I. Introduction

In legislation and administrative regulations of great potential significance, Congress and the federal executive departments have committed the United States to the protection of animal and plant species which are threatened with extinction. The primary instrument for implementing that commitment is the Endangered Species Act of 1973,¹ a statute which now is emerging as an important component of federal law.

Undoubtedly, many federal administrators and judges have little awareness of, or sympathy for, the new national policy to preserve rate animals and plants. However, all attorneys and federal officials should recognize the great potential impact which the Endangered Species Act can have on virtually any type of activity which involves the federal government.

This article attempts to explain the significance of the Endangerded Species Act and to chart its implementation to date by federal agencies and the courts. In particular it explores § 7 of the Act, which creates distinct duties in every federal agency to protect endangered species, and § 11g, which also contains a remarkable citizen's suit provision. In short, action taken by any federal component which might adversely affect an endangered species invites a lawsuit which could delay that government action indefinitely.²

Thus far, many federal administrative agencies and some courts appear to have neglected the clear mandates of § 7. This article demonstrates that certain agencies and judges have not enforced § 7 properly: the first cases which have arisen under § 7 provide evidence of this problem.

Projects sponsored by the Army Corps of Engineers and the Federal Highway Administration have been challenged in court for jeopardizing endangered species in violation of the Endangered Species Act. The two trial court decisions for those cases leave much to be desired in implementing § 7.

To explain the statutory context in which § 7 functions, this paper begins with an overview of the Endangered Species Act of 1973. Next the language of § 7 is analyzed, and certain key features of that provision are highlighted. Part three examines the underlying policy justifications which led Congress to enact the Endangered Species Act of 1973. An understanding of the congressional rationale for adopting the Act should encourage greater judicial and administrative enthusiasm for its enforcement. Part four looks in greater detail at the current state of the Act's implementation by federal agencies. Finally, the article describes the factual settings of the first lawsuits brought under the Act, summarizes the decisions reached, and analyzes the key legal issues which these first cases raise about § 7 and the Endangered Species Act as a whole.

II. Summary of the Endangered Species Act of 1973

Although this paper deals primarily with § 7 of the Endangered Species Act of 1973, a brief overview of the federal law on endangered species is provided to facilitate understanding of § 7. A general American commitment to preserve wildlife has existed to a limited degree for some years, expressed in such legislation as the Lacey Act of 1900,³ the Migratory Bird Conservation Act of 1929,⁴ and the Bald Eagle Protection Act of 1940.⁵

More recently, federal statutes designed specifically to preserve endangered species have been enacted, beginning with the Endangered Species Preservation Act of 1966.⁶ That rather ineffective law was strengthened somewhat by adoption of the Endangered Species Conservation Act of 1969.⁷ Most importantly, the statutory revision represented by the Endangered Species Act of 1973 transformed a formerly quiescent legislative policy into a significant (though somewhat neglected) component of federal environmental law.

The Endangered Species Act of 1973 has an extremely broad protective scope, covering practically every [5 ELR 50190] form of life (at least in theory). The Act extends to all plants, defined as "any member of the plant kingdom, including seeds, roots and other parts thereof."⁸ In addition, the Act protects "fish or wildlife," and the definition of those terms includes:

any member of the animal kingdom, including without limitation any mammal, fish, bird (including any migratory, nonmigratory, or endangered bird for which protection is also afforded by treaty or other international agreement), amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof.⁹

Significantly, the term "species" is defined to include subspecies.¹⁰ Thus the several protective provisions of the Act are triggered whenever one distinct subspecies becomes "endangered" or "threatened," even if other subspecies of the same plant or animal are abundant.

An "endangered species" of "fish or wildlife" is defined as:

any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to man.¹¹

Also protected under the Act are "threatened species," defined as:

any species which is likely to become an endangered species within the forseeable future throughout all or a significant portion of its range.¹²

The definitions of "endangered" and "threatened" species thus protect any species or subspecies likely to become extinct in a significant portion of its range, even if other geographical populations of the same species or subspecies survived safely elsewhere. Given the pervasive use of pesticides in the United States, widespread commercial exploitation of wildlife populations, and destruction of habitat caused by residential, commercial and transportation facilities development, including the draining of wetlands, the potential coverage of the Act could extend to many forms of plant and animal life.

The Endangered Species Act directs the Secretaries of the Interior and Commerce Departments to determine by regulation which species are "endangered" or "threatened." The Department of the Interior holds primary responsibility for adding or removing a species from the "endangered" or "threatened" species lists. However, the Secretary of Commerce has full authority to protect certain marine species by "listing" them, and he can remove species from either the "endangered" or "threatened" registry with the concurrence of the Interior Secretary.¹³

The Act prescribes specific criteria and procedures by which the lists of endangered or threatened species are to be compiled and maintained, requiring notice in the Federal Register, consultation with the governors of affected states, and similar procedural safeguards.¹⁴

The Act authorizes the Secretary of the Interior to institute rather uncontroversial programs and actions to conserve endangered and threatened species. For example, the Secretary is empowered to acquire lands for conservation purposes in several ways,¹⁵ and to cooperate with and subsidize state governmental activities to preserve endangered and threatened species.¹⁶

As the foregoing review indicates, the Endangered Species Act of 1973 provides a multi-faceted federal program to conserve rare forms of life. However, two sections of the Act are especially noteworthy, because they undoubtedly will restrict many activities of the federal government which inadvertently would affect endangered or threatened species.

The critical section of the Act, § 7, states:

The Secretary [of the Interior or the Secretary of Commerce, as appropriate] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this chapter. All other Federal departments and agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 1533 of this title and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with the affected States, to be critical.¹⁷

The clear and forceful language of § 7 indicates the importance of the Endangered Species Act for federal projects. Because innumerable actions sponsored by private concerns and by state and local governments require [5 ELR 50191] federal permits, licenses, or matching funds, § 7 of the Endangered Species Act undoubtedly will control many of these activities as well.

The potential impact of § 7 is increased by the citizen's suit provision of the Endangered Species Act, which provides in relevant part:

(g)(1) … any person may commence a civil suit on his own behalf —

(A) to enjoin any person, including the United States and any other governmental instrumentality or agency … who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; …

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce any such provision or regulation, as the case may be….

(4) The court, in issuing any final order in any suit brought pursuant to paragraph (1) of this subsection, may award costs of litigation [including reasonable attorney and expert witness fees] to any party, whenever the court determines such award is appropriate.¹⁸

Of course, the above authorization for citizens' suits provides a mechanism by which conservationists could enforce many provisions of the Endangered Species Act. However, citizens' suits to implement § 7 are especially important, since those civil actions could entangle many federal programs and activities in litigation.

The Endangered Species Act also imposes criminal and civil penalties upon persons subject to United States jurisdiction who "take" an endangered species.¹⁹ The term "take" is defined broadly, meaning: "… to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."²⁰ Although "threatened species" are not directly covered under the criminal and civil penalty provisions, such protection can be extended to threatened species through regulations promulgated by the Secretary of the Interior.²¹ Because an activity which violates § 7 of the Act might "harass, harm … [or] kill … "an endangered or threatened species, such an action conceivably might to subject to either criminal or civil penalties.

