. 2d 1139, 1154 (D. Or. 1998) ("NMFS may only consider conservation efforts that are currently operational."); Friends of the Wild Swan, Inc. v. USFWS, 945 F. Supp. 1388, 1398 (D. Or. 1996) ("[USFWS] cannot rely upon its own speculations as to the future effects of another agency's management plans."); Southwest Ctr. for Biological Diversity v. Babbitt, 939 F. Supp. 49, 51 (D.D.C. 1996) ("[The Secretary] cannot use promises of proposed future actions as an excuse for not making a determination based on the existing record."). For a decision addressing whether conservation efforts must be mandatory for the listing agencies to consider them in listing determinations, see ONRC, 6 F. Supp. 2d at 1154-55, which held that voluntary conservation actions cannot be relied on to preclude an ESA listing because "like those planned in the future, [they] are necessarily speculative."

(17) See, e.g., Defenders of Wildlife, 258 F.3d at 1146-47. Such rulings further extend the time that imperiled species do not receive the substantive protections afforded by the ESA, and do not necessarily mean that those protections will ever materialize. See supra note 15 (discussing NMFS's refusal to list KMP steelhead even after a court remanded the agency's initial "not warranted" finding).

(18) For a discussion of the statutory language see infra Part II.D.

(19) This idea is variously embodied in the states' rights or wise use movements. See generally LET THE PEOPLE JUDGE, supra note 5.

(20) See A. Dan Tarlock, Environmental Federalism: Biodiversity Federalism, 54 MD. L. REV. 1315, 1316 (1995) ("[I]n contrast to air and water pollution control, there are no uniform standards that one can realistically apply to biodiversity in states as different as Alaska, Arizona and Florida.".

(21) See, e.g., 16 U.S.C. [section] 1535 (2000) (requiring listing agencies to cooperate "to the maximum extent possible with States ... for the purpose of conserving any endangered species or threatened species'(emphasis added)). Section 6 clearly contemplates federal agencies cooperating with states after the listing decision has already been made. See id. Congress could have given the governor of the state in which a species resided veto power over a listing decision, but it recognized that many species were not residents of single states, and therefore, a unilateral veto power over listing would undermine the national scheme. H.R. REP. No. 93-412, at 6 (1973) ("The states have no veto over the listing or delisting of endangered species."). Section 4's original language does suggest, however, that Congress intended that the listing agencies keep states involved in listing decisions. Endangered Species Act of 1973, Pub. L. No. 93-205, [section] 4(b), 87 Stat. 884, 887 (1973). The language required the Secretary, prior to listing, to consult with affected states, notify the governor of each state within which the species was known to exist, and allow each state 90 days to submit comments and recommendations on the proposed listing. Id. Congress significantly amended section 4(b) in 1982 and removed these requirements.

(22) See infra Part II.C.2 (discussing the substantive protections the ESA affords listed species); infra Part IV (discussing how states can incorporate those protections as standards when developing conservation efforts).

(23) See John D. Leshy, The Babbitt Legacy at the Department of the Interior: A Preliminary View, 31 ENVTL. L. 199, 212 (2001) (describing Babbitt's efforts to preserve the essence of the controversial ESA through legislative and administrative compromise).

(24) On October 26, 2000, Representative Don Young (R-AK) submitted a report accompanying a bill that would have reauthorized and amended the ESA. H.R. REP. No. 106-1013, 1013 (2000) (proposing burdensome listing requirements, reduction in federal agency responsibility, and decreased protection of species on private land). The report recommended many changes to the listing provisions that would make it substantially more difficult for species to be listed under the Act. Id.; see also J.B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Time for Something Completely Different?, 66 U. COLO. L. REV. 555, 584 n. 75 (1995) (documenting the 104th Congress's almost constant attack on the ESA in 1995).

(25) In 1991, California launched a statewide ecosystem-based conservation program to reduce the need for future federal ESA listings in the state. Jon Welner, Natural Communities Conservation Planning: An Ecosystem Approach to Protecting Endangered Species, 47 STAN. L. REV. 319, 319 (1995). Governor John Kitzhaber of Oregon led a massive, and ultimately unsuccessful, state effort to head off ESA listings of several imperiled salmonid species in the Columbia River basin. See Christine Golightly, The Oregon Coastal Salmon Restoration Initiative: A Flawed Attempt to Avoid ESA Listing, 7 N.Y.U. ENVTL. L.J. 398, 398 (1999) (discussing Oregon's failed attempt to prevent NMFS from listing several species of coastal salmon and steelhead populations).

(26) See, e.g., Bruce Babbitt, The Endangered Species Act and "Takings": A Call for Innovation Within the Terms of the Act 24 ENVTL. L. 355, 355 (1994) (criticizing the proposed Just Compensation Act and suggesting a balance between minimizing the burden on private landowners and protecting species); Martha F. Phelps, Candidate Conservation Agreements Under the Endangered Species Act: Prospects and Perils of an Administrative Experiment, 25 B.C. ENVTL. AFF. L. REV. 175, 175 (1997) (discussing the listing agencies' use of Candidate Conservation Agreements in an attempt to make the ESA more flexible, and thus more acceptable to its detractors).

(27) The controversy over the northern spotted owl in the Pacific Northwest symbolized this debate by pitting the logging industry against environmental groups determined to save old growth forests. See e.g., Northern Spotted Owl v. Hodel, 716 F. Supp. 479, 480 (W.D. Wa. 1988) (environmental groups challenging the FWS's decision not to list the northern spotted owl as threatened or endangered). The battle lines were stark in many loggers' minds--jobs versus owls. See STEPHEN YAFFEE, THE WISDOM OF THE SPOTTED OWL: POLICY LESSONS FOR A NEW CENTURY 3-15 (1994) (describing the history of the spotted owl controversy).

(28) The bald eagle in the lower 48 states has recovered sufficiently for FWS to propose removing it from the list of threatened species. Proposed Rule to Remove the Bald Eagle in the Lower 48 States from the List of Endangered and Threatened Wildlife, 64 Fed. Reg. 36,454 (July 6, 1999). In 1994, NMFS determined that the eastern North Pacific (California) population of gray whales was no longer threatened and removed it from the list. Final Rule to Remove the Eastern North Pacific Population of the Gray Whale from the List of Endangered Wildlife, 59 Fed. Reg. 31,094 (June 16, 1994). These species represent the exception rather than the rule--since the ESA's enactment only 31 species have been delisted, only 12 of those due to recovery. USFWS, Delisted Species Report, at http://ecos.fws.gov/webpage/webpage_delisted.html (last visited Apr. 2, 2001). However, only eight species have been removed from the list due to extinction. Id. One would expect, given the status of most species that are listed under the ESA, that the rate of extinction would be much higher, and some suggest that the low rate of extinctions, rather than the low rate of recoveries, is a better benchmark to measure the success of the Act. Mark W. Schartz, Choosing the Appropriate Scale of Reserves for Conservation, in 30 ANN. REV. OF ECOLOGY AND SYSTEMATICS 83, 87 (1999).

