Recent Federal and International Measures To Protect Wildlife

According to the Department of the Interior, more than 100 species of fish and wildlife may presently be threatened with extinction within the United States. The recently concluded Convention to Control International Trade in Endangered Species of Wild Flora and Fauna (ELR 40336) listed 375 species of animals as imminently threatened with extinction throughout the world, and another 239 species of animals as not yet threatened with extinction but requiring additional controls over trade in them.

The threat to animals may arise from a variety of sources — pollution, destruction of habitat, and the pressures of trade. For the most part, federal legislative attention in recent years has concentrated upon commercial exploitation in an attempt to reduce or eliminate the financial incentives to trading in endangered species.

Existing Federal Legislation

Prior to enactment of endangered species legislation, federal efforts to protect fish and wildlife were concentrated on enforcement of the Lacey and Black Bass Acts, which made it illegal for any person to transport in interstate commerce any fish or wildlife taken in violation of national, state or foreign laws. These acts are still on the books, and some conservationists feel that they are even now inadequately utilized in the interests of protecting endangered species.

In 1966 Congress adopted the first Endangered Species Preservation Act. This Act directed the Secretary of the Interior to carry out a program to conserve and encourage the growth of selective species of native fish and wildlife that he found to be threatened with extinction. Addressing itself to the issue of habitat protection, the Act also consolidated and expanded the authority of the Secretary of the Interior relating to the administration of the National Wildlife Refuge System.

The next step took place when the 91st Congress enacted the Endangered Species Conservation Act of 1969.¹ This Act amended and expanded the 1966 Act in several ways. It authorized the compilation of a list of fish and wildlife threatened with extinction and prohibited their importation from foreign countries. Exceptions were provided to allow importations for scientific, educational, zoological and propagational purposes and to allow one-year economic hardship exemptions in specified cases. The Act also made it unlawful to buy or sell any animal taken in violation of the laws of any state or foreign country. Finally, it designated certain ports of entry for the importation of fish and wildlife and their products.

Much progress has been made toward the protection of marine mammals in recent months. The Marine Mammal Protection Act of 1972² forbids any taking or importation of marine mammals or marine mammal products by United States citizens. The Act's permanent moratorium on the killing and importation of marine mammals can be waived by the Secretary of the Interior or the Secretary of Commerce (depending on the species), only on the basis of scientific evidence developed for each species or population group. If a waiver is in fact given, § 103 of the Act requires the Secretary to issue regulations for the taking of marine mammals based on the substantial evidence in the record established after full Administrative Procedure Act-style hearings. He must specifically find that a relaxing of the moratorium would not be to the disadvantage of the species or stock to be taken. Finally, permits must be obtained from the Secretary pursuant to the regulations which he has established. Public hearings on the issuance of the permits may, but need not, be held.

The Act also requires that an independent Marine Mammal Commission be created (§ 201). If a Secretary chooses not to adopt a recommendation of the Commission, he must prepare a written response detailing his reasons for doing so. Failure of the White House to move ahead in the appointment of the members of the Commission has not kept Interior from holding hearings under an "economic hardship" provision of the Act. It would appear to ELR that a prerequisite to any exemption from the moratorium would be the establishment of the mandated review procedures and an opportunity for them to function properly.

An important shift in underlying legislative philosophy occurs in the new Act. To relax the moratorium the Secretary must show that his action will not be disadvantageous to the species of the marine mammal to be taken. The shift from emphasis on an optimum harvestable commercial yield to emphasis on the interests of the species itself represents an important change in legislative priorities. This philosophy is carried forward to the international level in the recently-approved Convention on the Conservation of Antarctic Seals (discussed infra). Both the Convention and Marine Mammal Protection Act emphasize the protection of the ecosystems in which the animals live.

Proposed Federal Legislation

In the years since 1969, the need for further amendments to the domestic endangered species legislation has become clear. Accordingly, the Administration submitted legislation in the 92nd Congress to substitute a new endangered species act for those enacted in 1966 and 1969. The legislation was not acted on by either House. [3 ELR 10041] Last year's bill (H.R. 13081) has been resubmitted in an improved version as H.R. 4758.

