Delisting Endangered Species: An Aspirational Goal, Not a Realistic Expectation

Holly Doremus

Professor of Law, University of California, Davis. Thanks to Gordon Anthon, Joel Pagel, and Daniel Rohlf for comments and suggestions, and to David Burnett and Joe Schofield for research assistance.

[30 ELR 10434]

On March 11, 1967, the U.S. Fish and Wildlife Service (FWS) promulgated the first formal list of U.S. endangered species.¹ Since then, the protection afforded listed species by federal law has increased dramatically. In light of those expanded protections, one might have expected both the number of protected species and the length of time those species spend on the list to gradually decline. But that has not been the case. Instead, the list has grown explosively over the past 30 years; today it includes more than 1,200 U.S. and 550 foreign species.²

Coincident with the growth of the endangered and threatened species list, the Endangered Species Act (ESA)³ has become increasingly controversial. The Clinton administration took office in 1993 determined to soften that controversy by proving that the ESA is compatible with economic development.⁴ Since then, under the leadership of Bruce Babbitt, the U.S. Department of the Interior (DOI) has undertaken a series of administrative reforms designed to make the ESA easier to live with.⁵

Nonetheless, the controversy has persisted, and has become increasingly focused on the size of the protected list and the time species spend on it. On one side, critics cite the small number of species removed from the list as evidence that the ESA's lofty goals simply cannot be achieved.⁶ On the other side, commentators contend that the slow pace of delisting demonstrates the need to strengthen the law's recovery provisions.⁷

The DOI responded to these criticisms in 1998 by declaring delisting a priority. At a press conference announcing the agency's intention to remove some two dozen species from the list over a two-year period, Babbitt proclaimed: "We can now prove one thing conclusively. The Endangered Species Act works. Period."⁸ Although the ambitious delisting program announced at that press conference has not proceeded as quickly as the DOI had hoped, since then the agency has completed the removal of four species, the American peregrine falcon, the Dismal Swamp shrew, the Lloyd's hedgehog cactus, and the Umpqua River cutthroat trout,⁹ from the protected list and formally proposed the delisting of five others.¹⁰ There is talk of delisting several more species, including such charismatic species as the grizzly bear and northern gray wolf.¹¹ The DOI's delisting efforts have generated some controversy,¹² but considerably [30 ELR 10435] more positive publicity.¹³ They have provided an administration besieged by critics of its endangered species policy since it took office a welcome opportunity to trumpet good news.

The DOI and other proponents of endangered species protection, however, should be cautious about presenting this batch of proposed delistings as proof of the ESA's effectiveness. That strategy misconstrues the ESA's function. It promises a future rate of delisting that cannot realistically be achieved, leaving species vulnerable to premature delistings and the law vulnerable to a backlash if the expected delistings do not materialize.

A more realistic vision would place less emphasis on delisting. Because the ESA is currently the most effective source of protection against the single most important threat to listed species, habitat destruction, the vast majority of listed species will not be delisted in the near future. Many may need to remain on the list indefinitely. That does not mean the ESA is a failure. Rather, it points up the critical importance of the ESA for conservation. While the ESA can and should bring most species to the point where they are biologically functional elements of their ecosystems, only substantial regulatory or cultural changes will make the protections of the ESA superfluous.

Another important way to make our view of delisting more realistic would be to recognize that delisting does not mean that the species no longer requires any protection against human activities. Rather, delisting means that other mechanisms, potentially including social pressures and economic incentives but primarily other state and federal regulatory mechanisms, adequately protect the species against human impacts. The economic benefits of delisting, therefore, are likely to be far more limited than the current rhetoric assumes. Delisting may reduce administrative costs, provide some increased management flexibility, and facilitate the transfer of management authority from federal to state governments, but it will not eliminate the need for conservation measures.

Delisting is an aspirational goal, the achievement of which will require substantial regulatory and societal changes, rather than a realistic short-term expectation. The primary purpose of the ESA is not delisting; rather it is the protection of species against ill-considered human activity while society works toward the kind of fundamental mechanisms of regulating economic development that might support widespread delisting. The ESA can encourage progress toward such changes, both by making society aware of the shortcomings of its current regulatory efforts and by providing an incentive for improvements in other regulation, but it serves its purpose if it simply provides a safety net against extinction until those changes arrive.

The Basics of the ESA

Authority for implementation of the ESA is divided between the Secretaries of the Interior and of the U.S. Department of Commerce (DOC),¹⁴ who in turn have delegated most of their responsibilities to the FWS and the National Marine Fisheries Service (NMFS), respectively. Under the ESA, the FWS and the NMFS (together "the Services") must determine by regulation if species are endangered or threatened. The statutory term "species" has a broader meaning than in ordinary taxonomic usage. All subspecies are eligible for listing as "species," as are distinct vertebrate population segments.¹⁵ A species is endangered if it is "in danger of extinction throughout all or a significant portion" of its range.¹⁶ It is threatened if, while not currently endangered, it is likely to become so in the foreseeable future.¹⁷

Listing, delisting, and reclassification actions may be initiated by the Services, which are directed to review the list of protected species at least every five years to determine whether any changes should be made.¹⁸ Alternatively, any interested person may petition the Services to add a species to, or remove one from, the list.¹⁹ Listing decisions are to be made solely on the basis of the best available scientific and commercial data regarding the species' status,²⁰ taking into account the protective efforts of state and local governments.²¹ Coincident with listing, the Services are directed to designate critical habitat, to the maximum extent prudent and determinable.²²

The ESA includes two major protective provisions, §§ 7 and 9. Section 7 imposes both an affirmative duty and a negative one. Affirmatively, it requires all federal agencies to design and implement programs for the conservation of listed species.²³ Negatively, it forbids federal agencies from undertaking, funding, or permitting actions that are likely to jeopardize the continued existence of listed species or destroy their critical habitat.²⁴ Actions are considered likely to jeopardize the continued existence of a species if they would [30 ELR 10436] be expected to appreciably reduce the likelihood of both the species' survival and its recovery in the wild.²⁵ A three-step consultation process is used to determine whether an action is likely to result in jeopardy. First, the action agency inquires of the Services whether any listed species may be present in the vicinity of the contemplated action.²⁶ If so, the action agency then undertakes a biological assessment examining the likelihood that the action will affect those species.²⁷ If it finds a likely effect, the action agency must enter into formal consultation with the appropriate Service, a process that culminates in the issuance by the Service of a "jeopardy" or "no-jeopardy" opinion.²⁸

Section 9 prohibits commerce in, and more importantly take of, listed species.²⁹ "Take" is defined broadly to include harassing or harming the species, as well as shooting, trapping, collecting, and other actions.³⁰ By regulation, the Services have defined harm to include significant habitat modification that actually kills or injures protected wildlife.³¹ The take of endangered animals is statutorily prohibited.³² Endangered plants receive narrower protection. Section 9 prohibits the removal or destruction of plants growing on federal land, as well as their removal from or destruction on other lands in knowing violation of state law.³³

The ESA provides more flexibility in regulation of threatened species. It directs the Services to issue such regulations as are necessary and advisable to protect threatened plants and animals, up to the full application of § 9.³⁴ With some exceptions, the Services have generally granted threatened species the same protection afforded their endangered counterparts.³⁵

The Services can authorize acts otherwise prohibited by § 9 through the permit process of § 10. Permits are available for activities designed to enhance the propagation or survival of the species,³⁶ and for takings incidental to otherwise lawful activity.³⁷ An incidental take permit can be granted only if the agency finds that the impacts of the taking will be minimized and mitigated to the maximum extent practicable, adequate funding will be provided for the conservation plan, and the taking will not appreciably reduce the likelihood of survival and recovery in the wild.³⁸

Listing and Delisting Are Keystone Decisions

As the House Committee on Merchant Marine and Fisheries noted in 1982, the listing provision is the keystone of the ESA.³⁹ Listing brings species within the scope of the ESA's powerful protective provisions; delisting removes those protections.⁴⁰

Species do not easily find their way to the protected list. One problem is that the Services are chronically short of funds to support listing activities.⁴¹ A second is that, because of the potentially heavy regulatory consequences, the Services often face strong political pressures against listing.⁴² These political pressures have exacerbated the fiscal constraints by contributing to congressional reluctance to fund listing.⁴³

Together, these fiscal and political barriers ensure that most species do not become listed until their populations are extremely reduced.⁴⁴ They have also created a substantial [30 ELR 10437] backlog of species awaiting listing.⁴⁵ In order to deal with this backlog and in accordance with congressional direction, the Services have adopted guidelines for prioritizing listing decisions.⁴⁶ The FWS guidelines assign priority on the basis of three factors: the magnitude of threats to the species; the imminence of those threats; and the taxonomic uniqueness of the species. Species facing high magnitude threats enjoy priority over those facing lesser threats. Of those species facing high magnitude threats, preference is given to those facing imminent threats over those facing only non-imminent threats. Within the group of species facing high magnitude, imminent threats, those which are the only representative of their genus enjoy the highest priority, followed by taxonomic species and then subspecies.⁴⁷ The NMFS guidelines are similar, but look only to the magnitude and immediacy of threats.⁴⁸

The same political pressures that stand in the way of adding species to the list push toward delisting. But fiscal limitations have worked against delisting in the same way that they have worked against listing. Until 1999, listing and delisting decisions competed for the limited funds of the listing budget. Today, delisting decisions are funded through the recovery program, which the FWS describes as even shorter of funds than the listing program.⁴⁹ The FWS allocated $ 1 million to delisting activities for fiscal year 1999, and has said that it will continue to allocate a specific amount of the recovery budget to this purpose in the future.⁵⁰ When priorities must be determined between delisting proposals, the guidelines give preference to species whose listing imposes higher management burdens and those whose removal has been sought by petition, rather than being initiated by the Services.⁵¹

Delisting Is the Converse of Listing

Both the process and the substance of delisting decisions mirror those of listing. This conclusion follows from a close reading of the ESA, which directs the Services, in their periodic review of the list of endangered and threatened species, to determine whether any species should be removed from that list "in accordance with" the provisions that govern listing.⁵² Legislative history reinforces this conclusion. The House report accompanying the 1982 amendments to the ESA noted that the minor amendments made to the listing provision were intended to "clarify that delisting should be based on the same criteria and conducted according to the identical procedures as listing a species."⁵³

Procedurally, delisting may be sought by petition, in which case the Services must respond within the same stringent time limits that govern listing petitions. Within 90 days the appropriate Service must, to the maximum extent practicable, determine whether the petition presents sufficient information to justify a full review of the species' status.⁵⁴ If so, the Service then has 12 months to carry out such a review and determine whether delisting is warranted, not warranted, or warranted but precluded by other pending listing determinations of higher priority.⁵⁵ By contrast to listing, a process which seems to be driven primarily by petitions, the Services have maintained greater control over the delisting process. Most of the delistings and proposed delistings to date have been initiated by the Services rather than by petition.⁵⁶

If the Service finds that a requested delisting is warranted, either in response to a petition or as a result of a five-year review, it publishes a proposal to remove the species from the list in the Federal Register.⁵⁷ At the same time, the Service must provide notice of the proposal to the states and counties in which the species occurs, to affected foreign nations, to appropriate scientific organizations, and to the public in the area in which the species occurs.⁵⁸ A public hearing must be held if any person requests one.⁵⁹ The proposal must be finalized or withdrawn within one year, unless the agency finds that disagreements about the [30 ELR 10438] data warrant a six-month extension.⁶⁰ The final rule must include a summary of the comments received on the proposal⁶¹ and, if it conflicts with comments offered by a state within which the species occurs, a written justification for the departure from the state's comments.⁶²

Substantively, species that no longer qualify as endangered or threatened are to be removed from the list. In evaluating species for delisting, the Services consider the same statutory list of factors that governs the listing decisions: the present or threatened destruction of habitat; overutilization for commercial or other purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or man-made factors.⁶³ The Services recognize three possible reasons for delisting. A species is removed from the protected list if the best available scientific information shows that it is extinct, that it has recovered so that it is no longer endangered or threatened, or that the original data relied upon for listing were erroneous or were interpreted incorrectly.⁶⁴

To guide progress toward recovery, the ESA requires that the Services develop and implement recovery plans for listed species.⁶⁵ A recovery team including outside experts as well as agency personnel may be appointed to prepare the plan.⁶⁶ Recovery plans must include objective, measurable criteria which would result in delisting, as well as estimates of the time and funding needed to meet the plan's goals.⁶⁷

In practice, although recovery criteria guide the delisting decision, their achievement does not automatically trigger delisting, nor does failure to meet one or more of the recovery goals preclude delisting.⁶⁸ Recovery criteria have been criticized as insufficiently specific and demanding to produce viable populations.⁶⁹ In 1995, the federal district court for Washington, D.C., ruled that the recovery criteria in the grizzly bear recovery plan did not satisfy the statutory requirement for criteria that would support delisting because they did not provide a measure of the extent to which the threats responsible for the bear's listing had been ameliorated.⁷⁰ So far, however, that ruling has had only limited impact. Another U.S. district court has upheld recovery criteria limited to target population numbers.⁷¹ Many plans still concentrate on population numbers or trends, with only the vaguest attention to mechanisms for neutralizing threatsto the species.⁷²

After delisting, the Services, in cooperation with the states, must monitor the species for at least five years.⁷³ If necessary, they are to use their emergency listing authority to prevent significant risks to the well-being of the species.⁷⁴

The ESA does make one distinction between listing and delisting. In 1973, when it divided responsibility for endangered species between the DOI and the DOC committees, Congress gave the DOC the ultimate authority to determine whether the marine species over which it has jurisdiction should be added to the list, or downgraded from threatened to endangered. But the ESA requires that the DOI concur with the DOC before a marine species may be delisted or reclassified from endangered to threatened.⁷⁵ That distinction could suggest that delisting should be undertaken more cautiously than listing. It seems more likely, however, that it merely reflected suspicion of the commitment of the DOC, historically dedicated to promoting commercial exploitation, to protection of endangered species. That suspicion was expressed repeatedly in hearings on the ESA by witnesses for a variety of environmental organizations, as well as by Rep. John Dingell (D-Mich.), sponsor of one of the primary endangered species protection bills.⁷⁶

[30 ELR 10439]

Delisting Is Not Just About Biology

It often seems to be assumed that recovery to delisting is strictly a biological task. Several scientific observers, including the recovery team for the American peregrine falcon, have concluded that whether a species should be delisted is a question to be answered entirely on the basis of biological data such as population numbers and trends.⁷⁷ The ESA encourages this view by directing the Services to make listing and delisting decisions solely on the basis of the best available scientific information,⁷⁸ and by requiring that recovery plans contain "objective, measurable criteria" for delisting.⁷⁹ Both of these provisions suggest that the delisting determination can be made on the basis of scientific data alone, but that is not the case.

Determining whether a species is endangered or threatened requires a judgment about the likelihood of extinction. Surely there is a biological component to that judgment. Knowing what habitat conditions the species requires, how much habitat it has available, how vulnerable it is to environmental fluctuations, and how it responds to various human impacts, is essential to understanding the extent of its extinction risk. Estimating that risk and identifying the threats responsible for it are primarily scientific tasks. But there is another, social, aspect to understanding and controlling extinction threats. Because the most important threats to dwindling species come from human activities, whether a species should be delisted is a question as much about the effectiveness of mechanisms for controlling human behavior as about species biology.

Although the ESA does contain provisions suggesting that delisting is strictly a biological issue, it also contains indications that Congress understood the importance of controlling human activities. The Act opens with the congressional finding that "various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation."⁸⁰ That finding carries the necessary corollary that the extinction tide can only be stemmed by ensuring that economic growth incorporates adequate concern for other species. Biology does not provide the tools for that task; law and other social sciences do.

The listing provisions reinforce the connection between human actions and threats to species. The Services are specifically directed to evaluate whether species are endangered or threatened on the basis of several specific factors.⁸¹ Of these factors, the inadequacy of existing regulatory mechanisms is clearly the most fundamental, subsuming habitat destruction and overutilization, which are only problematic if not adequately controlled. Even disease, predation, and other "natural" threats may be symptoms of inadequate control of human activities. For example, the recent emergency listing of the Sierra Nevada population of the California bighorn sheep cited disease, specifically a type of bacterial pneumonia, as one of the major threats to the population.⁸² The FWS noted, however, that the disease was spread by contact with domestic livestock.⁸³ The failure to restrict livestock grazing on lands within the bighorn's range was largely responsible for the disease threat, and increased regulation of grazing in the area might be expected to reduce that threat.

Because human activities play such an important role in endangerment, understanding what protections a species requires against human activities for long-term survival, and putting those protections in place, is essential to delisting. Delisting is appropriate only when the threats that led to the species' decline, as well as any others that may limit its security, have been addressed in ways that ensure they will not recur once the species is off the list.

