The Endangered Species Act (ESA) grabs more headlines than nearly any other federal environmental law. Perhaps this is rightfully so. The United States Supreme Court has described the ESA as “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.”
The Act prohibits any person from killing, or even harming, an endangered species or significantly altering the habitat that the species requires for survival, and it imposes civil and criminal penalties to enforce these prohibitions. The federal government must also ensure that its actions will not jeopardize the continued existence of any species protected by the Act – an often expensive and lengthy process.
With supporters trumpeting its virtues and necessity, and opponents decrying its regulatory heavy hand, strong opinions about the ESA show up regularly in op-ed columns and on television and radio talk shows. One aspect of the ESA that has grabbed headlines recently is the process and consequences of taking species off the ESA’s list of threatened and endangered species, or “de-listing.” Whether by judicial fiat or through agency processes, de-listing decisions seldom lack controversy. From bald eagles to salmon to wolves, strong feelings pop up on all sides of the issue.
However, what actually happens when a species is de-listed? What protections remain in place when a species is no longer considered threatened or endangered under the ESA? The answers to these questions depend, in part, on the species involved and where they are found.
First, no matter which species is involved or where its habitat, the ESA continues to require the U.S. Fish and Wildlife Service and NOAA Fisheries to protect these species and take steps to ensure their continued recovery. Specifically, the ESA requires these agencies to monitor the species for at least five years in order to assess its ability to sustain itself without ESA protections. If not, then it may return to the list.
Next, in some instances, other federal laws will continue to provide protection to de-listed species. The level of this protection will vary from species to species.
In the case of salmon, the Clean Water Act and Magnuson-Stevens Fishery Conservation and Management Act would continue to apply, even after de-listing. The Clean Water Act would still require states to develop water quality standards that protect salmon, and the Magnuson Act would still require federal agencies to determine how their actions will affect Essential Fish Habitat.
If the federal government ever acts on the 1999 proposal to de-list bald eagles, at least two federal laws would continue to protect our national bird. Both the Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act would continue to prohibit individuals from killing or possessing bald eagles, at least without a permit.
Finally, state endangered species laws may still apply. For instance, until recently, it seemed likely that gray wolves might lose their protected status as a threatened species under the ESA. A federal judge in Portland ruled in February, however, that the U.S. Fish and Wildlife Service erred when it downgraded the wolf from endangered to threatened status. Thus, de-listing of the gray wolf seems like a more remote possibility than it did earlier this year.
Although it may not happen as soon as many expected, if gray wolves are removed from the list of species protected under the federal ESA, they would remain endangered under the Oregon Endangered Species Act. To that end, the state’s Wolf Advisory Group has been working on a plan “to ensure the long-term survival and conservation of gray wolves as required by Oregon law while minimizing conflicts with humans, primary land uses and other Oregon wildlife.” If adopted, the plan will amend state law to enhance resource management flexibility to address conflicts related to human-wolf interactions.
When headlines announce a de-listing, it is important to dig deeper to determine the legal and practical impacts of that decision. To assume that removal from the ESA list equals removal of all federal and state regulation regarding these species is to take a dangerous risk. Removal from the ESA list is not an automatic license to parade about in a wolf pelt, fashion a quill pen from a bald eagle feather, or cook up a wild Oregon Coastal Coho salmon on the grill. Individuals, and the attorneys who represent them, need to be aware of the panoply of laws that exist to protect species following de-listing under the ESA.
Originally appeared in Multnomah Lawyer , March 2005 issue.