By Ric Frost, M.S. Agricultural Economics
Congress created the Endangered Species Act
(ESA) in 1973 in response to a yet to be ratified treaty “The
Convention on International Trade in Endangered Species of Wild Fauna and
Flora”, or more
simply
known as the “Convention” (ratified in 1975). This is made very clear in
the large committee report of Congress that contains all of the transcripts
documenting the discussions held over a period of months leading to the
creation of the ESA. Its purpose was to finally put under one roof three
earlier attempts in the 1960’s to create such an act that captured the
intent of several other treaties going back to the early 1900’s dealing with
wildlife, that were primarily migratory in behavior (crossing international
boundaries) and had commercial or cultural value. This response to the
treaties is defined in section 2(b) line 3 of the ESA under “Purposes”:
Endangered
Species Act (ESA) 1973 Sec. 2(b) Purposes
The basic purposes of this Act are
1) To provide a program
for the conservation of such endangered species and threatened species,
2) To provide a means
whereby the ecosystems upon which endangered species and threatened species
depend may be conserved,
3) To take such steps
as may be appropriate to achieve the purposes of the treaties and conventions
set forth in subsection (a) of this section.
It is important to
understand this origin, since the ESA was a response to these treaties
(primarily the “Convention”), its authority and power extends from these
international treaties. The Constitution set forth three divisions of our
government to create laws for the citizens of this country and in dealing with
foreign entities. Treaty creation power is one of those three powers. It is
also important to understand that the Constitution also restricted the treaty
making powers to strictly international dealings and forbid Congress from
enacting treaties that had powers over the states. To do so would violate the
sovereignty not only of the states, by giving foreign countries the ability to
dictate state affairs, but it would also violate the sovereignty of the
citizens of this country. The early-formed Constitutional government had
enough of foreign powers dictating the lives and taxation of its declared
sovereign people and established this separation of enactment to ensure that
would not happen again.
The treaties and conventions that the ESA seeks to “…achieve the purposes of…” are listed in the ESA section 2(b)(a) (with the year
they were ratified):
Treaties and Conventions of
the ESA
(A) Migratory bird treaties with
(B) The Migratory and Endangered Bird Treaty with
(C) The Convention on Nature Protection and Wildlife
Preservation in the
(D) The International Convention for the
(E) The International Convention for the High Seas
Fisheries of the
(F) The Convention on International Trade in
Endangered Species of Wild Fauna and Flora (1975);
(G) Other international agreements (1978 –
Migratory bird treaty with
It is interesting
to note that several of the treaties were ratified after the passage of the
1973 version of the ESA. It is also interesting to note that these treaties
have not been significantly modified from their original language and thus
carry their unique intents to this day. So just what are the “purposes” of
these treaties? Obtaining copies of these treaties and researching their
content reveals some rather interesting issues. The overall gist of these
treaties is to protect wildlife and their habitats from extinction due to
human reliance on them from which economic and cultural activity is derived.
This is to say that if a species goes extinct, any related economic and
cultural interaction there may be will also be negatively impacted.
Understanding this aspect, one can only conclude that these treaties were
constructed to protect the human cultures and economies dependent on the
natural world. Summarizing the general intent of these treaties; one finds
that they were written to:
Closer scrutiny also reveals that there are
exceptions for certain situations in every treaty, as the rational creators of
these documents knew that the world is not a perfect place and that there are
times when reason must override the generalities of these agreements. They
knew they could not create treaties that dealt with every detail of human
interaction with nature, so they built in language to deal with such special
interactions. In short, they wanted to ensure that the individual countries
were able to deal with events that threatened the well being, health, and
productivity of its citizens. These exceptions and the year of the treaty that
contains this language are as follows:
Exceptions in Treaties
There are prohibitions of
the killing (taking) of species except when:
It is permitted during
open hunting season (1916, 1937, 1942, 1950, 1953, 1974, 1975, 1978, 1979)
“…(they) become
seriously injurious to the agricultural or other interests in any particular
community…“ Protection of Migratory Birds, Article VII, 1916
“…they become injurious to agriculture and constitute plagues…“ Protection of Migratory Birds and Game Mammals, Article II E, 1937
“…hunting, killing,
capturing or taking shall be allowed…to further scientific purposes, or when
essential for the administration of the area in which the animal or plant is
found…” Nature Protection and Wildlife Preservation in the
“…For the purpose of
protecting persons and property…” Protection of Birds and Their
Environment, Article III (b), 1974;
“…The
provisions…shall in no way affect the provisions of any domestic
measures…including any measure pertaining to the Customs, public health,
veterinary or plant quarantine fields…“ International Trade in Endangered
Species of Wild Fauna and Flora, Article XIV 2, 1975 (The “Convention”)
“…For the purpose of protecting against injury to persons or property…“ Conservation of Migratory Birds and Their Environment, Article II (d), 1978
Another
interesting point of discussion, found in the committee report on the ESA, is
the recognition of other preexisting laws created by Congress and the
potential for the conflicts of opposing intents that would come from the ESA.
Congress does not intentionally create laws that are diametrically opposed to
each other. To do so would create legal chaos. Rather they create laws within
the concept of pari materia. This means they create laws with the
intent of being read with other existing laws. The ESA was not created with
the intent of standing alone or to override other existing laws. This was
dealt with by two very clever concepts built into the ESA. The first would be
that Congress did not declare that the ESA would supersede any
existing law. A law cannot override a law unless Congress specifically
declares it to do so. This declaration is not stated in the ESA. The second
was a three-line paragraph titled “Coordination With Other Laws”, section
11(h). Notice this does not say “Law”, it says “Laws” – plural –
meaning Congress recognizes there are other laws in existence that the ESA
must deal with in pari materia.
ESA 1973 Sec.11(h) Coordination with other Laws.