H.R. 4758 would change existing law in several important ways. It would extend protection to species which are not now threatened with extinction but which can reasonably by anticipated to be threatened at some future date if steps are not taken now to restrict their destruction.

The bill allows an animal to be listed if it is threatened "throughout all or a significant portion of its range." This restriction makes it possible to list an animal which is completely protected in a country containing a very small portion of its range, although it is taken in large numbers elsewhere.

The bill also makes the taking of an endangered animal by any person within the jurisdiction of the United States an act punishable by federal criminal law. Further, it eliminates the existing dollar ceilings restricting federal acquisition of critical habitats for endangered species. The funds for this purpose will be taken from the Land and Water Conservation Fund. The bill assigns responsibilities to the Department of Commerce for those animals within its jurisdiction such as oceanic fish and whales and seals. (Its implications are unclear for the protection of anadromous fish.)³

The bill authorizes the suspension of federal leases and permits authorizing the use of federal lands or federal hunting and fishing permits in the event of infractions. This provision is of particular interest in light of the recent furor over eagle killings and legislation enacted to protect them.⁴

The bill also covers a number of other, less sweeping issues. It includes provisions that petitions for review of, additions to, or deletions from the list of endangered species must be accompanied by "substantial evidence" to allow importation at other than designated ports of entry "in the interest of the health or safety of the fish and wildlife." It also clarifies authority pertaining to searches without warrants and the forfeiture of seized property.

H.R. 37 and bills very similar to it were drafted in 1972 to tighten further the prohibitions proposed in the Administration's measure. Since the Administration bill was redrafted, the difference between these bills and the Administration bill is not as pronounced as it was. A comparison shows the following major points of difference between H.R. 37 and H.R. 4758:

1) H.R. 37 requires an annual review of the endangered species list (§ 4(b)).

2) H.R. 37 authorizes the use of counterpart funds to provide foreign countries with assistance in the management of programs for the protection of endangered species (§ 5(e)).

3) H.R. 37 allows states to adopt more restrictive legislation whereas H.R. 4758 appears to preempt the field (§ 6(e)).

4) H.R. 37 allows the Secretaries to prohibit the importation of nonendangeres species if these may be confused with endangered species (§ 7(c)).

5) H.R. 37 does not allow the importation of endangered species for zoological or educational purposes (§ 8 (a)).

5) H.R. 37 authorizes the Secretaries to seek equitable relief for the protection of endangered species (§ 9(d)).

7) H.R. 37 requires a registration system for importers of fish and wildlife (§ 9(g)).

8) H.R. 37 clarifies the authority of the Department of Agriculture of assist farmers to protect endangered species and habitats (§ 10(c)).

9) H.R. 37 directs the Smithsonian to study ways and means of protecting endangered species of flora and authorizes $250 thousand to this end (§ 11).

International Developments

An international conference on endangered species was recently concluded in Washington. Following a three-week meeting with approximately 90 national delegations in attendance, a convention was drafted and signed by the United States on March 3, 1973. The text of the Convention on International Trade in Endangered Wild Flora and Fauna appears at ELR 40336. Essentially, the Convention created three types of endangered species lists, all contained in appendices to the Convention and printed in ELR. Appendix I lists species of animals and plants imminently threatened with extinction, which are or may be affected by trade, and which therefore may be traded only upon approval by the countries of both import and export, when not to be used for commercial purposes. Appendix II lists species of plants and animals which are not yet necessarily threatened with extinction but which may become so unless subjected to strict regulation. Export permits will be required for trade in species on Appendix II. Appendix III provides a means for countries to list species within their jurisdiction for the purpose of preventing [3 ELR 10042] or restricting their exploitation. These will also require an export permit, once listed.

Neither the Administration's bill nor the alternative embodied in H.R. 37 make an effort to conform federal law to the requirements of the convention. We are informed that the convention will shortly be submitted for ratification and that legislation is presently in the drafting stage in the executive branch to conform laws to the requirements of the convention. We are also informed that congressional committee staff are also preparing language for bringing federal laws into full conformity with the requirements of the Convention.

