OF MICE AND MEN:

              SURVIVING ENDANGERED SPECIES ACT LITIGATION



                                             -by-



                                  David T. Hardy [1]



                               8987 E. Tanque Verde

                                       Suite 265

                                 Tucson, AZ 85749

                              (dhardy@indirect.com)





	Nineteen years after its passage, the Endangered Species Act

remains the most comprehensive and restrictive environmental

legislation yet enacted by any nation.  In the words of the Supreme

Court, the 1973 legislation reflects "a conscious decision by Congress

to give endangered species priority over the 'primary missions' of

federal agencies," and a binding commitment to avoid destruction of

such species "whatever the cost." [2]  The lower courts have given a

literal application to these characterizations. In Texas, a lawsuit over

endangered fish and mollusks threatened a shutoff of water to San

Antonio and is driving a major revision of the state's water law. [3] In

Washington and in Oregon, impacts of Northern Spotted Owl protection

on the timber industry  led the Bush administration to convene the

cabinet-level committee which alone can grant exemption from the

Act and the Clinton administration to call a "Timber Summit;"  it is

estimated that the combined effects of preserving bird and fish

species will cut National Forest lumber production by 50%.  [4] In 1992

alone, Endangered Species Act  challenges were brought against an

observatory in Arizona, major irrigation contracts in California, water

projects in New Mexico and Texas, EPA's approval of Alabama's Clean

Water Act standards, and the use of private land in Hawaii:  a Supreme

Court determination of whether foreign aid was governed by the Act

was only barred by a failure of plaintiffs to properly plead standing to

sue in the case before the high court. [5]

	Conflict between development of resources and the

conservation of endangered species will continue to grow in the

future.  As development of resources expands, so will the list of

protected species, as the 615 presently-listed American species are

joined by many of the 3,600 officially-recognized candidate species.

[6]  Yet few laws remain as widely misunderstood as the ESA.  On the

one hand, Federal agencies are apt to assume that the agency's own

program priorities override those of the ESA, awakening only when

the program in question is suddenly halted by a temporary restraining

order.  At the other extreme, private parties too often assume that

once a species is listed, its habitat becomes de facto a wilderness

area in which all human activities must cease.  Neither is in fact the

case, unless the errors and oversights of the parties affected make it

so.  To correctly deal with the requirements of the ESA requires first a

sound understanding of its coverage and commands. 



MAKING THE LIST: ENDANGERED SPECIES AND CRITICAL HABITAT



	Endangered species (more precisely known as "listed species")

are those listed by federal rulemakings, codified at 50 C.F.R. 17.11 and

17.12.  This core definition is complicated by the fact that the listed

wildlife groupings are not of necessity either endangered nor even

species.  By statute, any subspecies of fish, wildlife, insects or plants

can be listed as a "species"; indeed, in the case of vertebrates, any

"distinct" population segment may be listed. [7]  Conversely, the

species listed  can be either "endangered" or "threatened."  [8] 

"Endangered" is the higher classification, and requires a finding that

the species is "in danger of extinction throughout all or a significant

part of its range," while "threatened" status is imposed upon the

lesser finding that the species is likely to become "endangered"

within the foreseeable future. [9]  (To complicate the issue,  a species

is sometimes given different legal status in different regions or

political jurisdictions.  The Bald Eagle is, for instance,  "threatened" in

some American states, "endangered" in others, and not listed at all in

Alaska or Canada: since flying birds are no respecters of political

boundaries, the same bird may thus pass through three different legal

statuses on each annual migration).

	Whether a species is classified as threatened, endangered, or

neither is by law determined by consideration of five statutory

criteria which span the range of natural and non-natural risks. [10] 

Congress has specifically commanded that those criteria and those

alone be considered:[11] the listing agency is forbidden to weigh the

economic impacts of listing in reaching its result. [12]  If the listing

has been initiated by a petition from an outside party, the agency is

required to act within strict timetables.  Within ninety days of the

petition, it must find whether it presented "substantial information"

supporting listing; if so, it must within a year  make a priority call as

to when and how it will proceed.  [13]  Both findings must be

published in the Federal Register;  suit may be brought to challenge

any negative ruling.

	By statute, each listed species should also have a designated

"critical habitat," unless determining such is impossible or imprudent.

[14]  Critical habitat is not coterminous with the area presently

occupied by the species, nor with the area it could potentially occupy

in the future.  Areas within the species' present range may be listed if

they contain features essential to species conservation and which

require "special management considerations or protection;" areas

outside that range may be included to the extent they are found to be

essential to species conservation. [15]    Critical habitat is defined by

a rulemaking, preferably in tandem with the species listing,  which is

then codified at 50 CFR 17.95.  The rule must set out an evaluation of

private or governmental activities which might impermissibly affect

such habitat.  [16]

	The ESA specifically provides that designation of critical habitat

shall be the rule, not the exception, for domestic listed species, and

that designation may be delayed at most for one year after the

listing.  [17] The critical habitat determination is, however, complex

and time-consumptive: it requires delineation of the area on maps,

studies of potential impacts upon species and habitat, publication of

notices in local newspapers and, quite often, formal public hearings. 

Moreover, unlike the listing decision itself, the call on critical habitat

requires that the agency consider the economic impacts of its rule

and modify it, where appropriate, to minimize those impacts.  [18] 

Conversely, the agency gains little power by a critical habitat

designation:  if it judges a parcel useful to species survival, it can as

easily block development on the grounds that it puts the species itself

in "jeopardy" as it could on the grounds that development "adversely

modifies" the habitat.  It should thus not be too surprising that,

despite the clear Congressional command that habitat designation be

the rule and not the exception,  only about one-ninth of American

species have a such a designated habitat. [19]   This situation is

promoted by the paradox that, while habitat designation allows

economic impacts to be factored in and largely pins the agency down

on where and how development is allowable, development interests

have generally opposed designation in the incorrect belief that they

are better off without it, and its main support has come from

occasional conservation groups which fail to understand that it

largely lessens species protections. [20]

	The listing of a species and/or its critical habitat bring into play

the ESA's legal restrictions.  



IMPACT OF THE ESA UPON RESOURCE USE:

ACTIONS WHICH "TAKE" OR "MAY AFFECT" A SPECIES



	Actions in areas where listed species are found are apt to raise

questions under three separate portions of the ESA:  (1) the "Section

9" (16 U.S.C. 1538) prohibition on "taking" members of listed species, 

(2) the "Section 7(a)(2)" (16 U.S.C. 1536(a)(2)) duty of a federal

agency to "consult" with Fish and Wildlife Service whenever the

agency's actions (including leasing, issuance of permits, and funding)

may "affect" a listed species, and (3) the more amorphous "Section

7(a)(1) " (16 U.S.C. 1536(a)(1)) duty of each Federal agency to

"conserve" listed species.  As a legal attack may be based on any

combination of these, each requirement and the procedures for its

satisfaction will be discussed in turn.



"Taking" a listed species.



	Section 9 of the ESA (16 U.S.C. 1538) prohibits certain actions

which directly and concretely harm individual members of a listed

species.  The precise prohibitions depend upon the nature of the

species and its listing.

	If the species consists of fish or wildlife and it is listed as

"endangered," it becomes illegal to (among other things) "take" the

species, that is, to "harass, harm, pursue, hunt, shoot, wound, kill,

trap, capture, or collect" it. [21]  "Harm" is further defined by

regulation to include "significant habitat modification where it

actually kills or injures wildlife by significantly impairing essential

behavioral patterns, including breeding, feeding, or sheltering." [22] 

"Harass" is given still broader scope: it includes "an intentional or

negligent act or omission which creates the likelihood of injury to

wildlife by annoying it to such an extent as to significantly disrupt

normal behavioral patterns." [23]  While broad, these definitions have

met with judicial approval. [24]  Similar protections can, in agency

discretion, be applied to wildlife classed as "threatened" rather than

"endangered." [25]  Lessened protections apply to plants however

classified.  [26]

	It goes without saying that many projects carried out in the

vicinity of listed species may be found to "harass" them during

construction, and to "harm" them upon completion.  Nor are

construction projects alone subject to a "taking" challenge. Forest

management practices have been successfully challenged on the basis

that they (by reducing nest trees and thus populations) "took" red

cockaded woodpeckers; [27] EPA's registration of strychnine for

predator control has been successfully challenged as allowing

unintended consumption by and thus killing of endangered birds;[28]

State land management has been successfully attacked on the ground

that it reduced habitat and plant foods for endangered birds;[29] and

FWS's own waterfowl hunting regulations have been stricken, insofar

as they allowed hunting with conventional lead shot, on the basis that

bald eagles later consumed the shot in waterfowl carcasses and were

"taken" by this unintentional poisoning. [30]

 	Takings are subject to criminal sanctions and civil penalties; [31] 

in most cases a more realistic risk is that of a civil injunction. [32] An

action to enjoin a "taking" may be brought by any plaintiff with

standing; unlike an action based on "may affect," it can be brought

not only against a Federal agency, but also directly against a private

citizen. [33]  Indeed, Federal authorities have successfully sued a

private irrigation district which drew water from the Sacramento

River.  An order was secured enjoining its water withdrawal on the

grounds that the pumping stations drew a threatened species of

salmon past protective screens; the fact that the defective screens

were the responsibility of a State agency was not allowed as a

defense. [34]

Actions which "may affect" a listed species.