The Secretary of Agriculture and the Secretary shall
provide for appropriate coordination of the administration of this Act with
the administration of the animal quarantine laws (21 U.S.C. 101-105, 111-135b,
and 612-614) and section 306 of the Tariff Act of 1930 (19 U.S.C. 1306).
Nothing in this Act or any amendment made by this Act
shall be construed as superseding or limiting in any manner the functions of
the Secretary of Agriculture under any other law relating to prohibited or
restricted importations or possession of animals and other articles and no
proceeding or determination under this Act shall preclude any proceeding or be
considered determinative of any issue of fact or law in any proceeding under
any Act administered by the Secretary of Agriculture.
Nothing in this Act shall be construed as superseding
or limiting in any manner the functions and responsibilities of the Secretary
of the Treasury under the Tariff Act of 1930, including, without limitation,
section 527 of that Act (19 U.S.C. 1527), relating to the importation of
wildlife taken, killed, possessed, or exported to the United States in
violation of the laws or regulations of a foreign country.
Each of these three sentences
has specific independent intent wherein Congress is recognizing other
preexisting
Investigation
of these other Acts takes us to the origins of the agricultural department of
the Animal and Plant Health Inspection Services (known then as APHIS which
evolved to Animal Damage Control (ADC) then to Wildlife Services (WS) today).
Early in the 1900’s, Congress realized the need for an agency to deal with
the tribulations causing economic and health impacts to rural cultures by
problem animals and plants. In an effort to enhance stability and productivity
in rural communities and reduce the threat of injurious species of wildlife,
they created Title 7 U.S.C. 426
in 1931. This has been amended over the years, most recently as 2003. [Full
text is found in the Appendix] It reads in part, with subparts b and c, as:
Title
7 of the Laws Applicable to the United States Department of Agriculture (1931)
APHIS
(7 U.S.C. 426) Predatory and Other Wild Animals; Eradication and Control
•“…The
Secretary of Agriculture may conduct a program of wildlife services with
respect to injurious animal species and take any action the Secretary
considers necessary in conducting the program …The Secretary of Agriculture is hereby authorized and
directed to conduct such investigations, experiments, and tests as he may deem
necessary in order to determine, demonstrate, and promulgate the best methods
of eradication, suppression, or bringing under control on national forests and
other areas of the public domain as well as on State, Territory, or privately
owned lands of mountain lions, wolves, coyotes, bobcats, prairie dogs,
gophers, ground squirrels, jack rabbits, brown tree snakes, and other animals
injurious to agriculture, horticulture, forestry, animal husbandry, wild game
animals, furbearing animals, and birds, and for the protection of stock and
other domestic animals through the suppression of rabies and tularemia in
predatory or other wild animals; and to conduct campaigns for the destruction
or control of such animals: Provided, That in carrying out the provisions of
this Act the Secretary of Agriculture may cooperate with States, individuals
and public and private agencies, organizations, and institutions."
•7 U.S.C. 426b.
Authorization of expenditures for the eradication and control of predatory and
other wild animals.
•7 U.S.C. 426c. Control
of nuisance mammals and birds and those constituting reservoirs of zoonotic
diseases; exception…”
Another act administered by the Department of
agriculture is the Granger-Thye Act of 1950. This act specifically deals with
the U.S. Forest Service in its dealings with grazing issues and elements that
affect range productivity, including destructive species. This act, under
Section 12, describes how the range betterment funds (derived from fees
charged to the ranchers) are to be used for physical improvements and
controlling species found to be destructive to ranchers’ private allotments
encumbered upon Federal lands. Again, congressional intent was to protect
rural economic production.
Granger-Thye Act of 1950
Sec. 12, Use of Grazing
Receipts for Range Improvements
“…the Secretary of
Agriculture may prescribe, for … (3)
control of range destroying rodents …”[Funds protected as separate
Treasury account]
It is of interest to note that these funds are
specifically deposited into a separate account in the Treasury and are not
derived from or mixed with general tax dollars. Congress specifically stated
that any use of these funds are not to be considered as “…a
major Federal action…”
and thus are not subject to Environmental Assessments (EA) or National
Environmental Policy Act (NEPA) scrutiny. This distinction was reiterated in
the Federal Land Policy and Management Act of 1976 (FLMPA):
Title IV, Sec. 401(b)(1):
“…Use of range betterment funds…shall not be considered a major Federal
action…“
The argument has been raised that since the ESA was passed in 1973
after these two laws were passed (1931 and 1950), the ESA supersedes these
laws. Again, if Congress does not specifically state in a new act or law that
it specifically supersedes a previous law, then it is rendered pari materia
and must be read in context with other preexisting laws. Also, if indeed
the ESA negates 7 U.S.C. 426, then why did Congress strengthen 7 U.S.C. 426 in
2000 and 2003? Using the earlier argument logic that a new law supersedes an
older law would put the ESA inferior to 7 U.S.C. 426, and thus be superseded.
The issue of pari materia is the only logical conclusion, and thus, ESA
11(h) was constructed to recognize other preexisting acts and laws, and
therefore the intent of Congress, to exempt the actions of the Secretary of
Agriculture and the Secretary of the Treasury when they are carrying out their
obligations under these preexisting laws.