Threats from human activity can be addressed by any strategy that reliably modifies human behavior. Theoretically, economic incentives or changes to societal norms through education or other means could sufficiently ameliorate threats to justify delisting. But neither of these strategies is likely to be sufficient for many species. The ESA embodies a legislative judgment that the costs of extinction are unacceptable, except in the rare circumstances when the high hurdles of the exemption process can be surmounted.⁸⁴ Accordingly, delisting requires confidence that the species is secure against human impacts. Unless backed by regulations imposing caps on acceptable impacts on the species, economic incentive systems would leave the determination of acceptable harms to the market. They cannot guarantee the survival of the species, as the ESA directs.⁸⁵ Modification of social norms certainly can reduce threats,⁸⁶ but there [30 ELR 10440] is little indication of a developing social norm that would strongly discourage habitat destruction, the most important cause of species endangerment.⁸⁷ Indeed, social norms seem to point precisely the other way. For most species, therefore, the development of laws or regulations outside the ESA sufficient to protect the species against human impacts is a necessary prerequisite to delisting.

This conclusion also follows from the fact that delisting is the converse of listing. Noting that the statutory listing criteria include the inadequacy of existing regulatory mechanisms, courts have held that the Services may not rely on a promise of future protective actions,⁸⁸ a conservation agreement with the state embodying untested protective mechanisms uncertain to be implemented,⁸⁹ or a state strategy dependent upon voluntary participation and anticipated regulatory changes⁹⁰ to avoid listing a species. By the same token, delisting cannot occur unless regulatory mechanisms demonstrably sufficient to protect the species are already in place.

Evolution of the Emphasis on Delisting

Federal endangered species legislation has always been crisis driven. Its goal from the outset was to stem the tide of human-caused extinctions. With the passage of a generation and more since that initial legislation, however, merely avoiding extinction has come to seem an insufficient goal. Increasingly legislators, regulators, and observers of all stripes have begun to view removal from the protected list as the ultimate test of the ESA's success. Even today, though, little thought has been given to the conditions necessary to achieve delisting, or to the likelihood of reaching that milestone.

First Glances: 1973 and Before

In the first federal endangered species law, the 1966 Endangered Species Preservation Act (1966 Act), Congress declared that "one of the unfortunate consequences of growth and development in the United States" had been the extermination of native species of fish and wildlife.⁹¹ The Act's declared purpose was to "provide a program for the conservation, protection, restoration, and propagation" of those species.⁹² It sought to achieve that goal by requiring the Secretary of the Interior to publish a list of domestic species whose existence was endangered, and whose survival required assistance.⁹³ The 1966 Act directed the DOI to use its existing authority to carry out a conservation program for those species, and to encourage other federal agencies to follow suit.⁹⁴

The 1966 Act made no reference to the removal of species from the list. It did not define conservation, nor did it offer any specifics on what elements a conservation program might include or what the ultimate goal of such a program might be. Delisting was not discussed in the legislative reports or hearings. But implicit in many of the statements made in support of the Act was the understanding that vulnerable species would need long-term protection against human threats. For example, Interior Secretary Stewart Udall pointed out that many species would go extinct unless their habitat was acquired and maintained for the future.⁹⁵ Thomas L. Kimball of the National Wildlife Federation testified that habitat protection, which he described as requiring difficult choices between human needs and those of wildlife, was the key to preserving species.⁹⁶ C.R. Gutermuth, representing the Wildlife Management Institute, noted that "only by moving rapidly to assure that adequate areas will be preserved and retained in their natural condition"⁹⁷ could the nation protect species from extinction. No one suggested that protecting habitat, or providing whatever other "assistance" was required for the survival of listed species, would be a short-term task.

In 1969, Congress enacted the Endangered Species Conservation Act (1969 Act), which for the first time spoke briefly to delisting. It directed the Secretary of the Interior to review the entire list at least once every five years to determine whether the species on it "continue to be threatened with worldwide extinction."⁹⁸ It also required the Secretary to review the status of individual listed species upon request.⁹⁹ Species found, through these reviews, not to require listing any longer were to be removed from the list.¹⁰⁰

Despite these provisions, the removal of species from the list still was not a major concern. Legislators concentrated instead on the ramifications of restricting international commerce in endangered species, expanding restrictions on trade in domestic species, and increasing the funding available [30 ELR 10441] for land acquisition.¹⁰¹ None of the handful of witnesses who mentioned the requirement for periodic review of the list mentioned what circumstances might bring species back from endangered status, or how often that might be expected to occur.

In 1973, when it enacted the ESA, Congress reiterated the findings of the 1966 Act, declaring that extinction, with its attendant esthetic, ecological, educational, historical, recreational, and scientific costs, had been "a consequence of economic growth and development untempered by adequate concern and conservation."¹⁰² Once again, the eventual removal of species from the list received scant attention. Two topics dominated the congressional hearings and debates on the 1973 ESA: the role of states in endangered species conservation; and the creation of a second tier of protected species.

The Nixon Administration, which pushed hard for the new legislation, was most concerned with the relationship of state and federal power. The Administration was convinced that states would not support a strong endangered species program unless they could at least potentially control its implementation.¹⁰³ Deflecting concerns that the ESA would unnecessarily preempt traditional state authority over wildlife, administration witnesses emphasized their desire to encourage state participation. Nathaniel P. Reed, Assistant Secretary of the Interior for Fish, Wildlife, and Parks, explained that the Administration's proposal would allow states to take over responsibility for species protection,¹⁰⁴ and expressed optimism that they would quickly do so.¹⁰⁵ Reed's deputy, Douglas Wheeler, emphasized the same theme, pointing out that the bill would suspend federal prohibitions on taking listed species in states with analogous regulations.¹⁰⁶ Wheeler added that the legislation "was drafted with the intent that those States which now have programs for effective management of endangered species would not be affected."¹⁰⁷

Discussion also focused on the introduction of a new protected category covering species not yet on the brink of extinction but likely to reach that dire condition in the foreseeable future. This discussion sheds some light on expectations regarding delisting. The new category was expected to make restoration of species to a healthy state more achievable. As Assistant Interior Secretary Reed put it: "The restoration of a species which has deteriorated to the point at which it is threatened with extinction is a long, costly, and frequently unsuccessful process."¹⁰⁸ Allowing intervention before species reached that state should boost recovery. The new protected category was also touted as a method for gradually weaning species from their dependence on the protection of the law, by providing "a 'halfway house' for those animals which have been restored to the point that they are no longer threatened with extinction, but have not yet responded to the point at which they are ready to be completely removed from the protective umbrella."¹⁰⁹ Reed analogized to a hospital patient, progressing from intensive care to a general ward and ultimately to discharge with improving health.¹¹⁰ Like its predecessors, though, the ESA did not directly address how species would be brought to that point.¹¹¹

Although it said little about how to get there, the ESA did make progress toward delisting an implicit goal of federal endangered species policy. Two of the ESA's three stated purposes were "to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered and threatened species."¹¹² The ESA defined the term conservation as "the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this act are no longer necessary."¹¹³

[30 ELR 10442]

Congress did not consciously consider or openly debate the meaning or significance of this implicit goal. The conference committee inserted the definition of "conservation" quoted above. Although the bills passed by the Senate and House both included among their purposes the conservation of species and ecosystems,¹¹⁴ neither tied those purposes to removal from the protected list. The House bill did not define conservation. The Senate bill, which directed the Secretary to issue such regulations as might be necessary to "provide for the conservation and management" of threatened species,¹¹⁵ defined the term "conservation and management" to mean "the collection and application of biological information for the purposes of increasing and maintaining the number of animals within species and populations of endangered and threatened species at the optimum carrying capacity of their habitat."¹¹⁶

The conference compromise included two substantive provisions employing the term "conservation." The first required the Services to issue regulations as necessary for the "conservation" of threatened species.¹¹⁷ The second directed all federal agencies to carry out "programs for the conservation" of listed species.¹¹⁸ The conference committee replaced the Senate definition of "conservation and management," which focused on optimum carrying capacity, with the current definition of "conservation," implicating removal from the list.

Although the committee provided little explanation for this change, it seems to have been intended to broaden the scope of agency authority, while sharply limiting regulated take of listed species. The committee explained that the amendment would provide sufficient authority to cover any activities that might "improve the status of endangered and threatened species so that they would no longer require special treatment."¹¹⁹ The committee also seems to have been uncomfortable with the echo of the 1972 Marine Mammal Protection Act (MMPA) in the Senate terminology. The MMPA had used the terms conservation and management, defined just as in the Senate bill,¹²⁰ but in the context of a substantially different regulatory scheme. The MMPA sought to balance the protection of marine mammals with their continued harvest where possible.¹²¹ By contrast, the conference compromise made clear that endangered species were not to be harvested in the name of conservation, except in the most extreme circumstances.¹²²

Although it encouraged federal agencies to engage in whatever activities might improve the status of listed species to the point where they would no longer require special protection, the ESA did not suggest that delisting should occur on any particular time line, or even that delisting should be anticipated for any species or group of species. The delisting goal was an aspirational one, a positive goal to be pursued once the immediate extinction crisis had been staved off, but not one Congress expected to be reached soon for a substantial number of species.

Many of the witnesses who testified at the series of hearings held in the two years leading up to enactment of the ESA supported delisting as a general goal. The DOI's Reed described the ESA as moving species toward a healthy state which would allow them to be brought out of its shelter.¹²³ Representatives of several environmental groups also stressed the importance of bringing species to the point where they would not need special protection. For example, John Grandy of the National Parks and Conservation Association testified that the basic purpose of the ESA was "to restore endangered species to a point where they are no longer covered by the act."¹²⁴ He also stated that he hoped listing would be a temporary state, ending when the species was restored.¹²⁵ Others clearly sought to ensure that the goals of the legislation would include improvement in the species' status, but did not specifically mention recovery to the point where protection would no longer be necessary. Steve Seater, representing Defenders of Wildlife, suggested that the purpose of the legislation should be the "restoration" of endangered species, without explaining what he understood that term to mean.¹²⁶

The hearings provided Congress with two diametrically opposed views of the meaning and likelihood of achieving recovery. On the one hand, committee members were told that habitat protection was crucial, and difficult. On the other, they were informed that hunting was a major cause of extinction, and relatively easy to control.

Many witnesses emphasized the importance of long-term habitat protection.¹²⁷ They managed to convince legislators [30 ELR 10443] that habitat loss was at least a major cause of extinction, perhaps even the primary cause.¹²⁸ At least some legislators seemed to take the next logical step, understanding that effective species protection could not be accomplished by a quick fix, but would require ongoing efforts to address threats such as habitat loss. For example, Sen. Mark Hatfield (R-Or.), one of the sponsors of the Administration's 1972 endangered species bill, noted that the bill could not remove the threats to species, but would provide the authority needed to manage those threats.¹²⁹ The House Committee on Merchant Marine and Fisheries noted that, of the threats to species, habitat destruction had proven "the most difficult to control."¹³⁰

However, other legislators and witnesses focused primarily on species threatened by excessive hunting and fishing pressure. Sen. Harrison Williams (D-N.J.), a sponsor of one of the major Senate bills, commented that hunting was undoubtedly the major reason for the precarious status of domestic wildlife.¹³¹ The Senate report presented hunting as a cause of endangerment co-equal with habitat destruction.¹³² Focusing on the impacts of hunting, as opposed to habit destruction, encouraged a more sanquine view of the prospects for recovery. The effects of overhunting are generally easier to reverse than those of habitat loss. Minor modifications of existing state hunting regulations may be sufficient to correct the problem. Where necessary, state fish and game agencies have considerable experience translocating and restocking game animals.¹³³

Only a few witnesses spoke directly to the feasibility of recovery. The two who gave specific examples of species successfully brought back from the brink of extinction both mentioned game animals.¹³⁴ Although legislators were warned that past successes might not prove easily repeatable,¹³⁵ those warnings seemed to fall on deaf ears. Whether because they heard few countervailing stories of species which would need protection forever, because they wanted to believe the task they were setting the nation was an easy one, or simply because they were more familiar with the historic decline of many American species due to overexploitation than with the newer story of habitat threats, legislators and regulators seem to have internalized the assumption that recovery would be a relatively simple and rapid process.

Paying More Attention: 1978-1988

Before long, the Services and Congress found it necessary to look beyond preventing extinction and give more content to the affirmative goals of the Act. The concept of recovery was first introduced by the Services in regulations issued in 1978, after a prolonged gestation period, to implement § 7. In order to delineate the scope of federal obligations under that section, the Services defined the term "jeopardize the continued existence of" a species. They did so in terms of the likelihood of survival and "recovery" of the species in the wild.¹³⁶ Recovery, in turn, was defined as "improvement in the status of listed species to the point at which listing is no longer required."¹³⁷

Later in 1978, when Congress first amended the ESA in the wake of the snail darter controversy,¹³⁸ it emphasized the [30 ELR 10444] importance of delisting. "The ultimate goal of the Endangered Species Act," wrote the House Committee on Merchant Marine and Fisheries, "is to focus sufficient attention on listed species so that, in time, they can be returned to a healthy state and removed from the list."¹³⁹ Toward this end, the 1978 amendments required that the DOI produce recovery plans for listed species.¹⁴⁰ According to the House report, these plans were intended to provide "a framework for actions directed at conserving or, at least, insuring the survival" of listed species.¹⁴¹

Although the 1978 amendments added emphasis to the implicit goal of progress toward delisting, Congress did not define the purposes of the recovery program solely through that goal. Nor did it explicitly endorse the Service's definition of recovery as improvement to the point of delisting. The ambivalence about the likelihood and difficulty of bringing species off the list that permeated the 1973 debate remained in 1978. The House report, emphasizing that recovery plans should at least ensure survival, suggests that legislators recognized that delisting might not always be a realistic expectation. At the same time, however, the FWS suggested that many species would recover without the need for any special efforts beyond the temporary protection of §§ 7 and 9.¹⁴² This suggestion was tied to the Services' incorrect belief that recovery to delisting was strictly a biological issue.¹⁴³

Congress again gave some attention to delisting when it amended the ESA in 1982, although again other issues, such as the slowdown in listing at the outset of the Reagan Administration, enjoyed center stage.¹⁴⁴ The 1982 amendments revised § 4, the listing provision, to clarify that its requirements applied equally to delisting. The House committee described this change as a response to "the criticism that no explicit provision in section 4 outlines the regulatory process to remove a species from the endangered or threatened list."¹⁴⁵ The 1982 amendments imposed the current strict time limits on responding to petitions and finalizing proposed rules.¹⁴⁶ According to the House committee, these time limits were particularly aimed at speeding up delisting, reacting to the concern that the lists might "harbor a number of improperly listed species."¹⁴⁷

In hearings on the 1982 amendments, witnesses continued to express the hope that species would not require permanent listing,¹⁴⁸ although no more was said about how to bring them off the list. At least one witness expressed what was probably a more general assumption: that once delisted, species would pose no further regulatory problems.¹⁴⁹

In 1988, Congress gave more content to the Services' recovery planning obligations, and added an explicit link between recovery planning and delisting. These changes came against the background of a widespread perception that implementation of the ESA had fallen short of what was required "to protect and recover" species.¹⁵⁰ In hearings, regulators and representatives of several prominent environmental groups agreed that the ultimate goal of the ESA was to bring about recovery, which they equated with delisting.¹⁵¹ Again, delisting was presented as the end of the "problem" of listed species.¹⁵²

[30 ELR 10445]

There was still no detailed exploration of the kinds of activities that would lead to delisting for any species. The witnesses uniformly agreed, however, that recovery plans were the key to the recovery effort.¹⁵³ Testimony emphasized the need not only to produce but to implement these plans.¹⁵⁴ To facilitate oversight of implementation,¹⁵⁵ Congress added to the ESA the requirement that each recovery plan include descriptions of site-specific management actions needed to achieve the plan's goal; objective, measurable criteria that would justify delisting; and estimates of the time and funding needed to get to that point.¹⁵⁶

Despite the new stress on recovery planning, legislators still did not seem to expect rapid recovery to delisting for many species. The Senate report noted that "recovery of threatened and endangered species has proven to be a very long-term process. Such efforts have been underway for a decade or longer for species whose recovery still is not in sight."¹⁵⁷ That observation was not presented as a criticism of the ESA, but as a justification for long-term stable funding to states cooperating in the recovery process.