	Section 9's proscriptions apply to all actions, Federal and

nonfederal alike, and conversely are limited to a bar on actions which

impact a species sufficiently to cause a demonstrable harm.  Federal

agency actions are also subject to the broader requirements of

Section 7 of the Act (16 USC 1536).  The core of these requirements is

found in 16 USC 1536(a)(2), which requires that each Federal agency

shall, "in consultation with ... the Secretary," insure that any agency

action "is not likely to jeopardize the continued existence" of a listed

species or cause the "destruction or adverse modification" of its

critical habitat.  The procedure for complying with the consultation

requirement is codified at 50 CFR part 402. [35]

	Few environmental statutes have the reach of Section 7(a)(2); it

applies to "any action authorized, funded, or carried out" by a Federal

agency. [36]  "Any action" is to be read literally: in Tennessee Valley

Authority v. Hill the Supreme Court opined that, even were the dam at

issue completely constructed, the mere closing of its gates would be

an "action" sufficient to require consultation. [37]  The regulatory

definition states that "Federal action" encompasses promulgation of

agency regulations, as well as granting of licenses, permits,

contracts, interests in land, grants in aid, and all agency modifications

of the environment. [38]  Many ostensibly private activities in fact

fall within the scope of Section 7: it is, after all, necessary to obtain

Federal clearance to dredge, fill or modify a navigable waterway,

discharge an air or water pollutant, sell many forms of realty in

interstate commerce, and to obtain certain types of loans and some

types of insurance. [39]  Federal action is likely necessary to obtain

water where it is scarce and flood insurance where it is all too

plentiful, to open a school or a factory, to push dirt into a pond or to

finance a house.  If a listed species is affected, all these actions may

be open to Section 7(a)(2) challenge.

 RESOLVING ESA PROBLEMS

	A. The decision to consult.  ESA issues most frequently arise in

the Section 7 context of a Federal action or permit which may affect a

listed species. [40]  In this context, the agency taking the action or

issuing the permit must make the initial call on whether consultation

with the Fish and Wildlife Service is required.  Two different sets of

procedures and standards are employed, depending upon whether or

not the action involves a "major construction activity"--defined as a

project (1) involving construction or activity with "similar physical

impacts" [41] and (2) for which an Environmental Impact Statement

was required under the National Environmental Policy Act. [42] 

	Major Construction Activities. If a major construction activity is

involved, the agency must employ a relatively detailed process in

determining whether consultation is required.  If a listed species is

merely "present" in the area (whether or not the activity is believed

to affect it), a "biological assessment" must be prepared.  The

assessment (to be distinguished from a "biological opinion") must

contain a list of species, review of biological or botanical literature,

the results of physical inspection of the area, and possibly statements

of experts in the field. [43]  Preparing a sufficient biological

assessment is no minor task: the resulting document can easily

exceed a hundred pages in length.  At the same time it is only required

where the separate mandate of NEPA would require the even more

involved Environmental Impact Statement, and the effort required

overlaps to a large degree that required for the EIS. [44] Moreover,

the assessment offers an opportunity which should not be neglected:

it allows the acting  "agency to build its case' as to whether a

particular action is likely to adversely affect...." a listed species.[45] 

With the assessment in hand, the acting agency can make its decision

as to whether to consult with the Fish and Wildlife Service.  Unless the

agency can conclude, based on the assessment, that the project will

"not adversely affect" the species at issue, it must proceed to formal

consultation with FWS.

	Actions Other Than Major Construction Projects.  "Major

construction projects" are, however, only a tiny fraction of Federal

agency action.  If the action does not involve such a project, a

biological assessment is not required and the process is greatly

simplified.  The agency must simply make an initial determination of

whether and how the action "may affect" (adversely or otherwise) a

listed species.  Here there are three possible outcomes:

(1) The agency can conclude that there will be no effect on any listed

species. In this event, its Section 7(a)(2) duties are finished and it

may proceed with the action.

(2) The agency concludes that there may be an effect, but it will most

likely be a beneficial one.  The agency here may seek speedy and

informal consultation; if this confirms the conclusion, and the agency

accepts the finding, Section 7(a)(2) compliance is likewise finished.

[46]

(3) The agency concludes there may be an effect, and cannot conclude

that it will be beneficial.  Section 7(a)(2) requires initiation of formal

consultation.

The courts have noted the obvious: the "may affect" test is a "low

threshold" of decisionmaking; little impact on the species is required. 

[47]  Where question exists--or there is a possibility that the action

may "affect" but not "adversely affect"--the acting agency may seek

expedited and informal consultation.  [48]  Although FWS is more likely

than the action agency to favor a "may affect" finding, informal

consultation may be invaluable in the event of a later legal challenge. 

FWS may, for instance, suggest that the original planned action might

"affect", but propose modifications which would drop it below this

theshhold.  [49]  If FWS concurs in the ultimate "will not affect"

finding, the odds of a successful legal challenge drop radically.  Such a

challenge will likely focus on the written agency decision, and in

particular on failure to document its bases and rationale.  Paperwork

generated during the agency-FWS dialogue will do much to ensure no

gaps are left unfilled.  Secondary attacks will likely involve claims

(with traditional legal embellishment) that the action agency had a

vested interest in hiding impacts and arriving at a "will not affect"

outcome.  The concurrence of FWS undercuts that argument as well. 

The informal consultation's result may thus go a long ways toward

defeating an argument that the agency failed to consult when

necessary and to "insure" its actions would not jeopardize the

species.

	B. Consultation and the Biological Opinion.  The object of the

consultation process is to obtain a "Biological Opinion" from the Fish

and Wildlife Service.  In that Opinion,  FWS advises the agency

whether the effects of its action are so great as to make it likely that

the species will be put in jeopardy of extinction.  Since ESA requires

that the agency "insure" that none of its acts will jeopardize a listed

species, the biological opinion becomes the dispositive ESA document

in such cases. 

	The formal consultation process begins when the acting agency

requests consultation in the form required by regulations. [50]  Where

a private party is seeking the agency's license or funding, this will

usually occur after the private party has applied to the agency. 

However, FWS regulations also authorize the private applicant to

request that the agency seek "early consultation" prior to his

application. [51]  This can have several benefits to the applicant. 

First, it may be to the applicant's benefit to know, before applying,

what ESA-related conditions will be placed upon any license, lease, or

funds should he might ultimately obtain.  Second, early consultation

may speed the process; the result of early consultation is a

"preliminary biological opinion" which (absent new data having

become available) can be speedily finalized at a later date. [52] Third,

in situations where a number of applicants must divide an ESA-limited

resource (e.g., the water supplies which are the habitat of a listed

fish), early consultation may permit an applicant to secure an advance

priority vis-a-vis other potential users. [53]

	Upon requesting consultation, the agency must cease all

irreversible commitments of resources which might foreclose

alternative courses of action. [54]  Conversely, a very short timetable

comes into effect. FWS has 90 days in which to consult (this can be

extended, but by no more than 60 days, absent the applicant's

agreement to a longer period), and must deliver its opinion no more

than 45 days after the close of consultation. [55]

	The applicant may, and should, be heavily involved during the

consultation period: he alone may have essential data on how the

project will be carried out or the permit be applied, and if the project

as originally proposed may jeopardize a species, his input may be

crucial to devising alternative approaches that will not. [56] After

consultation closes and drafting of the opinion begins, the applicant's

role is more circumscribed.  Most biological opinions go through

repeated drafts and redrafts, with input from the action agency and

others.  The applicant is not entitled to obtain drafts directly from

FWS, but the regulations recognize that he may obtain them through

the intermediary of the action agency, and submit his comments

either to the agency or to FWS. [57]

	From the applicant's standpoint, the core of the biological

opinion is its "jeopardy" finding and listing of "reasonable and

prudent alternatives."  Both these determinations can involve

negotiation and consideration of technical details of species and

project alike.  The jeopardy determination [58] hinges not upon

whether the action will result in harm to some members of the

species, but upon whether, in light of the "best scientific and

commercial data available" [59] the action is likely to "jeopardize the

continued existence" of the entire species. [60]  This is not purely a

matter of determining whether any members of the species would

survive after the action; as FWS has noted, damage to habitat or

reduction of a population to the point where genetic variability is

critically reduced and fatal inbreeding becomes a risk may result in

extinction, even though the action does not immediately extinguish

the species. [61]

	In assessing the action's impacts, FWS must fixes an

"environmental baseline" which reflects the species' long term status

but for the proposed action.  This baseline includes past and present

impacts of human actions, anticipated impacts of Federal projects

already under formal or early consultation, and contemporaneous

non-Federal actions. [62] Federal actions covered by previous

biological opinions are included, even though the applicant may feel

they are unlikely to take place, unless he can convince the agency

which authorized them to state that the projects have been

abandoned or they do not regard the outstanding biological opinions

as having continuing vitality. (Obviously, it may be to an applicant's

advantage to locate such projects and secure the necessary

statements of abandonment--and perhaps even to impeach the

current validity of their biological opinions. [63]).

