Conservation Law

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Conservation Law
15 Sept 2009
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What do this bear and conservation law have in
common?
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Frequency
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Frequency
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Frequency
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Frequency
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How do we assign the Burden of Proof
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Frequency
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What was Hardins position?
The social arrangements that produce
responsibility are arrangements that create
coercion. . . . . . I recommend mutual coercion,
mutually agreed upon by the majority of the
people affected.
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Major U.S. Environmental Laws

• National Environmental Policy Act (NEPA)
• http//ceq.hss.doe.gov/nepa/nepanet.htm
• Endangered Species Act (ESA)
• http//www.earthjustice.org/library/reports/Citize
  ns_Guide_ESA.pdf

For complete details on any U.S. law, go to
http//www.law.cornell.edu/
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National Environmental Policy Act(NEPA, 1970)

• Objective (NEPA 101 or 42 U.S.C. 4331(a))
• The Congress, recognizing the profound impact of
  mans activity on the . . . natural environment,
  declares that it will . . . use all practicable
  means and measures to create and maintain
  conditions under which man and nature can exist
  in productive harmony.

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NEPA How It Works

• The Trigger
• Proposals for legislation and other major
  Federal actions significantly affecting the
  quality of the . . . environment

What constitutes major Federal action?
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Categories of Major Federal Action(Council on
Environmental Quality 1508.18)

• Plans to use Federal resources (including Federal
  lands or Federal money).
• cattle grazing leases
• Specific projects, including actions approved by
  permit, as well as federal and federally assisted
  activities.
• dam construction (US Army Corps or TVA)
• waste treatment discharge permits
• federal grants to build waste treatment
  facilities
• Official policies and programs.
• TED requirement for shrimp nets

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NEPA How It Works

• The Result a detailed statement on
• environmental impacts
• unavoidable, adverse environmental effects
• alternative actions
• relationship between local, short-term benefits
  long-term productivity
• irreversible/irretrievable commitments of
  resources

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The NEPA Process
(NEPA 102)
Environmental Assessment
Major Federal Action Proposed

(CEQ 1502.4, 1508.18)
Public Comment
Categorial Exclusion?
(CEQ 1501.3, 1508.9)
sufficient?
(CEQ 1508.4)
Yes
No
Yes
No
FONSI
EIS
Done
(CEQ 1501.4)
(CEQ 1508.13)
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The NEPA Process Creating an EIS
Notice of Availability
Notice of Intent
(CEQ 1508.22)

Public Comment
Interdisciplinary Review Team
(CEQ 1502.19, 1503.1-4)
Internal Review
(CEQ 1502.6)
Final EIS
(CEQ 1502.8-16)
Scoping Meetings
(CEQ 1501.7, 1508.25)
Record of Decision
Draft EIS
(CEQ 1505.2)
(CEQ 1502.8-16)
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NEPA Major Benefits

• Proactive approach to environmental regulation.
• Explicitly addresses non-economic objectives
  (e.g. assure safe, healthful, productive, and
  esthetically and culturally pleasing
  surroundings).
• Direct channel and funding for public
  participation.

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NEPA Major Shortcomings

• Addresses only Federal action.
• Intensive focus on EIS compliance promotes
  litigation (at the expense of conservation
  activity ecological research).

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(For the most recent NEPA activity, go to
www.nepa.gov.)
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www.ecr.gov
(Udall Scholarship video)
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Endangered Species Act(ESA, 1973)
http//www.fws.gov/endangered/
http//www.nmfs.noaa.gov/pr/laws/esa/
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ESA Overview

• Determination of endangered and/or threatened
  status
• listing and delisting decisions (ESA 4)
• Protective measures
• cooperation with States (ESA 6)
• interagency (Federal) cooperation (ESA 7)
• prohibited acts enforcement (ESA 9, 11)
• exceptions (ESA 10)

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ESA How It Works

• Criteria for listing
• Formal listing petition must be presented to the
  Secretary of Interior 90 day review.
• Imperiled condition must be associated with
  anthropogenic (human) effects ( 4(a)(1)).
• Listing decisions must be based on the best
  scientific and commercial data available (
  4(b)(1)(A)).