Unhealthy Obsession: The Current Attitude Toward Delisting

Somehow, since the ESA was last amended in 1988, delisting has come to be seen not only as the ultimate long-term goal of the ESA, but also as the critical short-term measure of the law's success. That delisting is the principal goal of the act has become orthodox dogma. The Services' regulations declare: "The principal goal of the U.S. Fish and Wildlife Service and the National Marine Fisheries Service is to return species to a point at which protection under the Act is no longer required."¹⁵⁸ In a 1996 report to Congress on the recovery program, the FWS described recovery as "the cornerstone and ultimate purpose of the endangered species program," and noted that the goal of that program is to reach the point of delisting.¹⁵⁹ Observers from a variety of perspectives agree that delisting is the principal goal of the ESA.¹⁶⁰

From there it is a short next step to viewing the extent and rate of delisting as an important measure of the Act's success. A Senate committee reporting on a 1997 ESA reauthorization bill that ultimately did not pass endorsed that view, stating: "The objective success of the Act must, in part, be measured by the progress achieved in recovering species to the point where they are delisted and no longer need the protections of the Act."¹⁶¹ By describing the identification of 25 candidates for delisting as tangible evidence of recovery success in its 1996 report to Congress on the recovery program, the FWS tacitly agreed to this measure.¹⁶² Commentators, both those skeptical of strong species protection efforts and those who advocate such efforts, have accepted delisting as the ultimate measure of success.¹⁶³ At the same time, as invited by the Services' rhetoric since at least 1978,¹⁶⁴ delisting has come to be seen as a strictly biological process.¹⁶⁵

The two major ESA reauthorization bills currently under consideration both emphasize delisting as the purpose of recovery and the measure of recovery success. Each also over-emphasizes the biological aspects of recovery. The Republican bill, H.R. 3160, introduced by Rep. Don Young (R-Alaska), would require that recovery goals "be expressed as objective and measurable population criteria,"¹⁶⁶ and mandate delisting upon achievement of those goals.¹⁶⁷ The Democratic bill, H.R. 960, introduced by Rep. George Miller (D-Cal.), would add an explicit congressional finding that recovery actions must be taken "to ensure that species will eventually be removed" from the protected list.¹⁶⁸ Representative Miller's bill includes a definition of "recovery" that recognizes the need to eliminate threats.¹⁶⁹ Nonetheless, this bill too falls into the trap of overemphasizing biology with respect to recovery goals, directing the inclusion in recovery plans of "objective, measurable criteria, [30 ELR 10446] including habitat needs and population levels," that would result in delisting.¹⁷⁰

The current heavy emphasis on delisting is beneficial in some respects. It shifts attention from simply averting crises toward a positive vision of the future. By so doing, it encourages active efforts to improve the condition of listed species, rather than passively stemming further declines. Moreover, trying to achieve delisting for at least a few species makes good political sense. Delisting, especially the delisting of charismatic species such as the bald eagle, can provide increased political support for the law by showing it in a positive light.

But those benefits come at considerable cost. Because the most important causes of endangerment are not effectively addressed outside the ESA, delisting simply is not a realistic expectation for most listed species. Linking the success of recovery efforts, and of the ESA itself, to delisting virtually ensures an unfavorable evaluation. It risks undermining, rather than increasing, political support for the ESA when reality inevitably fails to live up to optimistic forecasts of delisting.

Furthermore, an unspoken assumption accompanying the stress on delisting is that delisting will end the costs of protecting species. As Jason Patlis has put it, the ESA is seen as a necessary but painful short-term corrective treatment to ensure long-term environmental health.¹⁷¹ The expectation that delisting will end the pain of the ESA adds to the political pressures on the Services to delist species, perhaps pushing them to do so earlier, or with fewer safeguards, than they should. This assumption is just as mistaken as the assumption that delisting is possible, and just as likely to lead to frustrated expectations.

Why Delisting Is Not a Realistic Expectation

Realistically, the vast majority of listed species will probably need to remain on the protected list for the indefinite future. In part, the problem is biological. Listing species under the ESA is time-consuming, costly, and politically difficult. Most species reach the list only when their known populations are drastically low or declining very rapidly.¹⁷² Many biologists have pointed out that the demographic risks to such small populations can make recovery a slow and uncertain process.¹⁷³

But the demographics of small populations are not the only barrier to delisting. The lack of effective regulatory protection outside the ESA against the most important causes of endangerment is at least as important. One recent study concluded that the most significant threats to dwindling species were habitat degradation and the spread of alien species.¹⁷⁴ The authors of this study found that 85 percent of species currently listed under the ESA or believed by scientists to be at significant risk of extinction were affected by habitat loss or degradation, and 49 percent were threatened by competition with or predation by invasive exotic species.¹⁷⁵ Despite the emphasis placed on hunting when the ESA was under consideration, this study revealed that overexploitation affects only 17 percent of dwindling species.¹⁷⁶

Because state and federal laws other than the ESA provide little protection against either of the two primary threats, habitat destruction and exotic species, most listed species are likely to need the special protections of the ESA forever. Regulation does very little against the impacts of exotic species. The federal government and many states have enacted laws that try in various ways to stem the influx of exotics. The effectiveness of these laws, however, is sharply restricted both by limitations in their scope and by practical enforcement difficulties.¹⁷⁷ Despite these laws, therefore, new invasions continue.

Even if new invasions could be prevented, many exotic species are already well established throughout the country. Such entrenched exotics are often difficult to control, and nearly impossible to eradicate.¹⁷⁸ No federal or state law requires that landowners even attempt either control or eradication, nor is such regulation likely in the future. Perhaps the strongest mandate to control exotics is found in the management policies of the National Park Service (NPS), which provide that non-native species "will not be allowed to displace native species" if management can prevent it,¹⁷⁹ and that management steps up to and including eradication will be undertaken when exotic species threaten park resources.¹⁸⁰ Even in the national parks, however, control measures are not required unless they are "prudent and feasible."¹⁸¹ In fact, the NPS has not effectively controlled [30 ELR 10447] non-native species, which represent a major threat to park resources.¹⁸²

On private lands, the spread of exotics is essentially unregulated. Even the ESA does not require affirmative management steps such as exotic species control. Although it would be logically possible to read the statute's prohibition on "harm" to cover the deleterious effects of leaving harmful alien species or other changes to habitat unchecked, the Services have expressly declined to adopt that reading.¹⁸³ Despite one well-known contrary judicial interpretation, the Services' view seems unlikely to change. The Ninth Circuit has twice held that § 9 of the ESA requires the state of Hawaii to remove destructive alien sheep and goats from the habitat of the endangered palila, a type of honeycreeper.¹⁸⁴ These decisions, although recently reaffirmed by a district court in Hawaii,¹⁸⁵ are not likely to generalize to other circumstances. Prior to the palila litigation, Hawaii had deliberately maintained substantial populations of feral sheep for sport hunting purposes within the palila's habitat.¹⁸⁶ It was not a great stretch, therefore, to hold the state responsible for eliminating these creatures. But in most cases current landowners have not deliberately introduced or cultivated the exotic species that are spreading across their lands. Given the U.S. Supreme Court's recent statement that the take prohibition is subject to "ordinary requirements of proximate causation and foreseeability,"¹⁸⁷ as well as the political realities of the ESA, it is unlikely that any court would require a landowner to undertake expensive eradication measures against a species it did not introduce or deliberately maintain.

Nor do economic incentives or social norms that would encourage control of exotics currently exist or appear on the horizon. Because eradication efforts are expensive, economic incentives will typically work against them. Although a few landowners, such as The Nature Conservancy, are sufficiently committed to ecological purity to voluntarily engage in substantial control efforts, no social consensus that landowners should do so exists. Indeed, many landowners do not even recognize the aliens inhabiting their land. Because no mechanism ensures control of alien species, it seems likely that listed species sensitive to their impacts will never rebound to populations sufficient to absorb additional harm from other causes. These species will need the special protections of the ESA forever.

The situation is slightly less dire for species threatened by habitat degradation, but only because the ESA provides greater protection against this threat than against the threat of exotics. Through its take prohibition, the ESA provides uniquely comprehensive legal protection against habitat degradation, at least for animals. Together with the broad regulatory definition of "harm,"¹⁸⁸ the take prohibition potentially addresses the full range of human activities that threaten habitat.¹⁸⁹ Importantly, the take prohibition can be enforced by concerned individuals through citizen suits if the government proves unable or unwilling to act on behalf of a species.¹⁹⁰ Section 10 does allow incidental take to be permitted, but only following careful examination of the impact on viability.

The take prohibition hardly guarantees effective protection of habitat, because take can be difficult to prove.¹⁹¹ Nonetheless, the ESA currently provides by far the strongest regulatory protection against habitat destruction. Other federal laws provide protection for certain species from certain threats or in certain locations, but none duplicates the ESA's protection. The MMPA,¹⁹² the Migratory Bird Treaty Act (MBTA),¹⁹³ and the Bald and Golden Eagle Protection Act¹⁹⁴ prohibit the "take" of marine mammals, migratory birds, and eagles respectively, but none of them extends the definition of take to include habitat modification.¹⁹⁵ The Clean Water Act (CWA) limits industrial discharges to water,¹⁹⁶ but does little to address agricultural runoff and other [30 ELR 10448] nonpoint source pollution, although those are major threats to the habitat of many aquatic species.¹⁹⁷

Habitat located on federal land is sometimes well protected, but federal ownership alone does not guarantee that habitat will continue to meet the needs of species. A more nuanced inquiry is required. The laws governing management of federal lands often require that animal or plant species be considered, but rarely measure up to the protections of the ESA.

The 92 million acres of the national wildlife refuge system¹⁹⁸ offer perhaps the strongest protection. The refuge system is dedicated to the "conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans."¹⁹⁹ The FWS, which administers the refuges, must "provide for the conservation of fish, wildlife, and plants, and their habitats,"²⁰⁰ and "ensure that the biological integrity, diversity, and environmental health" of the refuge system are maintained.²⁰¹ Even within that system, though, much turns on the specific purposes enunciated for the individual refuge at its establishment. If these purposes, such as management for a single species, conflict with the broader system purpose of conservation of diversity and protection of biological integrity, the specific refuge purposes control.²⁰²

Substantial protection is also provided on the 191 million acres²⁰³ of national forest. The National Forest Management Act (NFMA) directs the U.S. Forest Service to issue regulations that will "provide for diversity of plant and animal communities" within the overall multiple use mandate of the forests.²⁰⁴ Current regulations implementing this provision require forest management to "maintain viable populations of existing native and desired non-native vertebrate species," by providing habitat sufficient to support at least a minimum viable population.²⁰⁵ This requirement has served to limit timber harvests in the Pacific Northwest²⁰⁶ and Southeast.²⁰⁷ Nonetheless, it is not as protective as the ESA. It applies only to vertebrates, not to plants or invertebrate animals.²⁰⁸ Furthermore, in light of the complexities of managing for each vertebrate species, in practice the Forest Service selects "management indicator species" to serve as proxies for the full spectrum of animal diversity.²⁰⁹ The fate of other species may depend on the ability of the chosen management indicator species to serve as surrogates for their needs.²¹⁰

The current NFMA regulations also require management "where appropriate and to the extent practicable," to preserve and enhance the diversity of plant and animal communities so that it is at least as great as that expected in a natural forest,²¹¹ but this regulation has been interpreted not to mandate any particular level or type of diversity, leaving the Forest Service a great deal of discretion.²¹² This broad discretion is troubling in the context of delisting because of the need to ensure adequate protection, and because the history of the ESA reveals that government agencies cannot always be trusted to provide that protection.²¹³

Species whose habitat is located on national park lands, which cover roughly 80 million acres,²¹⁴ also enjoy substantial protection, although as in the national forests the management agency retains considerable discretion over the scope of that protection. The NPS is directed to "conserve the wild life" in national parks for the enjoyment of future generations.²¹⁵ This mandate has been interpreted to leave to the NPS decisions about what conservation steps to take.²¹⁶ Given the historic, and continuing, tension between preservation and use in the park system,²¹⁷ it cannot simply be assumed that the NPS will always give preference to the species under its jurisdiction.

Under the Federal Land Policy and Management Act (FLPMA), the Bureau of Land Management (BLM) administers its 264 million acres²¹⁸ for multiple use; the needs of wildlife must be taken into account, but need not necessarily [30 ELR 10449] be given preference.²¹⁹ Historically, the BLM has leaned toward commodity production at the expense of environmental values.²²⁰

On all these lands, various special administrative designations can increase the baseline level of protection, but those special protections may vary considerably, may not be enforceable from outside the agency, and may be subject to change by the agency with relatively little public input. For example, FLPMA directs the BLM to designate "areas of critical environmental concern" to protect important historic, cultural, or scenic values, fish or wildlife resources, or other natural systems or processes.²²¹ Although the BLM must give these areas priority in its planning process,²²² it enjoys broad discretion in their designation and management. The effectiveness of an area of critical environmental concern as a protective measure for species will depend on the precise provisions in the management plan governing that area.

Moreover, even at their most protective, the federal land management laws and regulations suffer from a major short-coming compared to the ESA. Unlike the ESA, which subjects all federal actions to § 7 and all actions to § 9, the federal land management statutes control only actions within the units of the particular system they govern. None of them effectively protects federal habitat against activities conducted on nearby lands outside federal control, or even under the control of a different federal agency.²²³

Habitat protection on private land, although essential to the continued survival of many species, is even more difficult to ensure outside the shelter of the ESA. According to the U.S. General Accounting Office, as of 1993 more than 90% of the listed species under the jurisdiction of the FWS had at least some of their habitat on private land.²²⁴ Nonfederal lands provided more than 60% of the habitat for almost three-quarters of those species.²²⁵ No federal law other than the ESA imposes significant restrictions on habitat destruction on private lands. Although many states have their own endangered species statutes, few impose any substantive restrictions on private land use decisions,²²⁶ or allow citizen enforcement.²²⁷ Even in states with strong endangered species laws, removal of a species from the federal list may undermine its state protections. For one thing, federal delisting may precipitate removal from the state list. For another, many state laws automatically extend their protection to federally listed species.²²⁸ Federal delisting will deprive species not included on the separate state list of protection in those states.

Why Delisting Will Not End Conservation Costs

The current failure to face up to the limited likelihood of delisting is exacerbated by a parallel misunderstanding of the significance of delisting. Most observers seem to assume that delisting means the end of formal protections or conservation efforts on the behalf of a species, and consequently the end of the economic costs of conservation. In 1973, for example, the conference report explained that its new definition of "conservation," encompassing all steps needed to bring listed species to the point where they no longer required listing, was intended to cover all activities that might obviate the need for "special treatment" of the species.²²⁹ Administration spokesman Reed spoke of species being discharged from the hospital on delisting,²³⁰ similarly implying no need for continued concern. Subsequent observers have continued to describe delisting as ending the problems or difficulties posed by listed species.²³¹

But that is not the case. Species cannot be delisted unless the threats to their survival have been ameliorated. Unfortunately, there is no magic bullet that can permanently remove the major threats to listed species, habitat degradation and exotics, or even the relatively minor threat of overexploitation.²³² Rather, continuing regulations or other strategies are necessary to control these threats on an ongoing basis. Conservation efforts, with their attendant costs, therefore typically must survive delisting.

The costs that cause the most outrage are the opportunity costs of conservation; that is, the benefits of development that cannot be realized if development is not permitted.²³³ These costs will not be significantly reduced by delisting, [30 ELR 10450] because roughly the same habitat protections must be provided after delisting as while the species is listed. In fact, as a prerequisite to delisting, the Services must assure the continuation of virtually the same limitations on economic activity that the ESA provides while the species is listed. Delisting requires a finding that the threats to the species are sufficiently controlled that extinction is no longer likely. That, in turn, requires confidence that some mechanism other than the ESA will prevent activities that might cause extinction. But those, and only those, are precisely the activities the ESA prohibits while a species remains on the list. Section 7 forbids federal actions only if they may jeopardize the species' continued existence.²³⁴ Section 9 protects listed animals against any take, but § 10 allows the Services to authorize incidental take, provided it does not threaten jeopardy.²³⁵

In many cases, spending on affirmative measures to promote the species' well-being will in fact decrease after delisting. In part this decrease can be attributed to biological recovery; once the species reaches a stable population level, it may not need as much management. But spending declines may also result from other causes. Federal funding through the Cooperative Endangered Species Fund and ESA § 6 grants will become unavailable on delisting. Section 7(a)(1) will no longer provide federal agencies with an incentive to engage in programs for the conservation of the species. Delisting may also reduce the species' public profile, reducing pressure for discretionary funding on its behalf. In any case, since none of this spending is mandated by the species' presence on the protected list, these savings cannot truly be credited to delisting.