Another intent of Congress built into the ESA, in terms of recognizing
Constitutional issues, was the issue of states rights over wildlife as
asserted by the 10th Amendment. This was through the recognition of
resident species. This is found in section 4(d) Protective Regulations. It
states:
(ESA)
1973 Sec. 4(d) Protective Regulations
“…The Secretary may by
regulation prohibit with respect to any threatened species any act prohibited
under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in
the case of plants, with respect to endangered species; except that with
respect to the taking of resident species of fish or wildlife, such
regulations shall apply in any State which has entered into a cooperative
agreement pursuant to section 6(c) of this Act only to the extent that such
regulations have also been adopted by such State…“
To put it simply, for Federal regulations to be implemented concerning
the taking of resident wildlife, the state must enter into a voluntary
cooperative agreement for that species and only
to the extent that such regulations are incorporated into state law. This must be on a case-by-case basis. This is also
recognized in the Department of the Interiors’ own regulation implemented in
October of 2001 recognizing the states’ control of resident wildlife within
their borders (full text in Appendix). Prior to the ESA, a Supreme Court
opinion in 1920 recognized the states’ absolute right to control resident
wildlife within its boundaries under the 10th Amendment (underline
added for emphasis):
“…Every State possesses the absolute right to deal as it may see fit with property held by it either as proprietor or in its sovereign capacity as a representative of the people, and this right is paramount to the federal legislative or treaty-making power…“
“…The
treaty-making power of the National Government is so limited by other
provisions of the Constitution, including the Tenth Amendment, that it cannot
divest a State of its police power or of its ownership or control of its
wild game…“
To further emphasize the intent of Congress concerning consideration of
the human dimension, the ESA was amended in 1978 to include economic
consideration when determining critical habitat (CH). This concern was not in
the 1973 version of the ESA and, due to hardships being felt by rural
communities, was added to ensure adverse impacts on communities were to be
taken into consideration, although in practice, this consideration has still
taken a back seat to CH implementation. It is important to understand that
this economic consideration is not initiated merely because a species is
listed. It is only triggered with CH designation; however, the agency is
required to consider all impacts endured by the affected communities from the
time of the listing. The baseline from which impacts are measured against is
the cultural and economic history established prior to the listing (N. Mex. Cattle Growers Assoc. V. USFWS (10th Cir. 2001)). The sections of the ESA (Sec.
3(5)(A) and Sec. 4(b)(2) ) that deal with CH state (underlining added for
emphasis):
ESA Sec. 3(5)(A) Critical Habitat
“…The specific areas
within the geographical area occupied by the species, at the time it is
listed, on which are found those physical or biological features:
(I) essential to the conservation of the species and
(II) which may require
special management considerations or protection; and
(ii) specific areas
outside the geographical area occupied by the species at the time it is
listed , upon a determination by the Secretary that such areas are
essential for the conservation of the species…”
ESA 1973 Sec. 4(b)(2) Basis for Determinations
“…The Secretary shall
designate critical habitat, and make revisions thereto, under subsection
(a)(3) and 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 area 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,
based on the best scientific and commercial data available, that the failure
to designate such area as critical habitat will result in the extinction of
the species concerned…”
Several Executive Orders (EO) and agency memorandums issued in response
to these EOs further enhanced this consideration for human dimension and
economic consideration:
EO 12630 Governmental Actions and Interference With
Constitutionally Protected Property Rights (March 15, 1988)
EO 12866 Regulatory Planning and Review (September
30, 1993)
EO 12898 Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations (February 11, 1994)
US
Department of the Interior Compliance Memorandums
EO 12988 Civil Justice Reform (February 7, 1996)
EO 13211 Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use (
This aspect of the human dimension impact studies, and the intent of
Congress on this subject, have been supported by several Federal court cases
and are explained in the accompanying paper entitled “National Environmental Policy Act (NEPA) and
the Human Dimension”.
An
example of how not conducting a human dimension study can negatively impact
rural communities and the health of the environment can be found in the case
of
One of the hardest hit
communities in the state, due to the restrictions, is
This pattern of harm to the human dimension and failure to conduct
proper impacts studies by Federal agencies has repeated itself across this
country. As to what end any benefits have been attained is in serious
question. A study of the cost effectiveness of the ESA was done by the
National Wilderness Institute and published in 1997. The study of
over 225,000 U. S. Fish and Wildlife Services (USFWS) Files,
determined that:
1997 National Wilderness Institute Study
•Total Federal and State
expenditures by 1993:
–$882,546,498
(Does not reflect community economic impacts)
•Conclusions:
–Only 2 species had been
upgraded due to efforts relating to the ESA in 25
years.
(A goose and a birch)
–Erroneous
listing of 96% of the species resulted from:
•Data
errors
•Undercounting
•Errors in taxonomic
classification due to hybridization and
biologist errors
Conservation Under the Endangered Species Act: A
Promise Broken, NWI Resource, Spring 1997, Volume 7, Issue 1
Given all of the above information on the unspoken issues of
the Endangered Species Act and the human dimension element of the National
Environmental Policy Act, there is little doubt as to how the original intent
of Congress has been misconstrued. It was not the intent to cause irreparable
harm and hardship to the human dimension and rural communities. When
researching the origins of the ESA, the associated treaties, NEPA and the
actual impacts to rural communities, several issues are evident:
·
It is clear that the human element was intended to be
inclusive when implementing regulations concerning conservation of wildlife;
·
It is also clear that by excluding the human
dimension, Federal agencies, both from management decisions and nonprofit
litigation, have caused irreparable economic harm to rural communities and
cultures;
·
Several questions are left unanswered:
• What are the impacts to private landowners and communities from ESA actions?
• What are the social, cultural and economic impacts resulting from habitat restrictions?
• Does the valid biology justify and support listing at any level?
• What is the Long Range
Outcome from Listing?
• According to whom?
Source: UNITED STATES CODE
SERVICE, Matthew Bender & Company, Inc., LEXIS Publishing (TM) Company
***
CURRENT THROUGH P.L. 108-3, APPROVED
TITLE
7. AGRICULTURE
CHAPTER 17. MISCELLANEOUS MATTERS
7
USCS § 426 (2003)
§ 426. Predatory and other wild animals
The Secretary of Agriculture may conduct a program of wildlife services with
respect to injurious animal species and take any action the Secretary
considers necessary in conducting the program. The Secretary shall administer
the program in a manner consistent with all of the wildlife services
authorities in effect on the day before the date of the enactment of the
Agriculture, Rural Development, Food and Drug Administration, and Related
Agencies Appropriations Act, 2001 [enacted
HISTORY:
(March 2, 1931, ch 370, §
1, 46 Stat. 1468; Dec. 13, 1991, P.L. 102-237, Title X, § 1013(d), 105 Stat.
