The Endangered Species Act of 1973 prohibits the take of endangered, not threatened, species. Congress made a deliberate choice to provide greater protection to endangered species, as confirmed by the text and legislative history of the law, and as interpreted by the courts. During the congressional debates, the Fish and Wildlife Service, which is tasked with ESA regulation and enforcement, interpreted the law to exclude regulation of threatened species take generally. Instead, the agency may regulate threatened species only on a specific-species basis, if the Service determines that it is necessary and advisable for the species’ conservation. However, despite these representations to Congress, the Service subsequently adopted a regulation forbidding the take of any threatened species. This regulation applies prospectively to any species not yet identified (and is therefore not species-specific) and does not require any showing of necessity or appropriateness.
Representing NFIB and WCA, PLF petitioned the Secretary of Interior and the Fish and Wildlife Service under the Administrative Procedures Act, seeking repeal of the illegally-adopted regulation. In the 40 years since the Service criminalized the take of threatened species (including habitat), the regulation has unlawfully restricted productive use of property and the viability of many companies. Examples of threatened and infamous species that generated onerous restrictions include the Northern spotted owl, the vernal pool fairy shrimp, and the marbled murrelet. There are approximately 150 threatened species that are subject to the regulation. If the Service denies the petition, PLF will have the opportunity to pursue the appeals in either the Sixth or D.C. Circuit for NFIB, and in the Ninth Circuit for WCA.
What’s At Stake?
- Administrative agencies may not countermand congressional directions through their regulatory rule-making process.
- The power to criminalize any activity that affects a single member of hundreds of threatened species or their habitats would be a power of “vast economic and political significance.” Congress does not delegate such power without clearly saying so.
- Repeal of the regulation would free property owners from potentially suffocating micro-management and also promote species protection by encouraging private conservation efforts.