	The effect of the proposed action are then added to this

baseline. These include both the direct effects and those indirect

effects "reasonably certain to occur." [64]  (Even prior to this

regulatory definition, the Fifth Circuit held that, in giving ESA

consideration to construction of a highway, an agency must consider

not only the effects of the highway itself, but also of development

which would be caused by its opening. [65] FWS expressly invoked this

decision in promulgating the present regulations. [66]). In parallel

with the effects of the action, FWS also assesses "cumulative effects"

of other actions upon the species--that is to say, whether the

proposed action will jeopardize the species, when viewed in tandem

with other ongoing private activities (other Federal projects are

excluded, since they too have been or will be subject to Section 7

clearance).  [67]  It is, of course, to the applicant's advantage to push

other putative projects out of the "cumulative effects" pool; this may

be done by demonstrating that (1) legal or economic barriers are a bar

to their being considered "reasonably certain" [68] or (2) the putative

projects will themselves require Federal approval or funding and thus

require Section 7(a)(2) clearance prior to implementation. [69] 

	An applicant whose proposal is subject to consultation should

obtain all available data on the species and impacts of development

upon it.  Background on the species may be obtained from the rule in

which it was listed, which will discuss the reasons for endangerment

and private activities which FWS believed would be affected by its

listing. [70]  Another resource consists of Recovery Plans, which are

available for about two-thirds of domestic all listed species; these

outline what measures should be taken to ensure species recovery,

and often define the point at which it will be considered non-

endangered and subject to delisting.  Where the importance of the

action merits investment of substantial resources, it may be

advisable to retain the services of a biologist or botanist

knowledgeable of the species in question, [71] and to examine

biological opinions authorizing other actions affecting the species in

question.  The Endangered Species Act is, in significant ways, a statute

drafted by attorneys to be administered by biologists, with all the

quirks that implies; serious pitfalls can be avoided by teamwork and

preparation.

	If a jeopardy finding appears probable, it may be to the

applicant's advantage to propose various mitigating measures which

may be weighed by FWS. [72]  Mitigating measures have historically

ranged from providing alternative habitat to funding research, but

their proposal is not a simple process of exchange.  To make

mitigation appealing, the applicant should be ready to demonstrate

how species extinction risks are reduced if habitat, research, or other

mitigation is provided.  He should also bear in mind that mitigation

offers which are vague or inchoate may be acceptable to the agency

or FWS, yet fail if challenged in court. [73]  Mitigation proposals, like

any other negotiation, can involve a certain amount of posturing: FWS

is likely to begin by asking more than it can justify, and the applicant

by proposing less than he is prepared to provide. 

	It is possible that, despite all possible mitigation, the conclusion

will still be that the proposal will jeopardize survival of the species in

question.  If the original proposal is indeed likely to jeopardize the

species, FWS has a statutory duty to set forth all "reasonable and

prudent" alternatives which would pass the jeopardy standard. [74]  A

"reasonable and prudent alternative" is an alternative to the action

as proposed and which meets four tests:

(1) it is consistent with the original action's purposes;

(2) it is within the scope of the action agency's legal authority and

jurisdiction;

(3) it is economically and technically feasible;

(4) it will not, if implemented, violate Section 7(b)(2)'s jeopardy to

species/impairment of critical habitat standards. [75]

Historically, all but a few "jeopardy" opinions become "reasonable

and prudent alternative" opinions as FWS, the agency, and the

applicant work out alternative courses of action which (at a cost to

the original objectives) will not jeopardize the species.

	Negotiation at this point becomes an intricate mixture of

biology, economics, and technical detail.  The applicant's interest lies

in establishing that there are reasonable and prudent alternatives,

but also in minimizing the alterations necessary to achieve these. 

This involves maintaining that significant project modifications are

not "reasonable and prudent"--so long as less drastic modifications

will change matters just enough to pass the edge of jeopardy.  FWS's

interest lies in classifying a maximum spectrum of action as

economically "reasonable and prudent," and then placing the jeopardy

threshold as high as enough on this spectrum.  Yet in the intricate

dance of ESA negotiations, these interests may on occasion reverse. 

If the applicant is considering later seeking an exemption from the

ESA via the Endangered Species Committee, or challenging the

restrictions on his land use as an uncompensated "taking" of private

property, he may desire to maintain that there are no alternatives

that are reasonable and prudent--that the ESA simply bars all hope of

implementing his project.  Under the same conditions, FWS may well

find itself vigorously seeking alternatives with minimal economic

costs and maximum development potential.

	In either event, the applicant's search for alternatives is subject

to two external checks.  On the one hand, in the event no alternatives

are found, and the applicant later moves for an exemption, he must

be able to prove that he consulted "in good faith and made a

reasonable and responsible effort to develop and fairly consider

modifications or reasonable and prudent alternatives...." [76] 

Conversely, too vigorous a quest or too accommodating a negotiator

may lead to an alternative which is economically nonviable yet (by

virtue of its status as an alternative) precludes application for

exemption. [77]

	Whatever the outcome, the applicant should take care to

preserve the administrative record; should the opinion be subjected

to judicial challenge, the result will be examined against the

background of the documentary evidence in possession of the

authorizing agency and the FWS, and live testimony may well be

excluded except insofar as it explains the documentation. [78]

Arguments for the applicant's position should be reduced to writing

and submitted prior to the decision.  If an expert has been retained,

his opinions should likewise be filed with the agency, as should his

replies to adverse comments.

	The applicant cannot rest if the administrative result appears

likely to be favorable: a subsequent judicial challenge may well

overturn the result due to an insufficient written record supporting

and ratifying the opinion.  The applicant should take care to develop

the record by his own comments and by a review of the opponent's

objections.  Supporting a favorable result with data, arguments and

expert opinion may thus be as important as opposing an unfavorable

one;  a favorable draft opinion and its supporting data should be

carefully examined against the mandates of the statute, and any

loose ends carefully tied.

	After completion, the biological opinion is forwarded to the

action agency.  That agency, and not FWS, bears responsibility for (in

the words of the statute) "insuring" that the action as allowed is not

likely to jeopardize a listed species, although a favorable FWS opinion

carries "substantial weight" in any later court challenge alleging

agency failure. [79]  Conversely, the agency can (if an adequate

record exists to support its decision) reject the advice given in the

biological opinion. Such rejections are, however, unlikely to survive a

judicial challenge. [80]

	With the completion of the biological opinion, and the agency's

decision, the Section 7 process is finished.  If authorized and

accepted, the action may proceed. [81]

DEALING WITH SECTION 9 AND ACTIONS WHICH "TAKE" LISTED SPECIES 

	 Unlike Section 7, Section 9's proscription of "taking" of listed

species applies both to Federal agency actions and to private actions

with no Federal involvement.  How one copes with an action which

may cause a "taking"--death, harm, or harassment of an endangered

species--depends upon whether the proposed action does or does not

involve Federal authorization and hence involve the Section 7 process.

	Use of Section 7 consultation to sidestep Section 9 problems.  If

the Section 7 process is involved, the situation is one of an action

which both "affects" and "takes" listed species.  The "affect" portion

is dealt with by obtaining a biological opinion, as discussed above. 