1901; Oct. 28, 2000, P.L. 106-387, § 1(a), 114 Stat. 1549.)
HISTORY; ANCILLARY
LAWS AND DIRECTIVES
Explanatory notes:
The amendment made by §
1(a) of Act
Amendments:
1991. Act
2000. Act Oct. 28, 2000, substituted this
section for one which read:
"Predatory and other wild animals; eradication and control;
investigations, experiments, and tests by Secretary of Agriculture;
cooperation with other agencies
"The Secretary of Agriculture is hereby authorized and directed to
conduct such investigations, experiments, and tests as he may deem necessary
in order to determine, demonstrate, and promulgate the best methods of
eradication, suppression, or bringing under control on national forests
and other areas of the public domain as well as on State, Territory, or
privately owned lands of mountain lions, wolves, coyotes, bobcats, prairie
dogs, gophers, ground squirrels, jack rabbits, brown tree snakes, and other
animals injurious to agriculture, horticulture, forestry, animal husbandry,
wild game animals, furbearing animals, and birds, and for the protection of
stock and other domestic animals through the suppression of rabies and
tularemia in predatory or other wild animals; and to conduct campaigns for
the destruction or control of such animals: Provided, That in carrying out
the provisions of this Act the Secretary of Agriculture may cooperate with
States, individuals and public and private agencies, organizations, and
institutions."
Transfer of functions:
Transfer of functions to
Secretary of Interior. Functions of Secretary of Agriculture administered
through the Bureau of Biological Survey, relating to conservation of wildlife,
game, and migratory birds, were transferred to Secretary of Interior by
Reorganization Plan No. II, § 4(f), effective
Transfer
of authorities to the Secretary of Agriculture. H.R. No. 3037, Title I,
incorporated into Act Dec. 19, 1985, P.L. 99-190, § 101(a), 99 Stat. 1185, by
Act Dec. 22, 1987, P.L. 100-202, Title I, § 106, 101 Stat. 1329-433,
provides: "Effective upon the date of enactment of this Act and
notwithstanding any other provision of law, the authorities of the Secretary
of Agriculture under the Act of March 2, 1931 (46 Stat. 1468; 7
U.S.C. 426-426b), (transferred to the Secretary of the
Interior pursuant to section 4(f) of 1939 Reorganization Plan No. II [5 USCS
§ 903 note]) and all personnel, property, records, unexpended balances of
appropriations, allocations and other funds of the Fish and Wildlife Service,
United States Department of the Interior used, held, available or to be made
available in connection with the administration of such Act, are hereby transferred
from the Secretary of the Interior to the Secretary of Agriculture, and
this appropriation shall be available to carry out such authorities.".
Other provisions:
Prevention
of introduction of brown tree snakes to
"(a)
In general. The Secretary of Agriculture shall take such action as may be
necessary to prevent the inadvertent introduction of brown tree snakes into
other areas of the
"(b)
Introduction into
"(c)
Authority. The Secretary shall use the authority provided under the Federal
Plant Pest Act (7 U.S.C. 150aa et seq.) to carry out subsections (a) and
(b).".
Act
NOTES:
CROSS REFERENCES
This section is referred to in 7 USCS § 426b;
16 USCS § 2909.
***
CURRENT THROUGH P.L. 108-3, APPROVED
TITLE
7. AGRICULTURE
CHAPTER 17. MISCELLANEOUS MATTERS
7
USCS § 426b (2003)
§ 426b. Authorization of expenditures for the eradication and control
of predatory and other wild animals
The Secretary of Agriculture is authorized to make such expenditures for
equipment, supplies, and materials, including the employment of persons and
means in the District of Columbia and elsewhere, and to employ such means
as may be necessary to execute the functions imposed upon him by this Act
[7 USCS § 426].
HISTORY:
(March 2, 1931, ch 370, § 3, 46 Stat. 1469.)
NOTES:
CROSS REFERENCES
This section is referred to in 16 USCS § 2909.
***
CURRENT THROUGH P.L. 108-3, APPROVED
TITLE
7. AGRICULTURE
CHAPTER 17. MISCELLANEOUS MATTERS
7
USCS § 426c (2003)
§ 426c. Control of nuisance mammals and birds and those constituting
reservoirs of zoonotic
diseases; exception
The Secretary of Agriculture is authorized, except for urban rodent control,
to conduct activities and to enter into agreements with States, local
jurisdictions, individuals, and public and private agencies, organizations,
and institutions in the control of nuisance mammals and birds and those
mammal and bird species that are reservoirs for zoonotic diseases,
and to deposit any money collected under any such agreement into the
appropriation accounts that incur the costs to be available immediately and to
remain available until expended for Animal Damage Control activities.
HISTORY:
(Dec. 22, 1987, P.L. 100-202, Title I, § 101(k), 101 Stat. 1329-331.)
NOTES:
RESEARCH GUIDE Am Jur: 58 Am Jur 2d, Nuisances § 48.
***
CURRENT THROUGH P.L. 108-3, APPROVED
TITLE
7. AGRICULTURE
CHAPTER 109. ANIMAL HEALTH PROTECTION
7
USCS § 8319 (2003)
§ 8319. Surveillance of zoonotic diseases
The Secretary of Health and Human Services, through the Commissioner of Food
and Drugs and the Director of the Centers for Disease Control and Prevention,
and the Secretary of Agriculture shall coordinate the surveillance of zoonotic
diseases.
