The endangered species act: What we talk about when we talk about recovery

Natural Resources Journal

Volumn 49, Issue 1, 2009, Pages 1-44

  Goble, Dale D ^a  

^a UNIVERSITY OF IDAHO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CONSERVATION MANAGEMENT; CONSERVATION STATUS; DECISION MAKING; ENDANGERED SPECIES ACT; EXTINCTION RISK; FEDERAL SYSTEM; RECOVERY PLAN; REGULATORY FRAMEWORK; RISK ASSESSMENT; WILD POPULATION;

EID: 77951796162     PISSN: 00280739     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (374)

1. Endangered Species Act of 1973, 16 U.S.C. §§1533-44 (2006).
2. 'The purposes of this Act are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species." Id. §1531(b). Cf. id. §1536(a)(1) ("AU federal agencies shall . . . utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of [listed] species.") (alterations in original).
3. Id. §1532(3). In 1988, Congress linked recovery to conservation in requiring the Secretary to "implement a system ... to monitor . . . The status of all species which have recovered to the point at which the measures provided pursuant to this Act are no longer necessary" and which have therefore been delisted. Endangered Species Amendments of 1988, Pub. L. No.100-478, §1004, 102 Stat. 2306, 2307 (1988) (codified at 16 U.S.C. § 1533(g)).
4. As with most federal statutes, the ESA delegates power to a cabinet-level officer, in this case generally either the Secretary of the Interior or the Secretary of Commerce. 16 U.S.C. §1532(15) (2006). The Secretary of the Interior has delegated his statutory authority to the USFWS, and the Secretary of Commerce has delegated his authority to the NOAA (formerly the Marine Fisheries Service (NMFS)). See id.
5. See also U.S. FISH & WILDLIFE SERV., POUCY AND GUIDELINES FOR PLANNING AND COORDINATING RECOVERY OF ENDANGERED AND THREATENED SPECIES 1 (1990), available at http://www.fws.gov/endangered/pdfs/Recovery/90guide.pdf [hereinafter USFWS POUCY AND GUIDELINES];
6. NAT'L MARINE FISHERIES SERV., INTERIM ENDANGERED AND THREATENED SPECIES RECOVERY PLANNING GUIDANCE 1.1-1 (July 2006), available at http://www.nmfs.noaa. gov/pr/pdfs/recovery/guidance.pdf.
7. The Act's primary extinction-prevention provisions include: 1. The consultation mandate of section 7(a)(2) which requires federal agencies that propose an action (including funding or permitting private action) to consult with the federal wildlife agency to "insure that [the] action ... is not likely to jeopardize the continued existence" of the species or "result in the destruction or adverse modification" of its critical habitat. 16 U.S.C. §1536(a)(2) (2006);
8. see generally Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985);
9. see also Sierra Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434 (5th Cir. 2001);
10. Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121 (D.D.C. 2001).
11. The civil and criminal sanctions in sections 9 and 11 prohibit any person (broadly defined to include governmental and business entities, 16 U.S.C. § 1532(13) (2006)) from taking (broadly defined to include harassing or harming, id. §1532(19)) or engaging in commerce in endangered species. Id. §1539(a)(1). Threatened species are protected by regulations adopted under section 4(d). See id. §§1539(a)(1)(G), 1533(d). Section 11 contains civil and criminal penalties applicable to violations of the prohibitions. 16 U.S.C. §1540 (2006). See generally United States v. McKittrick, 142 F.3d 1170 (9th Cir. 1998);
12. Christy v. Hodel, 857 F.2d 1324 (9th Cir. 1988), cert. denied sub nom.,
13. Christy v. Lujan, 490 U.S. 1114 (1989).
14. The habitat conservation planning requirements for obtaining an incidental take permit in section 10(a)(1)(B) operate as a limit on the take prohibition of section 9 by permitting take that is "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B) (2006). Before issuing an incidental take permit, however, the wildlife agency must find that the permitted actions "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild." Id. §1539(a)(2)(B)(iv) (emphasis added). Similarly, the incidental take statement provision in section 7(b)(4) requires compliance with the standards in section 7(a)(2). Id. §1536(b)(4)(B). See generally Nat'l Wildlife Fed'n v. Babbitt, 128 F. Supp. 2d 1274 (E.D. Cal. 2000).
15. Recovery actions include: 1. An (under-enforced) affirmative obligation imposed on all federal agencies by section 7(a)(1) to "utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of [listed] species." 16 U.S.C. §1536(a)(1) (2006) (alternation in original). See generally Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of Navy, 898 F.2d 1410 (9th Cir. 1990);
16. House v. U.S. Forest Serv., 974 F. Supp. 1022 (E.D. Ky. 1997);
17. J.B. Ruhl, Section 7(a)(1) of the "New" Endangered Species Act: Rediscovering and Redefining the Untapped Power of Federal Agencies' Duty to Conserve, 25 ENVTL. L. 1107 (1995).
18. The requirement that federal action agencies "insure that [their] action ... is not likely to jeopardize the continued existence" of a listed species and the regulation implementing the consultation mandate of section 7(a)(2) that "requires [the federal wildlife agencies] to consider both recovery and survival impacts" on listed species. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 931 (9th Cir. 2008)
19. (citing Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1069 (9th Cir. 2004));
20. see 50 C.F.R. §402.02 (2008).
21. The authority to issue recovery permits under section 10(a)(1)(A). The permits are intended "to enhance the . . . survival of the affected species." 16 U.S.C. §1539(a)(1)(A) (2006).
22. The habitat conservation planning requirements in section 10(a)(1)(B) which (as noted) require the wildlife agency to find that the permitted actions "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild." Id. §1539(a)(2)(B)(iv) (emphasis added). See also id. §1536(b)(4)(B). See generally Nat'l Wildlife Fed'n v. Babbitt, 128 F. Supp. 2d 1274 (E.D. Cal. 2000).
23. The authority to introduce experimental populations of listed species under section 10(j). Id. §1539(j). See generally Wyo. Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224 (10th Cir. 2000);
24. Dale D. Goble, Experimental Populations: Reintroducing the Missing Parts, in THE ENDANGERED SPECIES ACT 379 (Donald C. Baur & Wm. Robert Irvin eds., 2002) [hereinafter Goble, Experimental Populations].
25. The obligation to designate critical habitat under section 4(a)(3). 16 U.S.C. §1533(a)(3) (2006). Fred Cheever has made a convincing case that the designation of critical habitat is in fact a recovery action. See Federico Cheever, The Road to Recovery: A New Way of Thinking about the Endangered Species Act, 23 ECOLOGY L.Q. 1, 56-58 (1996). His conclusions are supported by the available empirical data.
26. See Kieran Suckling & Martin Taylor, Critical Habitat and Recovery, in 1 THE ENDANGERED SPECIES ACT AT THIRTY: RENEWING THE CONSERVATION PROMISE 75 (Dale D. Goble et al. eds., 2006).
27. Finally, and most fundamentally, the Act's definition of "conservation" authorizes the wildlife agencies to use "methods and procedure [that] include, but are not limited to, all activities associated with scientific resource management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation." 16 U.S.C. §1532(3) (2006) (emphasis added).
28. The USFWS has described recovery plans as "the 'umbrella' that . . . guides all [conservation] activities." Proposed Designation of Critical Habitat for the Pacific Coast Population of Western Snowy Plover, 60 Fed. Reg. 11,768, 11,770 (Mar. 2, 1995) (referring to the requirement that federal actions do not jeopardize listed species, to the prohibition on taking listed species, and to the limitations imposed on permits based on habitat conservation plans). The statutory requirements for recovery planning are set out in section 4(f). 16 U.S.C. §1533(f) (2006);
29. see generally Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121 (D.D.C. 2001);
30. Cheever, supra note 7 (suggesting that recovery planning has fallen short of its potential).
31. The Act mandates an elaborate process for listing a species that includes a petition procedure, evidentiary findings, public notice, and opportunities for comment in addition to statutory deadlines for the various steps. Critical habitat is also to be designated at the time of listing. See generally 16 U.S.C. §§1533(a)-(c) (2006);
32. U.S. FISH & WILDLIFE SERV., DEP'T OF THE INTERIOR, ENDANGERED SPECIES LISTING HANDBOOK (4th ed. 1994).
33. It was not until 1988, for example, that the Act was amended to include a requirement that the Secretary monitor the status of species delisted as recovered for at least five years. See Endangered Species Act Amendments of 1988, Pub. L. No.100-478, tit. I, § 1004(a), 102 Stat. 2306, 2307 (codified at 16 U.S.C. §1533(g) (2006)).
