Summary of Environmental Law in the United States
17. Conservation of Biological Diversity and Wildlife
The following institutions have significant authority over
biological diversity or endangered species: (1) the U.S. Fish and
Wildlife Service, (2) the National Marine Fisheries Service, and (3)
state wildlife agencies.
United States Fish and Wildlife
Service. The Fish and Wildlife Service (USFWS) of the Department of the Interior (DOI) is
the lead federal agency for management and conservation of the
nation's migratory birds, threatened and endangered species,
non-marine mammals, and sport fishes. Among other duties, the USFWS
manages national wildlife refuges, operates federal fish hatcheries,
regulates hunting of migratory game birds, provides financial and
technical assistance to state wildlife agencies, and implements with
respect to the U.S. most international wildlife conventions to which
the U.S. is a party.
National Marine Fisheries
Service. The National Marine Fisheries Service (NMFS), a part of
the Department of Commerce, is responsible for federal efforts to
conserve and maintain fish stocks and some marine mammals.
State Wildlife Agencies. States have broad authority to
regulate and manage their wildlife and fish resources. Every state
has a Department of Fish and Wildlife or some analogous agency
charged with managing state wildlife conservation areas and
regulating hunting and fishing.
17.2 Protection and Management of Wildlife
Most power to protect and manage wildlife is retained by the
states. Federal activities in protecting and managing wildlife are
limited to: managing wildlife on federal lands; regulating the
hunting, killing, "taking," or sale of certain federally protected
species; regulating interstate and U.S. foreign commerce in
wildlife; and, requiring federal agencies to consider wildlife
impacts. Federally protected species include: migratory birds, bald
and golden eagles, wild horses and burros, marine mammals, and
endangered and threatened species.
Migratory Birds. The Migratory Bird
Treaty Act, 16 U.S.C. sec.
703, makes illegal all hunting, capturing, killing, possessing,
purchasing, selling, importing, or exporting of migratory birds,
except as allowed by the Department of Interior (DOI). Hunting is
generally restricted under these federal regulations to a relatively
small number of ducks, grouse, pheasants, doves, and similar game
C.F.R. pt. 20. The Migratory Bird Treaty Act implements treaty
agreements with both Canada and Mexico, as well as Russia and Japan.
Violations of the act can result in criminal fines of up to US$500
and six months imprisonment. See Section 25.8: Agreements
Relating to the Protection of Flora and Fauna.
Bald and Golden Eagles. Under the Bald Eagle Protection
Act, 16 U.S.C.
secs. 668-668d, any person who kills, takes, possesses,
transports, sells, purchases, imports, or exports any bald or golden
eagles or their parts, feathers, nests, or eggs is subject to one
year imprisonment and a fine of up to US$100,000. Certain limited
exceptions apply to: scientific exhibitions, zoos or museums,
religious practices of Native Americans, and certain actions taken
to protect domesticated animals or agriculture.
Wild Horses and Burros. The Wild Free-Roaming Horses and
Burros Act, 16
U.S.C. secs. 1331-1340, imposes a criminal fine up to US$100,000
and one year imprisonment on any person who causes the death or
harassment of a wild horse or burro, who processes such a horse or
burro into a commercial product, who willfully removes a horse or
burro from nacec.federal lands, or who sells a wild horse or burro
caught on private lands. Federal land managers can remove a certain
number of animals each year to prevent damage to public lands.
Marine Mammals. The Marine Mammal Protection Act of 1972
U.S.C. secs. 1361-1362, 1371-1384,
established an indefinite moratorium on: the taking or importing of
all marine mammals, except for scientific exhibitions; subsistence
hunting by Native Americans; incidental takings by commercial
fishers; and, certain takings pursuant to international treaties. 16 U.S.C. sec.
1371. The MMPA also allows import restrictions on certain
products from nacec.countries that impede attainment of the MMPA's
U.S.C. sec. 1415. Administration of the Act is split between the
USFWS and the NMFS. Violators are subject to fines as high as
US$100,000 and imprisonment for up to one year.