The "take" aspect is dealt with via a simple addition to the biological

opinion. [82]  This additional section, referred to as the "Incidental

Take Statement," was authorized by the 1982 amendments to the ESA,

and it authorizes the agency and the applicant to cause a described

amount of "taking" of the species. [83]  The Incidental Take Statement

portion of the biological opinion must specify:

(1) the impact of the action upon the species (the regulations add that

this should be stated in terms of the "amount or extent" of the likely

takings);

(2) reasonable and prudent measures [84] judged necessary to

minimize this take;

(3) terms and conditions which will implement these measures; and

(4) measures to be followed (in terms of collection and reporting)

should any dead specimens be found. [85]

	It is advisable to examine this portion of the biological opinion

with exceptional care:  nowhere else do the commands of the ESA run

more clearly afoul of human nature.  FWS biologists are, after all,

charged in their daily work with conserving endangered species;  yet

in this section of the opinion they must delineate just how many may

be legally killed or harmed and in what ways and to state the basis

for their calculations.  The task is often undertaken with a natural

reluctance which may leave the result subject to legal attack.  [86]

Conversely, too narrow an allowance may itself be subject to

challenge if it is unsupported by the record. [87] 

	FWS traditionally describes the impact in terms of the number of

specimens expected to be killed, and requires reinitiation of

consultation should this number be exceeded.  While this accords with

the regulations, it may not comply with the statutory scheme.  [88]  A

closer approach to the statutory language would probably be

advisable, reflecting (1) a general statement of the anticipated

deaths, injuries, and nonphysical disturbance, and an explanation of

why these will not jeopardize the species, (2)  a list of measures

intended to keep these occurrences to lower levels than the

anticipated maxima, and (3) a statement of pseudo-regulations

(legally binding, in that 16 USC 1536(o) only exempts takings in accord

with the "terms and conditions" set out) to implement (2). [89]

	Section 9 compliance in the absence of a biological opinion. 

Where there is no Federal action involved, the authorization is more

difficult to obtain.  The 1982 amendments permit a private incidental

take authorization, modelled on that adopted in the groundbreaking

San Bruno habitat conservation plan. [90]  The private party must,

however, apply to the Secretary for the authorization, submitting

with his application a description of the action and the affected

species, together with a conservation plan. [91]  The conservation

plan must specify the anticipated impacts, proposed mitigation

measures and also those and mitigation measures which were

considered but rejected. [92]  How the conservation measures will be

funded must also be discussed, as must emergency response

measures should the impacts prove greater than anticipated.

	After publication in the Federal Register and consideration of

public comment (and, in most cases, some negotiation to ensure that

the plan will actually be implemented as set out), the Secretary may

authorize the proposed taking.  In practice, the delay, cost, and

uncertainty of such conservation plans are such that an applicant

would be well advised to find some excuse--any Federal permit,

decision or funding will do--to apply for a biological opinion, to which

an incidental take statement could be attached.

SECTION 7(A)(1) AND THE AGENCY DUTY TO "CONSERVE"

	Recent years have seen the invention--and use, with variable

success--of a third and final form of ESA legal attack.  This attack

centers upon the agency duty set out in Section 7(a)(1):  "...Federal

agencies shall ... utilize their authorities in furtherance of the

purposes of this Act by carrying out programs for the conservation of

endangered species and threatened species...."   This generalized duty

takes on concrete form, it is argued, when read against the Act's

definition of "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. 

Such measures and procedures include, but are not limited to, all

activities associated with scientific resources management .... [93]

Under this argument, the juxtaposition of the duty to conserve with a

definition encompassing "all" measures necessary to recover the

species from endangered status imposes an agency duty far broader

than that of 7(a)(2)'s duty to consult and insure against jeopardy. 

The agency is bound, in this view, not just to avoid action which

"jeopardizes" the survival of species, but to avoid agency action

which might merely slow their recovery from endangerment.

	Curiously enough,  this extraordinarily broad reading of the ESA

was first advanced by the Bureau of Reclamation.  Litigating a three-

way dispute over water allocations (involving the Bureau, as provider,

a up stream water users' group, which argued the Bureau had a

contractual duty to give it priority claim on the water, and an Indian

tribe, whose fisheries in a downstream lake would benefit if the

waters were not used upstream), the Bureau noted that endangered

fish inhabited the downstream lake and sought to employ the

conservation duty to temporarily sidestep its alleged contractual

duties toward the upstream users.  The argument proved all too

acceptable to the District Court: it entered an injunction forbidding

Reclamation from allowing upstream diversions unless and until the

endangered fish were completely recovered and taken off the

endangered species list, [94] an event unlikely ever to occur. [95]  The

result was too dramatic even for the Ninth Circuit, which essentially

agreed that the conservation duty was mandatory, but limited the

effect of the case to a confirmation of Reclamation's refusal to allow

upstream diversion on the present facts.  [96]  Subsequent cases have

interpreted 7(a)(1) to require that an agency at some point identify

in the record what measures it is taking to conserve a species and to

explain why foregoing the action in question is not among them:[97]

	The ESA requires defendants to use ... all methods which are

necessary to bring any endangered species ... or threatened species

to the point at which' the protections of the Act are no longer

necessary. 16 U.S.C. 1536(a)(1), 1532(3).  This circuit considers this

language to be mandatory. ...

	Defendants contend that although the duty referred to is an

affirmative duty, this does not mean that the defendant cannot pick

and choose between a number of different projects to achieve this

end.  However, defendants have not clearly identified the factors

which the agency considers relevant to their choosing to authorize

[the disputed action].  Moreover, assuming that the defendants

correctly articulated the factors which are relevant to their action,

defendants have failed to articulate a rational connection between

the factors found and the choice that they made.  This court, finding

no clearly articulated factors considered by defendants in choosing

this course of action, has no basis upon which to uphold defendant's

choice. [98]

If foreseen, a 7(a)(1) problem can be met by documenting (prior to

the decision) what measures the agency is taking to assist listed

species, and why it judges the action appropriate even if it might

offset some of those efforts.  If the 7(a)(1) problem was not

foreseen due to failure of challengers to raise the argument, that

failure should be brought forcefully to the court's attention.  Given

that neither statute, nor regulation, nor caselaw has articulated a

threshold test for when 7(a)(1) analysis should be undertaken, the

failure of objecting parties to raise the issue should go far toward

explaining an agency's failure to initiate and rule on the issue.

	In any jurisdiction which has not held 7(a)(1) analysis to be

mandatory, a direct challenge may be mounted to whether such a

duty exists at all.  On its face, 7(a)(1) appears intended simply to

supplement agency authorities--absent such a general grant, it might

be questionable whether non-wildlife agencies have authority to

expend funds or take action to benefit listed species.  At most, it

imposes a generalized duty to take action to aid listed species.  Unlike

7(a)(2), it most clearly does not prohibit non-beneficial agency

actions or mandate judicial analysis of agency priorities.  Few

statutes have as comprehensive a legislative history as that of the

ESA, yet this history is devoid of any suggestion that 7(a)(1) was

meant to restrict agency action.  

	Should a 7(a)(1) challenge prove successful on the merits, the

losing party should be prepared to minimize its losses.  During the

litigation, a 7(a)(1) analysis should be prepared. [99] An argument

should be made that the appropriate remedy is not the enjoin the

proposed action; the court ought rather to review the analysis or at

most remand the 7(a)(1) issue to the agency for preparation of an

another analysis.  [100]



THE EXEMPTION PROCESS: THE ULTIMATE GAMBLE

	One avenue remains for a person or agency whose proposed

action cannot otherwise be reconciled with the Endangered Species

Act--that is, which inevitably involves jeopardy to a listed species,

with no reasonable and prudent alternatives available.  The last and

ultimate avenue of redress is the exemption process, created by

Congress in the wake of Tennessee Valley Authority v. Hill and

extensively amended since.  The criteria and process are exacting, as

might be expected: any biological assessments and any NEPA analysis

must be valid and current, [101] the ESA consultation which found

jeopardy must have soundly explored all possible alternatives, the

action must have a sound cost-benefit ratio.  Any consultation for

which exemption is a possible end must accordingly have been

carefully overseen and planned from the outset and must merit the

outlay of considerable resources for the creation of a biological,

economic and legal team.

	The jurisdictional prerequisite is, of course, a "jeopardy"

biological opinion with no reasonable and prudent alternatives.  Once

this is issued, or a permit or funding denied based upon it, the initial

application may be made within 90 days [102] by the agency which

sought consultation, by the applicant for the agency action, or by the

governor of the affected State.  The application immediately moves

onto a fast track, and must within weeks pass two initial tests. 

Within 10 days of receipt the Secretary must determine whether the

application is timely and contains the required data.  If so, then 20

days he must enter three determinations: (1) were all required

biological assessments were completed; (2) did the agency refrain

from irreversible commitments of resources during consultation, and

(3) was consultation was undertaken in good faith, with all

reasonable efforts to explore reasonable and prudent alternatives?