34. In defining "conserve," the drafters of the Act conceived the statute to be an ambitious project in planned obsolescence: its goal, after all, is to bring at-risk species to the point "at which the measures provided pursuant to this Act are no longer necessary." 16 U.S.C. §1532(3) (2006). Instead, the ESA has turned out to be a technology-forcing statute: The Act created powerful incentives that have helped to transform fundamentally our understanding of ecosystems-a process that has revealed the Act's naiveté.
35. In 1973, ecosystems were conceived as static, equilibria systems: remove the disturbing cause and the system would return to a steady state. The ESA reflects this perspective; it is built upon the assumption that at-risk species face threats that are remediable in the sense that they can be eliminated, restoring equilibrium. See, e.g., 16 U.S.C. §§ 1533(a)(1)(A)-(E) (2006).
36. Ecologists, however, have increasingly recognized that ecosystems are not equilibria systems, but rather are "complex systems that are dynamic and unpredictable across space and time." Tabatha J. Wallington et al.. Implications of Current Ecological Thinking for Biodiversity Conservation: A Review of the Salient Issues, 10(1) ECOLOGY & SOC'Y 15, 15 (2005), available at http://www.ecologyandsociety.org/vol10/iss1/art15. In Daniel Botkin's metaphor, nature is a discordant harmony: "We see a landscape that is always in flux, changing over many scales of time and space, changing with individual births and deaths, local disruptions and recoveries, larger scale responses to climate from one glacial age to another, and to the slower alterations of soils, and yet larger variations between glacial ages."
37. DANIEL B. BOTKIN, DISCORDANT HARMONIES: A NEW ECOLOGY FOR THE TWENTY-FIRST CENTURY 62 (1990). Ecology, in other words, is an historical science because both species and ecosystems are artifacts that reflect the events that have occurred in and to them.
38. One result of our shifting understanding is that the Act is designed to address threats that often do not reflect the predominant problems facing declining species. Removing a disturbance through take restrictions and refuge creation is insufficient to recover most species because most species have not been put at risk by discrete causes such as over-harvest or the effects of DDT. Instead, most species are imperiled by the incidental effects of habitat degradation and invasive species. One study, for example, found that 60 percent of the listed species in the United States are imperiled by either disruption of natural fire disturbance regimes or the spread of non-native species. David S. Wilcove & Linus Y. Chen, Management Costs for Endangered Species, 12 CONSERVATION BIOLOGY 1405 (1998);
39. see generally David S. Wilcove et al., Leading Threats to Biodiversity: What's Imperiling U.S. Species, in PRECIOUS HERITAGE 239 (Bruce A. Stein et al. eds., 2000) [hereinafter Wilcove et al., Leading Threats];
40. David S. Wilcove et al., Quantifying Threats to Imperiled Species in the United States: Assessing the Relative Importance of Habitat Destruction, Alien Species, Pollution, Overexploitation, and Disease, 48 BioSa. 607 (1998) [hereinafter Wilcove et al., Quantifying Threats].
41. Although it has become politically incorrect to note, the ultimate driver of the loss of biodiversity is the growth in our species' numbers and appetite. See Oliver Houck, Sisyphus on a Roll: Society Faces the High Price of Capitalism, ENVTL. FORUM, Nov./Dec. 2008, at 6;
42. see generally David Ehrenfeld, Neoliberalization of Conservation, 22 CONSERVATION BIOLOGY 1091 (2008). The population of the United States was 212 million when Richard Nixon signed the ESA in the waning days of 1973-nearly 45 percent less than the current 306 million.
43. See generally Holly Doremus, Lessons Learned, in THE ENDANGERED SPECIES ACT AT THIRTY, supra note 7, at 195;
44. U.S. Census Bureau, U.S. POPClock Projection, http:// www.census.gov/population/www/popclockus.html (last visited Jan. 15, 2009, so the number is greater today). The growth of our appetites has been even more dramatic. The nation's gross national product (GNP) has increased nearly 10 times, from $1464 billion to $14539.6 billion.
45. U.S. Dep't of Commerce, Gross National Product, http://research. stlouisfed.org/fred2/data/GNP.txt (last visited Jan. 15, 2009). These domestic changes are compounded by the emerging drivers of global change such as economic globalization and climate change.
46. See generally MILLENNIUM ECOSYSTEM ASSESSMENT, ECOSYSTEMS AND HUMAN WELL-BEING: SYNTHESIS, fig. B, at vii (2005), available at http:// www.millenniumassessment.org (representing a schematic of the drivers of ecosystem change).
47. See, e.g., United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
48. "The term 'endangered species' means any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. §1532(6) (2006).
49. "The term 'threatened species' means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. §1532(20).
50. It would, of course, be possible to define the risk with far greater precision. The International Union for the Conservation of Nature (IUCN) publishes a Red List of Threatened Species that divides at-risk species into five categories: extinct in the wild, critically endangered, endangered, vulnerable, and near threatened. Its definition of "critically endangered" runs two and one-half pages and there are an additional 12 pages of introductory discussion and definitions. The significant difference between the ESA's approach and the IUCN's is that the latter is quantitative. For example, one element of the definition of "critically endangered" specifies that "[a]n observed, estimated, inferred or suspected population size reduction of >80% over the last 10 years or three generations, whichever is the longer, where the reduction or its causes may not have ceased OR may not be understood OR may not be reversible, based on [five alternative types of measurements]." IUCN RED LIST CATEGORIES AND CRITERIA: VERSION 3.1 at 16 (2001), available at http://www.iucnredlist. org/documents/redlist-cats-crit-en- v1223290226.pdf.
51. See supra text accompanying note 11.
52. The ESA requires the Secretary to determine whether a species is endangered or threatened as a result of five types of threats. See 16 U.S.C. §1533(a)(1) (2006).
53. Not only is information on basic life history traits of at-risk species often lacking, but our knowledge of the factors that may lead to extinction is also incomplete. See, e.g., Helen M. Regan et al., A Taxonomy and Treatment of Uncertainty for Ecology and Conservation Biology, 12 ECOLOGICAL APPLICATIONS 618 (2002). The story of the extinction of the heath hen provides an example of the interplay of these factors.
54. See CHRISTOPHER COKTNOS, HOPE IS A THING WITH FEATHERS: A PERSONAL CHRONICLE OF VANISHED BIRDS 121-193 (2000).
55. This description of population viability analysis is based upon Steven R. Beissinger & M. Ian Westphal, On the Use of Demographic Models of Population Viability in Endangered Species Management, 62 J. WILDLIFE MGMT. 821 (1998);
56. Mark S. Boyce, Population Viability Analysis, 23 ANN. REV. ECOLOGY & SYSTEMATICS 481 (1992);
57. D. DEMASTER ET AL., NAT'L OCEANIC & ATMOSPHERIC ADMIN., U.S. DEP'T OF COMMERCE, SEATTLE NOAA, TECH. MEMO. NMFS-F/SPO-67, RECOMMENDATIONS TO NOAA FISHERIES: ESA LISTING CRITERIA BY THE QUANTITATIVE WORKING GROUP 5, 39-40 (2004), available at http://spo.nwr.noaa.gov/tm/ tm67.pdf;
58. Hugh P. Possingham et al., Population Viability Analysis, in ENCYCLOPEDIA OF BIODIVERSITY 831, 831 (Simon A. Levin ed., 2001). It is important to note that there is no single PVA model. Rather, the term refers to the approach.
59. Beissinger & Westphal, supra note 20, at 822-829
60. Mark L. Shaffer, Minimum Population Sizes for Speciaes Conservation, 31 BIOSCI. 131, 132 (1981) [hereinafter Shaffer, Minimum Population Sizes].
61. These four types of risks are examined in more detail in Boyce, supra note 20, at 483-95;
62. COMM. ON SCIENTIFIC ISSUES IN THE ENDANGERED SPECIES ACT, NAT'L RESEARCH COUNCIL, SCIENCE AND THE ENDANGERED SPECIES ACT 124-43 (1995);
63. Possingham et al., supra note 20, at 832-835
64. In the seminal paper, Shaffer calculated the risk of extinction of Yellowstone population of grizzly bears. Shaffer, supra note 21, at 133.
65. For a more complete example, see David B. Lindenmayer & Hugh P. Possingham, Ranking Conservation and Timber Management Options for Leadbetter's Possum in Southeastern Australia Using Population Viability Analysis, 10 CONSERVATION BIOLOGY 235 (1996).
66. See Endangered and Threatened Species; Endangered Status Southern Resident Killer Whales, 70 Fed. Reg. 69,903, 69,909 (Nov. 18, 2005).
67. The ESA defines "species" to include "any distinct population segment of any species of vertebrate fish or wildlife." 16 U.S.C. §1532(16) (2006).
68. In 1996, USFWS and NOAA adopted a policy that described a process for designating DPS. Policy Regarding the Recognition of Distinct Vertebrate Population Segments under the Endangered Species Act, 61 Fed. Reg. 4722 (Feb. 7, 1996).