Recreational Fisheries. The National Recreation Fishing
Coordination Council was created by Executive Order 12962 and is
charged with oversight of federal agency actions to improve the
quality, function and sustainable productivity of US aquatic
resources. In addition, the council is to develop a comprehensive
recreational fishery resources conservation plan.
Federal Regulation of Interstate Commerce. The Lacey Act
of 1900, ch. 553, 31 Stat. 1897, 16 U.S.C. secs.
701, 3371-78, and 18 U.S.C. sec.
42, prohibits import, export, transport, selling, receiving,
acquiring, or purchasing of any fish, wildlife, or plant that is
taken, possessed, transported, or sold in violation of any federal,
state, foreign, or Indian tribal law. The Lacey Act also prohibits
the importation of certain species deemed potentially harmful to
U.S. agriculture or other interests. Most violators of the Lacey Act
are subject to one year imprisonment and a US$100,000 fine, however
where certain commercial activities or importation or exportation
are involved, the maximum penalties increase to five year
imprisonment and a US$250,000 fine. The specific federal statutes
addressing migratory birds, eagles, and wild horses and burros also
include restrictions on interstate commerce.
Federal Agency Consideration of Wildlife Impacts. Several
statutes contain specific requirements mandating consideration of
wildlife impacts. As part of the environmental impact assessment
requirements of the National
Environmental Policy Act, federal agencies must review impacts
on wildlife populations and biodiversity. See Section 7: Environmental
Impact Assessment. The Endangered Species Act (ESA) requires all
federal agencies to consult with USFWS or NMFS to "insure" that any
agency action is not likely to jeopardize any endangered or
threatened species, or adversely impact any designated critical
habitat for the species. The Fish and Wildlife Coordination Act of
U.S.C. sec. 661, requires federal agencies to consult with USFWS
to identify potential mitigation steps before permitting or
licensing certain water development projects.
State regulations. Every state has detailed hunting and
fishing regulations, which typically require purchasing annual
licenses or permits. Such regulations also contain detailed
restrictions on, for example, the seasons and locations in which
specific activities can occur, size and number limits on the
wildlife or fish that can be taken in a season or day, equipment
restrictions, and reporting requirements for some species. State
conservation officers and game wardens enforce wildlife laws with
essentially the same range of authority as police officers.
Threatened and Endangered Species. The Endangered Species
Act (ESA), 16 U.S.C.
secs. 1531-1544, is the primary federal statute for protecting
threatened and endangered species. An "endangered species" is any
species which is in danger of extinction throughout all or a
significant portion of its range." 16 U.S.C. sec.
1532(6). A "threatened species" is any species which is likely
to become an endangered species within the foreseeable future
throughout all or a significant portion of its range." 16 U.S.C. sec.
1532(20). Distinct, vertebrate population segment or subspecies
can be listed separately. The USFWS is responsible for listing all
species, except for certain marine species which are listed by the
NMFS. Citizens can also petition to list or change the status of a
species. Listings must be made solely on the basis of the best
available biological assessments. Critical habitat should also be
identified at or near the same time as a listing is made.
The listing of a species under the ESA triggers several
requirements. First, the USFWS or NMFS must adopt a recovery plan
with the goal of bringing the species, and the ecosystem on which it
depends, back to healthy condition so that the protective measures
of the Act are no longer needed. Recovery plans must describe
site-specific management actions necessary to achieve the
conservation and survival of the species, objective measurable
criteria for determining that the species be removed from nacec.the
list, and estimates of the time and cost required to carry out the
U.S.C. sec. 1533(f).
Second, all federal agencies must consult with the expert agency
(USFWS or NMFS) and "insure" that any agency action is not likely to
jeopardize the continued existence of any endangered or threatened
species or destroy any designated critical habitat for the species.
Only the Endangered Species Committee, comprised of high ranking
officials from nacec.the federal government and affected states, can
grant an exemption from nacec.this prohibition. 16 U.S.C. sec.
1536(h). The Committee can only grant the exemption if it
determines on the record after a public hearing that: no reasonable
alternatives to the agency action exist, the benefits of such action
clearly outweigh the benefits from nacec.alternatives consistent
with conservation of the species, the action is of regional or
national significance and is in the public interest, and there has
been no irreversible commitment of resources otherwise prohibited by
the Act. The Committee must also establish some means for mitigating
the loss to the species. Since its creation under a 1978 amendment,
only very few cases have been heard by the Committee.