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1,331 currently listed species

250 petitioned listings awaiting review 100 in
wait gt10 yrs 73 in wait gt25 yrs Ecosystem-based
listing now being considered




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ESA How It Works

• Contents of a listing decision
• Threatened vs. Endangered status ( 4(d))
• Endangered In danger of extinction throughout
  all or a significant portion of its range. (
  3(6))
• Threatened Likely to become endangered within
  the foreseeable future. ( 3(20))
• Critical Habitat designation ( 3(5)(A)
  4(b)(6)(C))
• Recovery Plan with objective, measurable
  criteria for delisting ( 4(f))

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ESA How It Works

• Contents of a listing decision
• Threatened vs. Endangered status ( 4(d))
• Endangered In danger of extinction throughout
  all or a significant portion of its range. (
  3(6))
• Threatened Likely to become endangered within
  the foreseeable future. ( 3(20))
• Critical Habitat designation ( 3(5)(A)
  4(b)(6)(C))
• Recovery Plan with objective, measurable
  criteria for delisting ( 4(f))

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Critical Habitat- the Rio Grande Silvery Minnow -
Water video
Hatchery video
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ESA How It Works

• Contents of a listing decision
• Threatened vs. Endangered status ( 4(d))
• Endangered In danger of extinction throughout
  all or a significant portion of its range. (
  3(6))
• Threatened Likely to become endangered within
  the foreseeable future. ( 3(20))
• Critical Habitat designation ( 3(5)(A)
  4(b)(6)(C))
• Recovery Plan with objective, measurable
  criteria for delisting ( 4(f))

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Recovery PlansYellowstone Grizzly

• 15 adult females (avg.) with cubs-of-year, for 6
  consecutive yrs, within the recovery zone area
  (ne 38 1997-2002).
• 16 of 18 Bear Management Units occupied by
  females w/ c-o-y, for 6 yrs, with no two adjacent
  Units unoccupied (100 occupancy 1997-2002).
• Human-caused mortality lt4 of total population
  (2.5 mortality 1997-2002).

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ESA How It Works

• Protective measures
• Cooperation with States
• Cooperative agreements States retain authority
  in TE species habitats, so long as State
  habitat conservation plans are adequate ( 6(c)).
• Federal funding States may receive Federal
  funding to support State conservation plans (
  6(d), (i)).
• Federal vs. State laws State regulations can be
  more restrictive than Federal regulations, but
  not less ( 6(f)).

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ESA How It Works

• Protective measures
• Interagency (Federal) Consultation
• Consultation actions are not likely to
  jeopardize the continued existence of any
  endangered or threatened species, or result in
  the destruction or adverse modification of its
  critical habitat ( 7(a)(2)).
• Based upon the best scientific and commercial
  data available.

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ESA How It Works

• Protective measures
• Interagency (Federal) Consultation
• Biological Assessment Action Agencys plan to
  ensure proposed actions do not jeopardize TE
  species ( 7(c)).
• Biological Opinion USFWS / NOAA reply, with
  reasonable prudent alternatives ( 7(b)(3)(A)).
• BiOps are legally binding (usually).
• Open to public comment.

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ESA How It Works

• Protective measures
• Prohibited Acts
• Take to harass, harm, pursue, hunt, shoot,
  wound, kill, trap, capture, or collect, or to
  attempt to engage in any such conduct ( 3(19)).
• Penalties ( 11)
• Civil fines 25,000 per violation.
• Criminal fines 50,000 per violation, and/or
  1 year imprisonment.

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ESA How It Works

• Protective measures
• Exceptions ( 10(a))
• Scientific research artificial propagation.
• Incidental take (permits).
• Undue economic hardship.

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ESA Major Benefits

• Assigns intrinsic value to species.
• Comprehensive coverage (Federal, State, local
  jurisdictions).
• Economic costs of conservation are irrelevant
  (but see 7(h) cost-benefit).
• Recognized as an international conservation model.

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ESA Major Shortcomings

• Species-specific.
• Reactive, rather than proactive (i.e., only
  applies to imperiled species).
• Shoot, shovel, shut-up mentality.
• Extreme frequency of litigation is
  counterproductive.
• All ESA procedures are subject to judicial review
  ( 7(n), 11(g)).
• Courts may reimburse private litigation fees.

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Alternatives to Litigation

• Habitat Conservation Plans
• Safe Harbor Agreements
• Memoranda of Understanding/Agreement
• ----------------------------------------
  --------------------------------------------------
  ---------
• All are Private-Federal partnerships
• All permit incidental take in exchange for
  habitat conservation
• All provide no surprises assurances

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Safe Harbor Agreements
(click)
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Memoranda of Understanding
The Robust Redhorse Conservation Committee
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Reading Assignments

• A Citizens Guide to the NEPA
• Citizens Guide to the Endangered Species Act