There are some administrative costs associated with retaining species on the ESA's protected list. Section 7 requires federal agencies to consult with the FWS before undertaking actions that may affect listed species.²³⁶ Section 10 requires permit review as a precondition to incidental take.²³⁷ Implementing these sections does require some agency time and does impose some delays on development projects. The FWS contends that these costs are substantial, draining resources that could be redirected to other species.²³⁸ But the extent to which delisting would reduce the administrative costs of managing for the species is far from clear. The National Environmental Policy Act²³⁹ requires evaluation of the effects of federal actions on the biota, whether listed or not. Furthermore, the other federal and state regulatory measures required to justify delisting may themselves impose administrative costs. They may, for example, prescribe permit requirements, information-gathering mandates, or other costly administrative prerequisites to potentially harmful activities.²⁴⁰

Although delisting should not be expected to significantly change conservation costs, it may significantly alter the distribution of those costs. Where other regulations do not protect against habitat destruction, for example, delisting is likely to require acquisition and management of habitat by government at some level. That will shift costs from the private sector to government. Other costs may shift from the federal government to the states. State regulatory changes that make ESA protections superfluous are likely to shift administrative costs to the state. The extent and nature of these shifts will vary with the details of each delisting proposal. While the fiscal impacts of delisting bear consideration, therefore, like the effects of federal ownership on habitat protection those impacts cannot be assumed to be uniform. Accordingly, delisting should not be promoted on the assumption that it will obviate the costs of conservation.

Delistings Past and Present

If the number of delistings is accepted as the key measure of the ESA's success, it is hard to disagree with critics who describe the Act as a dismal failure.²⁴¹ Listing has proven virtually a one-way process. Beginning with the first list of 78 species in 1967,²⁴² over 1,750 species have been added to the protected list; only 31 have been removed.

Some of the list's expansion is due to changes in the law which have made more species eligible for listing. The 1966 Act applied only to "native fish and wildlife,"²⁴³ a term the DOI interpreted to include only vertebrate animals.²⁴⁴ Subsequently, the 1969 Act authorized the listing of mollusks and crustaceans,²⁴⁵ species not native to the United States,²⁴⁶ and subspecies,²⁴⁷ all groups not considered listable under the 1966 Act. In 1973, the ESA further expanded the definition of species to include other interbreeding groups,²⁴⁸ and for the first time allowed the listing of plant and insect species.²⁴⁹ It also added a whole new category, threatened species, to the list.²⁵⁰

[30 ELR 10451]

But these expansions in scope, which ended in 1973,²⁵¹ cannot explain the bulk of the list's growth, which has come since then. In October 1970, the list stood at 101 species.²⁵² But then it began to grow explosively. By July 1976, 170 domestic and 427 foreign species were listed as endangered, with another 8 domestic and 3 foreign species listed as threatened.²⁵³ As of January 1990, the endangered list included 427 domestic and 469 foreign species, and the threatened list encompassed 115 domestic and 39 foreign species.²⁵⁴ By November 1999, the most recent date for which data are available, the list had expanded to include 935 domestic and 518 foreign endangered species, as well as 266 domestic and 39 foreign threatened species.²⁵⁵

In stark contrast, the first 30 years of the list's existence brought only 27 delistings.²⁵⁶ Seven species were removed from the list because their extinction was recognized.²⁵⁷ Another nine were delisted because new information indicated that the original listing had been in error.²⁵⁸ These species either turned out to be more abundant or more resilient than previously thought, or were determined not to be taxonomically distinct from more abundant groups.

The Services have described the remaining 11 species delisted by 1997 as recovered, but that claim is questionable with respect to 4 species. Three of those are birds native to the Palau Islands in the South Pacific. They were listed as endangered in 1970 on the basis of data gathered in 1944 military surveys. Surveys completed in the late 1970s, however, showed that these birds were far more abundant than had been thought.²⁵⁹ It seems likely that the birds had already rebounded, with the recovery of habitat destroyed in the war, by the time they were listed. Another species the FWS lists as recovered is the Rydberg milk-vetch, a plant which was added to the protected list in 1978, when it was known from only two sites. It was delisted in 1989 after surveys discovered another 11 populations containing some 300,000 plants.²⁶⁰ All four of these delistings are more comfortably attributed to new information than to a change in the species' status following listing.

By 1997, therefore, only four domestic listed entities had been delisted primarily because of improvement in their status since listing. Those four were: the southeastern population of the brown pelican²⁶¹; the American alligator²⁶²; the gray whale²⁶³; and the arctic peregrine falcon.²⁶⁴ Three Australian kangaroos had also recovered.²⁶⁵

Since 1997, four additional species have been delisted. One of these, the American peregrine falcon,²⁶⁶ was removed from the list as recovered. The other three recent delistings rest on new information. The Dismal Swamp shrew was found to be more widely distributed and abundant than was thought at the time of its listing.²⁶⁷ The Lloyd's hedgehog cactus and Umpqua River cutthroat trout were determined not to be taxonomically distinct from more abundant groups.²⁶⁸

Five other delistings have been formally proposed. Three of these proposals rest on recovery: those of the Aleutian Canada goose²⁶⁹; bald eagle²⁷⁰; and Douglas County population of the Columbian white-tailed deer.²⁷¹ The other two—the Tinian monarch flycatcher²⁷² and the northern population of the tidewater goby²⁷³—are based primarily on new information about species abundance.

[30 ELR 10452]

Experience to date confirms the difficulty of delisting species threatened by habitat destruction. Habitat loss was not a major factor in the decline of any of the five U.S. species that have recovered to the point of delisting. Two of these species, the gray whale and the American alligator, reached the list because of overhunting for commercial exploitation.²⁷⁴ Because their hunting has now been sharply curtailed by laws other than the ESA and their populations have rebounded to the extent that they can sustain some losses, these species no longer need the special protection of the ESA. The other three recovered taxa—the southeastern population of the brown pelican, the arctic peregrine falcon, and the American peregrine falcon—reached the endangered list primarily because dichlorodiphenyltrichloroethane (DDT) and other environmentally persistent organochlorine pesticides interfered with their reproduction.²⁷⁵ With the passage of time since the U.S. Environmental Protection Agency (EPA) banned nearly all uses of those pesticides in 1972, under the authority of the Federal Insecticide, Fungicide, and Rodenticide Act,²⁷⁶ that threat has lessened and the populations of these species have rebounded.

All five recovered species are vulnerable to some other threats, but those threats are addressable (though they may not yet be fully addressed) through federal laws other than the ESA. The brown pelican, for example, is vulnerable to disturbance at its nest sites. The MBTA, however, prohibits such disturbance without a permit.²⁷⁷ The gray whale is vulnerable to disturbance by whale-watchers, and potentially to pollution from offshore oil and gas development. The MMPA prohibits "harassment" of whales without a permit,²⁷⁸ a prohibition that at least potentially covers close approaches bywhale-watching boats.²⁷⁹ Routine pollution from offshore oil and gas development is regulated by the CWA,²⁸⁰ although that law cannot prevent accidental spills.

Of the species currently proposed for delisting as recovered, habitat loss played a significant role in the listing of only one, the Columbian white-tailed deer. Even in that case, intense hunting pressure also played a significant role in the species' decline.²⁸¹ The bald eagle, like the brown pelican and peregrine falcons, suffered from the effects of pesticide pollution. Its recovery, like theirs, rests heavily on the DDT ban.²⁸² The Aleutian Canada goose declined due to a combination of hunting pressure and the introduction of foxes to its breeding habitat.²⁸³ It is now protected from the former by hunting restrictions imposed under the MBTA, and the effect of the latter has been ameliorated by eradication of the foxes from some nesting islands and translocation of the birds to other, fox-free, islands.²⁸⁴

The pending proposals to delist the Columbian white-tailed deer, bald eagle, and Aleutian Canada goose all illustrate the difficulties of ensuring sufficient habitat protection to support delisting. The deer proposal rests on the assumption, insufficiently explored, that habitat on federal land is adequately protected. The recovery goals for the deer appropriately recognize the importance of ameliorating threats, with a recovery criterion of 500 deer distributed on 5,500 acres of "secure" habitat.²⁸⁵ The FWS correctly describes habitat as secure only if it is "protected by legally binding measures or law from adverse human activities for the foreseeable future,"²⁸⁶ acknowledging the crucial role of enforceable regulations in providing the certainty of protection needed to justify delisting. The shortcoming of the delisting proposal lies in the application of that definition. The FWS describes more than 9,000 acres as secure, 7,000 acres of that on BLM land managed as "the North Bank Habitat Management Area."²⁸⁷ It is not at all clear what protections that management provides, however. "Habitat management area" is not a defined term under either FLPMA or the BLM's regulations. The delisting proposal does not elaborate, or even provide an explanatory citation.²⁸⁸ Only if this area is protected by regulations enforceable by citizens, and difficult to alter, would it provide the certainty of protection essential to delisting.

The bald eagle proposal suffers from a similar flaw, with the added complication that private lands provide important habitat. Although the eagle's listing rested on concerns other than habitat loss, habitat protection has played an important role in the eagle's return to healthy population levels.²⁸⁹ Like the deer proposal, the eagle proposal asserts that sufficient suitable habitat will remain protected after delisting,²⁹⁰ but does not adequately support that assertion. It does not detail any protections on private land, despite the agency's acknowledgment of the importance of private land to the eagle.²⁹¹ Although it asserts that FLPMA will protect eagles on federal lands, it provides no explanation of that assertion. Because FLPMA's generic protections are quite limited,²⁹² the mere citation of FLPMA is not reassuring. Resource [30 ELR 10453] management plans may provide greater protection on some BLM lands, but the delisting proposal provides no confidence that the FWS has evaluated the extent or security of such protections.

The proposal to delist the Aleutian Canada goose relies on optimism, rather than currently secure habitat. Like the bald eagle, the Aleutian Canada goose did not reach the list because of habitat concerns, but habitat protection is now seen as crucial to its recovery. The goose winters in California's Central Valley, largely on nonfederal land.²⁹³ The recovery plan for the goose identified a specific level of secure migration and wintering habitat as a recovery criterion.²⁹⁴ The FWS concedes that level has not been met, but justifies its proposed delisting based on plans to secure additional habitat, and efforts to attract geese away from private parcels.²⁹⁵ Those plans and efforts, which may never come to fruition, cannot support delisting.

A Healthier View of Recovery and Delisting

The current emphasis on delisting rests on two incorrect assumptions: first, that delisting should be fairly easy to achieve for many species; and second, that it should largely end the need to limit human activities in order to conserve those species. The first inevitably leads to suspicion that something must be badly wrong, given the small number of delistings to this point. That in turn produces considerable political pressure to demonstrate the ESA's effectiveness through delistings. The second assumption intensifies that pressure by magnifying the benefits of delisting.

An alternative view could allow more pragmatic evaluation of the effectiveness of the ESA, a clearer vision of what the path to delisting might look like, and a less heated atmosphere in which to evaluate species for possible delisting. The key to delisting, as the FWS recognizes, is to create security for the species.²⁹⁶ What has not yet been clearly stated is that two different forms of security are needed: biological security, meaning a sufficiently robust and well-distributed population to buffer the species against random environmental events and inbreeding; and social or regulatory security, meaning adequate long-term protection against human activities inconsistent with the species' welfare.

A healthy view of recovery and delisting would separate the two concepts. Recovery should be seen as the provision of biological security. Delisting should be understood as requiring the additional provision of regulatory security outside the ESA, such that the special regulatory protections of the ESA are no longer necessary.

Biological recovery should be a realistic goal for most listed species, or at least for those which reach the list before they are too severely reduced. Because it is likely to require affirmative intervention and management, however, recovery may be an expensive process. Listing, with the protections it brings, should at least make it possible to stabilize the populations of most species against decline. Whether species are stable, improving, or declining, although it may be difficult to assess,²⁹⁷ in theory provides a fair measure of the ESA's success. Based on currently available data, that measure makes the ESA look far more successful than the number of delistings. The protection of the ESA does turn declines around for many species; the length of time species have been on the list correlates well with progress to stable or improving status.²⁹⁸ The ESA hospital works to get its patients off life support.

Checking them out of the hospital through delisting is a more difficult task, although it will not necessarily require financial outlays. Delisting should be regarded as a long-term, aspirational goal, not a short-term test of the ESA's effectiveness. Although it does not mean the end of conservation costs, delisting should be seen as a triumph, a concrete demonstration that humanity can understand and control its impacts on at least some species.

Delisting, although difficult, need not be impossible. Indeed, it can provide a means of achieving the 1973 vision of a conservation program implemented largely through the states,²⁹⁹ a vision that so far has not borne fruit. The ESA, through the heavy hand of federal land use controls, can provide an incentive for states to adopt their own regulatory measures to preserve their ecosystems and conserve their species.³⁰⁰ In light of the past history of many states as poor stewards of their non-game wildlife, it is essential that the effectiveness and enforceability of those measures be demonstrated before delisting returns control to the state.

In light of the ability of states to assume control over species conservation, complaints about federal overreaching should be treated with skepticism. Those complaints smack more of objections to conservation itself than of frustration with federal control.

While strong state laws are one method of achieving delisting, they are not the only one. Another approach would be conservation agreements between landowners, federal and state officials, and the Services, setting out the protections required by the species and means of ensuring those protections.³⁰¹ Such agreements should include sufficient provisions, enforceable both by the FWS and by citizens should the FWS not have the funds or courage needed to enforce them, to ensure the long-term safety of the species. That they would function in accordance with their terms would have to be adequately demonstrated before delisting could occur. The U.S. District Court for the Western District of Texas has already suggested exactly this model for delisting-by-agreement. Although it refused to countenance reliance on a candidate conservation agreement whose effectiveness had not yet been shown to avoid listing the Barton Springs salamander, the court noted that, once the agreement had established a track record for protecting [30 ELR 10454] the species, the FWS could use it as the basis for delisting.³⁰² Whether delisting on those terms would offer any advantages over retaining the species on the list, of course, is another question.

This new vision, separating recovery from delisting, could be implemented without substantial legislative changes. It would be wholly consistent with the early legislative history of the ESA, which emphasized extinction prevention and treated delisting as a long-term aspirational goal. It would not require any changes to the language of the ESA, although one small change would be desirable. The definition of conservation that makes working toward delisting an implicit purpose of the ESA should remain; so long as this purpose is recognized as aspirational it provides a useful long-term guide. Moreover, federal agencies should be reminded to consider any steps they can take to move toward either biological or regulatory security for listed species under their jurisdiction. The recovery plan provision, however, should be modified slightly, to require that plans contain both objective and measurable criteria for biological recovery and separate criteria for regulatory evaluation prior to delisting.

Similarly, no regulatory changes would be absolutely required to implement this new vision, but again small changes would be desirable. The regulation dealing with delisting on the basis of recovery currently provides that the Services' principal goal is to return species to a point at which the protection of the ESA is no longer required.³⁰³ That is not flatly inconsistent with the healthy vision I propose, but it is not a comfortable fit. It would be preferable to recognize biological recovery as the principal goal, with regulatory security and delisting as a secondary, longer term, goal. The regulatory definition of recovery, currently "improvement in the status of listed species to the point at which listing is no longer appropriate,"³⁰⁴ should also be revised to reflect the dual character of recovery to delisting.

One benefit of this clearer vision of the low probability of delisting most species might be an incentive for states or federal agencies to take steps to protect species before they qualify as federally endangered or threatened. Admittedly, it could also increase political resistance to listing, but the success of environmental organizations in forcing listings through litigation suggests that such resistance might ultimately be futile in most cases.³⁰⁵ A more realistic view might also, as mentioned earlier, encourage states to adopt more effective conservation mechanisms after listing.

The most important benefit of this new perspective, though, would be a clearer view of what long-term residence on the ESA's protected list signifies. The fact that only a vanishingly small percentage of listed species has been delisted or is near delisting does not indicate that the ESA is not fulfilling its purpose. Quite the contrary, it highlights the ESA's special importance. Congress found in 1973 that economic development, untempered by adequate concern, had deprived the nation of the diverse values of many species. It remains true today that unless we temper our development activities with concern for other species we will inevitably lose more and more of our biota. The ESA provides that concern where no other mechanism does. It is the "ultimate safety net" for the nation's species.³⁰⁶ Until we fundamentally change our view of development, a large number of species will require that safety net.

1. Native Fish and Wildlife, Endangered Species, 32 Fed. Reg. 4001 (Mar. 11, 1967).

2. The formal lists are found at 50 C.F.R. §§ 17.11, 17.12 (1999). In addition, the FWS keeps a "box score" of listed species on its web page, U.S. FWS, Box Score (visited Apr. 26, 2000) http://endangered.fws.gov/boxscore.html.

3. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

4. See Joseph Sax, The Ecosystem Approach: New Departures for Land and Water, Closing Remarks, 24 ECOLOGY L.Q. 883 (1997); Holly Doremus, Preserving Citizen Participation in the Era of Reinvention: The Endangered Species Act Example, 25 ECOLOGY L.Q. 707, 710-11 (1999).