69. The policy specifies three elements to be considered in designating DPS: "(1) Discreteness of the population segment in relation to the remainder of the species to which it belongs; (2) The significance of the population segment to the species to which it belongs; and (3) The population segment's conservation status in relation to the Act's standards for listing." Id. at 4725.
70. Among the threats facing the species are habitat modification (e.g., agriculture, hydropower, and urban development have substantially reduced salmon populations in Puget Sound, thus reducing prey availability; the persistence of chemical compounds such as PCBs, DDT, and PDBEs that have physiological effects on the species; and expanded commercial shipping, whale watching, ferry operations, and recreational boating that may affect the species in several poorly understood ways), overutilization (i.e., whale watching),and other factors (e.g., the potential for oil spills). Endangered and Threatened Species; Endangered Status Southern Resident Killer Whales, 70 Fed. Reg. at 69,908
71. Id. at 69,909.
72. Id. The DPS's population decreased dramatically in 2008.
73. Seven whales-nearly 8 percent of the DPS's population-disappeared, most likely having starved to death. Phuong Le, Scientists Try to Uncover the Danger to Orcas, Seattlepi.com, Dec. 21, 2008, http:/ /seattlepi.nwsource.com/national/ 1110ap-killer-whales.html (last visited Jan. 18, 2009);
74. Robert McClure, Are the Orcas Starving? As Salmon Runs Decline, Killer Whale Numbers Take Hardest Hit since 1990s, Seattlepi.com, http://seattlepi. nwsource.com/local/384854-orcas 25.html (last visited Nov. 24, 2008);
75. Cornelia Dean, Scientist at Work-Alexandra MortonSaving Wild Salmon, in Hopes of Saving the Orca, N.Y. TIMES, NOV. 4, 2008 at D1, available at http://www.nytimes.com/2008/11/04/science/04prof.html?-r=1&scp=1&sq= Alexandra Morton&st=cse&oref=slogin.
76. Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to List the Cerulean Warbler (Dendroica cerluea) as Threatened with Critical Habitat, 71 Fed. Reg. 70,717, 70,718 (Dec. 6, 2006).
77. Id. at 70,731, 70,723.
78. Id. at 70,731.
79. Id. at 70,731-32.
80. In contrast, in its decision not to list slickspot peppergrass, the USFWS argued that a 64-82 percent chance of extinction within 100 years was not a "fore seeable" event; an assertion that prompted the federal district court to respond-understandably-that the agency's decision "defies common sense." W. Watersheds Project v. Foss, 2005 WL 2002473, at *14-15 (D. Idaho Aug. 19, 2005).
81. In the Federal Register notice withdrawing the proposed rule to list the species (the decision prompting the judicial decision), the agency had not reported the numerical estimates, preferring to focus on the species' improved chance of survival (to 36 percent) with the proposed conservation measures. Endangered and Threatened Wildlife and Plants; Withdrawal of Proposed Rule to List Lepidium papilliferum (Slickspot peppergrass) as Endangered, 69 Fed. Reg. 3094, 3100 (Jan. 22, 2004). This approach brings to mind the old joke about lies, damn lies, and statistics.
82. Possingham et al., supra note 20, at 831;
83. see generally Brian Dennis et al., Estimation of Growth and Extinction Parameters for Endangered Species, 61 ECOLOGICAL MONOGRAPHS 115, 115-116 (1991);
84. Kathleen LoGiudice, Toward a Synthetic View of Extinction: A History Lesson from a North American Rodent, 56 BIOSCI. 687 (2006).
85. For example, it is uncertain why the passenger pigeon, once the most common terrestrial animal, became extinct. One theory is that the population collapsed because the killing focused on the species' colonial nestings where the density of the birds made the work much easier. Hunters could simply shake the trees and picked up the squabs (the unfledged nestlings) as they fell from the nests. In its dense nesting colonies, it was possible to kill almost every squab. Furthermore, shooting near colonies caused pigeons to abandon their nests and nestlings. The massive killing coupled with the low rate of reproduction (one egg per nesting), led to a failure to recruit new members into the aging population and doomed the species. David E. Blockstein & Harrison B. Tordoff, A Contemporary Look at the Extinction of the Passenger Pigeon, 39 AM. BIRDS 845, 850 (1985);
86. Etta S. Wilson, Personal Recollections of the Passenger Pigeon, 51 AUK 157, 165-66 (1934).
87. Alternatively, it has been argued that the species required high population densities to breed. Once the population fell below that threshold, most pigeons ceased to breed. I.L. Brisbin, The Passenger Pigeon: A Study in the Ecology of Extinction, MODERN GAME BREEDING, Oct. 1968, at 13,19-20;
88. T.R. Halliday, The Extinction of the Passenger Pigeon, Ectopistes migratorius, and Its Relevance to Contemporary Conservation, 17 BIOLOGICAL CONSERVATION 157 (1980);
89. J. Michael Reed, The Role of Behavior in Recent Avian Extinctions and Endangerment, 13 CONSERVATION BIOLOGY 232 (1999). Others have suggested that habitat fragmentation and diseases were contributing causes.
90. See generally, e.g., Norman Myers, The Extinction Spasm Impending: Synergisms at Work, 1 CONSERVATION BIOLOGY 14 (1987);
91. Katherine F. Smith et al., Evidence far the Role of Infectious Disease in Species Extinctions and Endangerment, 20 CONSERVATION BIOLOGY 1349 (2006).
92. -16 U.S.C. §1533(b)(1)(A) (2006) (emphasis added).
93. See also id. §(b)(2) (designating critical habitat); id. §(b)(7) (emergency listing);
94. id. §1536(a)(2) (determining jeopardy);
95. id. § (c)(1) (requiring biological assessment);
96. id. §(h)(2)(B)(i) (determining exemption);
97. id. § 1539(j)(2)(B) (designating experimental population as nonessential).
98. Holly Doremus, Listing Decisions under the Endangered Species Act: Why Better Science Isn't Always Better Policy, 75 WASH. U. L.Q. 1029, 1088 (1997).
99. See also DEMASTER ET AL., supra note 20, at 2-3;
100. Robin S. Waples et al., A Biological Framework far Evaluating Whether a Species is Threatened or Endangered in a Significant Portion of Its Range, 21 CONSERVATION BIOLOGY 964, 965 (2007).
101. Daniel Goodman, Predictive Bayesian Population Viability Analysis: A Logic for Listing Criteria, Delisting Criteria, and Recovery Plans, in POPULATION VIABILITY ANALYSIS 447, 454 (Steven R. Beissinger & Dale R. McCullough eds., 2002).
102. Shaffer, supra note 21, at 132. Shaffer describes his choices as "arbitrary." It is, however, more accurate to label them "ethical" or "policy" positions rather than "scientific" statements.
103. See also Boyce, supra note 20, at 482 ("Definitions and criteria for viability, persistence, and extinction are arbitrary, e.g., ensuring a 95% probability of surviving for at least 100 years.").
104. -16 U.S.C. §§1536(e)-(o) (2006).
105. Term. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978) (emphasis added).
106. Id. at 173.
107. See Dale D. Goble, The Evolution of At-Risk Species Protection, in 2 THE ENDANGERED SPECIES ACT AT THIRTY: CONSERVING BIODIVERSITY IN HUMAN-DOMINATED LANDSCAPES 6, 17-23 (J. Michael Scott et al. eds., 2006);
108. Oliver A. Houck, The Endangered Species Act and Its Implementation by the U.S. Departments of the Interior and Commerce, 64 U. COLO. L. REV. 277 (1993).
109. Nat'l Wildlife Fed'n v. Norton, 386 F. Supp. 2d 553, 565 (D. Vt. 2005).
110. See Am. Rivers v. Nat'l Marine Fisheries Serv., 1997 WL 33797790 at *9 (D. Or. Apr. 3, 1997).
111. -16 U.S.C. §1533(a)(1) (2006). The first three of these factors-habitat loss, overutilization, and predation or disease-are the primary extrinsic drivers of extinction; the fourth factor focuses on the existing regulatory mechanisms available to control the three extinction factors; the final factor is a precautionary catch-all. The inclusion of "natural causes" emphasizes the congressional conclusion that at-risk species are to be protected regardless of the source of the immediate risk: The hall of mirrors of causation-proximate or otherwise-thus was ruled out of bounds. The fact that a potential coup de grace is a "natural" event does not require a parsing of the contribution of human actions.
112. See generally, e.g., Katherine Ralls et al., Developing Criteria for Delisting the Southern Sea Otter Under the U.S. Endangered Species Act, 10 CONSERVATION BIOLOGY 1528 (1996).
113. Endangered and Threatened Species Listing and Recovery Priority Guidelines, 48 Fed. Reg. 43, 098, 43, 100 (Sept. 21, 1983).
