Licensed to Kill: A Defense of Vicarious Liability under the Endangered Species Act

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ABSTRACT

The Endangered Species Act (ESA) makes it illegal to "take" an endangered and threatened species by killing, harming, or harassing the animal. Although the classic example of a take is an individual poacher shooting an endangered species, these protected species are also harmed by larger-scale policies and programs. In several court cases, local and state governments have been held vicariously liable for the take of endangered species when their policies or actions caused third parties to commit a take.

The vicarious liability theory, as applied to the ESA, is controversial and has been criticized by numerous scholars. This Note argues that a limited version of the vicarious liability theory is consistent with the text of the ESA and plays an essential role in fulfilling the promise of the ESA's take prohibition. As a case study, this Note examines how the vicarious liability theory could be used to hold the state of Louisiana liable for licensing shrimping gear that causes the take of endangered and threatened sea turtles. As illustrated by the Louisiana example, the acceptance of a narrowly construed vicarious liability theory would protect endangered species without placing an unreasonable or unconstitutional burden on state and local governments.

INTRODUCTION

In 1987, the Louisiana legislature passed a law forbidding state officials from enforcing federal regulations to protect sea turtles. (1) The federal regulations required shrimping vessels to install Turtle Excluder Devices (TEDs) in their nets, providing an escape hatch for captured sea turtles. (2) TEDs save thousands of threatened and endangered sea turtles each year from being drowned in shrimp trawls in the Gulf of Mexico and along the Atlantic Coast of the southeastern United States. (3) Louisiana, home to America's largest shrimp fishery, (4) is the one state that ignores federal TED requirements. (5) As of this writing, the federal government has not brought enforcement actions against Louisiana, and there is no sign that the Louisiana shrimp fishery will end the damage being done to the five species of threatened and endangered sea turtles that swim in the Gulf waters. (6)

This Note argues that Louisiana and other states could be held vicariously liable under section 9 of the Endangered Species Act (7) (ESA) when they cause their citizens to take endangered species. (8) The most clear-cut example of a take is when a hunter illegally poaches an endangered species. The vicarious liability doctrine, in the context of the ESA, allows for the imposition of liability on a state or local government for a less direct form of take: when its policies authorize others to harm endangered species. Although the vicarious liability doctrine has faced a skeptical reception in academia, a limited vicarious liability doctrine fits with the structure and purpose of the ESA. It would also allow for effective enforcement of the take prohibition without infringing impermissibly on states' rights. A large number of species could benefit from the application of the ESA's take prohibition to state policies: with vicarious liability as a tool, states could be liable for allowing hunters to use lead ammunition, which has devastated the endangered California condor population, (9) or licensing fishing gear that harms one of the few remaining northern right whales. (10) The possible applications of the vicarious liability doctrine are vast and could evolve to address threats to species as they emerge.

This Note is the first piece of legal scholarship to present a thorough defense of vicarious liability under the ESA. Several environmental law scholars have criticized the doctrine, but their arguments so far have gone unanswered. (11) The vicarious liability doctrine could be a valuable tool for the protection of endangered species, particularly if applied consistently with the applicable legal limitations. In addition, if more courts were to endorse the theory, state and local governments would be likely to reconsider policies and actions that they know will cause their citizens to harm endangered animals. …