Protecting the Wildlife Trust: A Reinterpretation of Section 7 of the Endangered Species Act

By Wood, Mary Christina | Environmental Law, Spring 2004 | Go to article overview

Protecting the Wildlife Trust: A Reinterpretation of Section 7 of the Endangered Species Act


Wood, Mary Christina, Environmental Law


I.   INTRODUCTION
II.  THE WILDLIFE TRUST DOCTRINE
III. INTERPRETING "JEOPARDY" UNDER SECTION 7(A)(2) TO PRESERVE THE
     WILDLIFE TRUST
     A. Depleting the Wildlife Asset: The Services' "Incremental Harm
        Approach to Jeopardy"
     B. Preserving the Wildlife Asset: A "No Further Harm"
        Approach to Jeopardy
     C. Policy Discretion to Diminish the Wildlife Trust:
        Who Holds It?
IV.  PROMOTING RECOVERY UNDER SECTION 7(A)(1) TO REPLENISH THE
     WILDLIFE TRUST
     A. The Section 7(a)(1) Mandate
     B. The Services' Abdication of Statutory Authority Under
        Section 7(a)(1)
     C. A Trust Approach to Developing Regulatory Content for
        Section 7(a)(1)
V.   CONCLUSION

I. INTRODUCTION

A quarter of a century ago, the United States Supreme Court declared the Endangered Species Act (ESA) (1) to be "the most comprehensive

legislation for the preservation of endangered species ever enacted by any nation." (2) The bold statutory scheme was aimed towards recovery of imperiled species. (3) Yet, at the thirtieth anniversary of the ESA, the statute has a dismal record of achieving this central purpose. While the statute seems to be holding a floor of protection preventing extinction of listed species, (4) it has failed to bring species to recovery. (5) Out of 1,288 listed species, (6) only 15 have been recovered. (7)

This Article argues that the failure to accomplish recovery is largely due to a basic flaw in interpreting one of the ESA's core provisions, section 7. (8) Section 7 presents a dual mandate applicable to federal agencies. Section 7(a)(2), known as the "jeopardy prohibition," requires federal agencies to insure that their actions are not "likely to jeopardize the continued existence" of any listed species. (9) Section 7(a)(1), known as the "affirmative conservation mandate," requires federal agencies to develop programs for the conservation of listed species. (10) The Fish and Wildlife Service (FWS) and NOAA Fisheries (11) (collectively the Services) are charged with implementing the ESA (12) and play a key role in section 7 through a consultation process with federal action agencies. (13) This Article suggests reinterpreting section 7 to carry out common law wildlife trust principles that focus on preserving and restoring the wildlife asset in perpetuity. (14)

II. THE WILDLIFE TRUST DOCTRINE

The wildlife trust doctrine, a branch of the well-known public trust doctrine, (15) was clearly enunciated by the United States Supreme Court in Geer v. Connecticut (Geer) (16) in 1896. There the Court said that governmental ownership of wildlife should be exercised "as a trust for the benefit of the people." (17) At the core of this doctrine is the principle that every sovereign government has a property interest in wildlife, in the form of a sovereign trust. (18)

The wildlife is the corpus, or res, of the trust. (19) The government is the trustee of this valuable corpus. The public--including future generations--is the beneficiary. (20) While the wildlife trust doctrine traditionally protected game species used by the public, (21) its foundational principles apply to protecting biodiversity as a whole. The public trust doctrine has advanced from its nineteenth century application to streambeds and now reaches vital public resources, including water, wetlands, and wildlife. (22) Its scope extends beyond the traditional public interests of fishing, navigation, and commerce to modern needs such as aesthetics, biodiversity, and even recreation. (23) As a branch of the public trust doctrine, the wildlife trust doctrine places a particular focus on preserving living assets and should be construed to encompass the full realm of biological resources protected under the ESA, including animals, insects, and plant life. (24) Trust principles force a perspective that views endangered species not just as regulatory objects under the ESA, but as assets in the property sense that comprise part of the natural trust that belongs to the people as a whole. …

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