(29) The discovery of the snail darter, a three-inch long fish previously unknown to science, stalled the completion of the Tellico Dam, which had already cost taxpayers nearly 100 million dollars. Tennessee Valley Authority v. Hill (TVA v. Hill), 437 U.S. 153, 153 (1978). In California, the gnatcatcher, a small songbird, captured headlines when FWS listed it as a threatened species in 1993. Determination of Threatened Status for the Coastal California Gnatcatcher, 58 Fed. Reg. 16,742 (Mar. 30, 1993); see also Lou Cannon, Opportunity, Obstacles in a Songbird's Fate; Coastal Habitat Targeted for Development, WASH. POST, Sept. 22, 1991, at A3 (describing the debate between conservationists and developers over the disappearing gnatcatchers).

(30) The modern ESA was enacted amid a host of other environmental protection statutes including the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. [subsection] 4321-4370e (1994 & Supp. III 1997), the Marine Mammal Protection Act, 16 U.S.C. [subsection] 1361-1407 (2000), the Federal Water Pollution Control Act (Clean Water Act or CWA), 33 U.S.C. [subsection] 1251-1387 (1994 & Supp. III 1997), the Clean Air Act (CAA), 42 U.S.C. [subsection] 7401-7671q (1994 & Supp. III 1997), and the Resource Conservation and Recovery Act (RCRA) of 1976, 42 U.S.C. [subsection] 6901-6992k (1994 & Supp. III 1997) (amending Solid Waste Disposal Act, Pub. L. No. 89-272, 79 Stat. 992).

(31) See generally Shannon Peterson, Congress and Charismatic Megafauna: A Legislative History of the Endangered Species Act, 29 ENVTL. L. 463, 467 (1999) (describing how some species, such as bald eagles, bison, and grizzly bears, garner substantial public support as symbols).

(32) See STEVEN YAFFEE, PROHIBITIVE POLICY: IMPLEMENTING THE FEDERAL ENDANGERED SPECIES ACT 132-34 (1982) [hereinafter PROHIBITIVE POLICY] (outlining external pressures that shape the implementation of the ESA).

(33) The conference bill passed in the House by a vote of 355 to 4. Id. at 56.

(34) TVA v. Hill, 437 U.S. at 180.

(35) See PROHIBITIVE POLICY, supra note 32, at 33 ("Throughout the twentieth century, federal power grew vis-a-vis that of the states, though the appropriate role of each remained a constant source of conflict.").

(36) 161 U.S. 519 (1896).

(37) Lacey Act of 1900, ch. 553, 31 Stat. 187 (1900) (current version at 16 U.S.C. [subsection] 3371-3378 (2000) and 18 U.S.C. [section] 42 (2000)) (prohibiting the interstate transportation of wild animals and birds killed in violation of state laws).

(38) MICHAEL J. BEAN & MELANIE J. ROWLAND, THE EVOLUTION OF NATIONAL WILDLIFE LAW 16 (3d ed. 1997).

(39) The Abbey Dodge, 223 U.S. 166, 173 (1912).

(40) BEAN & ROWLAND, supra note 38, at 17.

(41) Ch. 128, 40 Stat. 755 (1918) (current version at 16 U.S.C. [subsection] 703-711 (2000)).

(42) 16 U.S.C. [subsection] 703-704 (2000).

(43) Missouri v. Holland, 252 U.S. 416, 432 (1920).

(44) BEAN & ROWLAND, supra note 38, at 25. The Supreme Court eventually discarded the state ownership doctrine 61 years later. Hughes v. Oklahoma, 441 U.S. 322, 334 (1979).

(45) See PROHIBITIVE POLICY, supra note 32, at 39 (documenting Congress's species-by-species approach to wildlife protection prior to the passage of the Endangered Species Preservation Act of 1966).

(46) See, e.g., Fish and Wildlife Coordination Act of 1934, ch. 55, [section] 2, 48 Stat. 401 (1934); Bald and Golden Eagle Protection Act of 1940, ch. 278, 54 Stat. 250 (1940) (current version at 16 U.S.C. [section] 668a (2000)).

(47) See DAN ROHLF, THE ENDANGERED SPECIES ACT: A GUIDE TO ITS PROTECTIONS AND IMPLEMENTATION 20 (1989) (describing the factors that led up to the enactment of the ESA).

(48) Endangered Species Preservation Act of 1966, Pub. L. No. 89-669, 80 Stat. 926 (repealed 1973).

(49) Congress limited the scope of its legislation to native species of vertebrate fish and wild life, precluding non-native species, plants, and invertebrates from protection. PROHIBITIVE POLICY, supra note 32, at 40.

(50) 80 Stat. at 926.

(51) Id.

(52) Id.

(53) Id.

(54) Id. at 926-27.

(55) See PROHIBITIVE POLICY, supra note 32, at 41 (noting that, aside from the federalism issues, the bills were largely uncontroversial and passed easily in both the House and the Senate).

(56) See ROHLF, supra note 47, at 21 (calling the 1966 Act a "broad but toothless policy" but noting its importance in setting the stage for further protective legislation for threatened species).

(57) PROHIBITIVE POLICY, supra note 32, at 41 ("Most of the senators and the management-oriented conservation groups were protective of the states' role. Conservation groups with more diverse constituencies seemed to push for a greater federal role.").

(58) 80 Stat. at 927.

(59) Id.

(60) Pub. L. No. 91-135, 83 Stat. 275 (repealed 1973).

(61) Id. at 275; ROLHF, supra note 47, at 21-22.

(62) 83 Stat. at 275. For a discussion of the controversy surrounding the 1969 Act and the role of the fur trade industry in diluting its protections, see PROHIBITIVE POLICY, supra note 32, at 42-47.

(63) 83 Stat. at 278. The "international ministerial meeting" finally took place in 1973 and resulted in the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) March 3, 1973, 27 U.S.T. 1087, T.I.A.S. No. 8249. ROHLF, supra note 47, at 23. CITES, along with the Marine Mammal Protection Act, was instrumental in laying the conceptual foundation for "threatened" status in the ESA through its establishment of a category of species not yet on the verge of extinction but still deserving protection. BEAN & ROWLAND, supra note 38, at 495-96.

(64) 83 Stat. at 275.

(65) Id.

(66) PROHIBITIVE POLICY, supra note 32, at 47; see also ROHLF, supra note 47, at 22 (noting that the discussion increased public interest and involvement in environmental issues in the 1970s).

(67) 8 WEEKLY COMP. OF PRES. DOC. 223-24 (Feb. 14, 1972); see also BEAN & ROWLAND, supra note 38, at 198.

(68) PROHIBITIVE POLICY, supra note 32, at 54.

(69) The section of the 1966 Act dealing with the National Wildlife Refuge organization was not repealed. Id. at 49.

(70) ROHLF, supra note 47, at 23. One year earlier, the Marine Mammal Protection Act had established a "depleted" category for marine mammals that served as a model for the ESA's "threatened" classification. See Marine Mammal Protection Act, 16 U.S.C. [section] 1362(1)(A) (2000) (defining depleted as a "species or population stock [that] is below its optimum sustainable population"). These precautionary classifications were developed in response to criticisms that current protections, which were not triggered until a species faced worldwide extinction, were "too little too late." BEAN & ROWLAND, supra note 38, at 386.