HISTORY:
(
HISTORY; ANCILLARY
LAWS AND DIRECTIVES
Explanatory notes:
This section was enacted as part of Act
***
CURRENT THROUGH P.L. 108-3, APPROVED
TITLE
16. CONSERVATION
CHAPTER 49. FISH AND WILDLIFE CONSERVATION
16 USCS § 2909 (2003)
§ 2909. Disclaimers
Nothing in this Act [16 USCS §§ 2901 et seq.] shall be construed as
affecting--
(1) the authority, jurisdiction,
or responsibility of the States to manage, control, or regulate fish and
resident wildlife under State law;
(2) any requirement under
State law that lands, waters, and interests therein may only be acquired for
conservation purposes if the owner thereof is a willing seller; and
(3) the authority of the
Secretary of Agriculture under the Act of March 2, 1931 (46 Stat. 1468-1469; 7
U.S.C. 426-426b).
HISTORY:
(Sept. 29, 1980, P.L. 96-366, § 10, 94 Stat. 1329.)
[Title 40, Volume 24, Parts 790 to END]
[Revised as of
From the
[CITE: 40CFR1500.1]
[Page 347]
TITLE: PROTECTION OF ENVIRONMENT
CHAPTER V COUNCIL ON ENVIRONMENTAL QUALITY
PART 1500: PURPOSE, POLICY, AND
MANDATE‑‑Table of Contents
Sec. 1500.1 Purpose.
(a)
The National Environmental Policy Act (NEPA) is our basic national charter for
protection of the environment. It establishes policy, sets goals (section
101), and provides means (section 102) for carrying out the policy. Section
102(2) contains ``action‑forcing'' provisions to make sure that federal
agencies act according to the letter and spirit of the Act. The regulations
that follow implement section 102(2). Their purpose is to tell federal
agencies what they must do to comply with the procedures and achieve the goals
of the Act. The President, the federal agencies, and the courts share
responsibility for enforcing the Act so as to achieve the substantive
requirements of section 101.
(b)
NEPA procedures must insure that environmental information is available to
public officials and citizens before decisions are made and before actions are
taken. The information must be of high quality. Accurate scientific analysis,
expert agency comments, and public scrutiny are essential to implementing
NEPA. Most important, NEPA documents must concentrate on the issues that
are truly significant to the action in question, rather than amassing needless
detail.
(c)
Ultimately, of course, it is not better documents but better decisions that
count. NEPA's purpose is not to generate paperwork‑‑even excellent
paperwork‑‑but to foster excellent action. The NEPA process is
intended to help public officials make decisions that are based on
understanding of environmental consequences, and take actions that protect,
restore, and enhance the environment. These regulations provide the direction
to achieve this purpose.
[Title
43, Volume 1]
[Revised
as of
From
the
[CITE:
43CFR24]
[Page
444-449]
TITLE
43--PUBLIC LANDS: INTERIOR
PART
24--DEPARTMENT OF THE INTERIOR FISH AND WILDLIFE POLICY: STATE-FEDERAL
RELATIONSHIPS
Sec.
24.1
Introduction.
24.2
Purpose.
24.3
General jurisdictional principles.
24.4
Resource management and public activities on Federal lands.
24.5
International agreements.
24.6
Cooperative agreements.
24.7
Exemptions.
Authority: 43 U.S.C. 1201.
Source: 48 FR 11642,
Sec.
24.1 Introduction.
(a) In 1970, the Secretary of the Interior developed a policy statement
on intergovernmental cooperation in the preservation, use and management of
fish and wildlife resources. The purpose of the policy (36 FR 21034,
(b) The Secretary of the Interior reaffirms that fish and wildlife must
be maintained for their ecological, cultural, educational, historical,
aesthetic, scientific, recreational, economic, and social values to the people
of the
(c) It is the intent of the Secretary to strengthen and support, to the
maximum legal extent possible, the missions of the States\1\ and the
Department of the Interior to conserve and manage effectively the nation's
fish and wildlife. It is, therefore, important that a Department of the
Interior Fish and Wildlife Policy be implemented to coordinate and facilitate
the efforts of Federal and State agencies in the attainment of this objective.
---------------------------------------------------------------------------
\1\``States'' refers to all of the several States, the District of
Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands,
Guam, the Trust Territory of the Pacific Islands, the
---------------------------------------------------------------------------
Sec.
24.2 Purpose.
(a) The purpose of the Department of the Interior Fish and Wildlife
Policy is to clarify and support the broad authorities and responsibilities of
Federal\2\ and State agencies responsible for the management of the nation's
fish and wildlife and to identify and promote cooperative agency management
relationships which advance scientifically-based resource management programs.
This policy is intended to reaffirm the basic role of the States in fish
and resident wildlife management, especially where States have primary
authority and responsibility, and to foster improved conservation of fish
and wildlife.
---------------------------------------------------------------------------
\2\Hereinafter, the Bureau of Reclamation, Bureau of Land Management,
Fish and Wildlife Service, and National Park Service will be referred to
collectively as ``Federal agencies.''
---------------------------------------------------------------------------
(b) In developing and implementing this policy, this Department will be
furthering the manifest Congressional policy of Federal-State cooperation that
pervades statutory enactments in the area of fish and wildlife conservation.
Moreover, in recognition of the scope of its activities in managing hundreds
of millions of acres of land within the several States, the Department of the
Interior will continue to seek new opportunities to foster a ``good neighbor''
policy with the States.
Sec.