5. Professor J.B. Ruhl has documented many of these administrative reform efforts, the best known of which is revitalization of the moribund incidental take permit program. See J.B. Ruhl, Who Needs Congress? An Agenda for Administrative Reform of the Endangered Species Act, 6 N.Y.U. ENVTL. L.J. 367, 372-400 (1998).

6. See, e.g., CHARLES C. MANN & MARK L. PLUMMER, NOAH'S CHOICE: THE FUTURE OF ENDANGERED SPECIES 240-47 (1995); Robert E. Gordon Jr. et al., Conservation Under the Endangered Species Act, 23 ENV'T INT'L 359, 394 (1997).

7. See, e.g., Timothy H. Tear et al., Status and Prospects for Success of the Endangered Species Act: A Look at Recovery Plans, 262 SCIENCE 976, 976 (1993); Federico Cheever, The Road to Recovery: A New Way of Thinking About the Endangered Species Act, 23 ECOLOGY L.Q. 1, 4 (1996); Theodore C. Foin et al., Improving Recovery Planning for Threatened and Endangered Species, 48 BioSCIENCE 177, 177 (1998).

8. Quoted in H. Josef Hebert, U.S. Moves to Remove 29 Species From Endangered List, PORTLAND OREGONIAN, May 6, 1998, at F3. The possible delistings were tabulated in U.S. FWS, 1996 REPORT TO CONGRESS ON THE RECOVERY PROGRAM FOR THREATENED AND ENDANGERED SPECIES 5 (1998) [hereinafter 1996 RECOVERY REPORT].

9. See Final Rule to Remove the American Peregrine Falcon From the Federal List of Endangered and Threatened Wildlife, and to Remove the Similarity of Appearance Provision for Free-Flying Peregrines in the Conterminous United States, 64 Fed. Reg. 46542 (Aug. 25, 1999) [hereinafter Final Peregrine Rule]; Delisting of the Dismal Swamp Southeastern Shrew (Sorex longirostris fisheri), 65 Fed. Reg. 10420 (Feb. 28, 2000) [hereinafter Shrew Delisting]; Final Rule to Remove the Plant "Echinocereus lloydii" (Lloyd's Hedgehog Cactus) From the Federal List of Endangered and Threatened Plants, 64 Fed. Reg. 33796, 33798 (June 24, 1999); Final Rule to Remove the Umpqua River Cutthroat Trout From the Federal List of Endangered and Threatened Species, 65 Fed. Reg. 20915 (Apr. 19, 2000).

10. See Proposed Rule to Remove the Tinian Monarch From the Federal List of Endangered and Threatened Wildlife, 64 Fed. Reg. 8533 (Feb. 22, 1999); Proposed Rule to Delist the Douglas County Population of Columbian White-Tailed Deer, 64 Fed. Reg. 25263 (May 11, 1999) [hereinafter Deer Proposal]; Proposed Rule to Remove the Northern Populations of the Tidewater Goby From the List of Endangered and Threatened Wildlife, 64 Fed. Reg. 33816 (June 24, 1999); Proposed Rule to Remove the Bald Eagle in the Lower 48 States From the List of Endangered and Threatened Wildlife, 64 Fed. Reg. 36454 (July 6, 1999) [hereinafter Bald Eagle Proposal]; Proposal to Remove the Aleutian Canada Goose From the List of Endangered and Threatened Wildlife, 64 Fed. Reg. 42058 (Aug. 3, 1999) [hereinafter Goose Proposal].

11. Grizzly bear and gray wolf delisting are reported as expected long-term actions in the DOI's most recent regulatory agenda. See Semiannual Regulatory Agenda, 64 Fed. Reg. 64482, 64521-22 (Nov. 26, 1999).

12. See Betsy Z. Russell, Politics Clouds Peregrine's Revival, SPOKESMAN (Washington) REVIEW, Aug. 23, 1998, at A1 (noting that both scientists and politicians had criticized proposal to remove peregrine from protected list).

13. See, e.g., Daniel B. Wood, Endangered Species Success Story: Bald Eagles May Soon Be Off List, CHRISTIAN SCI. MONITOR, Aug. 3, 1998, at 3; Charles Seabrook, Raptor Revival: Back From the Brink, Peregrine Falcons May Winter on Georgia's Coast, ATLANTA J. & CONST., Sept. 6, 1998, at G4.

14. 16 U.S.C. § 1533(a)(1), ELR STAT. ESA § 4(a)(1). The DOI has primary authority with respect to terrestrial species; that authority is delegated to the FWS. The DOC, through the NMFS, is responsible for marine species. See Reorganization Plan No. 4 of 1970, 84 Stat. 2090.

15. 16 U.S.C. § 1532(16), ELR STAT. ESA § 3(16).

16. Id. § 1532(6), ELR STAT. ESA § 3(6).

17. Id. § 1532(20), ELR STAT. ESA § 3(20).

18. Id. § 1533(c)(2), ELR STAT. ESA § 4(c)(2).

19. Id. § 1533(b)(3)(A), ELR STAT. ESA § 4(b)(3)(A).

20. Id. § 1533(b)(1)(A), ELR STAT. ESA § 4(b)(1)(A); 50 C.F.R. § 424.11(b) (1999).

21. 16 U.S.C. § 1533(b)(1)(A), ELR STAT. ESA § 4(b)(1)(A).

22. Id. § 1533(a)(3), ELR STAT. ESA § 4(a)(3). Despite this statutory mandate, critical habitat has only rarely been designated. The proportion of species listed with critical habitat seems to have gone down over the past decade. As of 1998, critical habitat had reportedly been designated for 22% of listed species. See James Salzman, Evolution and Application of Critical Habitat Under the Endangered Species Act, 14 HARV. ENVTL. L. REV. 311, 332 (1990). By 1992, the proportion of listed species with designated critical habitat had dropped to 16%. See Oliver A. Houck, The Endangered Species Act and Its Implementation by the U.S. Departments of Interior and Commerce, 64 U. COLO. L. REV. 277, 302 (1993) (citing U.S. GAO, ENDANGERED SPECIES ACT: TYPES AND NUMBER OF IMPLEMENTING ACTIONS (1992)). By 1994, it had fallen to just over 13.4%. See Jeffrey J. Rachlinski, Noah by the Numbers: An Empirical Evaluation of the Endangered Species Act, 82 CORNELL L. REV. 356, 379 (1997). In 1999, the FWS reported that it had designated critical habitat for only 9% of the listed species under its jurisdiction. Notice of Intent to Clarify the Role of Habitat in Endangered Species Conservation, 64 Fed. Reg. 31871, 31872 (June 14, 1999).

23. 16 U.S.C. § 1536(a)(1), ELR STAT. ESA § 7(a)(1).

24. Id. § 1536(a)(2), ELR STAT. ESA § 7(a)(2). Exemptions from the prohibition on jeopardy are available only if the stringent requirements of the "God Squad" process are met. See id. § 1536(e)-(o), ELR STAT. ESA § 7(e)-(o). For an explanation of the exemption process, see Jared des Rosiers, The Exemption Process Under the Endangered Species Act: How the "God Squad" Works and Why, 66 NOTRE DAME L. REV. 825 (1991).

25. 50 C.F.R. § 402.02 (1999).

26. 16 U.S.C. § 1536(c)(1), ELR STAT. ESA § 7(c)(1); 50 C.F.R. § 402.12(c).

27. 16 U.S.C. § 1536(c)(1), ELR STAT. ESA § 7(c)(1); 50 C.F.R. § 402.12(d)(2).

28. 16 U.S.C. § 1536(b), ELR STAT. ESA § 7(b); 50 C.F.R. § 402.14.

29. 16 U.S.C. § 1538(a)(1)(A), (D), (2)(A), (C), (D), ELR STAT. ESA § 9(a)(1)(A), (D), (2)(A), (C), (D).

30. Id. § 1532(19), ELR STAT. ESA § 3(19).

31. 50 C.F.R. § 17.3; id. § 222.102. The FWS' regulation was upheld against a facial challenge in Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 25 ELR 21194 (1995).

32. 16 U.S.C. § 1538(a)(1)(B), ELR STAT. ESA § 9(a)(1)(B).

33. Id. § 1538(a)(2), ELR STAT. ESA § 9(a)(2).

34. Id. § 1533(d), ELR STAT. ESA § 4(d).

35. See 50 C.F.R. §§ 17.31, 17.40-.48 (FWS regulations); id. pt. 223 (NMFS regulations).

36. 16 U.S.C. § 1539(a)(1)(A), ELR STAT. ESA § 10(a)(1)(A).

37. Id. § 1539(a)(1)(B), ELR STAT. ESA § 10(a)(1)(B).

38. Id. § 1539(a)(2), ELR STAT. ESA § 10(a)(2).

39. See H.R. REP. NO. 97-567, at 10, reprinted in 1982 U.S.C.C.A.N. 2807, 2810.

40. Some unlisted species do receive some minimal protection. Federal agencies must confer with the Services concerning actions likely to jeopardize the continued existence of species that have been formally proposed for listing. 16 U.S.C. § 1536(a)(4), ELR STAT. ESA § 7(a)(4). Such actions are not, however, prohibited. The Services are directed to monitor the status of species whose listing is warranted but precluded by work on higher priority species, and to initiate emergency listing if necessary to prevent a significant risk to the well-being of those species. Id. § 1533(b)(3)(C)(iii), ELR STAT. ESA § 4(b)(3)(C)(iii).

41. See, e.g., Final Listing Priority Guidance for Fiscal Year 2000, 64 Fed. Reg. 57114, 57115-16 (Oct. 22, 1999). Steven Yaffee pointed out in 1982 that the Services' funding constraints are to some degree self-inflicted. Yaffee found that appropriations to the DOI for ESA implementation in the 1970s closely paralleled the Administration's funding requests. STEVEN L. YAFFEE, PROHIBITIVE POLICY: IMPLEMENTING THE FEDERAL ENDANGERED SPECIES ACT 105 (1982). Charges that the Services have not requested the funding they claim is necessary to adequately implement the Act persist. See Final Listing Priority Guidance for Fiscal Years 1998 and 1999, 63 Fed. Reg. 25502, 25504 (May 8, 1998) (commenter claims it "is disingenuous" for Services to claim insufficient resources for listing when they did not request appropriation of additional funds).

42. Many commentators have remarked on the political impediments to listing. See, e.g., YAFFEE, supra note 41; Houck, supra note 22; Holly Doremus, Listing Decisions Under the Endangered Species Act: Why Better Science Isn't Always Better Policy, 75 WASH. U. L.Q. 1029 (1997); Ivan J. Lieben, Political Influences on USFWS Listing Decisions Under the ESA: Time to Rethink Priorities, 27 ENVTL. L. 1323 (1997); Federico Cheever, Butterflies, Cave Spiders, Milk-Vetch, Bunchgrass, Sedges, Lilies, Checker-Mallows and Why the Prohibition Against Judicial Balancing of Harm Under the Endangered Species Act Is a Good Idea, 22 WM. & MARY ENVTL. L. & POL'Y REV. 313, 348-49 (1998); Amy Whritenour Ando, Waiting to Be Protected Under the Endangered Species Act: The Political Economy of Regulatory Delay, 42 J.L. & ECON. 29 (1999); Timothy Bechtold, Listing the Bull Trout Under the Endangered Species Act: The Passive-Aggressive Strategy of the United States Fish and Wild-life Service to Prevent Protecting Warranted Species, 20 PUB. LAND & RES. L. REV. 99 (1999).

43. In 1995, Congress went so far as to enact a temporary moratorium on expenditures for listing purposes. Emergency Supplemental Appropriations and Rescissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995, Pub. L. No. 104-6, 109 Stat. 73, 86. For a description of the moratorium and its impacts, see Francesca Ortiz, Candidate Conservation Agreements as a Devolutionary Response to Extinction, 33 GA. L. REV. 413, 432-33 (1999).

44. See, e.g., David S. Wilcove et al., What Exactly Is an Endangered Species? An Analysis of the U.S. Endangered Species List: 1985-1991, 7 CONSERVATION BIOLOGY 87 (1993) [hereinafter Wilcove 1993].

45. As of October 1999, 56 listing proposals were pending, and the FWS had sufficient information to support proposals to list 258 others. See Review of Plant and Animal Taxa That Are Candidates of Proposed for Listing as Endangered or Threatened; Annual Notice of Findings on Recycled Petitions; and Annual Description of Progress on Listing Actions, 64 Fed. Reg. 57534, 57534 (Oct. 25, 1999).

46. Endangered and Threatened Species Listing and Recovery Priority Guidelines, 48 Fed. Reg. 43098 (Sept. 21, 1983) [hereinafter FWS Guidelines]; Listing and Recovery Priority Guidelines, 55 Fed. Reg. 24926 (June 19, 1990) [hereinafter NMFS Guidelines]. The Act requires adoption of guidelines including "a ranking system to assist in the identification of species that should receive priority review" for listing. 16 U.S.C. § 1533(h)(3), ELR STAT. ESA § 4(h)(3). The extent to which these guidelines actually determine the order in which the Services undertake listing and recovery activities is questionable. A 1988 U.S. General Accounting Office study found that recovery expenditures did not correlate with official priorities. See U.S. GAO, ENDANGERED SPECIES: MANAGEMENT IMPROVEMENTS COULD ENHANCE RECOVERY PROGRAM 32-33 (1988) (GAO/RCED 89-5).

47. FWS Guidelines, supra note 46, at 43103.

48. NMFS Guidelines, supra note 46, at 24927.

49. See Final Listing Priority Guidance for Fiscal Year 2000, 64 Fed. Reg. 57114, 57115-16 (Oct. 22, 1999).

50. Id. The fiscal year (FY) 2000 budget includes $ 57.5 million for recovery activities. See U.S. DOI, SUMMARY: FY 2000 INTERIOR AND RELATED AGENCIES APPROPRIATIONS BILL (visited Apr. 26, 2000) http://www.doi.gov/budget/2000/2000FinalSumIRA.html. That amount includes a $ 300,000 congressional earmark for "activities required to process the delisting of the concho water snake." H.R. CONF. REP. NO. 106-479, at 444 (1999).

51. FWS Guidelines, supra note 46, at 43103, NMFS Guidelines, supra note 46, at 24297.

52. 16 U.S.C. § 1533(c)(2), ELR STAT. ESA § 4(c)(2).

53. H.R. REP. NO. 97-567, at 12, reprinted in 1982 U.S.C.C.A.N. 2812.

54. 16 U.S.C. § 1533(b)(3)(A), ELR STAT. ESA § 4(b)(3)(A).

55. Id. § 1533(b)(3)(B), ELR STAT. ESA § 4(b)(3)(B). With respect to prioritization, see supra notes 46-48 and accompanying text.

56. The exceptions are the American alligator, Australian kangaroos, and Tinian monarch. See Reclassification of the American Alligator and Other Amendments, 40 Fed. Reg. 44112, 44112 (Sept. 25, 1975) (petition of Governor of Louisiana); Reclassification of the American Alligator in Nine Parishes in Louisiana, 44 Fed. Reg. 37130, 37130 (Aug. 25, 1979) (petition of Governor of Louisiana); Final Rule to Change the Status of the American Alligator in the State of Texas, 48 Fed. Reg. 46332, 46332 (Oct. 12, 1983) (petition of Texas Parks and Wildlife Department); Reclassification of the American Alligator to Threatened Due to Similarity of Appearance Throughout the Remainder of Its Range, 52 Fed. Reg. 21059, 21060 (June 4, 1987) (petition of state of South Carolina); Removal of Three Kangaroos From the List of Endangered and Threatened Wildlife, 60 Fed. Reg. 12887, 12888 (Mar. 9, 1995) (petition of Wildlife Legislative Fund of America); Proposed Rule to Remove the Tinian Monarch From the Federal List of Endangered and Threatened Wildlife, 64 Fed. Reg. 8533, 8535 (Feb. 22, 1999) (petition of National Wilderness Institute).

57. 16 U.S.C. § 1533(b)(8), ELR STAT. ESA § 4(b)(8).

58. Id. § 1533(b)(5), ELR STAT. ESA § 4(b)(5).

59. Id. § 1533(b)(5)(E), ELR STAT. ESA § 4(b)(5)(E).

60. Id. § 1533(b)(6), ELR STAT. ESA § 4(b)(6).

61. 50 C.F.R. § 424.18(a) (1999).

62. Id. § 424.18(c).

63. See 16 U.S.C. § 1533(a)(1), ELR STAT. ESA § 4(a)(1) (statutory listing factors); 50 C.F.R. § 424.11(d) (stating that listing factors govern delisting determinations).

64. 50 C.F.R. § 424.11(d).

65. 16 U.S.C. § 1533(f)(1), ELR STAT. ESA § 4(f)(1). A plan need not be prepared if the agency finds that it would not contribute to the conservation of the species. Id.

