What is an

1
What is an endangered species?
Sec. 3 Definitions (6) The term ''endangered
species'' means any species which is in danger of
extinction throughout all or a significant
portion of its range other than certain pest
insects.
(16) The term ''species'' includes any subspecies
of fish or wildlife or plants, and any distinct
population segment of any species of vertebrate
fish or wildlife which interbreeds when mature.
2
Who determines whether a species is endangered,
and how do they make that determination?
ESA Section 4 Determination of endangered
species and threatened species (a) Generally
(1)   The Secretary shall by regulation
determine whether any species is an endangered
species or a threatened species because of any of
the following factors (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.
3
What does the ESA require of federal agencies?
Sec. 7 Interagency cooperation (a) Federal
agency actions and consultations (2) Each
Federal agency shall, in consultation with and
with the assistance of the Secretary, insure that
any action authorized, funded, or carried out by
such agency is not likely to jeopardize the
continued existence of any endangered species or
threatened species or result in the destruction
or adverse modification of habitat of such
species
4
TVA v. Hill
1967 Congress authorized Tellico Dam
construction commenced 1967-late 73
Unsuccessful litigation (NEPA, other) challenging
dam Mid-1973 Snail darter discovered by David
Etnier Late 1973 ESA passed 1975 Snail darter
listed critical habitat designated Feb. 1976
ESA challenge filed
5
Madison v. Ducktown Sulphur Shall we grant
plaintiffs request to blot out two great mining
and manufacturing enterprises, destroy half of
the taxable values of a county, and drive more
than 10,000 people from their homes?
TVA v. Hill Congress was concerned about the
unknown uses that endangered species might have
and about the unforeseeable place such creature
may have in the chain of life on this planet
The plain intent of Congress was to halt and
reverse the trend toward species extinction,
whatever the cost.
6
Sec. 7 Interagency cooperation (a) Federal
agency actions and consultations (1) Each
Federal agency shall, in consultation with and
with the assistance of the Secretary, insure that
any action authorized, funded, or carried out by
such agency is not likely to jeopardize the
continued existence of any endangered species or
threatened species or result in the destruction
or adverse modification of habitat of such
species
unless such agency has been granted an exemption
for such action by the Committee pursuant to
subsection (h) of this section. The God Squad
7
TVA v. Hill -- postscript 1967 Congress
authorized Tellico Dam construction
commenced 1967-late 73 Unsuccessful litigation
(NEPA, other) challenging dam Mid-1973 Snail
darter discovered by David Etnier Late 1973 ESA
passed 1975 Snail darter listed critical
habitat designated Feb. 1976 ESA challenge
filed 1980 Congress passes rider exempting
Tellico from ESA 2000 Etnier urges delisting of
snail darter says 100,000 exist
8
What does the ESA require of private sector
actors?
Sec. 9 Prohibited acts (a) Generally (1) Except
as provided in 1539 of this title, with respect
to any endangered species of fish or wildlife
listed pursuant to section 1533 of this title it
is unlawful for any person subject to the
jurisdiction of the United States to (B) take
any such species within the United States or the
territorial sea of the United States
Sec. 3 Definitions (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.
9
What does harm mean?
50 CFR Sec. 17.3 harm means an act which
actually kills or injures wildlife including
significant habitat modification or degradation
where it actually kills or injures wildlife by
significantly impairing essential behavioral
patterns, including breeding, feeding, or
sheltering.
Palila II wild sheep ? degrade palila habitat
? harms palila BUT, Palila population
recovering 1979-86, after removal of feral sheep
and goats after Palila I
10
Babbitt v. Sweet Home (1995)
50 CFR Sec. 17.3 harm means an act which
actually kills or injures wildlife including
significant habitat modification or degradation
where it actually kills or injures wildlife by
significantly impairing essential behavioral
patterns, including breeding, feeding, or
sheltering. Should harm be confined to direct
applications of force? Is the statutory term
limited in this way?
11
Babbitt v. Sweet Home (1995)

• What are OConnor and Scalia worried about? Why
  the argument over the difference between habitat
  modification that affects
• The ability of the population to grow
• Unborn members of the species
• The ability of existing members to breed?
• Likewise, what is their argument about causation
  and foreseeability all about? Why reach these
  issues? Isnt this a simple Chevron deference
  case?

12
Section 10(a) Incidental Taking
Permits/HCPs (1) The Secretary may permit, under
such terms and conditions as he shall prescribe -
(B)   any taking otherwise prohibited by
section 1538(a)(1)(B) of this title if such
taking is incidental to, and not the purpose of,
the carrying out of an otherwise lawful activity.
13
Section 10(a) Incidental Taking
Permits/HCPs (2) (A) No permit may be issued by
the Secretary authorizing any taking referred to
in paragraph (1)(B) unless the applicant therefor
submits to the Secretary a conservation plan that
specifies - (i) the impact which will likely
result from such taking (ii) what steps the
applicant will take to minimize and mitigate such
impacts (iii) what alternative actions to such
taking the applicant considered and (iv) such
other measures that the Secretary may require as
being necessary or appropriate for purposes of
the plan. Hardship Exemptions
14
ESA Sec. 9(a)(2) with respect to any endangered
species of plants listed pursuant to section 4
, it is unlawful for any person subject to the
jurisdiction of the United States to (A)
import any such species into, or export any such
species from, the United States (B) remove
and reduce to possession any such species from
areas under Federal jurisdiction maliciously
damage or destroy any such species on any such
area or remove, cut, dig up, or damage or
destroy any such species on any other area in
knowing violation of any law or regulation of any
State or in the course of any violation of a
State criminal trespass law