III. The Congressional Purpose Behind the Act: Why Bother with Endangered Species?

In great quantities of testimony and documents, the facts which follow have been put before the Congress and reflected in the Endangered Species Act of 1973.²² These facts constitute legislative history essential to explain the congressional mandate of § 7.

During the course of centuries, many species of living creatures have become extinct through operation of purely natural forces.²³ In fact, the elimination of certain species by better adapted competitors is fundamental to the evolutionary processes of natural selection.²⁴

However, the evolutionary replacement of one form of life by another occurs very slowly and does not upset the balanced stability which characterizes natural communities.²⁵ Unfortunately, the increasing numbers and activities of human beings have disrupted the natural world to such a degree that many nonhuman forms of life face eradication suddenly and immediately. This greatly accelerated elimination of life forms hardly could be compared to natural disappearance of outmoded species over long periods of time.²⁶

Of all species known to have become extinct, nearly two thirds have disappeared during the 20th century due to man-induced factors.²⁷ The present rate of extinction leads to the loss of at least one species per year, and that rate appears to be worsening.²⁸ The increasing momentum of destruction has convinced some experts that vast numbers of species will face extinction by the year 2000 unless major changes are made now in human policies and actions.²⁹

Recognizing that many forms of fauna and flora face extinction, diverse groups of thoughtful individuals have convinced the Congress to act forcefully to preserve endangered species. For example, many biologists object for purely scientific reasons to the wholesale destruction of nonhuman life forms. In general terms, many biological, medical, and behavioral sciences value all living species as subjects for research and investigation. An uncommon plant or animal now considered "worthless" may tomorrow prove important for scientific or medical research or for highly practical uses.

One special biological imperative to preserve as many species as possible relates to maintenance of a large "gene pool" for use by the life sciences now or in the future. Genetic research and engineering eventually may need the precise hereditary characteristics of species now threatened with destruction.³⁰

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In like manner, biologists and naturalists emphasize that the elimimation of one or more species from a natural community often disrupts the ecological balance necessary to preserve many interrelated lifeforms.³¹ Removal of natural checks, such as predators or beneficial parasites, can permit pest species to multiply so rapidly that human well-being is threatened.³²

Another "interest group" which favors preservation of disappearing wildlife includes those business interests which cater to birdwatchers, nature photographers, fishermen, and hunters. These industries, and all the people they serve, would suffer if the present eradication of wildlife species continues to accelerate.³³

Although there are many valid reasons to preserve endangered species of plants and animals, the most active "congressional lobby" on behalf of beleaguered lifeforms consists of numerous individuals who regard nonhuman living things as aesthetically valuable. Throughout the United States and the world, rare wild creatures are prized by nature hobbyists as objects of beauty and pleasure, as subjects for observation, study, and photography.

Less well recognized, perhaps, are key symbolic and cultural values which many Americans derive from wild animals and plants and from their wild surroundings. In fact, certain philosophers contend that the national qualities valued by many Americans are bound up with nature symbols. These theorists argue that qualities such as courage, strength, innocence, freedom, and purpose are symbolized for many Americans by our eagles, cougars, bison, and wild places.³⁴

Those threatened natural objects may serve as paradigms of aesthetic qualities which permit us to identify and know our ideals, both as individuals and nationally. Because the precise qualities expressed in natural objects are exemplified nowhere else for many people, conservationists react to the destruction of certain endangered lifeforms as if their demise would eradicate invaluable symbols, jeopardizing the qualities which those symbols represent.³⁵

Although such theoretical explanations for public concern over endangered wildlife hardly could be demonstrated to the satisfaction of all, the dedication of many Americans to preservation of rare species is unquestionable. Only deeply rooted motivations such as those described above could explain the considerable indignation of the American public over the plight of whales, tigers, wolves, and other endangered species.

All of the motivations and policies cited above are reflected in the legislative history of the Endangered Species Act.³⁶ Whether or not federal administrators or judges share these sympathies for rare forms of life, the clear language of § 7 has enacted those policies into law to protect endangered species.

IV. The Current Stage of Implementation of the Endangered Species Act of 1973

A. The Importance of § 7 of the Act

Enacted late in 1973, the Endangered Species Act has not yet received the attention it deserves throughout the federal government. Except for certain branches of the Interior and Commerce Departments, few government agencies appear to have integrated the dictates of § 7 into their planning processes to date.

In the near future, this oversight may be corrected to some degree by an inter-agency committee formed to suggest regulations to implement § 7 of the Act.³⁷ Presumably, the forthcoming rules at least should formalize the consultation procedures and administrative functioning of § 7 within the federal government.

Administrative neglect of § 7 of the Endangered Species Act is legally improper and practically unwise. Whether enforced by the agencies themselves or by the courts, § 7 eventually will impose upon the federal bureaucracy procedural and substantive duties which will compare in many cases to those of the National Environmental Policy Act (NEPA).³⁸

In fact, while NEPA is held by some courts to require only procedural safeguards,³⁹ § 7 of the Endangered Species Act unquestionably has both procedural and substantive components. Procedurally, § 7 directs all federal agencies to consult with the Secretaries of Interior and Commerce to conserve endangered and threatened species. Such consultation is similar to that required by the Fish and Wildlife Coordination Act⁴⁰ and by NEPA.

Substantively, however, § 7 requires each federal agency to insure that no action "authorized, funded, or carried out" by the federal government (in whole or in part, presumably) jeopardizes any endangered or threatened species or its habitat. Of course, the citizen's suit provision permits a lawsuit by any concerned conservationist who feels that the demanding requisites of § 7 have not been fulfilled. In addition, § 7 obviously [5 ELR 50193] provides a weapon for any attorney who seeks to stop or delay a federal action which arguably might affect some endangered or threatened species.

The following example is provided to demonstrate the vulnerability of many federal activities to real or threatened lawsuits under § 7. For some years the United States Navy has conducted "weapons training activities" on the Caribbean island of Culebra. When human residents of that island threatened to bring suit to force cessation of the Navy's ordnance testing, a number of endangered species were shown to survive on Culebra.⁴¹

Most wildlife would not have been harmed by Naval shelling of the island, but two rare species of sea turtles do nest on the island's beaches: the Hawksbill Turtle, an endangered species, and the Loggerhead Turtle, a proposed addition to the "threatened species" list.⁴²

As it happened, the Navy agreed to cease shelling Culebra for a number of reasons, thereby forestalling any lawsuit. Nonetheless, Naval operations might well have been stopped by a civil action under § 7 had the case not been settled out ofcourt.

Undoubtedly, many proposed federal actions, ranging from new construction projects to ongoing regulatory systems, eventually will encounter challenges under the Endangered Species Act. As environmental lawyers become more familiar with § 7 and with the citizen's suit provision of the statute, many lawsuits will undoubtedly be brought under the Endangered Species Act.