24.3 General jurisdictional principles.
(a) In general the States possess broad trustee and police powers
over fish and wildlife within their borders, including fish and wildlife found
on Federal lands within a State. Under the Property Clause of the
Constitution, Congress is given the power to ``make all needful Rules and
Regulations respecting the Territory or other Property belonging to the
Finally,
a third source of Federal constitutional authority for the management of fish
and wildlife is the treaty making power. This authority was first recognized
in the negotiation of a migratory bird treaty with
(b) The exercise of Congressional power through the enactment of
Federal fish and wildlife conservation statutes has generally been associated
with the establishment of regulations more restrictive than those of State
law. The power of Congress respecting the taking of fish and wildlife has been
exercised as a restrictive regulatory power, except in those situations where
the taking of these resources is necessary to protect Federal property. With
these exceptions, and despite the existence of constitutional power respecting
fish and wildlife on Federally owned lands, Congress has, in fact,
reaffirmed the basic responsibility and authority of the States to manage fish
and resident wildlife on Federal lands.
(c) Congress has charged the Secretary of the Interior with
responsibilities for the management of certain fish and wildlife resources,
e.g., endangered and threatened species, migratory birds, certain marine
mammals, and certain aspects of the management of some anadromous fish. However,
even in these specific instances, with the limited exception of marine
mammals, State jurisdiction remains concurrent with Federal authority.
Sec.
24.4 Resource management and public activities on Federal lands.
(a) The four major systems of Federal lands administered by the
Department of the Interior are lands administered by the Bureau of
Reclamation, Bureau of Land Management, units of the National Wildlife Refuge
System and national fish hatcheries, and units of the National Park System.
(b) The Bureau of Reclamation withdraws public lands and acquires
non-Federal lands for construction and operation of water resource development
projects within the 17 Western States. Recreation and conservation or
enhancement of fish and wildlife resources are often designated project
purposes. General authority for Reclamation to modify project structures,
develop facilities, and acquire lands to accommodate fish and wildlife
resources is given to the Fish and Wildlife Coordination Act of 1946, as
amended (16 U.S.C. 661-667e). That act further provides that the lands, waters
and facilities designated for fish and wildlife management purposes, in most
instances, should be made available by cooperative agreement to the agency
exercising the administration of these resources of the particular State
involved. The Federal Water Project Recreation Act of 1965, as amended, also
directs Reclamation to encourage non-Federal public bodies to administer
project land and water areas for recreation and fish and wildlife enhancement.
Reclamation
withdrawal, however, does not enlarge the power of the
(c) BLM-administered lands comprise in excess of 300 million acres that
support significant and diverse populations of fish and wildlife.
Congress
in the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.)
directed that non-wilderness BLM lands be managed by the Secretary under
principles of multiple use and sustained yield, and for both wilderness and
non-wilderness lands explicitly recognized and reaffirmed the primary
authority and responsibility of the States for management of fish and resident
wildlife on such lands.
Concomitantly,
the Secretary of the Interior is charged with the responsibility to manage
non-wilderness BLM lands for multiple uses, including fish and wildlife
conservation. However, this authority to manage lands for fish and wildlife
values is not a preemption of State jurisdiction over fish and wildlife.
In exercising this responsibility the Secretary is empowered to close areas to
hunting, fishing or trapping for specified reasons viz., public safety,
administration, or compliance with provisions of applicable law. The closure
authority of the Secretary is thus a power to close areas to particular
activities for particular reasons and does not in and of itself constitute a
grant of authority to the Secretary to manage wildlife or require or authorize
the issuance of hunting and/or fishing permits or licenses.
(d) While the several States therefore possess primary authority and
responsibility for management of fish and resident wildlife on Bureau of Land
Management lands, the Secretary, through the Bureau of Land Management,
has custody of the land itself and the habitat upon which fish and resident
wildlife are dependent. Management of the habitat is a responsibility of the
Federal Government. Nevertheless, Congress in the Sikes Act has directed the
Secretary of the Interior to cooperate with the States in developing programs
on certain public lands, including those administered by BLM and the
Department of Defense, for the conservation and rehabilitation of fish and
wildlife including specific habitat improvement projects.
(e) Units of the National Wildlife Refuge System occur in nearly every
State and constitute Federally owned or controlled areas set aside primarily
as conservation areas for migratory waterfowl and other species of fish or
wildlife. Units of the system also provide outdoor enjoyment for millions of
visitors annually for the purpose of hunting, fishing and wildlife-associated
recreation. In 1962 and 1966, Congress authorized the use of National Wildlife
Refuges for outdoor recreation provided that it is compatible with the primary
purposes for which the particular refuge was established. In contrast to
multiple use public lands, the conservation, enhancement and perpetuation of
fish and wildlife is almost invariably the principal reason for the
establishment of a unit of the National Wildlife Refuge System. In
consequence, Federal activity respecting management of migratory waterfowl and
other wildlife residing on units of the National Wildlife Refuge System
involves a Federal function specifically authorized by Congress. It is
therefore for the Secretary to determine whether units of the System shall be
open to public uses, such as hunting and fishing, and on what terms such
access shall be granted. However, in recognition of the existing
jurisdictional relationship between the States and the Federal Government,
Congress, in the National Wildlife Refuge System Administration Act of 1966
(16 U.S.C. 668dd), has explicitly stated that nothing therein shall be
construed as affecting the authority of the several States to manage fish and
resident wildlife found on units of the system.
Thus,
Congress has directed that, to the maximum extent practicable, such public
uses shall be consistent with State laws and regulations. Units of the
National Wildlife Refuge System, therefore, shall be managed, to the extent
practicable and compatible with the purposes for which they were established,
in accordance with State laws and regulations, comprehensive plans for fish
and wildlife developed by the States, and Regional Resource Plans developed by
the Fish and Wildlife Service in cooperation with the States.
(f) Units of the National Park System contain natural, recreation,
historic, and cultural values of national significance as designated by
Executive and Congressional action. Specific enabling legislation has
authorized limited hunting, trapping or fishing activity within certain areas
of the system. As a general rule, consumptive resource utilization is
prohibited. Those areas, which do legislatively allow hunting, trapping, or
fishing, do so in conformance with applicable Federal and State laws. The
Superintendent may, in consultation with the appropriate State agency, fix
times and locations where such activities will be prohibited. Areas of the
National Park System, which permit fishing generally, will do so in accordance
with applicable State and Federal Laws.