114. Id. The correlation of magnitude and immediacy to probability and time horizon is apparent. Unfortunately, however, the agency provides neither its conclusion nor its reasoning on either of the elements in making delisting decisions-thus preserving its discretion.
115. NOAA has convened a quantitative working group to consider the issues in the context of listing decisions. See DEMASTER ET AL., supra note 20.
116. "[T]he same five statutory factors must be addressed in delisting as in listing." Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 133 (D.D.C 2001)
117. (quoting Fund for Animals v. Babbitt, 903 F. Supp. 96, 111 (D.D.C. 1995)).
118. See also Nat'l Wildlife Fed'n v. Norton, 386 F. Supp. 2d 553, 558 (D. Vt. 2005).
119. The threat factors are listed at 16 U.S.C. § 1533(a)(1) (2006).
120. See G.S. KIRK ET AL., THE PRESOCRATIC PHILOSOPHERS 188 (2d ed. 1983) ("The path up and down is one and the same.").
121. The USFWS and NOAA have acknowledged this difference in adopting the "Policy for Evaluation of Conservation Efforts when Making Listing Decisions." Policy for Evaluation of Conservation Efforts when Making Listing Decisions, 68 Fed. Reg. 15, 100 (Mar. 28, 2003).
122. In response to the suggestion of several commentators that the draft Policy be applied to all decisions, the agencies stated that "a recovery plan is the appropriate vehicle to provide guidance on actions necessary to delist a species." Id. at 15, 101. Similarly, the NOAA quantitative working group was divided on whether the standards for listing should also be applied to delisting and reclassification decisions and therefore recommended considering those criteria separately. DEMASTER ET AL., supra note 20, at 5.
123. See 16 U.S.C. §1533(a)(1)(D) (2006) (providing that delisting must consider "the inadequacy of existing regulatory mechanisms"); see also id. §1536(a)(2)
124. ("Each Federal agency shall . insure that any action . carried out by such agency .is not likely to jeopardize the continued existence of any [listed] species.").
125. See generally Wilcove et al., Leading Threats, supra note 11;
126. Wilcove et al., Quantifying Threats, supra note 11.
127. -33 U.S.C. §§1251-1387 (2006).
128. -16 U.S.C. §§4701-41 (2006).
129. See Holly Doremus, Delisting Endangered Species: An Aspirational Goal, Not a Realistic Expectation, 30 Envtl. L. Rep. 10, 434 (2000) [hereinafter Doremus, Delisting Endangered Species];
130. Holly Doremus & Joel E. Pagel, Why Listing May Be Forever: Perspectives on Delisting Under the U.S. Endangered Species Act, 15 CONSERVATION BIOLOGY 1258 (2001) [hereinafter Doremus & Pagel, Why Listing May Be Forever];
131. Dale D. Goble & J. Michael Scott, Recovery Management Agreements Offer Alternative to Continuing ESA Listings, 31(1) FISHERIES 35 (2006);
132. Jack E. Williams et al., Prospects for Recovering Endemic Fishes Pursuant to the U.S. Endangered Species Act, 30(6) FISHERIES 24, 24 (2005).
133. If a species' population has stabilized, the species may have recovered if there is ongoing, effective risk management. This reflects the statute's focus on the five threat factors: technically, delisting requires a determination that the threats that led to the listing of the species have been ameliorated. As the USFWS stated in its definition of "recovery," this is "the process by which the decline of an endangered or threatened species is arrested or reversed, and threats to its survival are neutralized, so that its long-term survival in nature can be ensured." USFWS POLICY AND GUIDELINES, supra note 5, at 1 (emphasis added).
134. Generally, of course, an increase in both the number of individuals and the number of populations will reflect an amelioration of the threats that led to the listing of the species and thus will provide evidence that the biological threshold for delisting the species as recovered has been met. For this reason, recovery plans generally specify population targets-although they are, in fact, only surrogates for threat amelioration.
135. This number is current as of Jan. 15, 2009. U.S. Fish & Wildlife Serv., Box Score, http://ecos.fws.gov/tesspublic/Boxscore.do (last visited Jan. 15, 2009). Of these, 1009 are listed as endangered and 309 as threatened.
136. Id. The total, worldwide list contains 1892 species.
137. Id.
138. The 16 species (and the date on which they were delisted) are: American alligator (June 4, 1987), brown pelican (Feb. 4, 1985), Palau fantail flycatcher (Sept. 12, 1985), Palau ground dove (Sept. 12, 1985), Palau owl (Sept. 12, 1985), gray whale (June 16, 1994), arctic peregrine falcon (Oct. 5, 1994), American peregrine falcon (Aug. 25, 1999), Aleutian cackling (Canada) goose (Mar. 20, 2001), Robbins' cinquefoil (Aug. 27, 2002), Columbia whitetailed deer [Douglas County DPS] (July 24, 2003), Hoover's woolly-star (Oct. 7, 2003), Eggert's sunflower (Aug. 18, 2005), grizzly bear [Yellowstone Ecosystem DPS] (Mar. 29, 2007), bald eagle (July 9, 2007), and Virginia northern flying squirrel (Aug. 26, 2008). See Species that Have Been Delisted, http://ecos.fws.gov/tess-public/DelistingReport.do (last visited Jan. 15, 2009).
139. The species was listed under the Endangered Species Preservation Act of 1966 (ESPA), a predecessor of the ESA. Endangered Species Preservation Act, Pub. L. No.89669, 80 Stat. 926, repealed by Endangered Species Act of 1973, Pub. L. No. 93-205, §14, 87 Stat. 884, 903 (1973). Native Fish and Wildlife: Endangered Species, 32 Fed. Reg. 4001 (Mar. 11, 1967). Under the ESPA, the Secretary was not required to discuss the risk factors affecting the species; that discussion can be found in the proposal to reclassify the species from endangered to threatened in 1989.
140. See Endangered and Threatened Wildlife and Plants; Proposed Reclassification of the Aleutian Canada Goose from Endangered to Threatened, 54 Fed. Reg. 40, 142 (Sept. 29, 1989). The species' name has recently been changed from Aleutian Canada goose to Aleutian cackling goose.
141. Proposed Reclassification of the Aleutian Canada Goose From Endangered to Threatened, 54 Fed. Reg. at 40, 142.
142. Final Rule to Remove the Aleutian Canada Goose from the Federal List of Endangered and Threatened Wildlife, 66 Fed. Reg. 15, 643, 15, 645 (Mar. 20, 2001) [hereinafter cited as Goose Delisting].
143. Id.
144. For example, the species grazes on grasses in places such as parks and agricultural lands. Cornell Lab of Ornithology, All about Birds: Cackling Goose, http:// www.birds.cornell.edu/AllAboutBirds/BirdGuide/Cackling-Goose-dtl.html (last visited Nov. 8, 2008).
145. See U.S. Fish & Wildlife Serv.-Alaska, Alaska Maritime National Wildlife Refuge, http://alaska.fws.gov/nwr/akmar/index.htm (last visited Jan. 24, 2006).
146. See 16 U.S.C. §§668dd-668ee (2006).
147. See also U.S. Fish & Wildlife Serv.-Alaska, Wildlife: Alien / Invasive Species, http://alaska.fws.gov/nwr/akmar/wildlife-wildlands/ nonnative/alien.htm (last visited Jan. 24, 2006).
148. Goose Delisting, 66 Fed. Reg. at 15, 651-652
149. The Council is a regional body established under the Migratory Bird Treaty Act to represent federal, state, and provincial fish and game agencies. The Pacific Flyway council is composed of the western states and provinces.
150. See Pacific Flyway Council, Coordinated Management, http://pacificflyway. gov/Index.asp (last visited Apr. 22, 2009). The Council has prepared a management plan for the Aleutian Canada goose.
151. S ee Pacific Flyway Council, Pacific Flyway Management Plan for the Aleutian Canada Goose (July 30, 1999), available at http://pacificflyway.gov/ Abstracts.aspacg (unpublished report).
152. -16 U.S.C. §§703-11 (2006). The MBTA federalized the conservation of migratory birds.
153. See id.
154. Indeed, the goose is a poster child for recovery: its population has increased to the point that it cannot only be hunted, but actually has become a nuisance species in some locations.
155. See Mad River Biologists, Aleutian Cackling Goose Agricultural Depredation Management Plan: Del Norte County, 2005-2006, http://www.pcjv.org/ ca-pqv/pdfs/ DelNorteAleutian Plan-Final9-2006.pdf (last visited Nov. 8, 2008).
156. Endangered Fish and Wildlife; Gray Whale, 58 Fed. Reg. 3121, 3125 (Jan. 7, 1993) (providing notice of determination to delist the gray whale).