Third, the ESA regulates many activities relating to the species,
including, for example, importing, exporting, selling, or shipping
the species. Most importantly, the ESA also prohibits the "taking"
of listed species by any person, even on private lands. See
secs. 1534, 1536, 1538. To
"take" an endangered species is defined broadly to include
activities that "harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect." 16 U.S.C. sec.
1532(19). "Take" also includes habitat modification that would
indirectly harm a listed species. Babbitt v. Sweet Home Chapter
of Communities for a Great Oregon, 115 S.Ct. 2407 (1995).
Private parties can gain a permit to "take" endangered species, but
only if the taking is for scientific research, to enhance the
propagation or the survival of the species, or incidental to
otherwise lawful activity and is accompanied by a habitat
conservation plan approved by the DOI. 16 U.S.C. sec.
The ESA provides civil penalties up to US$25,000 for each
violation. A knowing violation by an individual of the prohibition
on taking an endangered species can result in criminal sanctions of
up to US$50,000 in fines and one year in jail. 16 U.S.C. sec.
1540(b). Any citizen can bring an action to enjoin any person
from nacec.violating the ESA or to compel the appropriate Secretary
to take certain non-discretionary actions. Except with respect to a
suit challenging an exemption granted by the Committee and except
for emergencies involving the failure of the Secretary to take
certain discretionary actions, citizens cannot bring a suit without
first providing 60-days notice to the defendant. The ESA also bars
citizen suits if the U.S. or a state is already diligently
prosecuting a civil action for the same violation.
State Endangered Species Acts. Almost every state has its
own law protecting wildlife threatened or endangered within the
state's borders. Each state's law may vary on how species are
categorized for protection, although most rely on the best available
science and provide for substantial public participation. The laws
also vary according to what requirements they may impose. Some, for
example, prohibit state or local agencies from nacec.approving any
project that may harm endangered species. Some prohibit destruction
of critical habitat and others rely on economic incentives to
encourage private landowners to support protection.
17.3 Protection and Management of Ocean
Concern over the future of the U.S. fisheries industry led to
passage of the Magnuson Fishery Conservation and Management Act in
1976 (the "Magnuson Act"). 16 U.S.C.
secs. 1801-1882. The Magnuson Act asserted U.S. sovereignty over
living marine resources, including fisheries, throughout the
200-mile U.S. Exclusive Economic Zone (EEZ). Ultimate management
responsibility for these fisheries lies with NMFS, a department of
the National Oceanic and Atmospheric
Administration (NOAA), which in turn is part of the Department of Commerce.
The Magnuson Act established eight regional fishery councils
charged with preparing Fishery Management Plans (FMPs) for all
fisheries in need of management or conservation. The Secretary of
Commerce reviews every FMP for compliance with eight specific
national standards for conservation, equity, and efficiency. 16 U.S.C. sec.
1851(a). There are now more than 30 approved FMP's for U.S.
fisheries. Most FMP's include open access management tools, whereby
no restriction is placed on the number of fishers (although there
may be restrictions on equipment, length of season, size of fish, or
total catch). Because these tools have failed to reverse the decline
in fisheries, a few fisheries have begun to experiment with limiting
access to a certain category of fishers. All limited access plans
must be aimed at achieving optimum yield from nacec.a fishery and
can be approved only after the regional council and the Secretary of
Commerce have considered several factors, including: past and
present participation in the fishery, the economics of the fishery,
the ability of fishing vessels to switch to other fisheries, the
cultural and social framework relevant to the fishery and any
affected fishing community, and any other relevant considerations.
sec. 1853(b)(6). The 1996 Sustainable Fisheries Act, has placed
a moratorium, until October 1, 2000, on any fishery management plan,
plan amendment, or regulation under the Magnuson Act which creates a
new individual fishing quota program. Pub. L. No. 104-297, 110 Stat.