(g) In areas of exclusive Federal jurisdiction, State laws are not
applicable. However, every attempt shall be made to consult with the
appropriate States to minimize conflicting and confusing regulations, which
may cause undue hardship.
(h) The management of habitat for species of wildlife, populations of
wildlife, or individual members of a population shall be in accordance with a
Park Service approved Resource Management Plan. The appropriate States shall
be consulted prior to the approval of management actions, and memoranda of
understanding shall be executed as appropriate to ensure the conduct of
programs, which meet mutual objectives.
(i) Federal agencies of the Department of the Interior shall:
(1) Prepare fish and wildlife management plans in cooperation with
State fish and wildlife agencies and other Federal (non-Interior) agencies
where appropriate. Where such plans are prepared for Federal lands adjoining
State or private lands, the agencies shall consult with the State or private
landowners to coordinate management objectives;
(2) Within their statutory authority and subject to the management
priorities and strategies of such agencies, institute fish and wildlife
habitat management practices in cooperation with the States to assist the
States in accomplishing their fish and wildlife resource plans;
(3) Provide for public use of Federal lands in accordance with State
and Federal laws, and permit public hunting, fishing and trapping within
statutory and budgetary limitations and in a manner compatible with the
primary objectives for which the lands are administered. The hunting, fishing,
and trapping, and the possession and disposition of fish, game, and fur
animals, shall be conducted in all other respects within the framework of
applicable State and Federal laws, including requirements for the possession
of appropriate State licenses or permits.
(4) For those Federal lands that are already open for hunting, fishing,
or trapping, closure authority shall not be exercised without prior
consultation with the affected States, except in emergency situations. The
Bureau of Land Management may, after consultation with the States, close all
or any portion of public land under its jurisdiction to public hunting,
fishing, or trapping for reasons of public safety, administration, or
compliance with provisions of applicable law. The National Park Service and
Fish and Wildlife Service may, after consultation with the States, close all
or any portion of Federal land under their jurisdictions, or impose such other
restrictions as are deemed necessary, for reasons required by the Federal laws
governing the management of their areas; and
(5)
Consult with the States and comply with State permit requirements in
connection with the activities listed below, except in instances where the
Secretary of the Interior determines that such compliance would prevent him
from carrying out his statutory responsibilities:
(i) In carrying out research programs involving the taking or
possession of fish and wildlife or programs involving reintroduction of fish
and wildlife;
(ii) For the planned and orderly removal of surplus or harmful
populations of fish and wildlife except where emergency situations requiring
immediate action make such consultation and compliance with
State
regulatory requirements infeasible; and
(iii) In the disposition of fish and wildlife taken under paragraph (i)
(5)(i) or (i) (5)(ii) of this section.
Sec.
24.5 International agreements.
(a) International conventions have increasingly been utilized to
address fish and wildlife issues having dimensions beyond national boundaries.
The authority to enter into such agreements is reserved to the President by
and with the advice and consent of the Senate. However, while such agreements
may be valuable in the case of other nations, in a Federal system such as ours
sophisticated fish and wildlife programs already established at the State
level may be weakened or not enhanced.
(b) To ensure that effective fish and wildlife programs already
established at the State level are not weakened, the policy of the Department
of the Interior shall be to recommend that the United States negotiate and
accede to only those international agreements that give strong consideration
to established State programs designed to ensure the conservation of fish and
wildlife populations.
(c) It shall be the policy of the Department to actively solicit the
advice of affected State agencies and to recommend to the U.S. Department of
State that representatives of such agencies be involved before and during
negotiation of any new international conventions concerning fish and wildlife.
Sec.
24.6 Cooperative agreements.
(a) By reason of the Congressional policy (e.g., Fish and Wildlife
Coordination Act of 1956) of State-Federal cooperation and coordination in the
area of fish and wildlife conservation, State and Federal agencies have
implemented cooperative agreements for a variety of fish and wildlife programs
on Federal lands. This practice shall be continued and encouraged. Appropriate
topics for such cooperative agreements include but are not limited to:
(1) Protection, maintenance, and development of fish and wildlife
habitat;
(2) Fish and wildlife reintroduction and propagation;
(3) Research and other field study programs including those involving
the taking or possession of fish and wildlife;
(4) Fish and wildlife resource inventories and data collection;
(5) Law enforcement;
(6) Educational programs;
(7) Toxicity/mortality investigations and monitoring;
(8) Animal damage management;
(9) Endangered and threatened species;
(10) Habitat preservation;
(11) Joint processing of State and Federal permit applications for
activities involving fish, wildlife and plants;
(12) Road management activities affecting fish and wildlife and their
habitat;
(13) Management activities involving fish and wildlife; and,
(14) Disposition of fish and wildlife taken in conjunction with the
activities listed in this paragraph.
(b) The cooperating parties shall periodically review such cooperative
agreements and adjust them to reflect changed circumstances.
Sec.
24.7 Exemptions.
(a) Exempted from this policy are the following:
(1) The control and regulation by the United States, in the area in
which an international convention or treaty applies, of the taking of those
species and families of fish and wildlife expressly named or otherwise covered
under any international treaty or convention to which the United States is a
party;
(2) Any species of fish and wildlife, control over which has been ceded
or granted to the United States by any State;
and
(3) Areas over which the States have ceded exclusive
jurisdiction to the
(b) Nothing in this policy shall be construed as affecting in any way
the existing authorities of the States to establish annual harvest regulations
for fish and resident wildlife on Federal lands where public hunting, fishing
or trapping is permitted.