(71) PROHIBITIVE POLICY, supra note 32, at 50.

(72) Id. at 54-55. This mandate includes prohibitions against destroying or modifying critical habitat. Id.

(73) Id. at 55.

(74) Id. at 47-56.

(75) Id. at 56.

(76) H.R. REP. No. 97-567, at 10 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2810. For an excellent description of the history and implications of the listing process, see Houck, supra note 14, at 283.

(77) See Houck, supra note 14, at 281 (noting that while a listing affords a species certain protections under the ESA, "[t]he corollary is equally important: unlisted species do not [receive those protections]").

(78) 16 U.S.C. [section] 1533 (2000).

(79) Prior to the enactment of the ESA, the Secretary of the Interior had independent jurisdiction over endangered species. BEAN & ROWLAND, supra note 38, at 391. In 1970, the Secretary of Commerce was given jurisdiction over marine endangered species pursuant to an executive reorganization plan. Id. For a discussion of the debate in Congress over whether to retain the joint jurisdiction scheme under the ESA, see PROHIBITIVE POLICY, supra note 32, at 52-56.

(80) PROHIBITIVE POLICY, supra note 32, at 52.

(81) 16 U.S.C. [section] 1533(a)(2)(B) (2000).

(82) Id. [section] 1533(b)(3)(A) (citing 6 U.S.C. [section] 553(e) (2000) (authorizing interested parties to petition for the issuance, amendment, or repeal of agency rules)).

(83) Id. Such a finding must be made, to the maximum extent practicable, within 90 days of receiving the petition. Id.

(84) See id. ("[W]ithin 90 days after receiving the petition of an interested person ... the Secretary shall make a finding."(emphasis added)); see also Or. Natural Res. Council v. Kantor, 99 F.3d 334, 338-39 (9th Cir. 1996) ("The deadlines for determining whether action on a [citizen] petition is warranted and for publishing a proposed regulation are expressly tied to the filing of the petition.").

(85) 16 U.S.C. [section] 1540(g) (2000).

(86) Id. [section] 1533(a)(1)(A)-(E).

(87) See Infra Part III (analyzing the Draft Policy and suggesting that it is simply a continuation of the listing agencies' flawed interpretation of the listing provisions).

(88) 16 U.S.C. [section] 1533(b)(1)(A) (2000); see also H.R. REP. No. 97-567, at 20 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2820 (clarifying that "the word `commercial' is not intended, in any way, to authorize the use of economic considerations in the process of listing a species").

(89) 16 U.S.C. [section] 1533(b)(1)(A) (2000).

(90) See Draft Policy, supra note 8, at 37,103 (construing the analysis under section 4(a)(1) in conjunction with section 4(b)(1)(A)'s directive); see also ONRC, 6 F. Supp. 2d 1139, 1153 (D. Or. 1998) (reading the two provisions together to permit consideration in listing decisions of only state protective efforts that are mandatory and currently operational); Fed'n of Fly Fishers v. Daley, 131 F. Supp. 2d 1158, 1164-65 (N.D. Cal. 2000) (analyzing the two provisions together).

(91) Compare Friends of the Wild Swan, Inc. v. USFWS, 945 F. Supp. 1388, 1399 (D. Or. 1996) (precluding the listing agencies from using federal conservation efforts to preclude listings), with ONRC, 6 F. Supp. 2d at 1155-56 (acknowledging the Friends of the Wild Swan court's holding but rejecting it and noting several other district courts that took the position that federal conservation efforts are properly examined when making a listing determination).

(92) 16 U.S.C. [section] 1533(b)(1)(B) (2000).

(93) See Houck, supra note 14, at 281 (noting that Congress provided "loopholes, qualifiers, and escape valves for nearly every succeeding provision of the Act" yet left the listing requirements "simple and unexceptional").

(94) See id. at 282 (noting that in order to avoid listing delays, Congress adopted informal procedures under the Administrative Procedure Act).

(95) U.S. Fish and Wildlife, Number of U.S. Species Listings Per Calendar Year, at http://endangered.fws.gov/stats/list_cy.pdf (last updated Dec. 31, 2000).

(96) Id.

(97) Id. A low of four species were listed in 1981, while listings peaked in 1994 with 126 listings. Id. In 2000, 41 species were listed. Id. Both Congress and the listing agencies have imposed moratoriums on listings. Most recently, on November 22, 2000, FWS announced it would not be able to consider any new additions to the endangered species list for the remainder of the 2001 fiscal year due to funding being diverted to court-ordered critical habitat designation. See Press Release, U.S. Fish & Wildlife Serv., Flood of Court Orders Preclude New Listings of Threatened and Endangered Species in FY 2001 (Nov. 22, 2000), at http://news.fws.gov/newsreleases.

(98) For a discussion of how the statutory language of sections 4(a)(1) and 4(b)(1)(A) has evolved since the ESA was enacted, see infra Part II.D.

(99) For a discussion of how the listing agencies are misapplying the basic formula for listing species, see infra Part II.D.

(100) See discussion supra note 14 (delaying listing the Sacramento River winter run Chinook salmon for five years in reliance on insufficient ongoing conservation efforts).

(101) 16 U.S.C. [section] 1533(b)(2) (2000).

(102) Id. [section] 1533(d).

(103) Id. [section] 1533(f).

(104) Id. [section] 1536(a)(2).

(105) Id. [section] 1538(a).

(106) Id. [section] 1540(a)-(b).

(107) Id. [section] 1540(g).

(108) Id. [section] 1538(a)(1)-(2).

(109) Id. [section] 1532(13).

(110) Id. [section] 1532(19) ("The term `take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."). Further, defining the term harm as including harm to habitat critical to the species's survival has proven to be the most contentious interpretation of this definition. See Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 708 (1995) (determining that harm to a species includes habitat destruction that could result in the species's extinction); see also 50 C.F.R. [section] 17.3 (2000) (defining harm as an "act which actually kills or injures wildlife" including "significant habitat modification or degradation").

(111) 16 U.S.C. [section] 1533(d) (2000); id. [section] 1538 (a)(1)(G) (making it unlawful to "violate any regulation pertaining to ... any threatened species of fish or wildlife"). The ESA requires the listing agencies to establish protective regulations for threatened species and permits those regulations to include prohibiting any act prohibited under section 9. Id. [section] 1533(d). FWS has adopted a policy by which take prohibitions apply to all threatened species; NMFS evaluates threatened species on a case-by-case basis.

(112) Id. [section] 1538(a)(2)(B). These protections have largely been construed as not applying to lawful and traditional land-use operations either on federal or private lands. ROHLF, supra note 47, at 71-72.

(113) 16 U.S.C. [section] 1536(a) (2000).

(114) Id. [section] 1536(a)(2).

(115) 50 C.F.R. [section] 402.02 (2000).

(116) See Houck, supra note 14, at 318 (citing studies showing that "over ninety percent of the consultations concerning activities sufficiently serious to be conducted formally resulted in findings of `no jeopardy'").

(117) See id. at 297 (noting that loss of habitat is the primary cause of species extinctions); Jason M. Patlis, Paying Tribute to Joseph Heller with the Endangered Species Act: When Critical Habitat Isn't, 20 STAN. ENVTL. L.J. 133, 139-44 (2001) (discussing the significance of habitat to a species's conservation).