157. The International Whaling Commission was created under the International Convention for the Regulation of Whaling, Dec. 2, 1946, 10 U.S.T. 952, 161 U.N.T.S. 72.
158. -16 U.S.C. §§1361-1407 (2006).
159. Reclassification of American Alligator as Threatened Due to Similarity of Appearance Throughout the Remainder of Its Range, 52 Fed. Reg. 21, 059, 21,059 (June 8,1987).
160. -50 C.F.R. §17.42 (2004). For the statutory provisions,
161. see 16 U.S.C. §1533(e) (2006).
162. Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243. The Convention embodies a system of import and export permits that provide the basis for a control structure to regulate international commerce in species designated for protection in one of the Convention's three appendices.
163. Id. arts. II, §§1-3, III, §§2-4, IV, §2. Appendix I includes "all species threatened with extinction, which are, or may be affected by trade,"
164. id. art. II, §1; species listed in Appendix I may not be traded for commercial purposes. Appendix II species are those that may become threatened with extinction "unless trade in specimens of such species is subject to strict regulation" or species that closely resemble other Appendix II species,
165. id. art. II, § 2; these species may be traded subject to restrictions. Appendix III includes all species that have been identified by a party to Convention as subject to regulation within its jurisdiction.
166. Id. art. II, §3.
167. -16 U.S.C. §§701, 3371-3378 (2006) (prohibiting interstate shipment of wildlife taken contrary to state or federal law).
168. Reclassification of American Alligator as Threatened Due to Similarity of Appearance Throughout the Remainder of Its Range, 52 Fed. Reg. at 21, 062.
169. Exposure to DDT (dicholoro-diphenyl-trichloroethane) caused peregrine egg-shell thinning and precluded successful nesting. Final Rule to Remove the American Peregrine Falcon from the Federal List of Endangered and Threatened Wildlife, and To Remove the Similarity of Appearance Provision for Free-Flying Peregrines in the Conterminous United States, 64 Fed. Reg. 46, 542, 46, 452 (Aug. 25, 1999);
170. Removal of Arctic Peregrine Falcon from the List of Endangered and Threatened Wildlife, 59 Fed. Reg. 50, 796 (Oct. 5, 1994).
171. Chemicals in this class do not break down readily in the environment and thus become increasingly concentrated as they move up the food chain. Thus, concentrations of the primary metabolite of DDT (dichlorophenyl- dicholorophenylene [DDE]) were produced in the fatty tissues of the birds, which in females impaired calcium release for egg shell formation. Although the use of DDT was banned in the United States on December 31, 1972, organochlorines remain a problem due to the chemicals' persistence in the environment. En dangered and Threatened Wildlife and Plants; Final Rule to Reclassify the Bald Eagle from Endangered to Threatened in All of the Lower 48 States, 60 Fed. Reg. 35, 999, 36, 000 (July 12, 1995).
172. In addition to egg-shell thinning that precludes successful nesting, organochlorine pesticides are directly toxic to pelicans. Removal of the Brown Pelican in the Southeastern United States from the List of Endangered and Threatened Wildlife, 50 Fed. Reg. 4938, 4938 (Feb. 4, 1985).
173. See generally William Burnham et al., Hands-On Restoration, in 2 THE ENDANGERED SPECIES ACT AT THIRTY,
174. supra note 7, at 237.
175. -16 U.S.C. §§703-12 (2006).
176. Convention on International Trade in Endangered Species of Wild Fauna and Flora, supra note 73.
177. -7 U.S.C. §§136-136(y) (2006) (delegating the Environmental Protection Agency sufficient authority to screen chemicals to prevent the re-introduction of organochlorines).
178. The agency cited the Estuary Protection Act, 16 U.S.C. §§1221-26 (2006), the National Wildlife Refuge System statutes, and state regulatory systems. Removal of the Brown Pelican in the Southeastern United States from the List of Endangered and Threatened Wildlife, 50 Fed. Reg. at 4941-4942
179. See generally Wilcove & Chen, supra note 11;
180. Wilcove et al., Leading Threats, supra note 11;
181. Wilcove et al., Quantifying Threats, supra note 11.
182. Determination of Pontententilla [sic] robbinsiana to Be an Endangered Species, with Critical Habitat, 45 Fed. Reg. 61, 944, 61, 945 (Sept. 17, 1980).
183. In addition, the species had been the object of intense collection activities: a detailed study found "over 850 plants in herbaria collections worldwide, which represents one of the most extensive collections known for a single species."
184. Removal of Potentilla robbinsiana (Robbins' cinquefoil) from the Federal List of Endangered and Threatened Plants, 67 Fed. Reg. 54, 968, 54, 973 (Aug. 27, 2002) [hereinafter Cinquefoil Delisting]. Commercial collecting activities ended in the early 1900s and scientific collecting decreased as scientists became more aware of the impacts of their activities. Id.
185. Cinquefoil Delisting, 67 Fed. Reg. at 54, 973.
186. Id.
187. Id. at 54, 970, 54, 972-973
188. The USFS agreed to provide "long-term protection in the Forest irrespective of the species' standing under the Endangered Species Act." U.S. Forest Serv. and U.S. Fish & Wildlife Serv., Memorandum of Understanding for the Conservation of Robbins' Cinquefoil (Potentilla robbinsiana) 1 (Dec. 2,1994).
189. The USFWS agreed to maintain the Monroe Flats habitat, "vigorously protect[ ]" the species from take through human disturbance, to train personnel, and to provide educational and interpretational information to visitors to the forest. Id. at 3.
190. The Hoover's woolly-star offers a variation on the cinquefoil pattern-albeit, a far more minimalist variation. The species is an annual herb in the phlox family that grows in the San Joaquin and Cuyama Valleys in California. Land conversion (oil, gas, and agricultural development, and urbanization) had extirpated several populations and left the remaining populations at risk.
191. Determination of Endangered or Threatened Status for Five Plants from the Southern San Joaquin Valley, 55 Fed. Reg. 29, 361, 29, 368, 29, 363-64 (July 19, 1990).
192. The species was also threatened by the federal land-managing agencies' practices such as introducing normative grasses to stabilize soil. Id. at 29, 365. The threats requiring continuing conservation management-oil and gas development, urbanization, grazing, agricultural conversion-were reduced to a reasonable level through (1) an extensive reserve network of secure habitats under federal, state, and private management, coupled with (2) commitment by the primary land-managing agency to "ensure that actions they authorize, fund, or carry out do not contribute to the need to relist the species."
193. Removing Eriastrum hooveri (Hoover's woolly-star) from the Federal List of Endangered and Threatened Species, 68 Fed. Reg. 57, 829, 57, 832 (Oct. 7, 2003);
194. see also id. at 57, 835-836
195. In delisting the woolly-star, the USFWS accepted a far less robust risk-management structure. For example, the agency did not enter into a formal MOU with the landmanaging agency, concluding instead that "management practices of, and commitments by, the U.S. Bureau of Land Management, on whose land a substantial number of new populations have been found, will afford adequate protection to the species upon delisting." Id. at 57, 829.
196. Final Rule to Remove the Douglas County Distinct Population Segment of Columbian White-Tailed Deer from the Federal List of Endangered and Threatened Wildlife, 68 Fed. Reg. 43, 647, 43,647 (July 24, 2003) [hereinafter Deer Delisting].
197. Native Fish and Wildlife; Endangered Species, 32 Fed. Reg. 4001 (Mar. 11, 1967).
198. Endangered and Threatened Wildlife and Plants; Proposed Rule to Delist the Douglas County Population of Columbian White-Tailed Deer, 64 Fed. Reg. 25,623, 25,264 (May 12,1999).
199. Deer Delisting, 68 Fed. Reg. at 43, 648.
200. Id.
201. Although multiple populations increase a species' likelihood of survival, the USFWS summarily rejected public comments contending that a third population should be established prior to delisting. Id. at 43,652-653
202. See generally, e.g., Douglas Fox, Back to the No-Analog Future?, 316 SCI. 823 (2007).
203. See Pacific Flyway Council, supra note 65.
204. Deer Delisting, 68 Fed. Reg. at 43, 651.
205. Id.
206. Id. The security of these various tools may vary widely. Federal acquisition of land is probably the most secure; acquisition by private conservation organizations is also likely to be relatively secure (depending upon funding); local politics, on the other hand, may be hostile to the conservation needs of the species or prove to be unwilling to expend the necessary funds.
207. Id. at 43, 653-654
208. Id. at 43, 654-655
209. Deer Delisting, 68 Fed. Reg. at 43, 653.
210. Id. at 43, 653-654
211. Id. at 43, 654. The Nature Conservancy also manages a 35-acre site in part to provide deer habitat. Id.
212. Endangered and Threatened Wildlife and Plants; Removing the Bald Eagle in the Lower 48 States From the List of Endangered and Threatened Wildlife, 72 Fed. Reg. 37,346, 37,347-348 (July 9, 2007).
