Monday, April 10, 2017

The Application of the Endangered Species Act to Activities on Private Land


The Endangered Species Act (ESA) establishes a regulatory framework for the protection and recovery of endangered and threatened species of plants, fish and wildlife. 16 U.S.C. § 1531 et seq (2002). The U.S. Fish and Wildlife Service (USFWS), within the Department of the Interior, is the lead administrative agency for most threatened or endangered species.

The ESA has the potential to restrict substantially agricultural activities because many of the protections provided for threatened and endangered species under the Act extend to individual members of the species when they are on private land.  Approximately 90 percent of endangered species have some habitat on private land, with almost 70 percent of the endangered or threatened species having over 60 percent of their total habitat on nonfederal lands.  A recent decision of the U.S. Court of Appeals for the Tenth Circuit reiterates that the ESA applies to activities on private land.  That’s the focus of today’s post.

The Impact of Species “Listing”

Once a species has been listed as endangered or threatened, the ESA prohibits various activities involving the listed species unless an exemption or permit is granted.  For example, with respect to endangered species of fish, wildlife and plants, the ESA makes it unlawful for any person to import or export such species, deliver, receive, carry, transport or ship in interstate or foreign commerce by any means whatsoever, and sell or offer for sale in interstate or foreign commerce any such species.  The ESA, with regard to endangered species of fish or wildlife, but not species of plants, makes it unlawful for any person subject to the jurisdiction of the United States to “take” any such species. 16 U.S.C. §§ 1538(a)(1)(B), (C) (2008).  The ESA defines the term “take” to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.  The prohibition against “taking” an endangered species applies to actions occurring on private land as well as state or federal public land, and financial penalties apply for violating the prohibition. 

1982 amendments to the ESA establish an incidental take permit process that allows a person or entity to obtain a permit to lawfully take an endangered species “if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” 16 U.S.C. §1539(a)(1)(B).  A person may seek an incidental take permit from the USFWS by filing an application that includes a Habitat Conservation Plan (HCP) which includes a description of the impacts that will likely result from the taking, proposed steps to minimize and mitigate those impacts, and alternatives to the taking that the applicant considered and the reasons why those alternatives were not selected.  If the permit is issued, the FWS will monitor the project for compliance with the HCP and the effects of the permitted action and the effectiveness of the conservation program.  The FWS may suspend or revoke all or part of an incidental take permit if the permit holder fails to comply with the conditions of the permit or the laws and regulations governing the activity.

Impact on Private Land Use Activities

The denial of an incidental take permit involving habitat modification of an underground cave bug of no known human commercial value and only found in two Texas counties has been upheld against a Commerce Clause challenge. GDF Realty Investments, LTD, et al. v. Norton, 326 F.3d 622 (5th Cir. 2004), reh’g en banc denied, 362 F.3d 286 (5th Cir. 2004), cert. denied, 545 U.S. 1114 (2005). The landowner claimed the federal government had no jurisdiction due to the lack of connection with interstate commerce.  The court upheld the denial of the incidental take permit on the basis that the bug could be aggregated with all other endangered species to show a sufficient connection with interstate commerce.  Likewise, in Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003), reh’g en banc denied, 334 F.3d 1158 (D.C. Cir. 2003), cert. denied, 540 U.S. 1218 (2004), a different court held that the ESA extended to the Southwestern Arroyo Toad even though the Arroyo Toad only resided in southern California and never has been an article of commerce. In 2009, a commercial wind farm was enjoined from further development until receipt of an incidental take permit due to the project’s impact on the endangered Indiana bat.  The court held that it was a “virtual certainty” that Indiana bats would be “harmed, wounded or killed” by the wind farm in violation of the ESA during times that they were not hibernating.  Animal Welfare Institute, et al. v. Beech Ridge Energy LLC, et al., 675 F. Supp. 2d 540 (D. Md. 2009).