(118) See supra Part II.C.2.a.

(119) 16 U.S.C. [section] 1533(b)(2) (2000). For a discussion of the role critical habitat designation plays under the ESA, see James Salzman, Evolution and Application of Critical Habitat Under the Endangered Species Act, 14 HARV. ENVTL. L. REV. 311 (1990), Houck, supra note 14, at 296 (pointing out that the premise of the ESA is the need to protect endangered species' habitat), and Paths, supra note 117, at 139-44 (explaining the ecological principle that species and habitat are inextricably linked).

(120) See Division of Endangered Species, Listing. Program, at http://endangered.fws.gov/listing/index.html (last modified Aug. 16, 2000) (listing critical habitat for a total of 150 species); see also Salzman, supra note 119, at 332-33.

(121) See Salzman, supra note 119, at 335 (discussing the sources of opposition to critical habitat designation, many of which may be under the erroneous belief that designation is a "red light on development"). Of course, the prohibition on destroying or adversely modifying designated critical habitat extends only to federal actions under section 7. 16 U.S.C. [section] 1536 (2000).

(122) 16 U.S.C. [section] 1532(5)(A) (2000).

(123) Id. [section] 1533(b)(2).

(124) Id. [section] 1533(b)(6)(C).

(125) Id. [section] 1533(b)(2). For example, if a listing agency determined that identifying the species's critical habitat would result in increased visitation to the area that would jeopardize the species, it would be justified in not designating such habitat.

(126) Id.

(127) See Houck, supra note 14, at 307 (discussing Congress's heavy emphasis on critical habitat and the listing agencies' failure to implement the Act's habitat provisions accordingly).

(128) See id. at 299-301 (arguing that the listing agencies' regulations are unlawful).

(129) Id. at 300.

(130) See TVA v. Hill, 437 U.S. 153, 171 (1978) (critical habitat designation for the snail darter stalled a multi-million dollar federal project that was nearly complete); see also Houck, supra note 14, at 307-10 (discussing instances in which courts enjoined projects due to critical habitat being designated and instances in which courts refused to issue injunctions because no critical habitat was designated).

(131) 16 U.S.C. [section] 1536(a) (2000). See generally ROHLF, supra note 47, at 105-71 (explaining the procedural and substantive provisions of section 7).

(132) Id. [section] 1536(a)(2).

(133) Id. [section] 1536(a)(1) ("The Secretary ... [and a]ll other Federal agencies shall ... utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of [listed species]."); see also J.B. Ruhl, Section 7(a)(1) of the "New" Endangered Species Act: Rediscovering and Redefining the Untapped Power of the Federal Agencies' Duty to Conserve Species, 25 ENVTL. L. 1107, 1160-63 (1995) (arguing that section 7(a)(1) requires federal agencies to incorporate significant conservation measures into their actions or be able to justify why they are not doing so).

(134) See Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir. 1985) (describing the three-step process of section 7 consultation).

(135) 16 U.S.C. [section] 1536(c)(1) (1994).

(136) See WORLD WILDLIFE FUND, TALK IS CHEAPER THAN WE THINK: THE CONSULTATION PROCESS UNDER THE ENDANGERED SPECIES ACT (1994).

(137) 16 U.S.C. [section] 1536(c)(1) (1994). A biological assessment may be part of the action agency's Environmental Assessment (EA) or Environmental Impact Statement (EIS) required by the National Environmental Policy Act. Id.

(138) Id. [section] 1536(b).

(139) Id. [section] 1536(a)(2).

(140) Id. [section] 1536(e). The Endangered Species Committee (or "God Squad") has the power to allow an agency action to go forward even if it means the affected species will go extinct, but it has convened only twice in the history of the Act. See, e.g., Beth Quinn, Water Fight May Go to the Top: Klamath Basin Irrigators Could Ask the Bush Administration to Protect Their Farms Over Two Endangered Fish Species This Year, OREGONIAN, Mar. 15, 2001, at B7.

(141) 16 U.S.C. [section] 1536(b)(3)(A) (2000).

(142) Id. [section] 1533(f).

(143) Id. [section] 1533(f)(1)(B)(i)-(iii).

(144) Id. [section] 1533(f)(1)(A).

(145) Id. [section] 1533(f)(3).

(146) Id. [section] 1540.

(147) Id. [section] 1540(a).

(148) Id. [section] 1540(b).

(149) Id. [section] 1540(b)(3).

(150) Id. [subsection] 1536(h), 1539.

(151) See Eileen Sobeck, Enforcement of the Endangered Species Act, NAT. RESOURCES & ENV'T, Summer 1993, at 72 (stressing that expenses and dangers often preclude extensive government investigation of trade in endangered species).

(152) 16 U.S.C. [section] 1540(g) (2000).

(153) "Person" is broadly defined in the Act as any "individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a state; or any other entity subject to the jurisdiction of the United States." Id. [section] 1532(13).

(154) U.S. COSNT. amend. XI.

(155) 16 U.S.C. [section] 1540(g)(1)(A) (2000).

(156) Id. [section] 1540(g)(1)(C).

(157) Id. [section] 1540(g)(2)(A).

(158) Congress discussed which entities' efforts the listing agencies may consider ("any State or foreign nation, or any political subdivision of a State or foreign nation"), what form the efforts might take ("predator control, protection of habitat and food supply, or other conservation practices"), and even where the efforts might take place ("within any area under its jurisdiction, or on the high seas"), but failed to address the most critical question of how the efforts should be taken into account or evaluated. Id. [section] 1533(b)(1)(A). Compare Congress's much more specific articulation of a balancing test for the designation of critical habitat. Id. [section] 1533(b)(2). The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned. Id.

(159) See Draft Policy, supra note 8, at 37,103. For a critique of the listing agencies' draft policy, see infra Part III.

(160) See discussion supra note 16.

(161) See, e.g., Golightly, supra note 25, at 400 (describing Oregon's substantial plan to prevent federal listings of coastal salmon and steelhead species, which played a large role in delaying federal listings but ultimately was determined by a court to be insufficient); see also Welner, supra note 25, at 343-46 (describing a similar California program undertaken in part to prevent the federal listing of the California gnatcatcher, which ultimately was listed under the ESA).

(162) 16 U.S.C. [section] 1533(a) (2000).

(163) See supra text accompanying note 64-65.

(164) H.R. REP. No. 93-412, at 11 (1973).

(165) See 93 CONG. REC. 25,679 (1973) (statement of Sen. Tunney (D-CA)) ("Some argue that the States should have their chance [to protect endangered species]. I argue that the States have had their chance.").

(166) See, e.g., Draft Policy, supra note 8, at 37,103 (interpreting the inadequacy of ERMs factor as indicating that adequate regulatory mechanisms might exist to justify a determination not to list a species).

(167) Id. In doing so, they have ignored one of the threats that Congress contemplated could cause species to be listed--the threat of inadequate ERMs. See, e.g., Withdrawal of Proposal Rule to List the Black Legless Lizard as Endangered, 63 Fed. Reg. 43,129 (Aug. 12, 1998) (determining that the inadequacy of ERMs was not a threat in and of itself).