213. Endangered and Threatened Wildlife and Plants; Proposed Rule to Remove the Bald Eagle from the List of Endangered and Threatened Wildlife, 64 Fed. Reg. 36, 454, 36,457 (July 6, 1999).
214. The Chesapeake Recovery Region had over 800 breeding pairs in 2003; the recovery goal (300 nesting pairs) was met in 1992. Endangered and Threatened Wildlife and Plants; Removing the Bald Eagle in the Lower 48 States From the List of Endangered and Threatened Wildlife, 71 Fed. Reg. 8238, 8241-42 (Feb. 16, 2006).
215. The Northern States Recovery Region had 2559 occupied breeding areas in 2000; the recovery goal of 1200 occupied areas was met in 1991.
216. Id. at 8242.
217. The Pacific Recovery Region had 1627 breeding pairs in 2001; the recovery goal of 800 pairs was met in 1990. Id.
218. The Southeastern Recovery Region had 1500 occupied breeding areas in 2000; the recovery goal (1500 occupied areas) was met in 1997-2000. Id.
219. The agency's discussion of the Southwestern Recovery Region was anomalous. After noting that the 1982 recovery plan did not include recovery goals-it instead contained a downlisting goal-the agency simply states "[t]he goal established in the recovery plan has been exceeded."
220. Id. at 8242.
221. In contrast to the other recovery regions, the discussion of the Southwestern Region was notably conclusory. The decision to delist the Southwestern Recovery Region population was challenged by the Center for Biological Diversity and the Maricopa Audubon Society. The district court held that the USFWS had acted arbitrarily and capriciously and remanded the delisting. Center for Biological Diversity v. Kempthome, 2008 WL 659822 (D. Ariz. Mar. 6, 2008). On May 1, 2008, the agency relisted the population as threatened.
222. Endangered and Threatened Wildlife and Plants; Listing the Potential Sonoran Desert Bald Eagle Distinct Population Segment as Threatened under the Endangered Species Act, 73 Fed. Reg. 23, 966 (May 1, 2008).
223. On May 20, the USFWS initiated a status review of the population. Endangered and Threatened Wildlife and Plants; Initiation of Status Review for the Bald Eagle (Haliaeetus leucocephalus) in the Sonoran Desert Area of Central Arizona and Northwestern Mexico, 73 Fed. Reg. 29,096 (May 20, 2008).
224. See generally Alfred E. Kahn, The Tyranny of Small Decisions: Market Failures, Imperfections, and the Limits of Economics, 19 KYKLOS 23 (1966);
225. DALE D. GOBLE & ERIC T. FREYFOGLE, WILDLIFE LAW 1363-65 (2002);
226. Dale D. Goble, The Property Clause-as if Biodiversity Mattered, 75 U. COLO. L. REV. 1196 (2004).
227. See generally Garret Hardin, The Tragedy of the Commons, 162 Scr. 1243 (1968).
228. William E. Odum, Environmental Degradation and the Tyranny of Small Decisions, 32 BIOSCI. 728, 728 (1982).
229. The "southern bald eagle" was listed as endangered on March 11, 1967. Native Fish and Wildlife; Endangered Species, 32 Fed. Reg. 4001, 4001 (Mar. 11, 1967).
230. Following enactment of the ESA, USFWS listed the entire species as endangered throughout the conterminous 48 states except in Washington, Oregon, Minnesota, Wisconsin, and Michigan where it was listed as threatened. Determination of Certain Bald Eagle Populations as Endangered or Threatened, 43 Fed. Reg. 6230 (Feb. 14, 1978).
231. Determination of Certain Bald Eagle Populations as Endangered or Threatened, 43 Fed. Reg. at 6232.
232. Id. ('Shooting continues to be the leading cause of direct mortality in adult and immature bald eagles, accounting for 40 to 50 percent of the birds picked up by field personnel.").
233. Id.
234. Endangered and Threatened Wildlife and Plants; Removing the Bald Eagle in the Lower 48 States from the List of Endangered and Threatened Wildlife, 71 Fed. Reg. 8238, 8246, 8249 (Feb. 16, 2006).
235. The agency noted that, although a low level of illegal shooting and trade in eagle feathers continues, these activities can be controlled under the Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C. §§668-668d (2006), and the MBTA,
236. id. §§703-11.
237. Endangered and Threatened Wildlife and Plants; Removing the Bald Eagle in the Lower 48 States from the List of Endangered and Threatened Wildlife, 71 Fed. Reg. at 8246.
238. Endangered and Threatened Wildlife and Plants; Reclassify the Bald Eagle from Endangered to Threatened in Most of the Lower 48 States, 59 Fed. Reg. 35, 584, 35,589-90 (July 12, 1994);
239. Endangered and Threatened Wildlife and Plants; Final Rule to Reclassify the Bald Eagle from Endangered to Threatened in All of the Lower 48 States, 60 Fed. Reg. 36,000, 36,006 (July 12, 1995).
240. Endangered and Threatened Wildlife and Plants; Removing the Bald Eagle in the Lower 48 States from the List of Endangered and Threatened Wildlife, 71 Fed. Reg. at 8246.
241. The reach of "foreseeable future" was left unspecified. See id.
242. Id. at 8249;
243. see also Endangered and Threatened Wildlife and Plants; Proposed Rule to Remove the Bald Eagle from the List of Endangered and Threatened Wildlife, 64 Fed. Reg. 36,454, 36,458 (July 6, 1999).
244. See generally Endangered and Threatened Wildlife and Plants; Proposed Rule to Remove the Bald Eagle from the List of Endangered and Threatened Wildlife, 64 Fed. Reg. at 36,459;
245. Endangered and Threatened Wildlife and Plants; Removing the Bald Eagle in the Lower 48 States From the List of Endangered and Threatened Wildlife, 72 Fed. Reg. 37,346, 37,347-48 (July 20, 2007).
246. The list includes: The BGEPA, which prohibits take, possession, and commercial activities, 16 U.S.C. §§668-668d (2006); the MBTA, which also prohibits take, possession, and commercial activities, 16 U.S.C. §§703-11 (2006); the Lacey Act, which criminalizes interstate shipment of illegally acquired birds and (more commonly) bird parts, 16 U.S.C. §3372 (2006) and 18 U.S.C. §§42-44 (2006);
247. Convention on International Trade in Endangered Species of Wild Fauna and Flora, supra note 73;
248. FDFRA, 7 U.S.C. §§ 136-136(y) (2006); and the Fish and Wildlife Coordination Act, which requires consideration of wildlife in water resource development projects, 16 U.S.C. §§661-661(c) (2006).
249. Protection of Eagles; Definition of "Disturb," 72 Fed. Reg. 31,132 (June 5, 2007);
250. U.S. FISH & WILDLIFE SERV., NATIONAL BALD EAGLE MANAGEMENT GUIDELINES (May 2007), available at http://www.fws.gov/migratorybirds/issues/BaldEagle/ NationalBaldEagleManagementGuidelines.pdf [hereinafter EAGLE MANAGEMENT GUIDELINES].
251. -16 U.S.C. §668 (2006).
252. id. §668(c) (emphasis added).
253. The expansiveness of "disturb" is tempered by the culpability standard, which requires the actor to act "knowingly, or with wanton disregard for the consequences of his act."
254. Id. §668.
255. Inclusion of the term "disturb" also distinguishes the BGEPA from the MBTA. The courts have resisted extending the MBTA's prohibitions to habitat modifying activities such as logging. See, e.g., Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110 (8th Cir. 1997);
256. Sierra Club v. Martin, 110 F.3d 1551 (11th Cir. 1997);
257. Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir. 1991);
258. Mahler v. U.S. Forest Serv., 927 F. Supp. 1559 (S.D. Ind. 1996).
259. Protection of Eagles; Definition of "Disturb," 72 Fed. Reg. at 31,132. In its discussion of the regulation, the agency noted that the only court that had considered the relationship between the ESA and BGEPA had concluded that "[t]he plain meaning of the term 'disturb' is at least as broad as the term 'harm' and both terms are broad enough to include adverse habitat modification."
260. Id. at 31,133
261. (quoting Contoski v. Scarlett, 2006 WL 2331180, at *3 (D. Minn. Aug. 10, 2006)).
262. Cf. 50 C.F.R. §17.3 (2008) ("Harm in the definition of 'take' in the [Endangered Species] Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.") (emphasis added);
263. see also Babbitt v. Sweet Home Chapter, 515 U.S. 687 (1995) (upholding the regulatory definition of "harm" with potentially significant causation-based limitations).
264. Endangered and Threatened Wildlife and Plants; Removing the Bald Eagle in the Lower 48 States From the List of Endangered and Threatened Wildlife, 72 Fed. Reg. at 31,132.