On February 11, 1973, the initial signatories approved a new multilateral Convention on the Conservation of Antarctic Seals (ELR 40334). The Convention takes several important forward steps for the protection of seals from commercial depletion.

In the opinion of many present at the London conference, the most important achievement of the Antarctic Sealing Conference was the development within the treaty of the concept that sustaining the seal ecosystem was as important as the more traditional, commercially-oriented concept that seal should be managed for the maximum sustainable yield. The report of two United States conferees, Congressmen Mario Biaggi and Edwin Forsythe, to the Chairman of the House Committee on Merchant Marine and Fisheries indicated that latent in the concept of ecosystem protection may be a higher level of protection for the seal population than would be possible under the concept of maximum sustainable yield.⁵

The United States sought to have included in the Convention a system of international observers to take the field immediately prior to the opening of the Antarctic sealing season. Observers would attempt to police compliance with the Convention. The language adopted falls far short of this goal. Article 3(1) (k) provides that the Signatories might adopt regulatory measures in the future, including "an effective system of inspection."

The Convention prohibits the killing of seals in the water, except in limited numbers for research. It also requires the scientific advisory body set up by the Convention to recommend methods "to insure that the killing or capturing of seals is quick, painless and efficient." The Scientific Committee on Antarctic Research, first established in connection with the International Geophysical Year, was given the task of providing a central place for the collection and dissemination of information relating to sealing activities.

Only a few weeks ago on March 27, 1973, the Senate ratified a bilateral Convention between the United States and Japan for the Protection of Birds and their Environment (ELR 40344). This Convention, which is modeled on earlier treaties with Canada and Mexico, essentially covers the Pacific Trust Territories. It protects a variety of game birds, such as teal and snipe, various sea birds, and a few birds sought for their plumage, such as the plumed egret. The Convention is not limited to endangered species. It also provides for protection of habitat, an innovative provision for a wildlife protection agreement.

The Convention, which was ten years in the making, is the brainchild of the International Council for Bird Preservation, the oldest international conservation organization (founded in 1923). The ICBP's current President is S. Dillon Ripley, the Secretary of the Smithsonian Institution. A long-range but not yet clearly developed goal of the Council is to foster a network of bilateral and multilateral agreements for the protection of birds throughout the Pacific. An agreement with the Soviet Union will probably be next to be added to the hoped-for network.

1. 16 U.S.C. § 668aa-668ee, ELR 41805, as amended in 1969.

2. 16 U.S.C. § 1361-1407, ELR 41815, (signed, October 21, 1972).

3. But see The Anadromous Fish Act of 1965, 16 U.S.C. § 757 et seq., ELR 41804.

4. The National Wildlife Federation has been seeking to have the federal grazing permits of Dean Visintainer, a western sheep rancher, revoked because he killed golden eagles which allegedly were predators on his livestock. Recently, the Craig, Colorado, Grazing Advisory Board unanimously voted not to recommend that Visintainer's privileges be revoked. Conservation News, pp. 4-5 (March 15, 1973)

On a national level, this particular problem has apparently been solved. The Bald and Golden Eagle Protection Act, 16 U.S.C. § 668-668d, ELR 41814, has recently been amended specifically to authorize the Secretary of the Interior to cancel the grazing privileges of any person convicted under the Act. P.L. 92-532, ELR 41821 (October 23, 1972). However, it would also appear that even without this amendment or the Administration's bill, ample authority already exists in the various organic acts under which the Secretaries of Interior and Agriculture administer public lands to cancel federal privileges when federal law is infringed, such as by the slaying of eagles and other endangered species. See, e.g., for national forest lands, the Secretary of Agriculture, 16 U.S.C. § 478 ("… depredations on the forest …").

5. Hearings on the Antarctic Sealing Treaty, Etc., Before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, Ser. No. 92-19, 92d Cong. 2d Sess. 68 (1972).