(168) One possible scenario is when species are threatened by disease or predation. In those cases, adequate regulatory mechanisms may exist to protect the species from man-made threats, but natural forces that cannot be effectively regulated may still threaten the species. These instances are rare, however, as the existence of most species is threatened by man-induced problems, particularly habitat destruction and overuse. See Houck, supra note 14, at 296 (identifying habitat loss as the single most important factor in species' extinction). At least one commentator has suggested that the inadequate ERMs factor be deleted altogether from the statutory list of potential threats. See Holly Doremus, Listing Decisions Under the Endangered Species Act: Why Better Science Isn't Always Better Policy?, 75 WASH. U. L.Q. 1029, 1144-45 (1997) ("Congress should seriously consider removing the inadequacy of existing regulatory mechanisms from the list. The listing agencies are not particularly expert at evaluating such mechanisms. Furthermore, existing regulations are not particularly germane to the listing decision.").

(169) The Ninth Circuit, in Seattle Audubon Society v. Evans, 952 F.2d 297 (9th Cir. 1991), most accurately interpreted Congress's intent in adding the inadequacy factor to the list of threats to consider in a listing decision. Recognizing the importance of giving declining species every opportunity to benefit from the ESA's protections, the court stated, "[a] species may also be listed simply because of `the inadequacy of existing regulatory mechanisms' to protect it." Id. Seattle Audubon's message was clear: the inadequacy of ERMs should be considered a threat to the species, and the presence of adequate ERMs should not preclude a listing when other section 4(a) factors warrant it.

(170) See, e.g., Biodiversity Legal Found. v. Babbitt, 943 F. Supp. 23 (D.D.C. 1996) (interpreting the plain language of section 4 as instructing the court to consider "existing regulatory mechanisms" but ignoring the inadequacy element).

(171) See, e.g., ONRC, 6 F. Supp. 2d 1137, 1155 (D. Or. 1998); cf. Fed'n of Flyfishers v. Daley, 131 F. Supp. 2d 1158, 1169 (N.D. Cal. 2000) (concluding that, while NMFS may consider voluntary conservation efforts in listing determinations, it was arbitrary to rely on such efforts in the face of an agency finding that past state conservation efforts were inadequate).

(172) See infra Part III.C (stating that the Draft Policy would formalize a long-standing policy of considering voluntary state and private conservation measures as sufficient to preclude a federal listing); cf. Natural Res. Def. Council v. United States Dep't of Interior, 113 F.3d 1121, 1127 (9th Cir. 1997) (holding that voluntary state programs cannot be regarded as the functional equivalent of critical habitat designation under the ESA).

(173) See WEBSTER'S ENCYCLOPEDIC UNABRIDGED DICTIONARY 678 (2d ed. 1996) [hereinafter WEBSTER'S] (defining exist in the present tense as "to be found; [to] occur").

(174) See, e.g., Withdrawal of Proposed Rule to List Coccoloba (Oregon) as Threatened, 62 Fed. Reg. 9,724, 9,725 (Mar. 4, 1997) (withdrawing a proposed rule to list Coccoloba rugosa, a declining plant species, based in part on the "anticipated cooperation" of federal and state agencies and private entities in conserving the species). For a discussion of how the listing agencies are attempting to ratify this interpretation by adopting a joint policy addressing conservation efforts in listing decisions, see infra Part III.B.

(175) See, e.g., ONRC, 6 F. Supp. 2d at 1153-54 (concluding that NMFS had erred in relying on unimplemented state conservation efforts in deciding not to list Oregon coho). See generally Michael C. Blumm & Greg D. Corbin, Salmon and the Endangered Species Act: Lessons from the Columbia Basin, 74 WASH. L. REV. 519, 547 (1999) (describing the ONRC court's decision as a "therapeutic development").

(176) See Save Our Springs v. Babbitt, 27 F. Supp. 2d 739, 747 (W.D. Tex. 1997) (suggesting that a regulatory mechanism needs to be in place for two years in order for the listing agencies to properly evaluate its effectiveness).

(177) See infra Part IV.B (discussing how states can implement the ESA's substantive protections on a local level).

(178) See, e.g., Save Our Springs, 27 F. Supp. 2d at 748 (requiring a proven track record for conservation efforts).

(179) See WEBSTER'S, supra note 173, at 1624, 1193 (defining regulate as "to control or direct by a rule, principle, method," and mechanism as the "means by which an effect is produced or a purpose is accomplished").

(180) 16 U.S.C. [section] 1533(b)(1)(A) (2000).

(181) See Golightly, supra note 25, at 419 (describing NMFS's argument in ONRC that the ESA permitted reliance on voluntary conservation efforts in making listing determinations).

(182) See ONRC, 6 F. Supp. 2d 1138, 1154-55 (D. Or. 1998) (holding that voluntary conservation actions cannot be relied on to preclude ESA listings); see also Coalition of Ariz./(N.M.) Counties for Stable Econ. Growth v. Dep't of the Interior (Coalition), No. 94-1058M, 1998 U.S. Dist. LEXIS 22019, at *25 (D.N.M. Mar. 20, 1998) (upholding FWS decision to list Mexican spotted owl based in part on the fact that the Forest Service did not have a "mandatory" plan in place to protect the species"); Fed'n of Flyfishers v. Daley, 131 F. Supp. 2d 1158, 1169 (N.D. Cal. 2000) ("To find voluntary ... actions sufficient to ameliorate the threat to the Klamath Mountains Province ESU was arbitrary and capricious.").

(183) 16 U.S.C. [section] 1533(b)(1)(A) (2000).

(184) Id.

(185) Id.

(186) Id. [section] 1532(3).

(187) Id.

(188) Id. [section] 1533(b)(1)(A).

(189) Endangered Species Act Amendments of 1982, Pub. L. No. 97-304, reprinted in 1982 U.S.C.C.A.N. 2807.

(190) See H.R. REP. No. 93-412, at 150 (1973) ("The section requires the Secretary to give full consideration to efforts being currently made by any foreign co, retries to protect fish and wildlife species within that country, in making a determination as to whether or not those species are endangered or threatened.").

(191) PROHIBITIVE POLICY, supra note 32, at 53.

(192) In doing so, Congress deleted language requiring the listing agency to consult with "other interested Federal agencies," resulting in some debate over whether federal conservation efforts may be considered in the listing process under this provision. See infra note 221.

(193) 16 U.S.C. [section] 1533(b)(1)(A) (2000).

(194) See H.R. REP. No. 93-412, at 14 (1973) (the State powers to regulate in a more restrictive fashion or to include additional species remain unimpaired).

(195) See, e.g., id. ("[S]tate law is not pre-empted, but is merely subject to the Federal `floor' of regulations under the Act.").

(196) See, e.g., S. REP. No. 93-307, at 302 (1973), reprinted in 1973 U.S.C.C.A.N. 2989, 2991. ("While the Federal government should protect such species where States have failed to meet minimum Federal standards, it should not pre-empt efficient programs.").