Section 7 also grants important powers to the Interior or Commerce Departments, as appropriate, to influence the activities of other federal agencies. Especially noteworthy is the authority which § 7 vests in the Secretary of Interior or Commerce to declare certain habitat to be "critical" to endangered or threatened species. After such a determination, no federal action could destroy or modify that habitat without violating the Endangered Species Act.⁴³

B. Administrative Progress and Recalcitrance in Implementing the Endangered Species Act

Despite the relative novelty of the Endangered species Act, the Interior and Commerce Departments have promulgated regulations for many facets of the statute. Extensive lists of endangered and threatened species have been published in the Code of Federal Regulations, and these compilations are periodically updated through announcements in the Federal Register.⁴⁴

In addition, the Interior Department has established "recovery teams" for most species of endangered wildlife found in the United States. Each of these working groups is composed of experts on the particular endangered species under study, and each recovery team will recommend a plan to save that species from extinction. However, these groups are just beginning their work at present, so most of the essential data and plans needed to implement the Endangered Species Act still must be compiled.⁴⁵

Significantly, the administrators of the Endangered Species Program at the Interior and Commerce Departments would not be content to maintain a "museum" population of endangered wildlife in zoos. Instead, the announced goals of the Endangered Species Program and its many supporters are the survival of rare animals and plants in their wild, natural habitats, and restoration of their numbers to former abundance (to the extent this is practicable).⁴⁶

Despite the progress made to enforce the Endangered Species Act, the present lack of knowledge on the precise status or habitats of endangered species poses serious problems for all federal agencies' compliance with § 7. Obviously, not until complete reports are available for all endangered and threatened species and their "critical habitats" will the various federal components be able to plan their activities to avoid harming those species. For example, the "critical habitat" has been determined formally for only one endangered species,⁴⁷ even though many federal actions which could "destroy or modify" important habitat inadvertently may now be planned or underway.

A number of inter-agency conflicts and misunderstandings concerning the new Endangered Species Act can be attributed to the currently incomplete status or regulations which implement the Act. However, more serious problems may be explained by the lack of will shown by certain federal agencies and judges to enforce § 7 of the Act as forcefully as Congress intended.

Certain agencies and judges appear to disagree with the congressional purposes for the Endangered Species Act, and refuse to enforce § 7 to safeguard species which may become extinct despite protection. Similarly, some administrators have not recognized the non-discretionary commends of § 7 and some courts have not been sufficiently rigorous in requiring administrative compliance.

In addition, some agencies have resisted full application of § 7 to federal projects already in progress or planned when the new Endangered Species Act became effective. Some agencies and courts have refused to recognize the guiding authority which the Act clearly vests in the Interior and Commerce Departments to protect endangered species. These issues concerning [5 ELR 50194] implementation of § 7 are analyzed in reference to specific cases in the following part of this article.

V. The Tangible Impact of the Endangered Species Act on Federal Actions: Lawsuits under § 7

While the relevance of the 1973 Endangered Species Act for planning many federal activities is still largely unappreciated, two § 7 suits already have reached the courts. These cases highlight some important issues for application of § 7.

A. The Army Corps of Engineers Confronts the Indiana Bat

Sierra Club v. Froehlke⁴⁸ was decided by the federal District Court for the Eastern District of Missouri on March 19, 1975. That case involved an attempt by the plaintiff conservation group to prevent the Army Corps of Engineers from undertaking the Meramec Park Lake Project, which would impound a reservoir of 23,000 acres in Missouri's Meramec Basin.⁴⁹

The Meramec Park Lake had been planned by the Corps of Engineers to be one of a series of impoundments in the Meramec Basin. These large reservoirs would provide flood control, water supply, and recreational and navigational benefits to the area, according to the Corps.⁵⁰

In their lawsuit to prevent construction of the Meramec Reservoir Project, the plaintiffs raised the objection, among others, that completion of the Meramec project would jeopardize the continued existence of the Indiana Bat, an endangered species.⁵¹ Plaintiffs claimed that construction activities and rising reservoir waters would destroy habitat essential for the bat's survival. The most recent studies reveal that approximately 250,000 Indiana Bats survive today,⁵² of which about 30,000 live in the area of the contested project.⁵³

At trial the plaintiffs produced an expert witness, who overestimated the total population of Indiana Bats to be about 700,000. However, the expert testified that even a population of 700,000 bats would be dangerously low to insure that species' survival. In recent years, the Indiana Bat's numbers have declined markedly due to destruction of the bat's specialized habitat in riparian trees and caves. The expert witness emphasized that the specific population of the Indiana Bat threatened by the Meramec project is critical to the preservation of the species.⁵⁴

The plaintiff's expert witness was the only authority on the Indiana Bat to testify at trial. He concluded that construction of the contested project would jeopardize the continued existence of that endangered species through a variety of specified harms, especially by flooding certain "bat caves."⁵⁵

The assertions of the plaintiff's expert were suported by the positions which the Department of the Interior had taken on the Meramec project prior to the trial. As early as October 1974, the Interior Department had informed the Corps of Engineers that the Meramec Park Reservoir would adversely affect the Indiana Bat, and requested an immediate halt to construction.⁵⁶ In a number of communications to the Corps, the Interior Department stated that its studies to determine "critical habitat" for the Indiana Bat would not be completed until July of 1975. Because the Corps had not amassed sufficient information concerning the project's impact on the bat, the Interior Department took the position that the Corps of Engineers could not fully comply with the Endangered Species Act until such time as more information was collected.⁵⁷

In response to the Interior Department, the Corps of Engineers refused to declare a construction moratorium, but did conduct a survey of the Indiana Bat in the project area.⁵⁸ Ultimately, the Corps' final environmental impact statement on the Meramec project conceded that the Missouri population of the Indiana Bat could be adversely affected by continued work on the project.⁵⁹ Nonetheless, the Corps of Engineers proceeded with construction activities.

The Corps' apparent lack of solicitude for the Indiana Bat might be explained in part by the dearth of reliable information of the species. During the many months of planning for the Meramec Reservoir Project, the Corps' decision makers probably could not know precisely what impact their impoundment would have on the bat's survival as a species. The Fish and Wildlife Service of the Interior Department appeared to be uncertain on this point, as evidenced by the comments which Interior submitted on the project's environmental impact statement.⁶⁰ Not until well after the trial of Sierra Club v. Froehlke was over did the Interior Department receive substantial data on the numbers and habitat of the Indiana Bat.⁶¹

In its Memorandum Opinion on the Meramec Reservoir case, the district court provided a very limited discussion of the issues raised under the Endangered Species Act. However, the court concluded that no evidence had proved the present activities of the Corps to be inimical to the Indiana Bats in the project area.⁶² The court termed "inconclusive" proffered evidence of [5 ELR 50195] prospective harms from future construction or from the effects of the completed project.⁶³ The court made no finding as to the likely effect of filling the proposed reservoir, even though plaintiffs' evidence claimed this would drown many bats at they hibernated in caves below the water line.

The district judge concluded that no new evidence on the Indiana Bat would come to light if the court requested formal findings on the Indiana Bat or its habitat from the Interior Department. Thus the court refused to delay decision of the case until the Interior Department could express an official opinion on whether the Meramec project would jeopardize the continued existence of the bat or destroy or modify its critical habitat, within the meaning of § 7.⁶⁴

In ruling for the defendant Corps of Engineers, the district court found that the Corps had made "all possible reasonable good faith efforts"⁶⁵ to comply with the Endangered Species Act and had not violated the Act.⁶⁶ The court's failure to provide a detailed discussion of the Endangered Species Act questions may be explained by the following judicial attitude expressed about those issues:

It is significant to this Court that [the plaintiff's expert witness] stated that even if Meramec Park Reservoir were not built, the Indiana Bat would probably become extinct …⁶⁷

The Meramec Reservoir case, including the endangered species questions, presently is on appeal before the United States Circuit Court of Appeals for the Eighth Circuit.