265. Id. at 31,133.
266. EAGLE MANAGEMENT GUIDELINES, supra note 121.
267. Id. at 1.
268. One of the ironies of the ESA in contrast to BGEPA is that the latter is a much less flexible statute since it does not contain incidental take provisions. As the agency stated, "[a]lthough it is not possible to absolve individuals and entities from liability under the Eagle Act or the MBTA, the Service exercises enforcement discretion to focus on those
269. individuals, companies, or agencies that take migratory birds without regard for the consequences of their actions and the law, especially when conservation measures, such as these Guidelines, are available, but have not been implemented. The Service will prioritize its enforcement efforts to focus on those individuals or entities who take bald eagles or their parts, eggs, or nests without implementing appropriate measures recommended by the Guidelines."
270. Id.
271. Id. at 2. The Guidelines also note that activities that impact migrating and winter roost sites fall within the definition of "disturb" because such activities may interfere with feeding,
272. id. at 8-9. The protection for such sites is less, however. The interference must cause injury or death because, although the proposed definition includes "nest abandonment" as a prohibited result, it does not include roost abandonment.
273. Id. at 7-8, 11.
274. The result is a complicated history. For the period through the current (third) attempt, see Dale D. Goble, Recovery in a Cynical Time-With Apologies to Eric Arthur Blair, 82 U. WASH. L. REV. 581 (2007) [hereinafter Goble, Recovery in a Cynical Time];
275. see also Humane Soc'y v. Kempthome, 579 F. Supp. 2d 7 (D.D.C. 2008).
276. Between 1967 and 1976, the USFWS listed four subspecies of wolf under the ESA and its predecessors. The "timber wolf' (Canis lupus lycaon) was the first subspecies listed when it was determined to be endangered in Minnesota and Michigan in 1967. Native Fish and Wildlife; Endangered Species, 32 Fed. Reg. 4001, 4001 (Mar. 11, 1967).
277. This decision was followed by listings of the "Northern Rocky Mountain wolf' (Canis lupus irremotus), Conservation of Endangered Species and Other Fish or Wildlife; Amendments to Lists of Endangered Fish and Wildlife, 38 Fed. Reg. 14,678 (June 4,1973);
278. the "Mexican wolf'' (Canis lupus baileyi), Endangered and Threatened Wildlife and Plants; Determination That Two Species of Butterflies Are Threatened Species and Two Species of Mammals Are Endangered Species, 41 Fed. Reg. 17, 736 (Apr. 28, 1976);
279. and the "gray wolf'' (Canis lupus monstrabilis), Endangered and Threatened Wildlife and Plants; Endangered Status for 159 Taxa of Animals, 41 Fed. Reg. 24, 062 (June 14, 1976).
280. In 1978, the agency concluded that "the taxonomy of wolves is out of date," abandoned the subspecific designations, and listed the entire species-now denominated simply "gray wolf'-as endangered throughout its range in the conterminous United States and Mexico except in Minnesota and Isle Royal National Park, Michigan, where it was listed as threatened. Endangered and Threatened Wildlife and Plants; Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical Habitat in Michigan and Minnesota, 43 Fed. Reg. 9607 (Mar. 9, 1978).
281. Endangered and Threatened Wildlife and Plants; Designating the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment;
282. Removing the Northern Rocky Mountain Distinct Population Segment From the Federal List of Endangered and Threatened Species, 71 Fed Reg. 6634, 6635 (Feb. 8, 2006) [hereinafter Wolf Delisting].
283. See U.S. FISH & WILDLIFE SERV., NORTHERN ROCKY MOUNTAIN WOLF RECOVERY PLAN (1987), available at http://www.fws.gov/mountain-prairie/species/mammals/ wolf/ NorthernRockyMountainWolfRecoveryPlan.pdf.
284. Id. at 19, 22. The plan indicated that then-current information suggested that this would require "a minimum of 10 breeding pairs in each of three recovery areas for a minimum of 3 successive years."
285. Id. at 19.
286. Id. at 19.
287. Id. at iv.
288. U.S. FISH & WILDLIFE SERV., THE REINTRODUCTION OF GRAY WOLVES TO YELLOWSTONE NATIONAL PARK AND CENTRAL IDAHO 37 (1994) (Memorandum Regarding a Viable Wolf Population in the Northern Rocky Mountains), available at http://www.fws.gov/ mountain-prairie/species/mammals/wolf/EIS-1994.pdf [hereinafter WOLF EIS]. The discussion reaffirmed that the fundamental biological goal was "a more or less self sustaining or 'viable' population."
289. Id.
290. The quote is the characterization of the conclusion in Wolf Delisting, 71 Fed Reg. at 6635, based on the analysis in the EIS. WOLF EIS,
291. supra note 139, at 41-42.
292. Following publication of the EIS, the USFWS designated portions of Idaho, Montana, and Wyoming as two experimental populations. Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Gray Wolves in Yellowstone National Park in Wyoming, Idaho, and Montana, 59 Fed. Reg. 60, 252 (Nov. 22, 1994);
293. Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Gray Wolves in Central Idaho and Southwestern Montana, 59 Fed. Reg. 60, 266 (Nov. 22, 1994). On experimental populations,
294. see generally Goble, Experimental Populations, supra note 7.
295. In 1995 and 1996, the agency released 66 wolves into the two areas, 35 in central Idaho and 31 in YNP. Endangered and Threatened Wildlife and Plants; Regulation for Nonessential Experimental Population Segment of the Western Distinct Population Segment of the Gray Wolf; Final Rule, 70 Fed. Reg. 1286, 1287 (Jan. 6, 2005).
296. Wolf Delisting, 71 Fed Reg. at 6635.
297. Id. (quoting WOLF EIS, supra note 139, at 42).
298. See Defenders of Wildlife v. Hall, 565 F. Supp. 2d 1160, 1168-1169 (D- Mont. 2008).
299. Wolf Delisting, 71 Fed. Reg. at 6635-6636
300. See Hall, 565 F. Supp. 2d at 1168-1169
301. Wolf Delisting, 71 Fed. Reg. at 6634.
302. Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to Establish the Northern Rocky Mountain Gray Wolf Population (Canis lupus) as a Distinct Population Segment To Remove the Northern Rocky Mountain Distinct Population Segment from the Federal List of Endangered and Threatened Wildlife, 71 Fed. Reg. 43,410, 43,426 (Aug. 1, 2006).
303. See generally id. at 43, 423-24.
304. In January 2004, the USFWS determined that Wyoming's wolf management plan was inadequate. Wyoming's challenge to this decision was dismissed on procedural grounds by the district court, a decision that was affirmed by the Tenth Circuit Court of Appeals. Wyoming v. U.S. Dep't of the Interior, 360 F. Supp. 2d 1214 (D. Wyo. 2005), aff d per curiam, 442 F.3d 1262 (10th Cir. 2006).
305. Endangered and Threatened Wildlife and Plants; Designating the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment and Removing This Distinct Population Segment From the Federal List of Endangered and Threatened Wildlife, 72 Fed. Reg. 6106 (Feb. 8, 2007). The agency proposed to delist the species in Idaho and Montana and offered to delist the species in Wyoming if that state "adopts a State management plan that is consistent with the requirements . that have already been incorporated into Montana's and Idaho's regulatory framework."
306. Id. at 6134.
307. Final Rule Designating the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment and Removing This Distinct Population Segment from the Federal List of Endangered and Threatened Wildlife, 73 Fed. Reg. 10,514 (Feb. 27, 2008).
308. Hall, 565 F. Supp. 2d at 1163-1164
309. Id. at 1168-1169
310. Id. at 1168.
311. Id. at 1170-1171
312. Id. at 1172-1175
313. Roger Phillips, F&G Rules Could Slash Idaho Wolf Numbers in Half, IDAHO DAILY STATESMAN, May 23, 2008. The Idaho plan managed the species to maintain at least 518
314. wolves. IDAHO LEGISLATTVE WOLF OVERSIGHT COMMITTEE, IDAHO WOLF CONSERVATION AND MANAGEMENT PLAN, tbl. 1, at 5 (2002), available at http://fishandgame.idaho.gov/cms/ wildlife/manage/wolf-plan.pdf.
315. At delisting, there were approximately 824 wolves in the state. Press Release, Idaho Dep't of Fish & Game, Idaho Wolf Management (jan. 16, 2009), available at http:/ /fishandgame.idaho.gov/apps/releases/view.cfm?NewsID=4744.
316. From the state's perspective, 518 wolves was substantially more than the 100 wolves that was its share of the numerical recovery goal.
317. See Press Release, Governor C.L. "Butch" Otter, Wolf Delisting, State Management Long Overdue (Jan. 16, 2009), available at http:// gov.idaho.gov/mediacenter/press/pr2009/prjan09/pr-003.html.