[103]

	If these determinations are favorable, the factual claims must

be proven at public hearings are held before an administrative law

judge.  [104] Third parties may (and almost certainly will) intervene.

[105]  The administrative law judge then certifies the transcripts and

records to the Secretary, who must (within 140 days  of his "20 day

finding") submit a report, and the records, to the Endangered Species

Committee.

	The Committee is a statutory creation, consisting of the

Secretaries of Agriculture, Interior and the Army, the Chairman of the

Council of Economic Advisors, the Administrators of EPA and the

National Oceanic and Atmospheric Administration, and a seventh

member chosen by the President from the affected State--all of

whom must vote in person. [106]  The entire evidence-gathering

process can consume no more than 140 days, from the making of the

Secretary's 20 day finding to the submission of his report, and the

Committee must render its decision within 30 days of receipt.  To

grant the exemption, at least five of the seven members must find:

(1) No reasonable and prudent alternatives exist;

(2) The action's benefits clearly outweigh the benefits of any

alternatives (including inaction) which will conserve the species, and

the action is in the public interest;

(3) The action is of regional or national significance; and

(4) No irreversible commitment of resources has been made. [107]

Any such exemption order must also establish reasonable mitigation

and enhancement measures (including transplantation or preservation

of the species in captivity) necessary to minimize risks of extinction.

[108]  Upon such an order, the petitioner receives a complete

exemption from the terms of the Act, and the action may proceed.

[109]

	The exemption process offers a high return: a remarkably

expedited process, with near-total invulnerability to subsequent ESA

barriers.  But it is obviously an expensive and high-risk option. To

date, only three applications have reached the Committee, with half

[110] of these succeeding. [111] 

CONCLUSION



	The Endangered Species Act will continue to have increasing

control over use of our natural resources.  Few environmental

statutes have its broad reach, and none have its binding and

imperative effect, or potential for generating legal challenges against

both Federal agencies and private individuals.  Yet many ESA problems

result, not from the Act, but from erroneous understandings of its

terms and consequent errors and tactical misjudgments.  To be sure,

there are few areas where courts and agencies display stronger

evidence of a personal agenda.  But in many cases an adverse result

arises, not from legal biases, but from the applicants' lack of

familiarity with ESA vis-a-vis their opponents.   If the Act and its

processes are fully understood, the vast majority of ESA problems can

be resolved in a manner consistent with channelled use of resources. 

Indeed, the Act possesses largely unexplored potential for use as a

shield as well as a sword, and for promoting as well as restricting

private action.

						FOOTNOTES





ENDNOTES********************************



[1]. B.A. 1972, J.D. 1975 (Univ. of Arizona). From 1982 to 1992, Mr.

Hardy served as attorney/advisor in the Conservation and Wildlife

Division, Office of the Solicitor, U.S. Department of Interior, handling

environmental and wildlife law for U.S. Fish and Wildlife Service

headquarters operations.



[2]. Tennessee Valley Authority v. Hill, 437 U.S. 153, 184-85 (1978).

These oft-cited descriptions of the ESA were accurate when the Court

spoke, but have not been strictly true since the 1978 amendments. 

Those amendments created an exemption process by which (at the

price of some effort) a project's practical importance could be valued

above survival of a species. 



[3]. See Sierra Club v. Lujan, No. Mo-91-CA-069 (W.D. Tex., filed May

17, 1991).  In the wake of the complaint, which could imperil the

entire water supply of San Antonio and surrounding area, the Attorney

General reversed a fifty-year old opinion and held that the State

water authorities could regulate subsurface pumping: the following

day the Texas Water Commission announced plans to begin such

regulation.  Austin American Statesman, Nov. 5, 1991, at ____; San

Antonio Light, Nov. 6, 1991, at ____.



[4]. Arizona Daily Star, April 28, 1993, at A1 (citing Congressional

testimony by Chief of U.S. Forest Service.).



[5]. Defenders of Wildlife v. Lujan,  851 F.2d 1035 (8th Cir. 1988)

(holding that 7(a)(2) of ESA has extraterritorial application), rev'd

[insert Supreme Court cite] (1992) (holding that plaintiffs lacked

standing). 



[6]. Technically, there are over 3,600 "active" candidates.  FWS divides

candidates into three classes.  Category 1, those most at risk and thus

in the immediate waiting list for formal proposal, number about 500. 

Category 2 species, those which warrant listing but face lesser risks,

number about 3,100.  Category 3 candidates are "inactive" and

probably will not merit listing.  These number about 1,700.  This

system of priorities was necessitated by the 1982 amendments to the

Act, which repudiated FWS's previous system which gave a higher

priority to higher life forms.  See H.R. Rep. No. 567, 97th Cong., 2d

Sess., pt 1 at 21 (1982). 



[7]. 16 USC 1532(16).  The use of the term "distinct" begs the question

of which must be the distinguishing factor.  Geographical isolation

comes to mind--e.g., the only population of a terrestrial species found

west of the Rockies--but physical distinctions not sufficient to call

for "splitting" into a subspecies might also be intended.  How much

variation in appearance or behavior suffices to split off a species or

subspecies is often a judgment call upon which taxonomists can

differ. 



[8]. Technically, it is also possible for a species to be listed based on

"similarity of appearance" and for a population of a listed species to

be itself listed as an "experimental population."  A similarity of

appearance listing is based on conclusions that, while the species in

question is not endangered, its hides or other products are

indistinguishable from those of a species which is.  An experimental

population is a group of endangered species deliberately introduced,

after a Federal rulemaking, into a new range where they are

geographically separated from existing populations.  These

classifications have been used but rarely, and carry with them many

fewer legal restrictions than do the standard endangered/threatened

determinations.



[9]. 16 USC 1532(6), (20).



[10]. 16 USC 1533(a)(1).



[11] Congress in fact commanded the listing agencies to ignore

economic impacts of listings: the Senate report on the 1982

amendments notes that "This amendment would preclude the

Secretary from considering economic or other non-biological factors

in determining whether a species should be listed or delisted."  S. Rep.

No. 97-418 (1982) at 12.



[12]. This preclusion was accomplished by the 1982 amendments. 

Listings were being delayed by economic analyses required under

various Executive Orders, and in response the 1982 amendments

inserted the word "solely" before the statutory command that the

decision be based on the best scientific and commercial data on the

species' status. The House committee reporting the amendments

explained that consideration of economics was "specifically rejected"

by insertion of the word "solely." H.R. Rep. No. 567, supra, at 20; see

also H.R. Conf. Rep. No. 835, 97th Cong., 2nd Sess. at 20 (1982). This

measure is an example of the ongoing interplay between regulatory

and judicial decisions on the one hand and the legislative process on

the other; it is also an example of the necessity of careful reading of

the ESA and its history.  Congress has repeatedly made minor changes

in ESA wording which, upon analysis of the legislative history (or upon

placing the word chosen in the context of its use elsewhere in the

statute) are found to have major legal implications. The technical

nature of the statute, and the tendency of committees drafting

amendments to view it as their personal bailiwick, are often evident. 



[13] 16 U.S.C. 1533(b)(3).  The three options allowed are findings that

the petitioned listing is (1) not warranted, which ends consideration;

or (2) warranted, in which event a proposed rule for listing must be

published "promptly;" or (3) warranted but at present precluded by

higher-priority listings.



[14]. 16 USC 1533(b)(1)(B)(2), (D)(5)(e).



[15]. 16 U.S.C. 1532(5).



[16]. 16 U.S.C. (b)(8).



[17]. 16 U.S.C. 1532(b)(6)(C).



[18] "The Secretary shall designate critical habitat ... after taking into

consideration the economic impact, and any other relevant impact, of

specifying any particular area as critical habitat.  The Secretary may

exclude any areas from critical habitat if he determines that the

benefits of such exclusion outweigh the benefits of specifying such

area as part of the critical habitat unless he determines ... that the

failure to designate such areas ... will result in the extinction of the

species concerned."  16 U.S.C. 1532(b)(2).



[19]. 77 out of 615 species.



[20] Virtually the only situation where critical habitat designation

would give the agency additional powers would be found where the

species has been extirpated in the wild, survives in captivity, and may

be reintroduced to the wild at a later date.  There the agency would

be hard put to argue that development would "jeopardize" the

species in captivity, but could use restrictions on modification of its

designated habitat to hold the habitat open for its later

reintroduction.  Such a situation is, however,  rarely found.



[21]. 16 USC 1532(19), 1538(a)(1).



[22]. 50 CFR 17.3.



[23]. Id.