B. The Interstate Highway System versus the Mississippi Sandhill Crane

A second lawsuit which highlights § 7 of the Endangered Species Act is National Wildlife Federation v. Coleman,⁶⁸ recently decided by the federal district court in Mississippi. In that case, the plaintiff conservation group sought to force the Federal Highway Administration and the Mississippi State Highway Department to modify plans for a new segment of Interstate Highway I-10, alleging that the present plans would adversely affect the last remaining colony of the Mississippi Sandhill Crane, an endangered subspecies of the Sandhill Crane.⁶⁹

Only about 40 Mississippi Sandhill Cranes remain in existence, and all live in the general area which the proposed highway segment would traverse.⁷⁰ The Fish and Wildlife Service is creating a refuge for the cranes, and part of the proposed highway project would bisect a key section of the new refuge.⁷¹ The evidence amassed at trial from expert witnesses and many documents supported the conclusion that completion of the current plans for the highway would greatly harm the cranes' prospects for survival.⁷²

As was true in the Meramec Reservoir case, the positions taken by the Interior Department during the course of the Mississippi dispute are revealing. On April 3, 1975, the Deputy Assistant Secretary of the Interior wrote to the Federal Highway Administration Division Engineer, opposing the current plans for the project. That Interior Department official requested specific modifications in design and alignment of the highway to protect the crane colony.⁷³ Nevertheless, the federal highway officials approved the existing plans for Interstate Highway I-10.

On May 6, 1975, the Interior Deputy Assistant Secretary wrote the Federal Highway Administrator to inform him that the present plans for the roadway would traverse land which the Interior Department was formally designating "critical habitat" for the cranes under § 7 of the Endangered Species Act.⁷⁴ On May 23, 1975, the plaintiff conservation organizations filed suit to require the Federal Highway Administration to comply with § 7 of the Endangered Species Act.⁷⁵ Even after the action was brought, the Interior Department continued to seek enforcement of § 7 in another letter, this time from the Interior Assistant Secretary to the Assistant Secretary of the Department of Transportation.⁷⁶

On June 25, 1975, on the very eve of trial, the Interior Department promulgated in the Federal Register an "emergency determination" that the Mississippi Sandhill Crane habitat which would be disrupted by the planned highway was "critical" to the species within the meaning of § 7 of the Endangered Species Act.⁷⁷ The lengthy text of the emergency determination presented a persuasive case against the present plans for Interstate Highway I-10 in language which included the following:

An emergency exists which poses a significant risk to the well-being of the Mississippi sandhill crane. Current estimates indicate that only 38-40 Mississippi sandhill cranes remain in the wild and that they survive only in this critical habitat. The maintenance of significant portions of this habitat and the well-being of the crane are threatened by construction of a new segment of Interstate Highway I-10 between Mississippi State Highway 57 and the Pascagoula River.

This project is a joint undertaking of the Federal Highway Administration and the Mississippi State Highway [5 ELR 50196] Department. Contracts have been let by the Mississippi State Highway Department for construction of this portion of I-10 through the critical habitat. Such construction will begin upon approval by the Federal Highway Administration of the contracts already let by the State. The construction activities, destruction of habitat, incidental intrustions, and subsequent related commercial and residential development of the area all constitute a significant risk to the well-being of the crane. The final environmental impact statement on I-10 issued by the Federal Highway Administration on March 10, 1975, states on page 28: "At the present time, the greatest threats to the existence of the Mississippi Sandhill Crane are private development and the construction of Interstate Route No. 10.⁷⁸

The plaintiffs' position at trial did not seek to prevent completion of Interstate Highway I-10 or to preclude any disturbance of the cranes. Instead, the plaintiffs sought only judicial enforcement of the modifications which the Interior Department previously had proposed for the highway plans. The plaintiffs thus sought to reduce, if not remove, the highway threat to the cranes' survival. The alternations requested were elimination of one interchange and frontage road, prevention of drainage into planned borrow pits, and replacement of some crane habitat which would be lost due to highway construction.⁷⁹

In a decision filed on August 4, 1975, the United States District Court in Jackson, Mississippi, ruled for the Federal Highway Administration and permitted completion of the highway without modifications. The court's opinion stated that the plaintiffs had failed to carry their burden of proof and had not shown the defendant's actions to be illegal under § 7.⁸⁰

The trial court apparently gave no weight to the many statements from the Interior Department which condemned the highway as violative of § 7. These positions, and much other evidence against the project, were dismissed as "mere speculation."⁸¹

The district court did cite some evidence from the trial record to show that the highway alone would not eliminate the endangered cranes. The court's opinion concluded by lauding the defendant highway builders for certain efforts undertaken to mitigate adverse effects on the Mississippi Sandhill Cranes.⁸² The plaintiff conservation groups are appealing the trial court's decision in N.W.F. v. Coleman to the Fifth Circuit Court of Appeals.

VI. Key Issues for Implementation of the Endangered Species Act

As the two cases discussed above indicate, certain administrative agencies and judges have not yet chosen to enforce § 7 of the Endangered Species Act vigorously The following analysis considers the major legal problems which thus far have impeded that full implementation of § 7 which Congress intended.

A. The Effect of § 7 on Federal Actions Already in Progress or Planned

Many problems exposed by the cases previously discussed exist primarily because while § 7 of the Endangered Species Act is new, it impinges upon ongoing federal actions planned or begun years ago. Undoubtedly, certain procedural and technical matters will be resolved in time by publication of needed regulations and by increasing familiarity with § 7 on the part of all federal agencies.

Even though better agency planning and sensitivity to the Endangered Species Act eventually should correct many difficulties which now exist under § 7, problems of "retroactive" application of that section will arise for some years. For example, both the Meramec Reservoir and Interstate Highway I-10 projects had been planned long before § 7 became law, and present enforcement of § 7 apparently would require modifications for both.

The Interior Department has interpreted § 7 as fully applicable to federal actions which had been planned or partially completed prior to enactment of the new Endangered Species Act in December of 1973.⁸³ Since Interior is primarily responsible for enforcing the Act, that Department's endorsement of retroactivity is entitled to considerable judicial deference.⁸⁴

Similar questions of retroactivity have been decided often under the National Environmental Policy Act, so the NEPA decisions should provide some guidance for resolving § 7 cases. Indeed, the NEPA retroactivity decisions provide an assortment of legal doctrines which could be applied as appropriate for the Endangered Species Act. Following NEPA precedents,⁸⁵ courts could "balance the equities" to decide if § 7 should stop or alter a project, or determine whether "substantial action"⁸⁶ for a program had been completed prior to enactment of § 7, or decide whether the "critical federal action"⁸⁷ within a larger federal undertaking came before or after the effective date of § 7.

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But even though the NEPA retroactivity cases should provide helpful precedents, the differences between NEPA and § 7 militate in favor of more vigorous application of the Endangered Species Act to ongoing federal projects than certain NEPA cases have demanded. While NEPA's primary thrust is procedural, the key mandates of § 7 are substantive, expressing a strong federal policy to preserve endangered species. Also, if failure to apply § 7 to an existing federal program were to drive a species into extinction, the congressional will would be forever frustrated. Thus only when extremely pressing reasons exist to complete a federal action as originally planned should the federal duties under § 7 be relegated to a secondary status as "arising too late."

