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Before the Crisis: Protection of Nonendangered Wildlife From the Impact of Resource-Development Activities

October 1996

Citation: ELR 10513

Author: Scott W. Hardt

Editors' Summary: Although most talk in terms of wildlife protection seems to focus on the operation of the ESA, there are a host of other federal and state laws designed to protect wildlife from the impacts of resource-development projects—before the species become threatened or endangered. Focusing on mineral exploration and development activities on federal lands, this Article thoroughly examines the legal framework—outside the ESA—giving the agencies responsible for permitting and managing resource-development projects the authority to manage and protect nonendangered wildlife from the impacts of such projects. The Article first explores the historical power of states to regulate wildlife within their borders. Next, the Article discusses the underlying constitutional and statutory authority for federal agencies—particularly the U.S. Forest Service and the BLM—to regulate impacts to wildlife on federal lands. It analyzes how wildlife protection and management is achieved through federal land-use plans under the National Forest Management Act and FLPMA, and discusses the role played by ecosystem management. Next, the Article surveys federal species- and habitat-specific authorities for protecting and managing wildlife. It then discusses permitting requirements for mineral exploration and development activities on federal lands, and explains how, through the process, federal and state agencies can and do work together in managing permitted activities' impacts to wildlife. The Article concludes that the Forest Service and BLM have extensive authority and discretion in fashioning measures to mitigate potential wildlife impacts to nonlisted species, and that project proponents have the opportunity to work creatively with regulators to achieve mutually beneficial results.

Mr. Hardt is an attorney in the Denver, Colorado, office of Ballard Spahr Andrews & Ingersoll, where his practice focuses on public lands, environmental, and natural resources permitting and litigation.