(197) At least one court has hinted that in order to preclude a listing, conservation efforts must meet the standards of protection provided by the ESA for listed species. See Coalition, No. 94-1058M, 1998 U.S. Dist. LEXIS 22019, at *25 (D.N.M. Mar. 20, 1998) (upholding FWS's decision to list the Mexican spotted owl and stating that "[a]ny informal plan utilized by the Forest Service could not provide the strict protection granted under the ESA").

(198) See, e.g., Withdrawal of the Proposed Rule to List the Least Chub as Endangered with Critical Habitat, 64 Fed. Reg. 41,061, 41,067 (July 29, 1999) (existing regulatory mechanisms found adequate to withdraw proposed listing of least chub even though not fully implemented); Withdrawal of Proposed Rule to List Nolina interrata (Dehesa Beargrass) as Threatened, 63 Fed. Reg. 54,972, 54,975 (Oct. 13, 1998) (same for Dehesa beargrass); Withdrawal of the Proposed Rule to List the Fish Virgin Spinedace as Threatened and Withdrawal of the Proposed Rule to Designate Critical Habitat for the Virgin Spinedace, 61 Fed. Reg. 4401, 4405 (Feb. 6, 1996) (same for Virgin spinedace).

(199) See, e.g., Fed'n of Fly Fishers v. Daley, 131 F. Supp. 2d 1138, 1165-66 (N.D. Cal. 2000) ("Reliance on future action is inconsistent with the aggressive preventative posture of the ESA."); ONRC, 6 F. Supp. 2d 1139, 1153 (D. Or. 1998) (observing that most coups that have addressed this issue have "concluded that reliance on future actions is not permitted by the ESA"); Biodiversity Legal Found. v. Babbitt, 943 F. Supp. 23, 25 (D.D.C. 1996) ("[The Secretary] cannot use promises of proposed future actions as an excuse for not making a determination based on the existing record."); Friends of the Wild Swan, Inc. v. USFWS, 945 F. Supp., 1388, 1398 (D. Or. 1996); Southwest Ctr. for Biological Diversity v. Babbitt, 939 F. Supp. 44, 51 (D.D.C. 1996).

(200) Defenders of Wildlife v. Norton (Defenders II), 258 F.3d 1136, 1136 (9th Cir. 2001).

(201) Defenders of Wildlife v. Babbitt (Defenders I), No. 97-CV-2330, 1999 U.S. Dist. LEXIS 10366, at *19-25 (S.D. Cal. Jun. 14, 1999).

(202) Id. at *22 n.6.

(203) Defenders II, 258 F.3d at 1146. While the court's opinion focused on the issue of when a species should be considered threatened or endangered "throughout a significant portion of its range," the conclusion that unimplemented conservation efforts were insufficient to preclude a listing was central to its holding. See id.

(204) Id.

(205) See supra note 199. In the Fifth Circuit, one district court suggested that conservation efforts must be in place for two years before they can be considered so that their effectiveness could be gauged. Save Our Springs v. Babbitt, 27 F. Supp. 2d 739, 748 (W.D. Tex. 1997).

(206) Defenders I, 1999 U.S. Dist. LEXIS 10366, at *24.

(207) Of course, if a state were adopting conservation measures that met the minimum federal standards in the ESA, they could be implemented immediately before a federal listing, just as the federal substantive protections would be implemented immediately after a listing.

(208) 16 U.S.C. [section] 1535 (2000); Fed'n of Fly Fishers v. Daley, 131 F. Supp. 2d 1158, 1166 (N.D. Cal. 2000).

(209) Draft Policy, supra note 8, at 102. At the time of publication, the listing agencies had not yet announced their final policy.

(210) Id. at 37,102.

(211) Id. at 37,103.

(212) Id. at 37,103-04.

(213) Id. at 37,104.

(214) Id. at 37,103.

(215) Id. at 37,105.

(216) Id.

(217) See discussion supra notes 14-15.

(218) Draft Policy, supra note 8, at 37,102.

(219) Id.

(220) 16 U.S.C. [section] 1533(b)(1)(A) (2000).

(221) Compare Friends of the Wild Swan, Inc. v. USFWS, 945 F. Supp. 1388, 1400 (D. Or. 1996) (concluding that the ESA's language precluded FWS, in making its listing determination for the bull trout, from considering the Forest Service's plan that included provisions to manage the species), with ONRC, 6 F. Supp. 2d 1139, 1155 (D. Or. 1998) (acknowledging the Friends of the Wild Swan holding, but rejecting it and noting that several other district courts had taken the position that federal conservation efforts are properly examined when making a listing determination).

(222) 16 U.S.C. [section] 1533(a)(1)(E) (2000).

(223) Id. [section] 1533(a)(1)(A)-(D) (listing threats that could result in listing a species, including habitat destruction, overutilization, disease or predation, and inadequate regulatory mechanisms).

(224) Id. [section] 1533(b)(1)(A).

(225) Draft Policy, supra note 8, at 37,103.

(226) Id. at 37,104.

(227) Id. ("We therefore consider both future negative and future positive human impacts when assessing the status of the species.").

(228) 16 U.S.C. [section] 1533(b)(1)(A) (2000).

(229) Most courts have agreed with this interpretation based either on the present tense language in section 4(b)(1)(A) or the word "existing" in section 4(a)(1)(D). See, e.g., Southwest Ctr. for Biological Diversity v. Babbitt, 939 F. Supp. 49, 52 (D.D.C. 1996) ("[The Secretary] cannot use promises of proposed future actions as an excuse for not making a determination based on the existing record."); ONRC, 6 F. Supp. 2d 1139, 1153 (D. Or. 1998); Friends of the Wild Swan, Inc. v. USFWS, 945 F. Supp. 1388, 1398 (D. Or. 1996).

(230) Draft Policy, supra note 8, at 37,104.

(231) Id. at 37,104-05.

(232) Id. The factors are

A. The certainty that the conservation effort will be implemented:

1. The conservation effort; the party(ies) to the agreement or plan that will implement the effort; and the staffing, funding level, funding source, and other resources necessary to implement the effort are identified.

2. The authority of the party(ies) to the agreement or plan to implement the conservation effort and the legal procedural requirements necessary to implement the effort are described.

3. Authorizations (e.g., permits, landowner permission) necessary to implement the conservation effort are identified, and a high level of certainty that the party(ies) to the agreement or plan that will implement the effort will obtain these authorizations is provided.

4. The level of voluntary participation (e.g., by private landowners) necessary to implement the conservation effort is identified, and a high level of certainty that the party(ies) to the agreement or plan that will implement the conservation effort will obtain that level of voluntary participation is provided (e.g., an explanation of why incentives to be provided are expected to result in the necessary level of voluntary participation).

5. All regulatory mechanisms (e.g., laws, regulations, ordinances) necessary to implement the conservation effort are in place.

6. A high level of certainty that the party(ies) to the agreement or plan that will implement the conservation effort will obtain the necessary funding is provided.

7. An implementation schedule (including completion dates) for the conservation effort is provided.

8. The conservation agreement or plan that includes the conservation effort is approved by all parties to the agreement or plan.