Full enforcement of § 7 seems highly appropriate in National Wildlife Federation v. Coleman, since relatively minor alterations of plans for Interstate Highway I-10 apparently would protect the endangered cranes adequately. The trial record of Sierra Club v. Froehlke does not reveal whether or not the Meramec Reservoir project could be modified in such a manner as to mitigate or prevent harm to the Indiana Bat without disrupting the Meramec project considerably. At any rate, the Missouri trial court did not address directly the legal issues of retroactive applications of § 7: perhaps an accommodation between the Corps of Engineers and § 7 could be found if the mandates of § 7 are judicially enforced by an appellate court.

B. The Roles of the Interior and Commerce Departments in Applying § 7 to Federal Actions

Another major issue for implementation of § 7 of the Endangered Species Act which is raised by the cases discussed above relates to the prerogatives of the Interior or Commerce Departments in making "threshold decisions" on the applicability of § 7 in any particular factual setting. That is, should the Interior Department (or the Commerce Department for marine species) make formal findings as necessary on whether or not a proposed federal action would "jeopardize the continued existence of … or result in the destruction or modification of habitat …" of an endangered or threatened species, and if so, what should be the effect of such a finding on the proposed federal project?

Although the precise legal significance of such a "threshold determination" by the Interior or Commerce Department might be questioned, it appears certain that a documented opinion on the applicability vel non of § 7 often will be given by one of those two departments. Administrative findings on the applicability of § 7 are made practically inevitable by the pre-existing procedures for comment and review which operate under the National Environmental Policy Act, the Fish and Wildlife Coordination Act, and the consultation provision of § 7 of the Endangered Species Act itself. Because the cited statutes require all federal agencies to obtain the views of the appropriate department whenever any proposed federal action may adversely affect an endangered species or its habitat, an opinion from Interior or Commerce on the applicability of § 7 surely should be made for every project for which the question could arise. The certainty that such opinions will be sought by all federal agencies depends upon compliance by those agencies with the cited statutory mandates for consultation with the Interior and Commerce Departments.

Once Interior/Commerce has expressed an opinion on whether or not the proposed federal action will violate § 7, the legal significance of that determination becomes an issue. For any ordinary case, a process of consultation can be expected between representatives of the federal agency which sponsors the proposed federal action and agents of the Interior or Commerce Departments. Modifications of the project usually will eliminate or reduce the threat to the endangered species, after which the two negotiating federal components may agree to completion of the altered project. Of course, a citizen's suit could be filed by any conservationist who felt that an endangered species would be insufficiently protected by the compromise plan.

In some instances, however, the federal agency which proposes the action may disagree with a finding of the Interior or Commerce Department that the planned action would adversely affect an endangered species for purposes of § 7. Similarly, plans to accommodate the endangered species may prove unacceptable to Interior or Commerce. In such a case of disagreement within the executive branch, internal mechanisms could resolve the dispute in the Office of Management and Budget or elsewhere in the Executive Office of the President.

If the intra-executive dispute is resolved to the disadvantage of the endangered species, the best remaining protection for the species would require a citizen's suit to obtain judicial review. However, the court trying the case then may encounter a conflicting record made below by the administrative agencies. That agency which sponsors the planned federal action may request judicial deference for its decision to proceed with its project despite the Endangered Species Act. This viewpoint often may be supported by the positions taken by the President's Executive Office and by the Justice Department, which would present the case for the United States in court.

On the other hand, the administrative record made below by the Interior or Commerce Department often will contradict the official government position at trial, asserting instead that § 7 of the Endangered Species Act would be violated by the proposed federal project. Because the Interior and Commerce Departments have the statutory responsibility and necessary expertise to administer the Endangered Species Act, the "primary jurisdiction" doctrine should require courts to consider carefully the views of those departments concerning whether or not § 7 of the Act will be violated bu a proposed federal action.⁸⁸ In fact, primary judicial [5 ELR 50198] deference should be given to the decision of the Interior or Commerce Department on whether the planned project will jeopardize an endangered species or destroy or modify its habitat; such a departmental decision may even be reviewed under an "abuse of discretion" standard.⁸⁹

Thus the "threshold decision" by Interior of Commerce on § 7 of the Endangered Species Act should be judicially weighed as quite significant. It is much to be regretted that neither the federal district court in Missouri nor Mississippi appeared to give substantial weight to the views expressed by the Interior Department in the Meramec Reservoir or Interstate Highway I-10 cases. In any case in which the Interior or Commerce Departent did not have an opportunity to render an opinion on the applicability of § 7, the case should be returned by the court to one of those two departments for a determination.⁹⁰

Of course, certain problems may arise because the Justice Department often could argue in court for the government agency which sponsors the contested project, leaving the position of the Interior or Commerce Department to be presented by the plaintiff in the citizen's suit at bar. In these cases of intra-executive conflict, the court should request that a special brief be filed to express the views of the Interior or Commerce Department. Otherwise, the expertise of that department which administers the Endangered Species Act may not be available to the court in a § 7 case. Such judicial regard for the viewpoint of the Interior and Commerce Department is especially important during the early days of implementation of the Endangered Species Act, to permit the Interior and Commerce Departments to develop coherent policies of enforcement for § 7.⁹¹

C. Protection for Species Likely to Become Extinct: Guidance from the Legislative History

Both the Meramec Reservoir and Interstate-10 cases reveal a "philosophical position" which some courts and many critics of the Endangered Species Act expound to avoid proper enforcement of § 7. This reservation concerning the efficacy of the Act was stated by the federal district court in Missouri as follows:

It is significant to this Court that [the plaintiffs' expert witness] stated that even if the Meramec Park Reservoir were not built, the Indiana Bat would probably become extinct within fifteen to twenty years.⁹²

In fact, the court misconstrued the expert testimony on this point, which actually conceded only that "… somewhere in the future the [Indiana Bat] may become extinct."⁹³ Of course, that accurate testimony could apply to any existing species, including Homo sapiens, but the attitude toward the Endangered Species Act which the court expressed is quite significant.

A similar attack on the rationale of the Endangered Species Act was advanced by the defendants in the Interstate Highway I-10 case. They argued that the Mississippi Sandhill Crane might be reduced to extinction by changing land uses and residential development unrelated to highway construction even if Interstate-10 were not built as planned.⁹⁴ Whether or not these arguments were valid in the Missouri or Mississippi cases, they should be evaluated for the basic issue they present.

For any species on the "endangered" or "threatened" lists, extinction in the near future is a real possibility, even if measures are taken now to save the species. This fact is implicit in the very definition of an "endangered species," that is, one "which is in danger of extinction."⁹⁵ Even if courts or critics regard the Endangered Species Program as a waste of public funds, however, the law clearly extends protection to every endangered species, no matter how precariously it totters on the "brink of oblivion."