An important issue for farmers and ranchers is whether habitat modifications caused by routine farming or ranching activities are included within the definition of the term “take.”  In 1975, the Department of Interior issued a regulation defining “harm” as “an act or omission which actually injures or kills wildlife, including acts which annoy it to such an extent as to significantly disrupt essential behavior patterns, which include, but are not limited to, breeding, feeding or sheltering; significant environmental modification or degradation which has such effects is included within the meaning of ‘harm’.” 50 C.F.R. § 17.3; 40 Fed. Reg. 44412, 44416. The regulation was amended in 1981 to emphasize that actual death or injury to the listed species is necessary, but the inclusion of “habitat modification” in the definition of “harm” led to a series of legal challenges.

The regulation was upheld by the Ninth Circuit Court of Appeals in 1988 in a case involving an endangered bird species whose critical habitat was on state-owned land in Hawaii. Palila v. Hawaii Dept. of Land & Natural Resources, 639 F.2d 495 (9th Cir. 1981). The court held that the grazing of goats and sheep threatened to destroy the endangered birds' woodland habitat and resulted in harm and a “taking” of the endangered bird.  The court ordered the Hawaii Department of Land and Natural Resources to remove the goats and sheep from the birds' critical habitat. In subsequent litigation, the plaintiffs sought the removal of an additional variety of sheep from the birds' critical habitat.  The defendant argued that, under the ESA, “harm” included only the actual and immediate destruction of the birds' food source, not the potential for harm which could drive the bird to extinction.  However, the Ninth Circuit held that “harm” is not limited to immediate, direct physical injury to the species, but also includes habitat modification which may subsequently result in injury or death of individuals of the endangered species. Palila v. Hawaii Dept. of Land & Natural Resources, 852 F.2d 1106 (9th Cir. 1988).

Recent case. In People for the Ethical Treatment of Property Owners v. Unites States Fish and Wildlife Service, No. 14-4151, 2017 U.S. App. LEXIS 5440 (10th Cir. Mar. 29, 2017). the U.S. Court of Appeals for the Tenth Circuit again illustrated the impact of the ESA on private land activities in a case involving protected prairie dogs.  In the case, the plaintiffs were landowners in Utah whose experienced problems with the prevalence of the Utah prairie dog damaging their tracts. The Utah prairie dog is a threatened species under the ESA and has approximately 70 percent of its population on private land. The Utah prairie dog is found only in Utah, and its population has increased about 12 times over since 1973.

As a threatened species, the USFWS issued a special rule regulating the “taking” of the Utah prairie dog. Under the rule, “taking” was limited to agricultural land, property within one-half mile of conservation land and areas where the species creates serious human safety hazards or disturb the sanctity of significant cultural or burial sites. Incidental taking is allowed if it occurs as part of standard agricultural practices. The plaintiffs challenged the rule as applied to private land as not authorized under either the Commerce Clause or the Necessary and Proper Clause of the U.S. Constitution and sought declaratory and injunctive relief.

The trial court granted the plaintiffs motion for summary judgment on the basis that the Commerce Clause does not authorize the Congress to enact legislation authorizing the regulation of the taking of a purely intrastate species without a substantial effect on interstate commerce and the Necessary and Proper Clause did not authorize the regulation of taking of the species because the regulation is not essential to the ESA’s economic scheme. The government appealed.

On review, the appellate court reversed. The appellate court determined that the “substantial effect” on interstate commerce was to be determined under the rational basis standard. Under that standard, the appellate court held that the Congress has the power to regulate purely local activities that are part of an economic class of activities that have a substantial effect on interstate commerce. Thus, because (in this court’s view) the Commerce Clause authorized the regulation of noncommercial purely intrastate activity that is an essential part of a broader regulatory scheme, the “take” regulation was constitutional. The appellate court noted that approximately 68 percent of ESA-protected species have habitats that do not cross state borders, as such the court reasoned that the ESA could be severely undercut if the ESA only allowed protection to those species whose habitats were in multiple states. 


The ESA and the underlying regulations have a significant impact on private landowners and associated agricultural activities.  With new leadership in the White House and regulatory agencies it remains to be seen whether that will amount to any change in how the rules are applied on private land.

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