[24]. See Palila v. Hawaii Dep't of Land and Natural Resources, 852 F.2d

1006 (9th Cir. 1987); Defenders of Wildlife v. Administrator, EPA, 882

F.2d 1294 (8th Cir. 1989); cf. Tennessee Valley Authority v. Hill, 437 US

at 184-85 n.30 (citing predecessor of current regulations. 



[25] The listing agency can, by rule, apply to a threatened species any

protections which would by statute be given an endangered species,

to the extent it finds them "necessary and advisable to provide for

conservation..." 15 U.S.C. 1533(d).  This provision would logically

place the burden upon the rulemaker to find that a given protection is

"necessary and advisable."  The agency practice is, however, to the

contrary; full protection is the default setting.  A "general rule"

generally applicable to threatened species accords them virtually all

protections given endangered species.  50 C.F.R. 17.31(a).  Unless the

listing agency takes the initiative, as part of the listing, to propose a

"special rule" (published separately at 50 C.F.R. 17.40 et seq.) and

find that a given protection is not   necessary and advisable,  the full

protections thus apply.  This procedure appears contrary to the

statute's provisions and intent.



[26]. It is illegal to take and reduce to possession an endangered plant

found on Federal lands, or to maliciously damage an endangered plant

in violation of State law, including trespassing statutes.  16 USC

1538(a)(2).  The Fish and Wildlife Service has concluded that this

proscription does not cover development-caused injuries to plants on

Federal lands.  51 Fed. Register 39,686 (1985).

    Threatened species are given such of the endangered protections as

the Secretary may impose by rule.  16 USC 1538(a)(1)(G) (fish and

wildlife), (a)(2)(E) (plants). The statutory presumption is effectively

reversed by 50 CFR 17.31(a), which affords all "endangered" protects

to threatened species, unless the Secretary expressly finds to the

contrary. It has likewise been undercut by Sierra Club v. Clark, 755

F.2d 608 (8th Cir. 1985) which essentially used the general policy

statements of the Act to constrain the power to issue less restrictive

regulations.



[27]. Sierra Club v. Lyng, 694 Fed. Supp. 1260 (E.D. Tex. 1988).



[28]. Defenders of Wildlife v. Administrator, EPA, supra.



[29]. Palila v. Hawaii Dep't of Land and Natural Resources, 852 F.2d

1106 (9th Cir. 1987).



[30]. Nat'l Wildlife Federation v. Hodel, 23 Env't Rep. Cas. 1089, 1092-

93 (E.D. Cal. 1985).



[31]. 16 USC 1540(a) (civil penalties), (b) (criminal).  Vehicles and other

instrumentalities employed can be forfeited, provided that a criminal

conviction is first obtained. 16 USC 1540(e)(4)(B).



[32]. 16 USC 1540(g)(1)(A).



[33]. See Palila v. Hawaii Dep't of Land and Natural Resources, 852 F.2d

at 1106.  Except in emergencies, such a private action must be

preceded by 60 days' written notice to the violator and to the

Secretary, 16 USC 1540(g)(2)(A), which is a jurisdiction requirement--

albeit one which is waived if not raised in the trial court. Hallstrom v.

Tillamook County, 831 F.2d 889 (9th Cir. 1987), superseded, 884 F.2d

598 (1988), aff'd, 110 S.Ct. 304 (1989); Save the Yaak Committee v.

Block, 840 F.2d 714 (9th Cir. 1988). At the other temporal extreme, a

private action is governed by the applicable statute of limitations.  If

the action is brought against a Federal agency, it is subject to the

general Federal six-year statute, 28 USC 2401(a); if brought against a

private party, it would probably be governed by incorporation of

Arizona's one-year limitation for actions arising out of statute.



[34]. United States v. Glenn-Colusa Irrigation District, Civ 3-91-1074

(E.D. Ca., slip op. Jan. 9, 1992).



[35] Additionally, where a proposed rule to list a species has been

published, but a final rule is not yet promulgated, an acting agency is

bound to informally "confer" as to the impacts of its action.   50 C.F.R.

402.10.



[36]. 16 USC 1536(b)(2).



[37]. "It has not been shown, for example, how TVA can close the

gates of the Tellico Dam without 'carrying out' an action that has been

'authorized' and 'funded' by a federal agency."  437 U.S. at 173. 



[38]. 50 CFR 402.02.



[39]. At its outer edges, the agency action requirement butts up

against two opposing concepts.  The first is agency inaction, where

the agency could take action but chooses against it.  Inaction is not

subject to Administrative Procedure Act or most environmental

review, Mianus River Preservation Comm'n v. EPA, 541 F.2d 899, 909

(2d Cir. 1976); Save the Bay, Inc. v. EPA, 556 F.2d 1282 (5th Cir. 1977),

and probably is not subject to ESA consultation.  However, most

agencies are unable to resist the temptation to formulate "policies"

on when to act and not to act, and the formulation of the policy

probably is an ESA-reviewable action.  The second concept is that of

the pure ministerial act, where the agency merely carries out a task

precisely commanded by statute.  The ESA regulations recognize that

one need not consult as to actions in which the agency has no

discretion--at least where there has been past consultation, and the

issue is now whether it should be renewed. 50 CFR 402.16.  But true

ministerial duties are rare; in practice, even the tightest of statutes

leaves some scope for agency discretion with regard the timing,

degree, and manner of action.



[40]. There is also a consultation requirement for a proposed species--

that being one for which a proposed rule has actually been published,

but no final rule.  Federal actions which may affect these require an

informal conference, but no structured consultation, with Fish and

Wildlife Service. 50 CFR 402.10



[41] In promulgating the regulations relating to consultation, the

rulemaking agencies stressed that a "construction activity" need not

result in an actual construction, but can include any activity "having

physical impacts similar to construction, such as  dredging, blasting,

etc." 51 Fed. Register  19,935 (1985).



[42]. 50 CFR 402.02.  The ESA on its face applies the biological

assessment requirement to "any agency action of such agency for

which no contract for construction has been entered into" prior to the

effective date of the 1978 amendments, and refers to necessity of

assessment "before any contract for construction is entered into." 

While the requirement is not expressly limited to major construction

projects, FWS's regulations have derived such a limitation from the

statutory references to construction and legislative history indicating

such a limitation was intended. See 51 Fed. Register 19,936 (1986).

See also No Oilport! v. Carter, 520 F. Supp. 334 (W.D. Wash. 1981).



[43]. 50 CFR 402.12.  The Biological Assessment may also be prepared

by a designated non-federal representative--for example, an expert

employed as a contractor, subject to agency supervision and review. 

50 CFR 402.08.



[44] Note also that where an earlier assessment has been prepared

for a related activity, it can be incorporated, or updated,  with an

appropriate certification.  See  51 Fed. Register 19,947 (1986).



[45]. 51 Fed. Register 19,947 (1986).



[46]. 50 CFR 402.13. The agency can also prepare a Biological

Assessment, in order to establish that the effect would not be

adverse.  Informal consultation is, however, far more expeditious.



[47]. Romero-Barcelo v. Brown, 643 F.2d 835 (1st Cir. 1981).



[48]. 50 C.F.R. 402.13.



[49]. Whether an agency can, after analyzing a proposal, modify it so

as to drop it below the threshold for further analysis has been a

major issue in NEPA litigation.  In the context of the Endangered

Species Act, however, the consultation regulations rulemaking

expressly allowed such a result. 51 Fed. Register 19,948-949 (1986)



[50]. 50 CFR 402.14.  The request must describe the action area, state

the listed species believed present, outline the likely effects of the

action upon the species, and submit such other data as may be

available.



[51]. 50 CFR 402.11.



[52]. 50 CFR 402.11 (e), (f).



[53]. As each consultation is sought, the effects of the applied-for

authorization are added to the "environmental baseline" of effects on

the species.  Authorizations tentatively approved by preliminary

biological opinion are included in that baseline. 50 CFR 402.02.  Thus an

applicant who secured a preliminary biological opinion prior to

applying may obtain a higher priority--i.e., have his use regarded as

an existing one, to be counted off before appraising whether his

rival's additional use is allowable--compared to a rival user who in

fact applied first but whose consultation began after, instead of

before, his application.  At the same time, one cannot be guaranteed

this outcome.  FWS took care to retain some "wiggle room" on the

priority question--noting that, for instance, it might consider an

applicant with senior water rights under State law to an effective

priority over an earlier applicant with junior State rights. 51 Fed.

Register 19,933 (1986). In all regulatory schema, liberal allowance

must be made for the principle that the squeaking wheel gets the

grease, whatever the formal statements of policy. 