US fishing vessels on the high seas are subject to the licensing,
reporting, and other regulatory requirements of the Fisheries Act of
1995, 109 Stat. 366.
17.4 Protection of Habitats and Ecosystems
See Section 9.7: Protection
of Freshwater Ecosystems; Section 15: Private
Land Use Planning and Management; Section 16: Environmental
Management of Public Lands.
Under the principle of multiple-use management, most federally
owned lands may be managed in part for wildlife purposes. See
16. The National Wildlife Refuge System, however, is managed by
the USFWS primarily for wildlife conservation. Other "compatible"
uses are allowed in each refuge. Depending on the purpose of the
refuge, compatible uses might include hunting, fishing, grazing,
mining, agricultural practices, and recreational activities.
See the National Wildlife Refuge System Administration Act of
U.S.C. secs. 668dd, 668ee.
Special provisions apply to the vast wildlife refuges added by the
National Interest Lands Conservation Act of 1980, Pub. L. No.
96-487, 94 Stat. 2371 (codified in scattered sections of 16 U.S.C.
and 43 U.S.C.).
Critical Habitat for Endangered Species. Under the ESA,
critical habitat must be designated for all endangered and
threatened species to the maximum extent prudent. All federal agency
actions that are likely to result in the destruction or adverse
modification of such critical habitat are prohibited. 16 U.S.C. sec.
Federal Funds for Wildlife Management and Habitat Acquisition.
Several federal statutes have established special funds for
habitat acquisition or wildlife management, typically with earmarked
revenue collected through a user fee or specific excise tax. The
broadest such effort was the Land and
Water Conservation Fund Act of 1965, Pub. L. No. 88-578, 78
Stat. 898, 16 U.S.C. secs. 460l-4601ll, which gathers revenue from
nacec.a number of outdoor recreation activities and applies the
funds generally to federal and state efforts to maintain and
increase outdoor recreation activities. Other federal statutes have
been more narrowly tailored. For example, the Migratory
Bird Hunting and Conservation Stamp Act, 16 U.S.C. sec.
718, requires all waterfowl hunters to purchase a federal
hunting stamp. The Wetlands Loan Act, 16 U.S.C. sec.
715, appropriated funds for acquiring conservation easements in
wetlands used for waterfowl breeding. The Wildlife Restoration Act,
secs. 669-669i, imposed an excise tax on the sale of guns and
ammunition to fund federal grants to state wildlife restoration
efforts. The Fish Restoration and Management Projects Act, 16 U.S.C.
secs. 777-777k, imposed an excise tax on the sale of fishing
equipment to provide federal grants to state fish restoration
efforts. The Fish and Wildlife Conservation Act of 1980, 16 U.S.C.
secs. 2901-2911, provides funding for state efforts to conserve
17.A Legal Instruments
National Interest Lands Conservation Act of 1980, 94 Stat. 2371
(codified in various sections of 16 and 43 U.S.C.) 16 U.S.C. secs.
Eagle Protection Act, 16 U.S.C. secs. 668-668d
Species Act of 1973, 16 U.S.C. secs. 1531-1544
Wildlife Conservation Act of 1980, 16 U.S.C. secs. 2901-2911
and Wildlife Coordination Act, 16 U.S.C. secs. 661-666c
Restoration and Management Projects Act, 16 U.S.C. secs.
of 1995, Pub. L. No. 104-43, 109 Stat. 366 (codified as amended at
16 U.S.C. secs. 5501-5509)
Lacey Act of 1900, 16 U.S.C. secs. 3371-3378, and 18 U.S.C. sec.
and Water Conservation Fund Act of 1965, 78 Stat. 898, 16 U.S.C.
L]Magnuson Fishery Conservation and Management Act, 16 U.S.C.
Mammal Protection Act of 1972, 16 U.S.C. secs. 1361-1407
Bird Treaty Act, 16 U.S.C. sec.703-712
Wildlife Refuge System Administration Act of 1966, 16 U.S.C. secs.
Act of 1986, 16 U.S.C. sec. 3901-3932
Free-Roaming Horses and Burros Act, 16 U.S.C. secs. 1331-1340
Restoration Act, 16 U.S.C. 669-669i