66. See id. § 1533(f)(2), ELR STAT. ESA § 4(f)(2).

67. Id. § 1533(f)(1)(B), ELR STAT. ESA § 4(f)(1)(B). One study of recovery plans sharply criticized the population criteria in those plans, saying most set goals so low they would not assure the species' continued survival. Timothy Tear et al., Recovery Plans and the Endangered Species Act: Are Criticisms Supported by Data?, 9 CONSERVATION BIOLOGY 182 (1995).

68. See, e.g., Final Peregrine Rule, supra note 9, at 46548 (explaining why the FWS believes the American peregrine falcon has recovered despite failure to achieve the recovery plan's target level of eggshell thickness in the Rocky Mountain/Southwest region).

69. See Tear et al., supra note 67, at 191.

70. Fund for Animals v. Babbitt, 903 F. Supp. 96, 26 ELR 20537 (D.D.C. 1995).

71. Strahan v. Linnon, 966 F. Supp. 111, 27 ELR 21349 (D. Mass. 1997). The Massachusetts District Court relied on an Eleventh Circuit case, Fund for Animals v. Rice, 85 F.3d 535, 26 ELR 21433 (11th Cir. 1996), that included language stating that the ESA provides only "general guidance as to what is required in a recovery plan." Federal courts have generally been loathe to require specific actions implementing recovery plans. See Cheever, supra note 7, at 59-64; Jason M. Patlis, Recovery, Conservation, and Survival Under the Endangered Species Act: Recovering Species, Conserving Resources, and Saving the Law, 17 PUB. LAND & RESOURCES L. REV. 55, 81-88 (1996).

72. See, e.g., U.S. FWS, FINAL REVISED SONORAN PRONGHORN RECOVERY PLAN iii (1998) (recovery criteria include "protect and secure the necessary habitat"); U.S. FWS, RECOVERY PLAN FOR Gesneria pauciflora (1998) (n.p.) (recovery criteria include preparation of "a management plan that considers the protection and recovery of the species" for the Maricao Commonwealth Forest); U.S. FWS, RECOVERY PLAN FOR THE THREATENED NELSON'S CHECKER-MALLOW (Sidalcea nelsoniana Piper) iii (1998) (species will be considered for delisting "when the plant is permanently and securely managed" in a specified number of reserves of a minimum area). All of these recovery plans, and many others, are available electronically through the FWS' web pages, at http://endangered.fws.gov/recovery/recplans/index.htm.

73. 16 U.S.C. § 1533(g), ELR STAT. ESA § 4(g).

74. Id.

75. Pub. L. No. 93-205, § 4(a)(2) (codified at 16 U.S.C. § 1533(a)(2), ELR STAT. ESA § 4(a)(2)).

76. See, e.g., Endangered Species Act of 1973, Hearings Before the Subcomm. on the Environment of the Senate Comm. on Commerce, 93d Cong. 92 (1973) (statement of Thomas Garrett, Friends of the Earth) ("the [DOC] is inherently more vulnerable to commercial pressure"); Endangered Species, Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 93d Cong. 256-57 (1973) (statement of Christine Stevens, Society for Animal Protective Legislation) (arguing that the DOC should not be given jurisdiction over any endangered species because it is insufficiently committed to species protection); Endangered Species Conservation Act of 1972, Hearings Before the Subcomm. on Environment of the Senate Comm. on Commerce, 92d Cong. 178-79 (1972) (testimony of Lewis G. Regenstein, Fund for Animals) (because the DOC caters to commercial exploiters, the Fund for Animals urges that jurisdiction over all endangered mammals be vested in the DOI); Predatory Mammals and Endangered Species, Hearings Before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 92d Cong. 147 (1972) (statement of Rep. Dingell) (stating that he is "not very happy" about proposals to give the DOC jurisdiction over some endangered species because the "orientation of the [DOC] is toward exploitation").

77. See, e.g., Tear et al., supra note 67, at 191 ("removal from the list should . . . be based strictly on biological criteria"); Brian A. Millsap et al., Review of the Proposal to De-List the American Peregrine Falcon, 26 WILDLIFE SOC. BULL. 522 (1998); Leah R. Gerber et al., Gray Whales and the Value of Monitoring Data in Implementing the U.S. Endangered Species Act, 13 CONSERVATION BIOLOGY 1215 (1999). Another recovery team did note the importance of the regulatory background, relying on the continuation of protection under the Marine Mammal Protection Act (MMPA), 16 U.S.C. §§ 1361-1421h, ELR STAT. MMPA §§ 2-409, after delisting as a basis for accepting relatively optimistic assumptions about the population of sea otters needed to justify delisting. Katherine Ralls et al., Developing a Criterion for Delisting the Southern SeaOtter Under the U.S. Endangered Species Act, 10 CONSERVATION BIOLOGY 1528, 1535 (1996).

78. 16 U.S.C. § 1533(b)(1)(A), ELR STAT. ESA § 4(b)(1)(A).

79. Id. § 1533(f)(1)(B)(ii), ELR STAT. ESA § 4(f)(1)(B)(ii).

80. Id. § 1531(a)(1), ELR STAT. ESA § 2(a)(1) (emphasis added).

81. See supra note 63 and accompanying text.

82. Emergency Rule to List the Sierra Nevada Distinct Population Segment of California Bighorn Sheep as Endangered, 64 Fed. Reg. 19300, 19303 (Apr. 20, 1999).

83. Id.

84. See 16 U.S.C. § 1536(e)-(o), ELR STAT. ESA § 7(e)-(o). An exemption can be granted only if a supermajority of the Endangered Species Committee determines that there are no reasonable and prudent alternatives to the action, the benefits of the proposed action clearly outweigh the benefits of alternatives consistent with preserving the species, the action is in the public interest, it is of regional or national significance, and the agency and applicant have not made any irreversible or irretrievable commitment of resources prior to the grant of exemption. Id. § 1536(h), ELR STAT. ESA § 7(h).

85. See, e.g., POLLUTION TAXES, EFFLUENT CHARGES, AND OTHER ALTERNATIVES FOR POLLUTION CONTROL 34-35 (Cong. Research Serv., 1977).

86. At the beginning of the 20th century, several species of birds were hunted nearly to extinction. Many, including herons, egrets, ibises, and terns were pursued for feathers to adorn ladies' hats. See JAMES B. TREFETHEN, AN AMERICAN CRUSADE FOR WILDLIFE 129 (1975). Others, including robins, meadowlarks, and other songbirds, were popular food items. See id. at 133. These species were saved by adoption of state and federal restrictions on market hunting. Today it seems unlikely that the same pressures would recur if those restrictions were lifted, simply because fashions in millinery and foods have drastically changed.

87. See David S. Wilcove et al., Quantifying Threats to Imperiled Species in the United States, 48 BioSCIENCE 607, 608 (1998) [hereinafter Wilcove 1998].

88. See Southwest Ctr. for Biological Diversity v. Babbitt, 939 F. Supp. 49 (D.D.C. 1996); Biodiversity Legal Found. v. Babbitt, 943 F. Supp. 23, 27 ELR 20462 (D.D.C. 1996).

89. See Save Our Springs v. Babbitt, 27 F. Supp. 2d 739 (W.D. Tex. 1997).

90. Oregon Natural Resources Council v. Daley, 6 F. Supp. 2d 1139, 29 ELR 20514 (D. Or. 1998).

91. Pub. L. No. 89-669, § 1(a), 80 Stat. 926.

92. Id. The Act also was intended to consolidate authority for the management of the National Wildlife Refuge System. Id.

93. Id. § 1(c).

94. Id. § 2.

95. Letter to John W. McCormack, Speaker of the House of Representatives, from Stewart L. Udall, Secretary of the Interior, reprinted in H.R. REP. NO. 89-1168, at 13 (1965).

96. Miscellaneous Fisheries and Wildlife Legislation—1965, Hearings Before the Subcomm. on Fish and Wildlife Conservation of the House Comm. on Marine Mammals and Fisheries, 89th Cong. 140 (1965).

97. Id. at 146.

98. Pub. L. No. 91-135, § 3(a), 83 Stat. 275.

99. Id.

100. See S. REP. NO. 91-526, at 5 (1969); 115 CONG. REC. 20166 (1969) (statement of Rep. Dingell) ("At least once every 5 years the list would be reviewed by the Secretary with a view toward removing species which may not be endangered at that time."). These provisions were added to appease the fur industry, which had derailed endangered species legislation in the previous Congress. See Endangered Species, Hearings Before the Subcomm. on Energy, Natural Resources, and the Environment of the Senate Comm. on Commerce, 91st Cong. 159 (1969) (testimony of James R. Sharp, Counsel to Major Segments of the American Fur Industry); Endangered Species, Hearings Before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 91st Cong. 86 (1969) (testimony of Arnold Mayer, Legislative Representative, Amalgamated Meat Cutters and Butchers Workmen, AFL-CIO); id. at 108 (testimony of James R. Sharp, Counsel to the American Fur Merchants Association).

101. See S. REP. NO. 91-526, at 1-4 (1969) (explaining that the bill has three purposes: to assist international preservation of species threatened with extinction by restricting import into the United States; to assist states in protecting domestic endangered species by prohibiting trade in unlawfully taken reptiles, amphibians, mollusks, or crustaceans; and to further assist in protection of domestic species by increasing funds available to purchase and manage lands for that purpose).

102. Pub. L. No. 93-205, § 2(a), 87 Stat. 884 (codified at 16 U.S.C. § 1531(a), ELR STAT. ESA § 2(a)).

103. See Predatory Mammals and Endangered Species, Hearings Before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 92d Cong. 155 (1972) (testimony of Spencer Smith, Acting Director, Bureau of Sport Fisheries and Wildlife) (noting that states have indicated willingness to support this legislation if states meeting specified requirements could maintain and regulate endangered species).

104. Endangered Species, Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 93d Cong. 204-05 (1973).

105. See id. at 211 ("I am very optimistic that the 50 states are going to very swiftly, and I mean within a year, pass laws giving them the authority they need" to suspend federal authority); id. at 222 ("It is our hope that recovery plans and management of those species will become a fundamental part of the State wildlife agencies [sic] primary purposes.").

106. Endangered Species Act of 1973, Hearings Before the Subcomm. on the Environment of the Senate Comm. on Commerce, 93d Cong. 52 (1973).

107. Id. at 57. For an account of additional discussion of the preemption issue in 1973, see Shannon Petersen, Congress and Charismatic Megafauna: A Legislative History of the Endangered Species Act, 29 ENVTL. L. 463, 474-75 (1999).

108. Endangered Species Conservation Act of 1972, Hearings Before the Subcomm. on the Environment of the Senate Comm. on Commerce, 92d Cong. 68 (1972).

109. Id. at 69-70.

110. Id. at 70. Others, including legislators, administration officials, and witnesses, made similar points. Sen. Mark Hatfield (R-Or.) explained that adding a second tier of protection would place a stronger emphasis on restoration, rather than just protection, by making restoration possible. Id. at 65. Robert W. Schoning, Acting Director of the National Marine Fisheries Service, explained that the bill would "authorize protective measures to be undertaken before a species is so depleted that its recovery is difficult or impossible." Endangered Species Act of 1973, Hearings Before the Subcomm. on the Environment of the Senate Comm. on Commerce, 93d Cong. 77 (1973). Lewis G. Regenstein, National Director of the Fund for Animals, stated that action should be taken before the species nears extinction, by which time "it is usually too late for remedial measures to be effective in saving a species." Endangered Species Conservation Act of 1972, Hearings Before the Subcomm. on the Environment of the Senate Comm. on Commerce, 92d Cong. 178 (1972).

111. The ESA retained the requirement that the DOI review the status of any listed species for possible removal upon the filing of a sufficient petition by any person, and indeed expanded the petition process to cover listing as well. Pub. L. No. 93-205, § 4(c)(2). Curiously, and without explanation, the 1973 ESA did away with the periodic review provision of the 1969 Act. That provision was added back, again without explanation, in 1978, when the ESA was first amended. Pub. L. No. 95-632, § 11(3), 92 Stat. 3764 (codified at 16 U.S.C. § 1533(c)(2), ELR STAT. ESA § 4(c)(2)).

112. Pub. L. No. 93-205, § 2(b) (codified at 16 U.S.C. § 1531(b), ELR STAT. ESA § 2(b)).

113. Id. § 3(2) (codified at 16 U.S.C. § 1532(3), ELR STAT. ESA § 3(2)).

114. See H.R. 37, § 2(b), reprinted in 119 CONG. REC. 30157 (1973); S. 1983, § 2(b), reprinted in 119 CONG. REC. 25694 (1973).

115. S. 1983, § 4(e)(1973). The equivalent provision of the House bill required the issuance of regulations as "necessary for the conservation, protection, restoration, or propagation" of endangered and threatened species. H.R. 37, § 4(d) (1973).

116. Id. § 3(1).

117. Pub. L. No. 93-205 (codified at 16 U.S.C. § 1533(d), ELR STAT. ESA § 4(d)).

118. Id. § 7 (codified as amended at 16 U.S.C. § 1536(a)(1), ELR STAT. ESA § 7(a)(1)). Neither the House nor the Senate bill had used the term "conservation" in this context. The House bill directed federal agencies to implement "programs for the protection of" listed species. H.R. 37, § 7(a) (1973). The Senate bill called for agencies to "carry out such programs as are practicable for the protection of" listed species. S. 1983, § 7(a) (1973).

119. H.R. CONF. REP. NO. 93-740 (1973), reprinted in 1973 U.S.C.C.A.N. 3001, 3002.

120. Pub. L. No. 92-522, § 3(2), 86 Stat. 1028.

121. See Doremus, supra note 42, at 1044.

122. The definition of conservation adopted included regulated taking, but only "in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved." Pub. L. No. 93-205, § 3(2), 87 Stat. 885 (codified at 16 U.S.C. § 1532(3), ELR STAT. ESA § 3(3)). The conference report explained that "carefully controlled taking" could be employed as a conservation tool, but only in "extreme circumstances." H.R. CONF. REP. NO. 93-740, supra note 119, at 23.

123. See supra notes 108-11 and accompanying text.

124. Endangered Species Act of 1973, Hearings Before the Subcomm. on the Environment of the Senate Comm. on Commerce, 93d Cong. 86 (1973).

125. Id. at 98.

126. Id. at 123.

127. See, e.g., Endangered Species Act of 1973, Hearings Before the Subcomm. on the Environment of the Senate Comm. on Commerce, 93d Cong. 80 (1973) (statement of Tom Garrett, Wildlife Director, Friends of the Earth) (Friends of the Earth prefers the Senate bill because it includes habitat destruction in the definition of take); id. at 83 (statement of John S. Gottschalk, Executive Vice President, International Association of Game, Fish, and Conservation Commissioners) ("the things that cause endangerment are deterioration of habitat and the impact of man's developmental activities generally"); id. at 86 (statement of John Grandy, Administrative Assistant for Wildlife, National Parks and Conservation Association) (habitat preservation is the most important thing we can do to preserve endangered species); id. at 87 (statement of Lawrence R. Jahn, Vice President, Wildlife Management Institute) (law should focus on necessity of maintaining habitat). For other examples, see Salzman, supra note 22, at 314 n.20.

The importance of habitat protection had been emphasized as early as the 1966 hearings. At those hearings, Thomas L. Kimball, Executive Director of the National Wildlife Federation, stated that the protection of species would require protection of habitat, which would require "difficult choices between human needs and uses for our land and water resources and those of wildlife." Miscellaneous Fisheries and Wildlife Legislation—1965, Hearings Before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 89th Cong. 140 (1965). At the same hearings, C.R. Gutermuth, of the Wildlife Management Institute, testified that "only by moving rapidly to assure that adequate areas will be preserved and retained in their natural condition" could the nation save species from extinction. Id. at 146.

128. See S. REP. NO. 93-307, at 2 (1973), reprinted in 1973 U.S.C.C.A.N. 2989, 2990 ("The two major causes of extinction are hunting and destruction of natural habitat."); H.R. REP. NO. 93-412, at 2 (1973) ("The threat to animals may arise from a variety of sources; principally pollution, destruction of habitat and the pressures of trade."); id. at 5 ("The most significant [threat to the existence of species] has proven also to be the most difficult to control: the destruction of critical habitat.").

129. Endangered Species Conservation Act of 1972, Hearings Before the Subcomm. on the Environment of the Senate Comm. on Commerce, 92d Cong. 65 (1972).

130. H.R. REP. NO. 93-412, at 5 (1973).

131. Endangered Species Conservation Act of 1972, Hearings Before the Subcomm. on the Environment of the Senate Comm. on Commerce, 92d Cong. 114 (1972).

132. See supra note 128.

133. See generally RESTORING AMERICA'S WILDLIFE 1937-87 (Harmon Kallman et al. eds., 1987) (recounting many success stories of reintroduced game animals).