[54]. 16 USC 1536(d). Courts have not strictly applied this proscription,

finding that commitments are not irreversible where they were

subject to later agency reversal, even though resources may have

been committed to one course of action.  See Sierra Club v. Marsh, 816

F.2d 1376 (9th Cir. 1987); North Slope Borough v. Andrus, 486 F.Supp.

332 (D.D.C. 1979), aff'd as modified 642 F.2d 589 (D.C. Cir. 1980); Nat'l

Wildlife Federation v. Nat'l Park Service, 669 F. Supp. 384 (D. Wyo.

1987).



[55]. 50 CFR 402.14(e),(k).



[56] An applicant can anticipate that, should suit be brought

challenging the consultation, his involvement will be attacked as

under-the-table contacts with the agency.  In response, he will be

able to invoke the Congressional mandate for substantial applicant

involvement throughout the consultation process.  See, e.g., H.R. Conf.

Rep. No. 835, 97th Cong., 2d Sess., at 26 (1982).



[57]. 50 CFR 402.14(g)(5).



[58]. Technically, there would also be an "adverse modification"

decision where critical habitat has been designated by regulation. 

However, as noted above, critical habitat has been designated for

only a small minority of listed species. Even there, since "destruction

or adverse modification" of critical habitat is defined as damaged

which "appreciably diminishes the value of such habitat for both the

survival and the recovery of a listed species," 50 CFR 402.02, the

overlap with the "jeopardy" standard is apparent.  It should be noted

that the test here is effect on the critical habitat, not action within it. 

FWS has taken the view that actions outside designated habitat which

impact the habitat--as in groundwater pumping or air and water

contamination--can run afoul of Section 7.  51 Fed. Register 19,935

(1986).



[59] When data is "available" is often a major focus of environmental

challenges, and an issue upon which Congress has often given

inconsistent mandates.  When FWS made "jeopardy" rulings based

upon a lack  of data (i.e., that there was insufficient available data to

determine whether the action would or would not jeopardize, hence it

was impossible to "insure" that it would not and the action was

forbidden), Congress promptly repudiated the result and mandated

that FWS make its decision based on the best data that was  available. 

Yet it also added legislative history indicating that FWS was to "give

the benefit of doubt" to the species!  It is hard to escape the

suspicion that Congress simply sought to appease both sides of the

policy question by issuing contradictory signals here--a disservice

which leads inevitably to numerous and complex legal battles.



[60]. 16 USC 1536(a)(2).  By regulation, an action is likely to jeopardize

the species if it will "reduce appreciably the likelihood of both the

survival and recovery" of the species. 50 CFR 402.02. The word "both"

was added in the 1986 regulatory amendments to emphasize that,

except in "exceptional circumstances," a jeopardy determination

could not be based solely on a reduction of the chance of recovery to

non-endangered status. 51 Fed. Register 19,934 (1986).  This had been

an issue since any endangered species is, virtually by definition, in

some jeopardy of extinction, and conservation interests had argued

that any action which precluded a species being brought out of

endangered status was one which caused it to be in jeopardy.  Earlier

regulations had rejected this view, and the 1986 addition of "both"

was intended to underline this rejection. Id.



[61]. 51 Fed. Register 19,934 (1986).



[62]. 51 Fed. Register 19,932 (1986). The distinction between Federal

and nonFederal impacts merits note; a nonFederal impact must be

contemporaneous, while Federal impacts may include all projects on

which consultation has been sought, even though they may not be

presently pending.



[63]. If a biological opinion has lost validity due to changes in the

nature of the project or new data on the species or project impacts,

it must be subjected to reinitiation. 50 CFR 402.16. Once the agency

requests reinitiation, the impacts authorized by the opinion are no

longer factored into environmental baselines--i.e., the priority is lost.

51 Fed. Register 19,932 (1986). At the same time, it would be unwise

to regard this as a certainty.  The unwritten rule that the squeaking

wheel gets the grease may be applicable here as well.



[64]. 50 CFR 402.02.



[65]. National Wildlife Federation v. Coleman, 529 F.2d 359, 373 (5th

Cir.), cert. denied 429 U.S. 797 (1976). See also North Slope Borough v.

Andrus, 642 F.2d at 608.



[66]. 51 Fed. Register 19,932 (1986).



[67]. 50 CFR 402.02; 51 Fed. Register 19,933 (1986). 



[68]. See  51 Fed. Register 19,933 (1986).



[69] Tactically, the effect of demonstrating that the other projects

will require Section 7(a)(2) review is to jump one's own project ahead

of the others in terms of endangered species clearance.  That is, the

impacts of the other projects will not be considered in assessing the

effect of one's own project, but the results of one's own 7(a)(2)

clearance will be considered in fixing their "baseline" when they

eventually apply for consultation.  The difference may be decisive in a

first-come-first-served legal regulatory environment.



[70]. The tables of listed species are found at 50 CFR 17.11 and 17.12;

the rules listing species are referenced in footnotes at the ends of

these tables.  It should be noted that, prior to 1973, many species

were listed under an earlier act which did not require discussion of

the reasons for endangerment. See, e.g., 32 Fed. Register 4,001

(1967), 35 Fed. Register 16,047 (1970).  These listing were

incorporated verbatim by the 1973 enactment. The early listings

accordingly give no guidance in this area.



[71]. It should be noted that, unlike attorneys, few biologists consider

themselves "general practitioners;" one is an expert in fish species,

or reptiles, or small mammals of the American southwest, not simply

a wildlife biologist knowledgeable in all wildlife of the world. 



[72]. 50 CFR 402.14 (g)(8).



[73]. See Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987).



[74]. 16 USC 1536(b)(3)(A).



[75]. 50 CFR 402.02



[76]. 16 USC 1536(g)(3)(A)(i).



[77]. A common point of weakness lies in a biological opinion which

documents and explains why the original proposal would create

jeopardy, then proposes an alternative that has a lessened impact--

but without explaining or documenting why the lessening of impact

would suffice to bring it below the jeopardy threshold.  In absence of

such written documentation, the opinion may be subject to judicial

challenge for failure to explain its reasoning or be supported in the

record.



[78] In the author's experience,  this principle is the most dangerous

pitfall awaiting a good courtroom lawyer faced with an ESA case. 

Although the standard for attack is whether the agency action--here,

the biological opinion--is "arbitrary and capricious", in practice this

may be proven only  by examination of the administrative record, the

written, pre-decisional documentation.  In this, the logical basis of

the action must be "clearly disclosed and adequately sustained."  SEC

v. Chenery Corp.,  318 U.S. 80, 94 (1943).  Courtroom testimony or

litigation affidavits, whether to attack or support the decision, are

generally inadmissable.  Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402, 419 (1971).  The courtroom battle is generally lost or won

in the days before the agency decision; the legal conflict resembles

more a criminal appeal than a conventional trial, with the emphasis on

nit-picking the details of the reasoning rather than a head-on clash of

testimony.



[79]. Village of False Pass v. Watt, 565 F. Supp. 1123, 1160 (D. Alaska

1983), aff'd 733 F.2d 605 (9th Cir. 1984);see also Sierra Club v.

Froehlke, 534 F2d 1289 (8th Cir. 1976).  Simple, unexplained

acceptance of the biological opinion may itself pass the arbitrary and

capricious test.  See   Stop H-3 Ass'n v. Lewis, 740 F.2d 1442, 1460 (9th

Cir. 1984), cert. denied 105 S.Ct. 2344 (1985).



[80]. See Nat'l Wildlife Federation v. Coleman, supra. The poor survival

rate is a combination of several factors. First, courts in practice defer

to agencies in proportion to their technical expertise, and FWS is likely

to have more expertise in the particular endangered species than is

the action agency. Second, the average biological opinion is a detailed

and documented decision paper; it is hard for an agency to reject it

and maintain it has still "insured" against all "likely" jeopardy. Third,

and probably most important, the action agency rarely builds up the

type of detailed written record and explanation of its decisions which

would be necessary.  A rejection is unlikely to withstand challenge

unless it is based on a detailed, written repudiation of the opinion. 

But technical staff of one agency are reluctant to contradict "close

calls" made by the staff of another agency.  



[81]. Reinitiation is required under 50 CFR 402.16, to the extent the

agency retains discretionary control over the action (i.e., the permit,

funding, or project is legally subject to modification after

implementation) and the anticipated takings of the species are

exceeded, or new information reveals impacts not considered, or the

action is modified that creates unanticipated impacts, or a new

species new critical habitat is designated which may be affected by

the action.