One justification for this protectionist policy is that one can never be sure that a species is doomed before the last individuals of that species are actually dead. Although the American Bison fell in numbers from 20,000,000 in 1854 toonly 551 in 1889, conservation efforts did preserve the species.⁹⁶ In fact, some species long thought to be extinct later are rediscovered.⁹⁷

Regardless of underlying policies, the legislative history of the Endangered Species Act clearly shows that Congress intended to protect species even if they probably will become extinct eventually. Speaking of preservation programs under the Act, Congressman Clausen stated that "emergency action is necessary which may not in every case be successful."⁹⁸ Congressman Grover reiterated this point by stating that the Act's coverage includes species "already on the way to extinction."⁹⁹ Congressman Goodling went further in referring to species which are presumed to be extinct but which might survive. Thus he said that the "endangered" list should include "actually endangered or extinct species …"¹⁰⁰

Congress apparently intended that the Endangered Species Act, including § 7, should protect even remnant populations of species soon likely to become extinct. This broadly preservationist legislative history of the Act provides valuable legal authority to challenge any [5 ELR 50199] trial court decision such as that in Sierra Club v. Froehlke. The memorandum opinion of the federal district court in Missouri reveals a basic misconception about the purpose and scope of the Endangered Species Act: the court saw little purpose in protecting the Indiana Bat, which soon might be extinct at any rate. Thus, that decision reasonably might be reversed and remanded for proper application of the law, which would preserve the bats until all are in fact extinct.¹⁰¹

D. The Judicial Standard for Testing Agency Compliance under § 7

Another important issue for implementation of the Endangered Species Act which the cases to date raise relates to the standard of compliance required of all federal agencies by § 7 of the Endangered Species Act. The United States district court in Missouri apparently adopted a "good faith compliance" test, holding that the Corps of Engineers had made reasonable efforts to consider the Indiana Bats while creating the Meramec Reservoir.¹⁰² The defendants in National Wildlife Federation v. Coleman apparently advocated that same "reasonable efforts" standard of compliance, asserting that the court should "weigh and balance" the interests of the endangered crane species against the national policy to build highways.¹⁰³ Although the court's opinion in the Mississippi case is not explicit on this point, the decision in National Wildlife Federation v. Coleman suggests that a relaxed standard of compliance by the Federal Highway Administration was accepted.The court did not find strict enforcementof § 7 but only that:

… the defendants have not been callous in their planning of this project and the consideration of its impact on the Crane.¹⁰⁴

Even though a degree of flexibility is needed to enforce any statute, the language and legislative history of § 7 require a more strict standard of agency compliance under the Endangered Species Act than that accepted by the federal courts in Missouri and Mississippi. Clearly, the wording of § 7 suggests non-discretionary duties for federal agencies:

All … Federal departments and agencies shall … [take] such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of … endangered species … or result in the destruction or modification of habitat of such species which is determined by the Secretary [of the Interior] … to be critical. (emphasis added)¹⁰⁵

The legislative history also indicates that § 7 imposes non-discretionary responsibilities. The report of the House of Representatives on the 1973 Endangered Species Act states the following about § 7:

This subsection … requires that [all] agencies take the necessary action that will not jeopardize the continued existence of endangered species or result in the destruction of critical habitat of those species … [F]or example, the Director of the Park Service would be required to conform the practices of his agency to the need for protecting the rapidly dwindling stock of grizzly bears within Yellowstone Park. (emphasis added)¹⁰⁶

The Senate Report on the 1973 Act confirms this interpretation of § 7:

All agencies, departments, and other instrumentalities of the Federal Government are directed to cooperate in the implementation of the goals of this Act. Each agency shall, inter alia, take steps to "insure that actions authorized, funded or carried out" by it do not jeopardize the continued existence of any such species or result in the destruction of its habitat. (emphasis added)¹⁰⁷

Representative Dingell, one of the prime movers behind the Act, further explained § 7 by citing practice bombing activities of the United States Air Force which threatened the Texas wintering grounds of the endangered Whooping Cranes:

Under existing law, the Secretary of Defense has some discretion as to whether or not he will take the necessary action to see that this threat disappears … [O]nce the bill is enacted, he or any subsequent Secretary of Defense would be required to take the proper steps. (emphasis added)¹⁰⁸

A fair reading of the language and history of § 7 thus requires a standard of "strict compliance" rather than a test of "good faith effort" for all federal departments which must enforce § 7. In reviewing the agency actions which affect endangered or threatened species, the courts should scrutinize agency compliance rigorously to require this "strict compliance."¹⁰⁹

E. Citizens' Suits to Enforce § 7

The foregoing discussion indicates that the congressional mandates of § 7 of the Endangered Species Act have not yet been implemented faithfully by certain federal agencies and courts. Even though officials of the Interior Department have attempted to enforce § 7 through vigorous action, the parochial goals of other federal bureaus inevitably take precedence over endangered species in those agencies' internal decision-making processes.

Thus citizens' suits brought to enforce § 7 of the Endangered Species Act often may be necessary to protect rare forms of life from negligent destruction by federal activities. Potential plaintiffs should be encouraged by [5 ELR 50200] that subsection of the Act under which they might collect their costs of litigation, including fees for attorneys and expert witnesses.¹¹⁰ However, plaintiffs also must remember the crucial conditions precedent to court actions under § 7 which the Act stipulates:

(2)(A) No action may be commenced under subparagraph (1)(A) of this section —

(i) prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator of any such provision or regulation:

(ii) if the Secretary has commenced action to impose a penalty pursuant to subsection (a) of this section; or

(iii) if the United States has commenced and is diligently prosecuting a criminal action in a court of the United States or a State to redress a violation of any such provision or regulation. (emphasis added)¹¹¹

The federal district court in National Wildlife Federation v. Coleman ruled that the sixty-day notice requirement of the Act had been satisfied by a protest letter which the plaintiffs had sent to the Federal Highway Administrator. This letter did not purport to be "formal notice" of a citizen's suit, but did allege that plans for Interstate Highway 10 violated § 7. Because plaintiffs also had sent copies of their letter to three different offices of the Interior Department, the purposes of the Act's notice provision clerly were fulfilled.¹¹²

Before certain courts, a simple letter of complaint criticizing a federal action may not satisfy the statutory requirement for notice prior to a citizen's suit, however. Even a written but non-specific "threat of litigation" may not be sufficient before many courts. Formal written notice which cites the relevant sections of the Act should be sent to the alleged violator of § 7and to the Secretary of Interior or Commerce, as appropriate, at least sixty days before filing suit.

Judicial enforcement of the procedural requirements for citizens' suits under the Endangered Species Act might follow the precedents which have already construed a similar notice requirement of the Clean Air Act.¹¹³ For example, the district court in the Meramec Reservoir litigation cited case authority under the Clean Air Act as guidance for interpreting the Endangered Species Act notice provision.¹¹⁴

The following provision of the Clean Air Act Amendments of 1970 permits citizens' suits:

Any person may commence a civil action on his own behalf —

(2) against the Administrator [of E.P.A.] where there is alleged a failure of the Administrator to perform any act or duty … which is not discretionary with the Administrator.¹¹⁵

However, such a citizen's suit under the Clean Air Act must meet the following procedural condition:

No action may be commenced —

(2) under [the foregoing provision] prior to 60 days after the plaintiff has given notice of such action to the Administrator.¹¹⁶

One noteworthy citizen's action under the Clean Air Act provides authority for upholding a citizen's suit under the Endangered Species Act for which notice was not given formally at least sixty days prior to filing suit. In Riverside v. Ruckelshaus,¹¹⁷ the plaintiffs did not provide the Clean Air Act's required sixty day's notice of suit, but instead relied on personal service of process upon the Administrator, plus a lapse of sixty days between the date of filing and the date of completing a hearing on their request for a preliminary injunction. The court permitted the suit, holding that the plaintiffs had established constructive compliance with the sixty-day notice requirement of the Clean Air Act.