134. Lawrence Jahn of the Wildlife Management Institute claimed that "the history of American wildlife restoration has been one of rescuing many species from extinction," citing as examples several game species, including deer, elk, and pronghorn. Endangered Species Conservation Act of 1972, Hearings Before the Subcomm. on the Environment of the Senate Comm. on Commerce, 92d Cong. 111 (1972). In a subsequent hearing, Jahn also referred to a population of Canada geese which had increased tenfold since imposition of a 1946 hunting prohibition. Endangered Species Act of 1973, Hearings Before the Subcomm. on the Environment of the Senate Comm. on Commerce, 93d Cong. 87 (1973). The successful restoration of game species had been mentioned in 1965 by C.R. Gutermuth, also of the Wildlife Management Institute. Miscellaneous Fisheries and Wildlife Legislation—1965, Hearings Before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 89th Cong. 147 (1965). The only other direct mention of recovery was the general statement of the DOI's Douglas Wheeler that "there are examples of species which, though once threatened with extinction, are now thought to have been rescued from ultimate destruction." Endangered Species, Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 93d Cong. 195 (1973).

135. Thomas Cade, a Cornell University professor of ornithology, noted that regulation of hunting and fishing would not halt the modern decline of many species, which he attributed to such causes as environmental pollution. Fish and Wildlife Legislation—Part 2, Hearings Before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 92d Cong. 328-29 (1971).

136. See Joint Regulations, Interagency Cooperation—Endangered Species Act of 1973, 43 Fed. Reg. 870, 875 (Jan. 4, 1978):

"Jeopardize the continued existence of" means to engage in an activity or program which reasonably would be expected to reduce the reproduction, numbers, or distribution of a listed species to such an extent as to appreciably reduce the likelihood of the survival and recovery of that species in the wild. The level of reduction necessary to constitute "jeopardy" would be expected to vary among listed species.

137. Id. (codified at 50 C.F.R. § 402.02).

138. See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 8 ELR 20513 (1978).

139. H.R. REP. NO. 95-1625, at 6 (1978), reprinted in 1978 U.S.C.C.A.N. 9453, 9456. The Director of FWS, Lynn Greenawalt, had invited this conclusion, testifying to a House subcommittee, "the goal of the endangered species program is to return the species to the point where they are no longer endangered or threatened." Endangered Species—Part 1, Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 95th Cong. 6 (1978).

140. Pub. L. No. 95-632, § 11(5), 92 Stat. 3766 (codified at 16 U.S.C. § 1533(f), ELR STAT. ESA § 4(f)).

141. H.R. REP. NO. 95-1625, at 19 (1978). Recovery plans did not originate with this provision. The FWS had already been preparing them for high-profile species, but sought the amendment to increase the likelihood of appropriations for recovery efforts. See Cheever, supra note 7, at 35; Endangered Species—Part 1, Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 95th Cong. 8 (1978) (statement of Lynn A. Greenawalt, Director, FWS) ("There are presently 59 recovery teams with the responsibility of developing recovery plans for 73 priority species."); H.R. CONF. REP. NO. 95-1804, at 28 (1978) (because the Act does not specifically mandate recovery plans, those plans "have been given a low priority within the [ESA] budget").

142. See id. at 8 (testimony of Lynn A. Greenawalt, Director, FWS) ("For those species not able to recover solely from the automatic protection benefits accorded by sections 7 and 9, restoration lies in a coordinated program of habitat preservation, species management and research.").

143. See id. Part 2, at 872 (testimony of Lynn Greenawalt, Director, FWS, describing the removal of species from the list "on the basis of . . . biological recovery.").

144. See H.R. REP. NO. 97-567, at 11-12 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2811-12.

145. Id. at 12.

146. Pub. L. No. 97-304, § 2(a)(2), 96 Stat. 1414 (codified at 16 U.S.C. § 1533(b)(6), ELR STAT. ESA § 4(b)(6)).

147. H.R. REP. NO. 97-567, at 14-15 (1982), reprinted in 1982 U.S.C.C.A.N. at 2822.

148. See, e.g., Endangered Species Act Amendments of 1982, Hearing Before the Subcomm. on Environmental Pollution of the Senate Comm. on the Environment and Public Works, 97th Cong. 147 (1982) (statement of Duane Smelser, Safari Club International):

Certainly, no one wishes the Endangered Species Act to become the eternal resting place for listed species. Rather, it is the intent of the Act to provide for the conservation of species to the point where the population hopefully may be returned to such a healthy and viable status that their listings would no longer be necessary.

149. See Endangered Species Act, Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 97th Cong. 373 (1982) (testimony of Patrick A. Parenteau, National Wildlife Federation) (noting that program must be adequately funded "if we are to have decent recovery plans so that species can be removed from the list and no longer constitute the problems that some people say they do").

150. S. REP. NO. 100-240, at 3 (1988), reprinted in 1988 U.S.C.C.A.N. 2700, 2703.

151. See Endangered Species Reauthorization, Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 100th Cong. 171 (1987) (statement of William E. Evans, Assistant Administrator, National Oceanic and Atmospheric Administration) (stating under the heading "Recovery," "The ultimate goal of all activities under the Act is to restore listed species and populations to the point where protective measures are no longer necessary for the species to be a self-sustaining part of its ecosystem."); id. at 56 (statement of John Fitzgerald, Defenders of Wildlife) ("the purpose of the [ESA] is to get these species off the list" as soon as possible); id. at 211 (statement of Michael J. Bean, Environmental Defense Fund) ("The ultimate goal of the Endangered Species Act is to bring about the recovery of the species it protects. To date, there have been a few notable successes in which listed species have recovered to the extent that they could be moved from the endangered list to the less imperiled threatened list or removed altogether from either list."); id. at 268 (testimony of J. Scott Feierabend, National Wildlife Federation) ("the purpose of the ESA ultimately is to recover listed species to the point that they can be removed from the list").

152. See id. at 63 (testimony of J. Scott Feierabend, National Wildlife Federation) ("the sooner that these animals are recovered to the point that they can be delisted and State management authority restored, the problem will be resolved").

153. Id. at 268 (statement of J. Scott Feierabend, National Wildlife Federation). See also id. at 171 (statement of William Evans, National Oceanic and Atmospheric Administration) ("The development and implementation of a recovery plan provides a means to combine the programs and expertise of these Federal, State, local and private organizations and individuals into effective and efficient recovery efforts. These efforts should improve the status of the species and eventually lead to delisting.").

154. See id. at 212 (statement of Michael J. Bean, Environmental Defense Fund):

One must be careful not to confuse recovery plan writing with recovery plan implementation. Recovery plans are pieces of paper. Like medical prescriptions, they identify what is needed for species to get well. Just having the piece of paper is no guarantee of recovery—one has to buy the medicine as well.

155. Legislators believed the new requirements would provide yardsticks by which to judge progress toward recovery and the adequacy of annual budget requests and appropriations. See S. REP. NO. 100-240, at 9. Michael J. Bean of the Environmental Defense Fund, who had most actively sought detailed requirements for recovery plan content, had explained that they would help Congress oversee implementation of the ESA. Endangered Species Reauthorization, Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 100th Cong. 213 (1987).

156. Pub. L. No. 100-478, § 1003, 102 Stat. 2306, 2307.

157. S. REP. NO. 100-240, at 12.

158. 50 C.F.R. § 424.11(d)(2).

159. 1996 RECOVERY REPORT, supra note 8, at 2.

160. See, e.g., Christopher R. Pyke et al., Strange Bedfellows: Observations on the Current Relationship Between Recovery Plans and Habitat Conservation Planning, 15 ENDANGERED SPECIES UPDATE 97, 103 (1998) (describing recovery to delisting as the ultimate purpose of the ESA program); Gordon et al., supra note 6, at 364 (the goal of the ESA is not simply to stave off extinction, but "to recover species to the point at which protection is no longer required, a substantially more significant goal").

161. S. REP. NO. 105-128, at 9 (1997).

162. 1996 RECOVERY REPORT, supra note 8, at 5. The FWS' employees frequently adopt this position publicly. See, e.g., Wood, supra note 13, at 3 (quoting FWS biologist Robert Mesta as saying: "Most people think the whole point of this law is to list species and then just protect them forever and ever. But the real acid test is to help a species recover and take it off the list.").

163. See, e.g., Gordon et al., supra note 6, at 364 (arguing that ESA must be evaluated based on extent to which it achieves its "ostensible mission" or listing followed by recovery to delisting); Foin et al., supra note 7, at 178 ("the effectiveness of the ESA should ultimately be measured by how many species recover to the point of delisting").

164. See supra text accompanying note 143.

165. See supra text accompanying notes 77-79.

166. H.R. 3160, § 401(e) (1999).

167. Id. § 106. This bill would also require that recovery teams report the "scientific feasibility" of full recovery. Id. § 401(e). Curiously, the recovery team directed to make these explicitly biological assessments is to include not just biologists but experts in economics, property law and regulation, and "other appropriate disciplines." Id. § 401(d).

168. H.R. 960, § 2(4), (8) (1999).

169. Id. § 101(27).

170. Id. § 105.

171. Patlis, supra note 71, at 56.

172. See Wilcove 1993, supra note 44; Andrea Easter-Pilcher, Implementing the Endangered Species Act: Assessing the Listing of Species as Endangered or Threatened, 46 BIOSCIENCE 355 (1996).

173. See, e.g., Russell Lande, Genetics and Demography in Biological Conservation, 241 SCIENCE 1455 (1988); Mark S. Boyce, Population Viability Analysis, 23 ANN, REV. ECOLOGY & SYSTEMATICS 481 (1992); Wilcove 1993, supra note 44; Graerne Caughley, Directions in Conservation Biology, 63 J. ANIMAL ECOLOGY 215 (1994).

174. Wilcove 1998, supra note 87, at 608.

175. Id. Together the numbers exceed 100% because many species face multiple risks.

176. Id.

177. See, e.g., Viki Nadol, Aquatic Invasive Species in the Coastal West: An Analysis of State Regulation Within a Federal Framework, 29 ENVTL. L. 339 (1999) (describing inadequate federal and state regulation of aquatic invasive species). The difficulties of preventing invasion by exotic species even when regulations are in place are illustrated by the saga of Lake Davis in California. California law prohibits the placing of any live fish in state waters without the permission of the Department of Fish & Game. CAL. FISH & GAME CODE § 6400 (West 1998). Nonetheless, northern pike were illegally planted in Lake Davis, leading to a controversial, and ultimately unsuccessful, attempt to poison all the fish in the lake. See Nathan R. Goedde, The Poisoning of Lake Davis: Weighing the Risks, 21 ENVIRONS 3 (1998); Eric Bailey, California and the West: New Tactics Used Against Tenacious Pike, L.A. TIMES, Dec. 5, 1999, at A40.

178. Many exotics have been in their new environments for many generations, and have become tenaciously established. Even recent invasions may be impossible to reverse, as the Lake Davis saga shows. According to one author, although control is sometimes possible, "within the limits of our current technology and ecological understanding, we have to assume that invasions are generally permanent." CHRIS BRIGHT, LIFE OUT OF BOUNDS: BIOINVASION IN A BORDERLESS WORLD 216 (1998). But see Jocelyn Kaiser, Stemming the Tide of Invading Species, 285 SCIENCE 1836, 1838 (1999) ("Although conventional wisdom once held that removing an already established exotic is all but impossible, some scientists are becoming more optimistic that local invasions can sometimes be stopped—if they're caught in time.").

179. NATIONAL PARK SERV., U.S. DOI, MANAGEMENT POLICIES, 4:6 (1988).

180. Id. at 4:12.

181. Id.

182. See U.S. GAO, NATIONAL PARK SERVICE: ACTIVITIES WITHIN PARK BORDERS HAVE CAUSED DAMAGE TO RESOURCES 6, 9 (1996).

183. See, e.g., Announcement of Final Safe Harbor Policy, 64 Fed. Reg. 32717, 32717 (June 17, 1999) ("proactive management actions cannot be mandated or required by the Act").

184. See Palila v. Hawaii Dep't of Land & Natural Resources, 852 F.2d 1106, 18 ELR 21199 (9th Cir. 1988); Palila v. Hawaii Dep't of Land & Natural Resources, 639 F.2d 495, 11 ELR 20446 (9th Cir. 1981).

185. See Palila v. Hawaii Dep't of Land & Natural Resources, 73 F. Supp. 2d 1181 (D. Haw. 1999).

186. Id. at 1182. See also Federico Cheever, An Introduction to the Prohibition Against Takings in Section 9 of the Endangered Species Act of 1973: Learning to Live With a Powerful Species Preservation Law, 62 U. COLO. L. REV. 109, 181 n.414 ("The facts of the Palila cases demonstrate that the Hawaii Department of Land and Natural Resources had manipulated the population of feral sheep and goats for sport hunting.").

187. Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 697 n.9, 25 ELR 21194, 21196 n.9 (1995); see also id. at 712-14, 25 ELR at 21199-201 (O'Connor, J., concurring) (arguing that ordinary principles of proximate causation govern liability under section 9). Justice O'Connor expressed the opinion that Palila had been wrongly decided by the Ninth Circuit. Id. at 714, 25 ELR at 21200-01.

188. See supra note 31 and accompanying text.

189. Cases finding a violation of the take prohibition give some idea of its scope. See, e.g., Defenders of Wildlife v. Administrator, 882 F.2d 1294, 19 ELR 21440 (8th Cir. 1989) (EPA's continued registration of pesticides containing strychnine for above-ground use held to take black-footed ferrets); Marbled Murrelet v. Babbitt, 83 F.3d 1068, 26 ELR 20992 (9th Cir. 1996) (planned timber harvest on private land was reasonably certain to take marbled murrelets which were probably nesting in the area); Strahan v. Coxe, 127 F.3d 155, 28 ELR 20114 (1st Cir. 1997) (state's commercial fishing regulatory scheme exacted a prohibited taking of northern right whale).

190. 16 U.S.C. § 1540(g), ELR STAT. ESA § 11(g).

191. See, e.g., Pyramid Lake Paiute Tribe of Indians v. Department of the Navy, 898 F.2d 1410, 20 ELR 20572 (9th Cir. 1990) (holding that plaintiff had not proven take because evidence did not establish that any single year's diversion of water had caused spawning problems for listed fish, nor did it tie any such problems to the particular diversion challenged); Morrill v. Lujan, 802 F. Supp. 424, 23 ELR 20379 (S.D. Ala. 1992) (denying preliminary injunction against development because plaintiff had not provided evidence that habitat degradation would injure the listed species).

192. 16 U.S.C. § 1372(a), ELR STAT. MMPA § 102(a).

193. Id. § 703.

194. Id. § 668.

195. Each omits the key concept of harm from the meaning of "take." See id. § 1362(13), ELR STAT. MMPA § 3(13) ("The term 'take' means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal,"); id. § 718(b)(3) ("the term 'take' means pursue, hunt, shoot, capture, collect, kill, or attempt to pursue, hunt, shoot, capture, collect, or kill"); id. § 668c ("'take' includes also pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, or molest or disturb").

196. See 33 U.S.C. § 1342, ELR STAT. FWPCA § 402 (requiring permit for discharge of pollutants); id. § 1362(12), ELR STAT. FWPCA § 502(12) (defining "discharge of pollutants" to mean addition of pollutants to navigable waters from point sources).

197. See Brian D. Richter et al., Threats to Imperiled Freshwater Fauna, 11 CONSERVATION BIOLOGY 1081 (1997).

198. Bradley Karkkainen, Biodiversity and Land, 83 CORNELL L. REV. 1, 32 (1997).

199. 16 U.S.C. § 668dd(a)(2).

200. Id. § 668dd(4)(a).

201. Id. § 668dd(4)(b).

202. Id. § 668dd(4)(d).

203. Karkkainen, supra note 198, at 243.

204. 16 U.S.C. § 1604(g)(3)(B).

205. 36 C.F.R. § 219.19 (1999). The Forest Service has proposed substantial revisions to its NFMA regulations, which would replace this provision with a focus on maintaining "ecosystem integrity," defined on the basis of the ability of the ecosystem to maintain its characteristic diversity of biological and physical components, spatial patterns, structure, and functional processes. See National Forest System Land and Resources Management Planning, 64 Fed. Reg. 54074, 54087 (Oct. 5, 1999). The proposal would expand consideration of impacts on species to any taxon of the plant or animal kingdom, and the array of ecological conditions under management control that may influence species viability. See id. at 54088.

206. See MICHAEL J. BEAN & MELANIE J. ROWLAND, THE EVOLUTION OF NATIONAL WILDLIFE LAW 356-65 (3d ed. 1997).

207. See Sierra Club v. Martin, 168 F.3d 1, 29 ELR 20569 (11th Cir. 1999).

208. That will change if the Forest Service's proposed rules go into effect. They would expand consideration to any taxon of the plant or animal kingdom. See National Forest System Land and Resources Management Planning, supra note 205, at 54088.

