SECTION TWO How the ESA Works SAVING AMERICA'S WILDLIFE 16 B ecause different species require different levels of protection, the Endangered Species Act (ESA) establishes two management tiers. An endangered species is one that is in danger of extinction throughout all or a significant part of its range. A threatened species is one that is likely to become endangered in the foreseeable future. These choices of listing status give the Act important flexibility. Species can be protected before they reach the brink of extinction, and they can be safeguarded while they rebuild to healthy levels. Subspecies and distinct populations also receive protection under the Act because the jeopardy that a species faces may vary in different parts of its range, requiring different degrees of protection in different areas. The gray wolf is an example of a species that has been "split listed." Gray wolves in Minnesota are listed as threatened, while gray wolves in Alaska, where wolf populations are too large to warrant federal listing, receive no ESA protection. In fact, the Alaska state government has sought persistently to conduct wolf-control programs, killing the animals to pacify hunters who believe the predators are reducing caribou numbers. Other examples of split listings include the bald eagle, grizzly bear and green sea turtle. A species receives protection under the ESA once it has been listed as either threatened or endangered. Any concerned party, including a private citizen or organization, can petition to have a species listed. The Listing Process Once a species has been proposed for listing, the Secretary of the Interior (or, in the case of most marine species, the Secretary of Commerce) has 90 days to determine whether the petition includes enough information to warrant a formal review of the species' status. If the answer is yes, the Secretary conducts a thorough study of the status of the species to determine what level of protection, if any, is appropriate. The Secretary must make the listing determination SAVING AMERICA'S WILDLIFE within one year of the start of the formal review, though an extension of six months is permitted for complicated or controversial proposals. If the formal review concludes that listing is justified, the Secretary must take a number of steps to notify the public. The Secretary must publish a notice of the decision in the Federal Register, inform affected state and local governments and any applicable scientific organizations, print a summary of the proposal in a local newspaper and hold a public hearing if requested to do so. When a species is at immediate risk, the Act allows an emergency listing that bypasses the more detailed and time-consum ing formal review process. To justify an emergency listing, the Secretary must publish a detailed explanation of why the emergency measures are needed and must notify the conservation agencies of all states affected by the emergency regulation. The Secretary also may publish appropriate emergency regulations in the Federal Register. Emergency listings expire after 240 days unless the Secretary determines by that time that formal listing is warranted. The ESA requires that the Secretary's listing decisions be made "solely on the basis of the best scientific and commercial data available." In each reauthorization since 1973, Congress repeatedly has affirmed that economic considerations are to play no part in the listing decision. Determining the status of a species proposed for listing is strictly a scientific question that must be answered solely on the basis of biological and commercial trade data. However, economic impacts may be considered at every other step in the Act's protection process. A total of 1,524 species are listed under the ESA at present. Roughly 700 of the endangered species and 200 of the threatened species are found in the United States. The rest are in foreign countries.' The Act also allows the Secretary to designate candidate species that will be formally considered for listing once agency resources become available. Currently, more than 4,000 species are awaiting final evaluation. The ability to designate candidate species is another example of the legal flexibility granted to the Secretaries of the Interior and Commerce under the ESA. Some presidential administrations, more interested in promoting short-term economic gains than in protecting America's natural heritage, have used this flexibility to delay the listing process. Many species have become extinct while awaiting action under the ESA.2 In 1992, responding to a lawsuit brought by a number of conservation organizations, including Defenders of Wildlife, FWS agreed to accelerate the processing of its backlog of species. In the settlement, FWS agreed to propose listing by September 30, 1996, for more than 400 species categorized as "C-1" candidates (species with sufficient biological data to warrant listing). FWS also promised to expedite the review of 923 species that had been improperly categorized as "C-2" candidates or not given a priority ranking despite the fact that their listing had been determined to be SAVING AMERICA'S WILDLIFE Florida Black Bear (Continued) Wildlife and the Florida Chapter of the Sierra Club in October, 1993, launched the Habitat for Bears Campaign. The campaign is building public awareness and encouraging citizen participation in government decisions affecting the Florida black bear To help educate people about the plight of Horida's bears, campaign participants prepared a slide show, exhibit and video presentation that have been seen by reas of thousands of visitoes to the Fort Lauderdale Museum of Discovery and Science. Campaign activists have secified at transportation hearings, written let ters in support of acquisition of additional bear habitat, pressed state officials to complete what may be the nation's first bear underpass and urged the U.S. Fish and Wildlife Service to expedite listing of the black bear as threatened under the Endangered Species Act. Campaign staff also have been invited to serve on a committee of local landowners, agency staff and cit izens to help develop habitat management strategies for the bear populations. The success of the Habitat for Bears Campaign illustrates that caring, well-informed citizens can make a difference. warranted. In addition, FWS agreed that a multi-species approach to listing would be more cost-effective than a singlespecies approach when dealing with a number of species in the same ecosystem and would enhance understanding of the common nature and magnitude of threats facing these ecosystems. Section 9 Takings Once a species has been formally listed as threatened or endangered, it is entitled to certain regulatory protections under the Act. First and foremost, Section 9 of the Act specifically prohibits the taking of any endangered species of fish or wildlife. The term "take" is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct." In addition, endangered species, their parts or any products made from them may not be imported, exported, possessed or sold. Section 4(d) of the Act gives the Secretaries regulatory discretion to extend the protections of Section 9 to threatened species. While clearly prohibiting direct injury to individuals of a listed species, the restrictions on takings also apply to actions that destroy or alter habitat of a listed species. In the 1981 case Palila v. Hawaii Department of Land and Natural Resources," a federal court upheld this interpretation, ruling that habitat modification may result in harm to a species and thus meets the definition of a proscribed "taking." This interpretation, which has formed the basis of habitat protection efforts under the ESA for more than ten years, recently was challenged in Sweet Home Chapter of Communities for a Great Oregon u. Babbitt. A three-judge panel ruled that the ESA's takings provisions apply only to specific harm to individual species and not to their habitats. The U.S. Supreme Court recently heard this case, and a decision is SAVING AMERICA'S WI LIFE expected very soon. If federal authority to conserve the habitat of listed species under the ESA is lost, much of the law's protective power will vanish with the species the Act is designed to protect. Critical Habitat Section 4 of the ESA directs the Secretary of the Interior formally to designate areas of critical habitat essential to the conservation of a listed species. Congress has emphasized in the law that critical habitat should not be limited to the current range of the species at the time of listing or to the minimum amount of habitat necessary for the species' survival. Rather, the designation should include enough area for the species to expand its range and recover to healthy population levels. In practice, designation of critical habitat has proved highly subjective and frequently controversial. The original language of the 1973 Act did not include a formal process for designating critical habitat. This lack of process gave the Secretary broad discretion in basing the designa- The listing process immedi- Realizing that the system had become unworkable, in 1982 still in use today. Currently, the listing of a species is no longer dependent on the determination of its critical habitat. Once a species has been listed, the Secretary has an additional year to designate critical habitat for the species if it is "prudent and determinable" based upon both biological and economic criteria. Although this change was intended to make critical habitat designation more flexible, the primary result has been to deny or delay critical-habitat designations for many species. Fewer than 25 percent of all listed species have had critical habitat designated for their sur vival and recovery. Contrary to many critics' claims, critical habitat designation has no direct impact on private property because it is not an element of a Section 9 take and primarily seeks to address the actions of federal agencies. Interagency Consultations One of the most important protection mechanisms in the ESA lies in Section 7, which requires all federal agencies to |