[82] Prior to the 1982 amendments to ESA, conservation groups

successfully used 9 to enjoin projects which had secured a "no

jeopardy" finding under 7(a)(2).  The rationale was that a "no

jeopardy" opinion only lifted the 7 bar to actions which impacted an

entire species, while 9 was a separate bar to actions which "took"

even one member of the species.  The 1982 amendments were

intended to foreclose this attack by creating the incidental take

statement process as an exemption to 9.



[83]. The incidental take statement is delineated in 16 USC 1536(b)(4);

its legal effect is reflected in 16 USC 1536(o).



[84]. These measures are distinct from the notion of "reasonable and

prudent alternatives."  Instead of proposing an entirely new

approach, they must be limited to changes in "minor features" of the

proposal.  See  51 Fed. Register 19,937 (1986).



[85]. 16 USC 1536(b)(4)(B); 50 CFR 402.14. 



[86] The most common pitfall: a statement in the opinion stating that

taking X specimens will create jeopardy, followed by an incidental

take statement noting that, with the restrictions set out, many fewer

than X will be taken.  On its face, these appear reasonable

statements, and the drafter need not clench his teeth too tightly to

make them.  But a legal attack will surely focus upon the fact that the

statement does not explain why taking "many fewer than X"

specimens will not create jeopardy: after all, both X and "many fewer

than X" may both exceed that threshold.



[87].  United States v. Glenn-Colusa Irrigation Dist., supra, slip op. at

20.



[88] In practice, not all specimens killed will be found and counted. 

Moreover, "taking" includes non-lethal effects down to and including

harassment.  A takings statement which concludes that the death of

50 animals would not jeopardize the species, and requires reinitiation

when 51 dead are found, may thus be vulnerable to legal attack since

(1) far more than 50 deaths may have occurred before 50 carcasses

are found and (2) an action which causes 50 deaths will surely cause

many more injuries and harassments, and those were not authorized.



[89]. Another point of legal exposure comes if the incidental take

statement is applicable not to the original proposal but to a

reasonable and prudent alternative.  Since those alternatives are

structured to reduce impact on the species, there is a temptation to

simply restate the provisions of the alternatives as the "terms and

conditions" of its incidental take statement.  These may then be

challenged as having failed to lay out additional terms to minimize

taking under that alternative.  It may accordingly be advisable to

ensure that some features of the reasonable and prudent alternative

are kept back for exclusive use in the "terms and conditions," or

alternately, to find additional substantive measures to insert here.  As

a practical matter, the incidental take statement authorizes a taking

anywhere between zero impact and its maximum--essentially, the

jeopardy point--allowed.  The function of the terms and conditions

should be to try to keep the taking closer to zero than would

otherwise be the case.  The drafting of limitations on timing of

construction, lookouts for the listed species, measures to keep down

disturbance and so on are possibilities.



[90]. H.R. Rep. No. 835, 97th Cong., 2d Sess. at 31-32 (1982).  The San

Bruno plan was formulated under a preexisting statutory

authorization that authorized takings where necessary to

enhancement of species survival; FWS concluded that the benefits

being offered the species by the plan sizably outweighed the losses

to the species.  The plan was upheld in Friends of Endangered Species

v. Jantzen, 760 F.2d 976 (9th Cir. 1985).  It should be noted that the

Congressional statement that the 1982 amendments' authorization of

incidental take was modelled on the San Bruno plan is a bit of an

overstatement; "inspired by" would be more accurate than "modelled

on." The San Bruno plan was undertaken under a statute that required

a showing of net benefit to the species; the 1982 amendments allow

plans which do not benefit, or even disadvantage, the species in

question, so long as survival is not appreciably impaired.  The San

Bruno plan was not, in fact, finalized until after the passage of the

1982 amendments.



[91]. 50 CFR 17.22(b)(1).



[92]. 50 CFR 17.22(b)(1)(iii).



[93]. 16 U.S.C. 1532(3).



[94]. [get district court cite]



[95] Reclamation and its attorneys had not bothered to mention the

litigation to Fish and Wildlife Service prior to the ruling.  The author

recalls explaining to the responsible attorneys, who were rejoicing

over their victory, that when one's client is on the receiving end of a

permanent injunction one has not won the case.  The author also

recalls later quips to the effect that FWS had not realized that

Reclamation was numbered among the most radical of conservation

groups.



[96].  Carson-Truckee Water Conservancy District v. Clark, 741 F.2d

257 (9th Cir. 1984).



[97] The ambiguity of this statement reflects the ambiguities caused

when courts began treating 7(a)(1) as judicially enforceable. 

Conceivably, any agency could divert its entire function into

conserving listed species.  Is every Federal agency therefore required

to explain, in writing made prior to each and every action it takes, 

why it chose to spend money on that project rather than conserving

species?  The 7(a)(2) duty was plainly meant to be judicially

enforceable, and has clear checkpoints--"may affect" "likely to

jeopardize," and so on.  The 7(a)(1) mandate lacks all of these.  



[98]. Nat'l Wildlife Federation v. Hodel, Civ. No. S-85-0837-EJG, (E. D.

Cal., slip op. filed Aug. 26, 1985).



[99] As noted above, courts look with disfavor on agency explanations

prepared after the decision to take action.  It can be argued,

however, that the 7(a)(1) issue is atypical in this regard.  7(a)(1)

presents no specific criteria for the decisionmaker; the tests imposed

by caselaw are little more than a requirement to provide some

manner of explanation of why the agency sought to serve a

secondary goal by one means rather than another, or perhaps why it

did not go farther in serving that goal, and the remedy is little more

than requesting the agency to prepare an explanation--which itself is

of course after the fact.  A post-hoc explanation may be permissible,

particularly where the objecting party did not raise 7(a)(1) prior to

the agency decision.



[100].  Cf.  Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,

417-20 (1971) (Where statute prohibits action under certain

circumstances but does not require formal findings that these

circumstances do not exist, action can be remanded to agency for

findings as to their existence).



[101]  The project's NEPA work should be examined in detail prior to

application.  Common risks here include: (1) changes in circumstances

(including the listing of species) since the original environmental

impact statement, which render it vulnerable to attack as outdated;

(2) failure to explore alternative courses of action; and (3)

inapplicability to the course of action under consideration--over time,

the agency plan may well have drifted from the proposal evaluated. 



[102]. The 90 day clock begins to run with the denial of the agency's

permit, if such is involved, or with the delivery of the biological

opinion if no permit is at issue.



[103]. 16 U.S.C. 1536(g)(3)(A); 50 CFR 452.03.  The process also

terminates if the Secretary of State concludes that an exemption

would violate any international treaty.  Since almost every wild bird

species in the United States is given protection under one of the

nation's four migratory bird treaties, any exemption which may affect

birds should be preceded by a review of those treaties, which differ in

the birds listed and protections given.



[104]. 16 U.S.C. 1536(g)(4).



[105]. 50 CFR 452.05, .06.



[106]. 16 USC 1536(e).



[107]. 50 CFR 453.03(a).



[108]. 50 CFR 453.03(a)(2).  The mitigation measures must be paid for

by the applicant for the exemption.



[109]. There is one exception (under the ESA, it seems there is always

one exception!).  If the Secretary later finds that there is yet another

species, not considering within any biological assessment submitted

at the time, and the action would result in the extinction of this other

species, and the Commission within 60 days of this finding decides

that the exemption should not be made permanent, then it is indeed

not permanent.  Given the investment of Secretarial and Committee

time prior to this point, any person presenting such a finding to the

Secretary would be well advised to have good running shoes on their

feet and current resume's in their hands. 



[110]  Not a typographical error.  The author considers the recent

"Spotted Owl" ruling as one-half of an exemption.  The exemption

committee, in the traditional manner of the government, neither

exempted the proposal nor rejected it, but approved a manner of

halfway plan.  This predictably created its own legal risk: can the

committee exempt a proposal which was never reviewed by Fish and

Wildlife Service in the first place?  Since the result was legally

challenged due to off-record Executive contacts with committee

members, held in abeyance, and now is likely to be abandoned,

allowing it half-approval status is if anything too generous. 



[111]. The exemption granted thus far involved the Grey Rocks

project; the one denied involved the Tellico Dam, which foundered on

the cost-benefit analysis.  It was, to be blunt, an archetypical

boondoggle, offering to provide hydroelectric power and lake

recreation to an area which already had a surplus of both.  Curiously,

it was subsequently determined that the snail darter, which the dam

was thought to have threatened with extinction, was in fact quite

common in other streams.  Tennessee Valley Authority v. Hill had, of

course, hinged on whether a valuable project should be permitted to

extirpate a species; and five years later it was apparent that the

project was not valuable and the species not in jeopardy.  Welcome to

Endangered Species Act litigation.