209. See CHARLES F. WILKINSON & H. MICHAEL ANDERSON, LAND AND RESOURCE PLANNING IN THE NATIONAL FORESTS 299-304 (1987); Sierra Club, 168 F.3d at 1, 29 ELR at 20569.

210. Because species listed as endangered or threatened ordinarily must be monitored anyway to comply with the ESA, they are typically included as management indicator species. See WILKINSON & ANDERSON, supra note 209, at 302. The NFMA regulations state that several categories of species "shall be represented where appropriate," including federal or state listed species. 36 C.F.R. § 219.19(a)(1). Once a species is removed from the protected list, it may or may not be retained as a management indicator species.

211. 36 C.F.R. § 219.27(g) (1999).

212. See Sierra Club v. Espy, 38 F.3d 792, 25 ELR 20426 (5th Cir. 1994); Sierra Club v. Marita, 46 F.3d 606, 25 ELR 20514 (7th Cir. 1995).

213. See Doremus, supra note 4, at 709-10.

214. Karkkainen, supra note 198, at 37.

215. 16 U.S.C. § 1.

216. The Services enjoy substantial authority to act to protect wildlife, but also considerable discretion not to do so. Compare Mausolf v. Babbitt, 125 F.3d 661, 28 ELR 20057 (8th Cir. 1997) (upholding regulations restricting snowmobile use in national park because adopted to protect gray wolf), with Alaska Wildlife Alliance v. Jensen, 108 F.3d 1065, 27 ELR 20910 (9th Cir. 1997) (upholding Service's decision to permit commercial fishing in national park).

217. See, e.g., Robert L. Fischman, The Problem of Statutory Detail in National Park Establishment Legislation and Its Relationship to Pollution Control Law, 74 DENV. U. L. REV. 779, 800 (1997); Federico Cheever, The United States Forest Service and National Park Service: Paradoxical Mandates, Powerful Founders, and the Rise and Fall of Agency Discretion, 74 DENV. U. L. REV. 625, 628-29 (1997).

218. Karkkainen, supra note 198, at 24.

219. See 43 U.S.C. § 1702(c).

220. See, e.g., Karkkainen, supra note 198, at 24-25.

221. 43 U.S.C. § 1702(a); 43 C.F.R. §§ 1601.0-5, 1610.7-2 (1998).

222. 43 U.S.C. § 1712(c)(3).

223. In particular, commentators have long noted the threats posed to national park lands from external activities, on federal or other lands. See, e.g., Joseph L. Sax, Helpless Giants: The National Parks and the Regulation of Private Lands, 75 MICH. L. REV. 239 (1976); Robert B. Keiter, On Protecting the National Parks From the External Threats Dilemma, 20 LAND & WATER L. REV. 355 (1985); George Cameron Coggins, Protecting the Wildlife Resources of National Parks From External Threats, 22 LAND & WATER L. REV. 1 (1987); Joseph Sax & Robert B. Keiter, Glacier National Park and Its Neighbors: A Study of Federal Interagency Relations, 14 ECOLOGY L.Q. 207, 227-46 (1987); U.S. GAO, NATIONAL PARK SERVICE: ACTIVITIES OUTSIDE PARK BORDERS HAVE CAUSED DAMAGE TO RESOURCES AND WILL LIKELY CAUSE MORE (1994); William J. Lockhart, External Threats to Our National Parks: An Argument for Substantive Protection, 16 STAN. ENVTL. L.J. 3 (1997); Robert B. Keiter, Preserving Nature in the National Parks: Law, Policy, and Science in a Dynamic Environment, 74 DENV. U. L. REV. 649, 684-85 (1997).

224. U.S. GAO, ENDANGERED SPECIES ACT: INFORMATION ON SPECIES PROTECTION ON NONFEDERAL LANDS 4 (1995). The vast majority of listed species fall under the jurisdiction of the FWS. See 1996 RECOVERY REPORT, supra note 8, at 4 (as of September 1996, 943 of the 960 U.S. species listed were under the FWS' jurisdiction).

225. U.S. GAO, supra note 224, at 5.

226. See Dale D. Goble et al., Local and National Protection of Endangered Species: An Assessment, 2 ENVTL. SCI. & POL'Y 43, 50 (1999).

227. See Susan George et al., The Public in Action: Using State Citizen Suit Statutes to Protect Biodiversity, 6 U. BALT. J. ENVTL. L. 1, 17 (1997).

228. See Jeffrey J. Rachlinski, Protecting Endangered Species Without Regulating Private Landowners: The Case of Endangered Plants, 8 CORNELL J.L. & PUB. POL'Y 1, 15 (1998).

229. See supra note 119 and accompanying text.

230. See supra note 110 and accompanying text.

231. See supra notes 147, 150, and 169 and accompanying text.

232. There is one exception to this general rule. In some cases, threats from exotics can be permanently solved by eradication. See Goose Proposal, supra note 10, at 42061 (documenting removal of foxes from nesting islands, and translocation of geese to fox-free islands).

233. The loudest complaints about the ESA concern its alleged interference with economic activity on private land. See, e.g., Stuart L. Somach, What Outrages Me About the Endangered Species Act, 24 ENVTL. L. 801, 809 (1994); William Michael Treanor, The Armstrong Principle, the Narratives of Takings, and Compensation Statutes, 38 WM. & MARY L. REV. 1151, 1158-60 (1997); Michael Allen Wolf, Overtaking the Fifth Amendment: The Legislative Backlash Against Environmentalism, 6 FORDHAM ENVTL. L.J. 637, 641-50 (1995).

234. 16 U.S.C. § 1536, ELR STAT. ESA § 7.

235. Id. §§ 1538, 1539, ELR STAT. ESA §§ 9, 10.

236. Id. § 1536(a)(2), ELR STAT. ESA § 7(a)(2).

237. Id. § 1539(a)(1)(B), ELR STAT. § 10(a)(1)(B).

238. See Final Listing Priority Guidance for Fiscal Years 1998 and 1999, 63 Fed. Reg. 25502, 25506 (May 8, 1998) (explaining that at least 50 § 7 consultations were conducted for the American peregrine falcon in 1996 and 1997, and that delisting the falcon "will assist in reducing the section 7 consultation workload," allowing resources to be redirected to other species).

239. 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209.

240. The MBTA and the Bald and Golden Eagle Protection Act, for example, require permits for "take" of the species they protect. See 16 U.S.C. §§ 703, 668a. The MMPA prohibits taking, but allows waiver of that prohibition by regulation. See 16 U.S.C. § 1373(a), ELR STAT. MMPA § 103(a).

241. See, e.g., ROBERT J. NOECKER, ENDANGERED SPECIES LIST REVISIONS: A SUMMARY OF DELISTING AND DOWNLISTING 1 (Cong. Research Serv. Rep. No. 98-32 ENR, 1998) ("The primary goal of the ESA is the recovery of species to levels where protection of the Act is no longer necessary. If this is the standard of measure, the Act could be considered a failure."); Gordon et al., supra note 6, at 394 ("The ESA has entirely failed to lead to the recovery of endangered or threatened species.").

242. Native Fish and Wildlife, Endangered Species, 32 Fed. Reg. 4001 (Mar. 11, 1967).

243. Pub. L. No. 89-669, § 1(c), 80 Stat. 926.

244. BEAN & ROWLAND, supra note 206, at 196.

245. Pub. L. No. 91-135, § 12(a), 83 Stat. 275.

246. Id.

247. Id. § 3(a).

248. Pub. L. No. 93-205, § 3(11), 87 Stat. 886 (codified as amended at 16 U.S.C. § 1532(16), ELR STAT. § 3(16)).

249. See id. § 3(5) (defining "fish or wildlife" to include "any member of the animal kingdom, including without limitation any mammal, fish, bird . . ., amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate . . .") (codified at 16 U.S.C. § 1532(8), ELR STAT. ESA § 3(8)).

250. Id. §§ 3(15) (defining "threatened species"), 4(a) (directing Secretary to identify endangered and threatened species) (codified at 16 U.S.C. §§ 1532(20), 1533(a), ELR STAT. ESA §§ 3(20), 4(a)).

251. Since 1973, the only change in the scope of the list has been a contraction. In 1978, Congress revised the statutory definition of "species," limiting the protection of groups below the subspecies level to vertebrates. Pub. L. No. 95-632, § 2(5), 92 Stat. 3752 (codified at 16 U.S.C. § 1532(16), ELR STAT. ESA § 3(16)).

252. See Predatory Mammals and Endangered Species, Hearings Before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 92d Cong. 121-24 (1972).

253. U.S. FWS, Box Score of Species Listings, ENDANGERED SPECIES TECHNICAL BULL., July 1976, at 2.

254. U.S. FWS, Box Score, Listings and Recovery Plans, ENDANGERED SPECIES TECHNICAL BULL., Jan. 1990, at 12. This expansion occurred despite a virtual halt to listing in the early months of the Reagan Administration. See H.R. REP. NO. 97-567, at 11 (1982).

255. U.S. FWS, Box Score (visited Apr. 26, 2000) http://endangered.fws.gov/boxscore.html.

256. See NOECKER, supra note 241.

257. The extinct species include the Tecopa pupfish, longjaw cisco, blue pike, Santa Barbara song sparrow, Sampson's pearly mussel, Amistad gambusia, and dusky seaside sparrow. See id. at 4-6.

258. The delistings attributable to taxonomic revisions include the Mexican duck, Indian flap-shelled turtle, Bahama swallowtail butterfly, purple-spined hedgehog cactus, spineless hedgehog cactus, and cuneate bidens (a plant in the thistle family). Species delisted based on discovery of additional populations or lesser threats than once thought include the Pine Barrens treefrog, Tumamoc globeberry, and McKittrick pennyroyal. See id. at 9-11.

259. See Determination to Remove Three Palau Birds From the List of Endangered and Threatened Wildlife, 50 Fed. Reg. 37192, 37193 (Sept. 12, 1985).

260. See Delisting of Astragalus Perianus (Rydberg Milk-Vetch), 54 Fed. Reg. 37941 (Sept. 14, 1989).

261. Removal of the Brown Pelican in the Southeastern United States From the List of Endangered and Threatened Wildlife, 50 Fed. Reg. 4938 (Feb. 4, 1985).

262. Reclassification of the American Alligator to Threatened Due to Similarity of Appearance Throughout the Remainder of Its Range, 52 Fed. Reg. 21059 (June 4, 1987). The alligator remains classified as "threatened due to similarity of appearance," a category established by the ESA for situations in which enforcement personnel might find it difficult to differentiate between the species and another listed species. See 16 U.S.C. § 1533(e), ELR STAT. ESA § 4(e); 50 C.F.R. § 17.50 (1999). Alligators may be legally taken, but their hides must be tagged to distinguish them from those of endangered crocodilians. See 50 C.F.R. § 17.42(a).

263. Final Rule to Remove the Eastern North Pacific Population of the Gray Whale From the List of Endangered Wildlife, 59 Fed. Reg. 31094 (June 16, 1994).

264. Removal of the Arctic Peregrine Falcon From the List of Endangered and Threatened Wildlife, 59 Fed. Reg. 50796 (Oct. 5, 1994).

265. Removal of Three Kangaroos From the List of Endangered and Threatened Wildlife, 60 Fed. Reg. 12887 (Mar. 9, 1995).

266. Final Peregrine Rule, supra note 9.

267. See Shrew Delisting, supra note 9, at 10420.

268. Final Rule to Remove the Plant "Echinocereus lloydii" (Lloyd's Hedgehog Cactus) From the Federal List of Endangered and Threatened Plants, 64 Fed. Reg. 33796, 33798 (June 24, 1999).

269. Goose Proposal, supra note 10.

270. Bald Eagle Proposal, supra note 10.

271. Deer Proposal, supra note 10.

272. Proposed Rule to Remove the Tinian Monarch From the Federal List of Endangered and Threatened Wildlife, 64 Fed. Reg. 8533 (Feb. 22, 1999).

273. See Proposed Rule to Remove the Northern Populations of the Tide-water Goby From the List of Endangered and Threatened Wildlife, 64 Fed. Reg. 33816 (June 24, 1999):

We have determined that north of Orange County there are more populations than were known at the time of the listing, that the threats to those populations are less severe than previously believed, and that the tidewater goby has a greater ability than was known in 1994 to recolonize habitats from which it is temporarily absent.

274. See Gray Whale, 56 Fed. Reg. 58869, 58870, 58872 (Nov. 22, 1991); Reclassification of the American Alligator in Florida to Threatened Due to Similarity of Appearance Throughout the Remainder of Its Range, 50 Fed. Reg. 25672, 25672 (June 20, 1985).

275. See Removal of the Brown Pelican in the Southeastern United States From the List of Endangered and Threatened Wildlife, 50 Fed. Reg. 4938, 4938 (Feb. 4, 1985); Removal of the Arctic Peregrine Falcon From the List of Endangered and Threatened Wildlife, 59 Fed. Reg. 50796, 50796 (Oct. 5, 1994); Final Peregrine Rule, supra note 9, at 46542.

276. See Consolidated DDT Hearings: Opinion and Order of the Administrator, 37 Fed. Reg. 13369 (1972).

277. 16 U.S.C. § 703.

278. Id. §§ 1362(13), 1372, ELR STAT. MMPA §§ 3(13), 102.

279. In recommending the delisting of the gray whale, the NMFS relied in part on regulations it expected to propose requiring that whale-watching boats stay a minimum distance from the whales. See Gray Whale, 58 Fed. Reg. 3121, 3128 (Jan. 6, 1993). Those regulations, however, have never materialized.

280. See 33 U.S.C. § 1311, ELR STAT. FWPCA § 301.

281. See Deer Proposal, supra note 10, at 25266.

282. See Bald Eagle Proposal, supra note 10, at 36460.

283. Goose Proposal, supra note 10, at 42058-59.

284. Id. at 42059.

285. Deer Proposal, supra note 10, at 25265.

286. Id. at 25264.

287. Id.

288. The proposal does include a cite to "BLM 1998" after the assertion that the North Bank Habitat Management Area was acquired for the purpose of protecting the deer. Id. Because the proposed rule does not include references, however, the reader cannot readily locate that source. The reference list is available upon request from the regional FWS office. Id. at 25268.

289. See Bald Eagle Proposal, supra note 10, at 36457; Frank Isaacs, Bald Eagles, Delisting, and Wolves (speech delivered at the annual meeting of the Oregon Chapter of The Wildlife Society) (copy on file with author). Isaacs, an eagle biologist, also asserts that habitat loss was a cause of bald eagle decline prior to listing. Id.

290. Bald Eagle Proposal, supra note 10, at 36458.

291. Id. at 36457.

292. See supra text accompanying note 219.

293. Goose Proposal, supra note 10, at 42059. See also id. at 42063 ("We acknowledge the important role that private landowners have played in the recovery of the Aleutian Canada goose.").

294. Id. at 42061.

295. Id. at 42062-63.

296. See 1996 RECOVERY REPORT, supra note 8, at 1 (goal of recovery program "is to restore listed species to a point where they are secure, self-sustaining components of their ecosystem").

297. See Rachlinski, supra note 228, at 16-17 (noting difficulties of assessing species' status and criticisms of the FWS' assessments).

298. See 1996 RECOVERY REPORT, supra note 8, at 4; Rachlinski, supra note 22, at 376-77.

299. See supra notes 104-07 and accompanying text.

300. Dan Rohlf refers to this pressure as "regulation forcing," by analogy to the technology-forcing aims of federal pollution control laws.

301. These agreements could be similar to the candidate conservation agreements currently being promoted by the Clinton Administration. See Safe Harbor Agreements and Candidate Conservation Agreements With Assurances, 64 Fed. Reg. 32706 (June 17, 1999); Ortiz, supra note 43, at 462-75.

302. Save Our Springs v. Babbitt, 27 F. Supp. 2d 739, 748 (W.D. Tex. 1997).

303. 50 C.F.R. § 424.11(c)(2) (1999).

304. Id. § 402.02.

305. In addition to the cases cited supra at notes 88-90, see, e.g., Oregon Natural Resources Council v. Kantor, 99 F.3d 334, 27 ELR 20469 (9th Cir. 1996); Friends of the Wild Swan v. U.S. Fish & Wildlife Serv., 12 F. Supp. 1121, 28 ELR 20650 (D. Or. 1997); Southwest Ctr. for Biological Diversity v. Babbitt, 980 F. Supp. 1080 (D. Ariz. 1997); Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 27 ELR 21113 (D.D.C. 1997).

306. Michael Bender et al., Turning the Corner Toward Recovery, ENDANGERED SPECIES BULL., Mar/June 1998, at 4.