On the other hand, another federal district court in City of Highland Park v. Train¹¹⁸ refused to accept the Riverside precedent discussed above and disallowed a citizen's suit under the Clean Air Act. Thus plaintiffs under the Endangered Species Act should protect their actions against dismissal by fulfilling the formal notice requirement of the Act.

Plaintiffs should comply with the sixty-day notice requirement of the Endangered Species Act not only to preserve their suits but to fulfill the policies underlying that requirement. During the sixty-day period before suit, negotiations and compromises could protect the endangered species while permitting the challenged federal action to progress, avoiding the expense of a civil action. Since plaintiffs often will seek immediate restraining orders under § 7, the federal defendants reasonably might be allowed sixty days to assess the conflict between their project and the Endangered Species Act, to find an accommodation or to prepare for trial.Nevertheless, in any case in which irreparable harm to an endangered species or its habitat seems imminent, the Riverside v. Ruckelshaus precedent provides an appealing mechanism for shortening the time period before judicial relief could be granted.

VI. Conclusion

Given the current economic and political climate in America, an observer may hardly expect that a rare species of wildlife will be spared when its well-being conflicts with high-priority projects involving the federal government. Nevertheless, § 7 of the Endangered Species Act provides a significant legal mechanism which can protect rare animals and plants in those situations, [5 ELR 50201] if the congressional mandate of that Act is followed by the federal agencies and courts.

Perhaps the luke-warm enforcement of § 7 reflected in the two cases discussed in this Article represents the inevitable fate of "conservationist" ideals in an environmental time of troubles. On the other hand, citizens' suits yet to be brought and court decisions yet unwritten can fulfill the congressional will expressed in § 7 and can give full force to the Endangered Species Act.

1. 16 U.S.C. § 1531 et seq, ELR 41825.

2. 16 U.S.C. § 1536 (1974). The key part of § 7 reads as follows:

… All other Federal departments and agencies shall, in consultation with and with assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 1533 of this title and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destructionor modification of habitat of such species which is determined by the secretary, after consultation as appropriate with the affected States, to be critical.

3. 18 U.S.C. § 43 (1970).

4. 16 U.S.C. § 43 (1970).

5. 16 U.S.C. § 668 (1970).

6. 16 U.S.C. § 668aa et seq.

7. 16 U.S.C. § 668aa et seq. (Supp. 1973).

8. 16 U.S.C. § 1532 (9), ELR 41825.

9. 16 U.S.C. § 1532 (5), ELR 41825.

10. 16 U.S.C. § 1532 (11), ELR 41825.

11. 15 U.S.C. § 1532 (4), ELR 41825.

12. 16 U.S.C. § 1532 (15). The Interior Department has interpreted the Endangered Species Act as sanctioning protection for a localized population of an endangered or threatened species or subspecies of fish or wildlife, even if other populations of that animal survive elsewhere.

13. 16 U.S.C. § 1533 (a), ELR 41825.

14. 16 U.S.C. § 1533 (b), ELR 41826.

15. 16 U.S.C. § 1534, ELR 41826.

16. 16 U.S.C. § 1535, ELR 41826. In a similar fashion, the Interior Department can assist programs in foreign nations to protect endangered and threatened species. (16 U.S.C. § 1537). The Endangered Species Act also implements as United States law certain provisions of the multi-lateral Convention on International Trade in Endangered Species of Wild Fauna and Flora. (March 3, 1973; ELR 40336). To enforce certain terms of the Convention and to strengthen prior United States law, the Endangered Species Act imposes criminal and civil penalties upon anyone subject to United States jurisdiction who exports, imports, buys, or sells an endangered species. (16 U.S.C. § 1538, ELR 41827; 16 U.S.C. § 1540, ELR 41829.)

17. 16 U.S.C. § 1536, ELR 41827.

18. 16 U.S.C. § 1540(g), ELR 41829.

19. 16 U.S.C. § 1538, ELR 41827.

20. 16 U.S.C. § 1532(14), ELR 41825.

21. 16 U.S.C. § 1540(a), (b), ELR 41829; 16 U.S.C. § 1533(d), ELR 41826.

22. See generally, Hearings on S.1983 before the Senate Subcommittee on the Environment of the Commerce Committee, 93rd Congress, 1st Sess, ser. 93-67 (1973); Hearings on H.R.37 before the Subcom. on Fisheries and Wildlife Conservation and Environment of the Com. on Mer. Mar. and Fish., 93rd Cong., 1st Sess., ser. 93-5 (1973).

23. Id. see also, Reitze & Thompson, Endangered Wildlife, in Environmental Planning: Law of the Land and Resources, (North American International, Washington, D.C. 1974).

24. Darwin, The Origin of Species and The Descent of Man, (Modern Library ed.) at 93, 94.

25. Reitze & Thompson, supra, n. 23.

26. See U.S. Dept. of the Interior, The Right to Exist (1969).

27. Reitze & Thompson, supra, n. 23 at 10-1.

28. S. Rep. No. 93-307, 93rd Cong., 1st Sess. 2 (1973).

29. See, e.g., Fisher, Simon & Vincent, Wildlife in Danger (1969); Carson, Silent Spring (1962); Black, The Management and Conservation of Biological Resources (1968); Smithsonian Institution, report cited in Time, June 8, 1970, at 52.

30. See, S. Rep. No. 93-307, supra, n. 28 at 2; Hearings on H.R.9424 and H.R.9493 Before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 89th Cong., 1st Sess., ser. 89-11, at 134-6.

31. See S. Rep. No. 93-307, supra, n. 28 at 2; Black, supra, n. 29 at 109-14.

32. Id.

33. Even proponents of industrial and other economic interests should wish to preserve as many living species as is possible. Because technological, industrial, and agricultural uses are discovered daily for plants formerly ignored as weeds, modern society can ill afford to lose unique organisms which later might prove useful. An example is the jojoba bean, recently discovered as a source for a critical industrial lubricant. U.S. Dept. of Agriculture Public Information Service, Report of August 1, 1975.

34. Sagoff, On Preserving the Natural Environment, 84 Yale L.J. 205, at 245-59.

35. Id. at 259.

36. Supra, n. 22.

37. Conversations with Robert Jacobsen, of the Office of Endangered Species, Dept. of Interior, July 28, 1975.

38. 42 U.S.C. § 4321 et seq., ELR 41009.

39. Environmental Defense Fund v. Armstrong, 487 F.2d 814, 4 ELR 20001 (9th Cir. 1973); Nat. Helium Corp. v. Morton, 455 F.2d 650, 656, 1 ELR 20478 (10th Cir. 1971).

40. 16 U.S.C. § 661 et seq., ELR 41801.