B. The certainty that the conservation effort will be effective:

1. The nature and extent of threats being addressed by the conservation effort are described.

2. Explicit objectives for the conservation effort and dates for achieving them are stated.

3. The steps necessary to implement the conservation effort are identified.

4. Quantifiable, scientifically valid parameters that will demonstrate achievement of objectives, and standards for these parameters by which progress will be measured, are identified.

5. Provisions for monitoring and reporting progress on implementation (based on compliance with the implementation schedule) and effectiveness (based on evaluation of quantifiable parameters) of the conservation effort are provided.

6. Principles of adaptive management are incorporated.

Id.

(233) Id. at 37,105.

(234) At least one court has required a two-year time frame for state and local conservation efforts to be in place, so the listing agencies can properly judge their effectiveness. Save Our Springs v. Babbitt, 27 F. Supp. 2d 739, 748 (W.D. Tex. 1997).

(235) See generally Tarlock, supra note 20 (discussing federal-state issues with other environmental statutes).

(236) Draft Policy, supra note 8, at 37,104.

(237) Id. ("[D]ecisions to develop property, harvest timber, or otherwise manage land or other natural resources in ways that pose a threat to a species are typically voluntary, as opposed to mandatory, actions.").

(238) Id.

(239) Id.

(240) Id. at 37,105.

(241) See, e.g., ONRC, 6 F. Supp. 2d 1139, 1154-55 (D. Or. 1998); Coalition, No. 94-1058M, 1998 U.S. Dist. LEXIS 22019, at *25 (D.N.M. Mar. 20, 1998) ("[T]he Forest Service did not have an existing, mandatory plan in effect to protect the [Mexican spotted owl]. Any informal plan utilized by the Forest Service could not provide the strict protection granted under the ESA.").

(242) See ROHLF, supra note 47, at 59-104, 137-72 (discussing these protections).

(243) See, e.g., 119 CONG. REC. 30,165 (1973) (statement by Rep. Price (IL) supporting passage of the ESA) ("Though we see what this senseless slaughter is doing to the balance of nature--exterminating animals and destroying valuable resources--still we are doing little to voluntarily stop while there is still a chance to recoup our losses." (emphasis added)).

(244) Draft Policy, supra note 8, at 37,103. Formal conservation efforts are "conservation efforts identified in a conservation agreement, conservation plan, management plan, or similar document." Id. Interestingly, the draft policy limits its scope to formal conservation efforts, implying that those conservation efforts not included in a formal document may not be considered during a listing determination. Id. at 37,102 ("We have proposed this policy in order to ensure consistent and adequate evaluation of formalized conservation efforts.").

(245) Id. at 37,103.

(246) Id. at 37,105.

(247) Id.

(248) See Houck, supra note 14, at 280 (quoting Senator George Mitchell (D-ME): "The problem is that the listing of endangered species ... and effective action to prevent further extinctions cannot wait.... Actions that may irreversibly doom a species cannot be undone.").

(249) See Save Our Springs v. Babbitt, 27 F. Supp. 2d 739, 747 (W.D. Tex. 1997) (noting that "[t]he ESA contains mechanisms for delisting a species in the event that future developments remove the threats that led to the initial listing").

(250) See 93 CONG. REC. 25,669 (1973) (statement by Sen. Tunney (D-CA)) ("Clearly any effort on the part of the Federal Government to encourage restoration of threatened or endangered species would fail without the assistance of the State agencies.").

(251) See supra Part II.C.2 (discussing take prohibitions, critical habitat designation, jeopardy consultation, recovery plans, and civil and criminal enforcement).

(252) See supra Part II.D.

(253) See generally Robert R. Kuehn, The Limits of Devolving Enforcement of Federal Environmental Laws, 70 TULANE L. REV. 2376 (1996) (reviewing the need for federal enforcement of environmental laws in spite of significant improvement in state enforcement programs); Tarlock, supra note 20 (examining several federalism models for biodiversity protection and arguing for a "partnership federalism" model, which seeks to induce state and local cooperation to implement national objectives).

(254) The author's use of "federalism" refers to the constitutional principle expressed in the Tenth Amendment recognizing the federal government as one of limited powers, with the states retaining those powers not expressly enumerated in the Constitution. U.S. CONST. amend. X; Exec. Order No. 13,132, 64 Fed. Reg. 43,255 (Aug. 10, 1999) (principles and policies of federalism guiding agency action); see also Kuehn, supra note 253, at 2381.

(255) For an informative analysis of the different rationales for state and federal enforcement of environmental laws, including the principle of federalism as a rationale for state enforcement, see Kuehn, supra note 253, at 2375. Although Professor Kuehn discusses federal and state enforcement in the context of pollution control, many of his insights are equally applicable to species protection. See generally Kuehn, supra note 253 (discussing state political boundaries, lack of vigorous enforcement, and the need to ensure equal enforcement among states as rationales for federal enforcement of pollution laws and discussing federalism, flexibility and responsiveness, and states as laboratories for social and economic experiments as rationales for state enforcement).

(256) Of course, states traditionally have managed wildlife within their boundaries, but have never had primary responsibility for threatened or endangered species. See supra Part II.A.

(257) See, e.g., 16 U.S.C. [section] 1531(a)(3)(2000) (findings by Congress, when enacting the ESA, that many species threatened with extinction are of "esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people").

(258) See Gibbs v. Babbitt, 214 F.3d 483, 491 (4th Cir. 2000) (rejecting a facial challenge to the ESA and holding federal regulation of the taking of red wolves on private land to be a valid exercise of federal power under the Commerce Clause).

(259) PROHIBITIVE POLICY, supra note 32, at 52.

(260) See William S. Boyd, Federal Protection of Endangered Wildlife Species, 22 STAN. L. REV. 1289, 1306 (1970) (discussing a bill passed by the Senate in 1969 that would have given a state the exclusive authority to manage fish and wildlife on all lands within its boundaries, including those owned by the federal government).

(261) PROHIBITIVE POLICY, supra note 32, at 52.

(262) S. REP. No. 93-307 (1973), reprinted in 1973 U.S.C.C.A.N. 2989, 2991-92 ("While the federal government should protect such species where States have failed to meet minimum Federal standards, it should not preempt efficient programs. Instead, it should encourage these and aid in the extension or establishment of others, to facilitate management by granting regulatory authority and making available financial assistance to approved schemes." (emphasis added)). See generally 16 U.S.C. [section] 1535 (2000) (authorizing federal cooperation with States in the form of management and cooperative agreements and allocation of funds for state programs for the purpose of conserving and recovering species already listed under the Act).

(263) Congress realized that the states were better equipped than the federal government to oversee the day-to-day protection of listed species. See, e.g., H.R. REP. No. 93-412, at 146 ("It is true, and indeed desirable, that there are more fish and game enforcement agents in the state system than there are in the Federal government. Any reasonable and responsible program designed to protect these species must necessarily take account of this fact.").

(264) See generally ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 215, 775, 887 (3d ed. 2000) (identifying relevant provisions of RCRA, the CAA, and the CWA that permit states to assume authority for regulating hazardous waste, air pollution, and water pollution respectively, so long as state programs are approved by EPA, meet minimum federal standards, and are subject to federal oversight). This model has been dubbed "cooperative federalism" and has met with mixed results. See generally Robert V. Percival, Environmental Federalism: Historical Roots and Contemporary Models, 54 MD. L. REV. 1141, 1174 (1995) (identifying cooperative federalism as the predominant approach to federal environmental law and discussing the difficulty of funding state programs).