318. See Julie Cart, Delisting Endangers Wolves, L.A. TIMES, Sept. 28, 2008, available at http: / /articles.latimes.com/2008/sep/28/nation/na-wolf28.
319. Id. Nearly 10 percent of the DPS's population was killed. Since Idaho established a hunting season and required licenses, no wolves were killed under Idaho's management plan.
320. -16 U.S.C. §1533(f)(1)(B)(ii) (2006).
321. See Holly Doremus & Joel E. Pagel, Delisting of Species Under the ESA, 17 CONSERVATION BIOLOGY 652, 653 (2003).
322. See generally Dale D. Goble, Of Wolves and Welfare Ranching, 16 HARV. ENVTL. L. REV. 101 (1992).
323. On October 28, 2008, the USFWS again proposed to delist the species. Endangered and Threatened Wildlife and Plants; Designating the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment and Removing This Distinct Population Segment from the List of Endangered and Threatened Wildlife, 73 Fed. Reg. 63, 926 (Oct. 28, 2008).
324. The proposal provided only a 30-day comment period. Id. at 63, 927.
325. On January 14, 2009, the USFWS announced that it was delisting wolves in Idaho and Montana as recovered;
326. wolves in Wyoming would remain listed because "Wyoming's state law and wolf management plan are not sufficient to conserve Wyoming's portion of recovered northern Rocky Mountain wolf population." Press Release, U.S. Fish & Wildlife Serv., Service Removes Western Great Lakes, Portion of Northern Rocky Mountain Gray Wolf Populations from Endangered Species List (Jan. 14, 2009), available at http://www.fws.gov/Midwest/News/Release09-04.html.
327. The Secretary of the Interior during the two most recent delisting attempts was Dirk Kempthome, the former Governor of Idaho.
328. Defenders of Wildlife v. Hall, 565 F. Supp. 2d 1160, 1163 (D. Mont. 2008).
329. See, e.g., Mark Shaffer, Minimal Viable Populations: Coping with Uncertainty, in VIABLE POPULATIONS FOR CONSERVATION 69, 70 (Michael E. Soule ed., 1987).
330. See Audubon Watchlist: Puerto Rican Parrot (Amazona vittata), http://audubon2.org/watchlist/viewSpecies.jsp?id=168 (last visited Apr. 22, 2009).
331. Shaffer, Minimum Population Sizes, supra note 21, at 131.
332. Cinquefoil Delisting, 67 Fed. Reg. at 54, 973.
333. Goose Delisting, 66 Fed. Reg. at 15, 643, 15, 645.
334. See generally Goble, Recovery in a Cynical Time, supra note 132.
335. Deer Delisting, 68 Fed. Reg. at 43, 652.
336. id. at 43, 653.
337. See Wolf Delisting, 71 Fed Reg. at 6635.
338. Defenders of Wildlife v. Hall, 565 F. Supp. 2d 1160, 1168 (D. Mont. 2008).
339. -16 U.S.C. §1531(b) (2006).
340. Such species are known as "keystone" or "strongly interacting" species.
341. See generally Robert T. Paine, Food Web Complexity and Species Diversity, 100 AM. NATURALIST 65 (1966);
342. Michael E. Soule et al., Strongly Interacting Species: Conservation Policy, Man, and Ethics, 55 BioSci. 168 (2005).
343. Douglas W. Smith et al., Yellowstone After Wolves, 53 BioSa. 330, 335 (2003) (estimating that elk constitute 92 percent of all wolf kills).
344. See generally, e.g., Daniel Fortin et al., Wolves Influence Elk Movements: Behavior Shapes a Trophic Cascade in Yellowstone National Park, 86 ECOLOGY 1320 (2005);
345. John W. Laundre et al., Wolves, Elk, and Bison: Reestablishing the "Landscape of Fear" in Yellowstone l Park, U.S.A., 79 CANADIAN J. ZOOLOGY 1401 (2001);
346. William J. Ripple & Robert L. Beschta, Wolves and the Ecology of Fear: Can Predation Risk Structure Ecosystems?, 54 BioSci. 755 (2004);
347. Clifford A. White et al., Predation Risk and the Functional Response of Elk-Aspen Herbivory, 181 FOREST ECOLOGY & MGMT. 77 (2003);
348. William J. Ripple & Robert L. Beschta, Restoring Yellowstone's Aspen with Wolves, 138 BIOLOGICAL CONSERVATION 514 (2007)
349. [hereinafter Ripple & Beschta, Restoring Yellowstone's Aspen].
350. See generally, e.g., Robert L. Beschta, Cottonwoods, Elk, and Wolves in the Lamay of Yellowstone National Park, 13 ECOLOGICAL APPLICATIONS 1295 (2003);
351. William J. Ripple et al., Trophic Cascades among Wolves, Elk, and Aspen on Yellowstone National Park's Northern Range, 102 BIOLOGICAL CONSERVATION 227 (2001);
352. William J. Ripple & Robert L. Beschta, Wolf Reintroduction, Predation Risk, and Cottonwood Recovery in Yellowstone National Park, 184 FOREST ECOLOGY & MGMT. 299 (2003);
353. Ripple & Beschta, Restoring Yellowstone's Aspen, supra note 175.
354. See generally Joel Berger et al., A Mammalian Predator-Prey Imbalance: Grizzly Bear and Wolf Extinction Affect Avian Neotropical Migrants, 11 ECOLOGICAL APPLICATIONS 947 (2001);
355. Smith et al., supra note 174, at 33-38;
356. Christopher C. Wilmers et al., Trophic Facilitation by Introduced Top Predators: Grey Wolf Subsidies to Scavengers in Yellowstone National Park, 72 J. ANIMAL ECOLOGY 909 (2003).
357. See generally Robert L. Beschta & W.J. Ripple, River Channel Dynamics Following Extirpation of Wolves in Northwestern Yellowstone National Park, USA, 31 EARTH SURFACE PROCESSES & LANDFORMS 1525 (2006).
358. Wolves killed approximately half of the coyote population, which increased the prey available to mid-sized carnivores such as foxes, hawks, owls, badgers, and pine martens.
359. Robert L. Crabtree & Jennifer W. Sheldon, The Ecological Role of Coyotes on Yellowstone's Northern Range, 7(2) YELLOWSTONE Sa. 15, 22-23 (1999);
360. Smith et al., supra note 174, at 335-336
361. The carcasses of elk killed by the wolves provide a bonanza for scavengers such as grizzly and black bears, ravens, magpies, and bald and golden eagles.
362. Smith et al., supra note 174, at 336;
363. see also Daniel Stahler et al., Common Ravens, Corvus corax, Preferentially Associate with Grey Wolves, Cards lupus, as a Foraging Strategy in Winter, 64 ANIMAL BEHAVIOR 283 (2002).
364. -16 U.S.C. §1531(b) (2006).
365. Id. §1533(a)(1)(D) (providing that one threat to be evaluated in status-determination decisions is "the inadequacy of existing regulatory mechanisms").
366. Wilcove & Chen, supra note 11. The threats facing most species are habitat modification and the presence of normative competitors or predators.
367. See Wilcove et al., Leading Threats, supra note 11, at 95;
368. Kirtland's warbler requires prescribed bums to maintain appropriate jack-pine habitat structure. The warbler has exacting habitat requirements: extensive, homogenous stands of young jack pines located on poor soils-a habitat type that was more common when forest fires were more common. Fire suppression and habitat fragmentation reduced this habitat and led to the listing of the species. Conserving the species requires regular burning of habitat to produce the requisite stand structure. See U.S. FISH & WILDLIFE SERV., KIRTLAND'S WARBLER RECOVERY PLAN, app. B (1985).
369. The brown-headed cowbird has an unusual reproductive strategy: they lay their eggs in the nests of other species, leaving the host to raise the cowbird young. Cowbirds have evolved to have a quick hatch time and to develop rapidly which allows them to outcompete their fellow nestlings with the result that the host's own young seldom survive. Least Bell's vireo is particularly susceptible to such brood parasitism and controlling cowbirds is a significant recovery goal for the species. U.S. FISH & WILDLIFE SERV., DRAFT RECOVERY PLAN FOR THE LEAST BELL'S VÍREO (Vireo bellii pusillus) 25-28 (1998).
370. See, e.g., Fox, supra note 95.
371. See generally Doremus, Delisting Endangered Species, supra note 53;
372. Doremus & Pagel, Why Listing May Be Forever, supra note 53;
373. Williams et al., supra note 53. This is particularly true for plants and invertebrates which are often entirely without legal protection.
374. For one possible alternative, see J. Michael Scott et al., Recovery of Imperiled Species under the Endangered Species Act: The Need for a New Approach, 3 FRONTIERS IN ECOLOGY & ENV'T 383 (2005).