Section 9 of the Endangered Species Act: the lynchpin of a biological opinion


Author: Brandon Middleton

Last week the folks at Legal Planet offered their thoughts on the Ninth Circuit's recent decision to uphold delta smelt-based water cutbacks against PLF's Commerce Clause challenge.  Both Prof. Richard Frank and Prof. Holly Doremus agree with the Ninth Circuit's conclusion that federal regulation of the delta smelt is constitutional, although neither of them explain how the court's decision provides any meaningful limit to Congress' Commerce Clause power (I previously discussed the lack of limits to federal power under the Ninth Circuit's approach).

But Prof. Doremus goes further in arguing that the court should not have even adjudicated PLF's challenge to constitutionality of Section 9 of the Endangered Species Act in this case due to lack of standing and ripeness.  I explain below why Prof. Doremus is wrong on this latter point.

Section 9 is arguably the most powerful provision of the ESA, as it prohibits all persons and agencies from taking (generally speaking, to harm or kill) threatened and endangered species, without exception.  Those who take a species in violation of Section 9 face civil and criminal penalties, including civil fines of up to $25,000 per violation, as well as criminal penalties of up to $50,000 and imprisonment for one year.

Mindful of its significant Section 9 authority, the U.S. Fish and Wildlife Service uses Section 9 as a means to ensure that other federal agencies implement the restrictive terms and conditions contained in a biological opinion.  For example, in its delta smelt biological opinion, the Service informed the Bureau of Reclamation that restrictive delta smelt measures are "nondiscretionary and must be implemented by [the Bureau] . . . in order [to be exempt from Section 9 liability.]."  In other words, when the Service issues a biological opinion, the Service is acting both under Section 7 (for the authority to write the biological opinion) and Section 9 (to make sure that the biop's terms are implemented).

But according to Prof. Doremus, "section 9 doesn't add anything to section 7," and plaintiffs should not be able to challenge Section 9 in the context of a biological opinion:

[The Ninth Circuit held] that plaintiffs could bring a section 9 challenge because the Fish and Wildlife Service's "coercive power to enforce ESA § 9 caused the Bureau to reduce water flows, which injured the Growers."

That's just not right. It's section 7, not section 9, that gives FWS 'coercive power' over other federal agencies. Section 7 requires that all federal agencies insure that actions they take, authorize, or fund are not likely to jeopardize the continued existence of listed species or adversely modify critical habitat. The Supreme Court ruled in Bennett v. Spear, 520 U.S. 154 (1997), that FWS's biological opinions are sufficiently coercive that they can be directly challenged, even though they are not technically binding on action agencies.

Prof. Doremus has misread Bennett, as the Supreme Court made clear in that decision that a biological opinion's "powerful coercive effect" is the result of the Service's threat of Section 9 liability against agencies and their employees for failure to comply with the terms of a biop:

A Biological Opinion of the sort rendered here alters the legal regime to which the action agency is subject. When it "offers reasonable and prudent alternatives" to the proposed action, a Biological Opinion must include a so called "Incidental Take Statement"–a written statement specifying, among other things, those "measures that the [Service] considers necessary or appropriate to minimize [the action's impact on the affected species]" and the "terms and conditions . . . that must be complied with by the Federal agency . . . to implement [such] measures." 16 U.S.C. § 1536(b)(4). Any taking that is in compliance with these terms and conditions "shall not be considered to be a prohibited taking of the species concerned." §1536(o)(2). Thus, the Biological Opinion's Incidental Take Statement constitutes a permit authorizing the action agency to "take" the endangered or threatened species so long as it respects the Service's "terms and conditions." The action agency is technically free to disregard the Biological Opinion and proceed with its proposed action, but it does so at its own peril (and that of its employees), for "any person" who knowingly "takes" an endangered or threatened species [in violation of Section 9] is subject to substantial civil and criminal penalties, including imprisonment. See §§1540(a) and (b) (authorizing civil fines of up to $25,000 per violation and criminal penalties of up to $50,000 and imprisonment for one year).

Left unmentioned by Prof. Doremus is that, in the delta smelt litigation, the Service has never contested that "invalidating the application of Section 9 to the facts of this case would preclude enforcement" of the delta smelt biop, and that "[i]n this way, invaliding Section 9 would arguably redress Plaintiffs' injury," to quote from the original district court opinion.  This provides further evidence that Section 9 (and not Section 7) is the coercive provision in this case.

The Service likewise confirmed at the district court that if Section 9 were invalidated as unconstitutional, "it would affect the [biop's Reasonable and Prudent Alternative] and obviously [the Reasonable and Prudent Alternative] is what's causing injury to the plaintiffs."  It would thus be unfair to on the one hand acknowledge that invalidating Section 9 would provide some redress, yet at the same time preclude a challenge to the application of this provision's constitutionality.

Prof. Doremus' fear is that the Ninth Circuit's standing and ripeness analysis "could be read to say that section 7's consultation duty doesn't apply at all without proof of a [Section 9] take, an interpretation which could substantially narrow Section 7."  But there is little authority for the proposition that the Service may apply Section 7 absent Section 9 authority.

Indeed, the Ninth Circuit has already made clear that the Service may not restriction federal agency action through a Section 7 incidental take statement if it does not have Section 9 authority.  Ariz. Cattle Growers' Ass'n v. United States Fish and Wildlife, BLM, 273 F.3d 1229, 1238 (9th Cir. 2001) ("[I]f [the] Service could issue an Incidental Take Statement even when a taking in violation of Section 9 was not present, those engaging in legal activities would be subjected to the terms and conditions of such statements.  The [district] court [found] no authority for this result nor do we.").  And given that Section 7's jeopardy and adverse modification prohibitions are ultimately designed to prevent species extinction, it would be absurd to require action agencies to prevent jeopardy to species or adverse modification to critical habit for species over which the Service has no constitutional authority.

Prof. Doremus is certainly entitled to disagree with the Ninth Circuit's conclusion that PLF's clients may seek judicial review of Section 9 in the context of the delta smelt biological opinion.  But the Ninth Circuit's analysis on this point is far from "careless," as she contends.  It was instead a proper recognition of the statutory relationship between Sections 7 and 9 of the ESA as well as prior case law–not to mention the express language of the delta smelt biop.  Reclamation's decision to deliver less water to farmers for the purported benefit of the delta smelt is tied to the Service's coercive use of Section 9, and those harmed by this coercion should be able to challenge its constitutionality.