(265) See, e.g., Federal Water Pollution Control Act, 33 U.S.C. [section] 1370 (1994) (expressly reserving to States the right to adopt and enforce water pollution controls more stringent than the federal standards).

(266) H.R. REP. No. 93-412, at 146 (1973) ("The bill places the essential responsibility for establishment of the lists of endangered species, and amendment of these lists, in the Secretary.").

(267) H.R. REP. No. 93-412, at 146 (1973). ("The states have no veto over the listing or delisting of endangered species.").

(268) 16 U.S.C. [section] 1535 (2000). Significantly, Congress specifically addressed in section 6 the issue of conflicting federal and state laws and affirmed that state laws and regulations regarding federally endangered and threatened species were only viable in so far as they were as restrictive as federal law. See id. [section] 1535(f) ("Any State law or regulation respecting the taking of an endangered species or threatened species may be more restrictive than the exemptions or permits provided for in this chapter or in any regulation which implements this chapter but not less restrictive than the prohibitions so defined." (emphasis added)).

(269) Id. [section] 1533(d).

(270) Id. [section] 1539.

(271) See supra note 266 (noting responsibility for listing resides with the Secretary).

(272) See discussion supra note 169 (Ninth Circuit recognizing the inadequacy of existing regulatory mechanisms).

(273) See, e.g., Endangered Status for White Abalone, 66 Fed. Reg. 29,046, 29,051 (May 21, 2001) (listing the white abalone as endangered due to a 99% population drop and the dismal failure of state and local efforts to halt the decline). Indeed, anytime a species faces a potential federal listing, state, and local conservation efforts have, to some degree, been ineffective. See supra note 15 (discussing salmon listings).

(274) See discussion supra note 25.

(275) See, e.g., CAL. FISH & GAME CODE [section] 5050 (Deering 2001) (prohibiting take of certain protected species of reptiles and amphibians); ALASKA STAT. [section] 16.20.195 (Michie 2001) (requiring a permit for any harvest, capture, or propagation of fish or wildlife listed as endangered under the state ESA); CONN. GEN. STAT. ANN. [subsection] 26-303 to 26-315 (West 2001). For a survey of state endangered species laws, see generally Defenders of Wildlife, Saving Biodiversity: A Status Report on State Laws, Policies, and Programs, at http://www.defenders.org/bio-st00.html (last visited Jan. 22, 2002).

(276) See supra note 110. For example, FWS recently listed the dusky gopher frog as endangered despite the fact that two of the three states in which the frog is primarily found, Mississippi and Alabama, currently provide protection against collecting the species. Final Rule to List the Mississippi Gopher Frog Distinct Population Segment of the Dusky Gopher Frog as Endangered, 66 Fed. Reg. 62,993, 62,999 (Dec. 4, 2001). FWS deemed these protections inadequate regulatory mechanisms because they did "nothing to alleviate the habitat loss that has caused the decline of the species." Id. But see 520 ILL. COMP. STAT. 10/2 (West 2001) (defining take broadly to include harm to animal species). Illinois courts have not, determined whether or not "harm" to a state-listed endangered species would include significant habitat modification or destruction.

(277) See, e.g., ALASKA STAT. [section] 16.20.195 (Michie 2001) (allowing permits to take state endangered species for "scientific or educational purposes, or for propagation in captivity for the purpose of preservation").

(278) Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 44 (1994) ("[R]egulation of land use [is] a function traditionally performed by local governments.").

(279) See Kuehn, supra note 253, at 276-77 (justifying federal enforcement of environmental standards on one ground that the states will not vigorously enforce standards because they would risk losing industry to states with weaker environmental standards).

(280) See Welner, supra note 25, at 327-29, 336-38 (discussing the weaknesses of species-by-species protection and the rise of ecosystem management).

(281) Id. at 320.

(282) Id. at 338.

(283) Id. at 340.

(284) Id. at 340-41.

(285) Id. at 341-43.

(286) See generally Golightly, supra note 25, at 424-25 (describing the lack of laws or regulations in Oregon's plan, making it substantially voluntary).

(287) Welner, supra note 25, at 342.

(288) Id.

(289) See, e.g., ONRC, 6 F. Supp. 2d 1139, 1154-55 (D. Or. 1998) (finding voluntary actions are too speculative for the FWS to rely on to preclude listing); Coalition, No. 94-1058M, 1998 U.S. Dist. LEXIS 22019, at *25 (D.N.M. Mar. 20, 1998).

(290) Determination of Threatened Status for the Coastal California Gnatcatcher, 58 Fed. Reg. 16,742 (Mar. 30, 1993). Later, a federal district court overturned the listing due to a procedural error, but allowed the gnatcatcher to remain listed while the error was corrected. Endangered Species Comm. of the Bldg. Indus. Ass'n v. Babbitt, 852 F. Supp. 32, 41 (D.D.C. 1994).

(291) See, e.g., CONN. GEN. STAT. ANN. [subsection] 26-303 to 26-315 (West 2001) (authorizing critical habitat designation although none has yet been designated).

(292) Ruhl, supra note 133, at 1108.

(293) See, e.g., CONN. GEN. STAT. ANN. [section] 26-310 (requiring state agencies to ensure that their actions do not "threaten the continued existence of any threatened or endangered species or result in the destruction or adverse modification of habitat designated as essential to such species.").

(294) While it would take an amendment to the Act to formalize such a scheme, it would not be unlike the requirement for state certification under the CWA for federal activities that may violate state water quality standards. See Federal Water Pollution Control Act, 33 U.S.C. [section] 1341 (1994).

(295) See 16 U.S.C. [section] 1536(c)(1) (2000) ("Such [biological] assessment[s] may be undertaken as part of a Federal agency's compliance with the requirements of section 102 of the National Environmental Policy Act of 1969."). National Environmental Policy Act of 1969, 42 U.S.C. [section] 4321-4370e (1994 & Supp. III 1997).

(296) See Houck, supra note 14, at 344-51 (discussing the importance of recovery plans and the agencies' failure to effectively implement them for many species).

(297) See cases supra note 16.

(298) FWS has itself argued that policy statements are not binding on the agency. Bldg. Indus. Ass'n of Superior Cal. v. Babbitt, 979 F. Supp. 893, 904-05 (D.D.C. 1997); see also Christensen v. Harris County, 529 U.S. 576, 578 (2000) ("[I]nterpretations contained in policy statements ... do not warrant Chevron-style deference.").

KEVIN CASSIDY, Asssociate Editor, Environmental Law, 2001-2002; J.D. and Certificate in Environmental and Natural Resources Law expected 2002, Northwestern School of Law of Lewis & Clark College; B.A. 1991, University of Connecticut (English). The author would like to thank Professor Michael C. Blumm for his advice and guidance; the author's parents, Kevin and Patricia, for their unwavering support; and Courtney Nelson for her patience and encouragement.
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Author:Cassidy, Kevin
Publication:Environmental Law
Geographic Code:1USA
Date:Jan 1, 2002
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