41. See, Environmental Impact Statement, Atlantic Fleet Integrated Weapons Training Ranges (Culebra Study) (Mar. 30, 1975).

42. Id.; also see 50 C.F.R. § 17.11, 39 Fed. Reg. 1171 (Jan. 4, 1974); 40 Fed. Reg. 21974-21977 (May 20, 1975).

43. See 40 Fed. Reg. 17764-17765 (Apr. 22, 1975).

44. See, inter alia, 50 C.F.R. Part 17, (Jan. 4, 1974; Apr. 1, 1974); 39 Fed. Reg. 29605-29606 (Aug. 16, 1974); 39 Fed. Reg. 37078-37079 (Oct. 17, 1974); 40 Fed. Reg. 12297 (Mar. 18, 1975); 40 Fed. Reg. 17590-17591 (Apr. 21, 1975).

45. Dr. Ronald Nowak, Biologist of the Office of Endangered Species, Fish and Wildlife Service, U.S. Dept. of Interior, conversation with the author on August 5, 1975.

46. See, 40 Fed. Reg. 21499-21501 (May 16, 1975).

47. See Emergency Determination of Critical Habitat for Mississippi Sandhill Crane, 40 Fed. Reg. 27501-27502 (June 30, 1975).

48. 5 ELR 20456, 7 ERC 1831 (E.D. Mo. 1975). (Hereinafter cited as Mo. Op.)

49. Id. at 4, 5 ELR 20457.

50. Id. at 4-5, 5 ELR 20457.

51. See 50 C.F.R. § 17.12 (1974); Trial Transcript (hereinafter Mo. Tr.) at 278-283.

52. R. Jacobsen, of the Fish and Wildlife Service, U.S. Dept. of Interior, telephone conservation of July 28, 1975.

53. Mo. Tr. at 277.

54. The espert was Dr. R. F. Myers, a zoologist who had conducted extensive research on the Indiana Bat.

55. Mo. Tr. at 251-292.

56. Exhibit T of plaintiffs.

57. Exhibit V of plaintiffs.

58. Exhibit W; Mo. Tr. at 251-57.

59. Plaintiff's Exhibit 16-A, pp. 3, 51-52.

60. See Mo. Op. at 11, 5 ELR 20460.

61. R. Jacobsen, supra, n. 52.

62. Mo. Op. at 12, 5 ELR 20460-61.

63. Id.

64. Mo. Op. at 25, 5 ELR 20462.

65. Mo. Op. at 12, 5 ELR 20461.

66. Mo. Op. at 25, 5 ELR 20462.

67. Mo. Op. at 25, 5 ELR 20462.

68. 5 ELR 20566 (S.D. Miss. Aug. 4, 1975).

69. See 38 Fed. Reg. 14678 (June 4, 1973).

70. Plaintiff's Post-Trial Memorandum, (hereinafter Memo) at 1.

71. Memo at 1-2.

72. See, e.g., testimony of Jacob Valentine, biologist of the U.S. Fish and Wildlife Service (transcript), Final Environmental Impact Statement for Interstate Highway I-10 at 28.

73. Memo at 3.

74. Id.

75. Id.

76. Id.

77. 40 Fed. Reg. 27501-02 (June 30, 1975).

78. Id. at 27502.

79. Memo at 13, 23.

80. National Wildlife Federation v. Coleman, supra, n. 68 (hereinafter Miss. Op.) at 10, 5 ELR 20568.

81. Miss. Op. at 10-11, 5 ELR 20568.

82. Miss. Op. at 12-13, 5 ELR 20568.

83. Letter of June 6, 1975, from Dept. of Interior Assistant Secretary Reed, to Dept. of Transportation Assistant Secretary Davis. See n. 70 supra.

84. Udall v. Tallman, 380 U.S. 1, 16 (1965).

85. See, inter alia, Arlington Coalition v. Volpe, 458 F.2d 1323, 1332, 2 ELR 20162 (4th Cir. 1972).

86. See, inter alia, Ragland v. Mueller, 460 F.2d 1196, 2 ELR 20320 (5th Cir. 1972); Pizitz v. Volpe, 2 ELR 20378, aff'd per curiam 467 F.2d 208, 2 ELR 20379 (5th Cir. 1972).

87. See, inter alia, Named Individual Members of San Antonio Con. Soc. v. Texas Hwy. Dept., 446 F.2d 1013, 1025; 1 ELR 20379 (5th Cir. 1971); Monroe County Conservation Council v. Volpe, 472 F.2d 693, 699; 3 ELR 20006 (2d Cir. 1972).

88. See, inter alia, Far East Conference v. United States, 342 U.S. 570, 574 (1952); 3 Davis, Administrative Law Treatise § 19.01 (1958); Udall v. Tallman, 380 U.S. 1 (1965).

89. Udall v. Tallman, supra, n. 84.

90. Id.

91. See 3 Davis, supra n. 88.

92. Mo. Op. at 25, 5 ELR 20462.

93. Mo. Tr. at 312.

94. See Memo at 11.

95. 16 U.S.C. § 1532(4), ELR 41825.

96. The Book of the American West at 429-67 (J. Monaghan ed. 1969); Hue, Sportsman's Guide to Game Mammals at 538 (1971).

97. One example is the Seychelles Island Owl, rediscovered in 1959 after 53 years of presumed extinction.

98. 119 Cong. Rec. H. 8023 (daily ed. Sept. 18, 1973).

99. 119 Cong. Rec. H. 8021 (daily ed. Sept. 18, 1973).

100. 119 Cong. Rec. H. 9020 (daily ed. Sept. 18, 1973).

101. See, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971); Milsen Co. v. Southland Corp., 454 F.2d 363, 369 (7th Cir. 1971).

102. Mo. Op. at 12.

103. See, State Defendant's Memorandum in Opposition to a Preliminary Injunction at 24-25.

104. Miss. Op. at 13.

105. 16 U.S.C. § 1536, ELR 41827.

106. H.R. Rep. No. 93-412, 93d Cong., 1st Sess., 14 (1973).

107. 1973 U.S. Code Cong. & Adm. News, 93d Cong., 1st Sess., 2989, 2997 (1973).

108. 119 Cong. Rec. H. 11, 837 (daily ed. Dec.20, 1973).

109. Cf., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411, 1 ELR 20110 (1971); Calvert Cliffs Coordinating Committee v. A.E.C., 449 F.2d 1109, 1114; 1 ELR 20346 (D.C. Cir. 1971).

110. 16 U.S.C. § 1540(g)(4), ELR 41830.

111. 16 U.S.C. § 1540(g)(2)(A), ELR 41830.

112. Miss. Op. at 7-8, 5 ELR 20567.

113. 42 U.S.C. § 4321 et seq., ELR 41009.

114. Mo. Op. at 24.

115. 42 U.S.C. § 1857h-2(a), ELR 41224-5.

116. 42 U.S.C. § 1857h-2(b). ELR 41225. The regulations prescribing the manner in which notice must be given are in 36 Fed. Reg. 23886-87 (Dec. 9, 1971).

117. 3 ELR 20043 (C.D. Cal. 1972).

118. 374 F. Supp. 758, 4 ELR 20677 (N.D. Ill. 1974).

5 ELR 50189 | Environmental Law Reporter | copyright © 1975 | All rights reserved