[Title
50, Volume 1]
[Revised
as of
From
the
[CITE:
50CFR81.1]
[Page
1228]
TITLE
50--WILDLIFE AND FISHERIES
CHAPTER
I--UNITED STATES FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR
PART
81--CONSERVATION OF ENDANGERED AND THREATENED SPECIES OF FISH, WILDLIFE, AND
PLANTS--COOPERATION WITH THE STATES—
Sec.
81.1 Definitions.
As used in this part, terms shall have the meaning ascribed in this
section.
(a) Agreements. Signed documented statements of the actions to be taken
by the State(s) and the Secretary in furthering the purposes of the Act. They
include:
(1) A Cooperative Agreement entered into pursuant to section 6(c) of
the Endangered Species Act of 1973 and Sec. 81.2 of this part.
(2) A Project Agreement which includes a statement as to the actions to
be taken in connection with the conservation of endangered or threatened
species, benefits derived, cost of actions, and costs to be borne by the
Federal Government and by the States.
(b) Conserve, conserving, and conservation. 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 the Endangered
Species Act of 1973 are no longer necessary. Such methods and procedures
include, but are not limited to, all activities associated with scientific
resources management such as research, census, law enforcement, habitat
acquisition and maintenance, propagation, live trapping, and transplantation,
and, in the extraordinary case where population pressures within a given
ecosystem cannot be otherwise relieved, may include regulated taking.
(c) Endangered species. 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 as determined by the Secretary to constitute a pest whose
protection under the provisions of The Endangered Species Act of 1973 would
present an overwhelming and overriding risk to man).
(d) Fish or wildlife. 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.
(e) Plant. Any member of the plant kingdom, including seeds, roots, and
other parts thereof.
(f) Program. A State-developed set of goals, objectives, strategies,
action, and funding necessary to be taken to promote the conservation and
management of resident endangered or threatened species.
(g) Secretary. The Secretary of the Interior or his authorized
representative.
(h) Species. This term includes any subspecies of fish or wildlife or
plants, and any distinct population segment of any species of vertebrate fish
or wildlife which interbreeds when mature.
(i) State. Any of the several States, the District of Columbia, the
Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, and the
Trust Territory of the Pacific Islands.
(j) State agency. The State agency or agencies, or other governmental
entity or entities which are responsible for the management and conservation
of fish or wildlife resources within a State.
(k) Plan. A course of action under which immediate attention will be
given to a State's resident species determined to be endangered or threatened.
(l) Threatened species. Any species which is likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range, as determined by the Secretary.
(m) Project. A plan undertaken to conserve the various species of fish
and wildlife or plants facing extinction.
(n) Act. The Endangered Species Act of 1973, Pub. L. 93-205, 16 U.S.C.
1531 et seq.
(o) Project segment. An essential part or a division of a project,
usually separated as a period of time, occasionally as a unit of work.
(p) Resident species. For the purposes of the Endangered Species Act of
1973, a species is resident in a State if it exists in the wild in that State
during any part of its life.
[40
FR 47509, Oct. 9, 1975, as amended at 44 FR 31580, May 31, 1979; 49 FR 30074,
July 26, 1984]
[[Page
1229]]
[Code of Federal Regulations]
[Title 50, Volume 2, Parts 200 to 599]
[Revised as of
From the
[CITE: 50CFR424.16]
[Page 360‑361]
TITLE 5: WILDLIFE AND FISHERIES
CHAPTER IV‑‑JOINT REGULATIONS (UNITED
STATES FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR AND NATIONAL MARINE
FISHERIES SERVICE,
PART 424: LISTING ENDANGERED AND THREATENED SPECIES AND DESIGNATING CRITICAL HABITAT
Table
of Contents
Subpart B Revision of the Lists
Sec. 424.16 Proposed
rules.
(a)
General. Based on the information received through Secs. 424.13,
424.14, 424.15, and 424.21, or through other
available avenues, the Secretary may propose revising the lists as described in
Sec. 424.10.
(b)
Contents. A notice of a proposed rule to carry out one of the actions described
in Sec. 424.10 shall contain the complete text of the proposed rule, a summary
of the data on which the proposal is based (including, as appropriate, citation
of pertinent information sources), and shall show the relationship of such data
to the rule proposed. If such a rule designates or revises critical habitat,
such summary shall, to the maximum extent practicable, include a brief
description and evaluation of those activities (whether public or private) that,
in the opinion of the Secretary, if undertaken, may adversely modify such
habitat, or may be affected by such designation. Any proposed rule to designate
or revise critical habitat shall contain a map of such habitat. Any such notice
proposing the listing, delisting, or reclassification of a species or the
designation or revision of critical habitat shall also include a summary of
factors affecting the species and/or critical habitat.
(c)
Procedures: (1) Notifications. In the case of any proposed rule to list,
delist, or reclassify a species, or to designate or revise critical habitat, the
Secretary shall:
(i)
Publish notice of the proposal in the Federal Register;
(ii)
Give actual notice of the proposed regulation (including the complete text of
the regulation) to the State agency in each State in which the species is
believed to occur, and to each county or equivalent jurisdiction therein in
which the species is believed to occur, and invite the comment of each such
agency and jurisdiction;
(iii)
Give notice of the proposed regulation to any Federal agencies, local
authorities, or private individuals or organizations known to be affected by the
rule;
(iv)
Insofar as practical, and in cooperation with the Secretary of State, give
notice of the proposed regulation to list, delist, or reclassify a species to
each foreign nation in which the species is believed to occur or whose citizens
harvest the species on the high seas, and invite the comment of such nation;
(v)
Give notice of the proposed regulation to such professional scientific
organizations as the Secretary deems appropriate; and
(vi)
Publish a summary of the proposed regulation in a newspaper of general
circulation in each area of the
(2)
Period of public comments. At least 60 days shall be allowed for public
comment following publication in the Federal Register of a rule proposing
the listing, delisting, or reclassification of a species, or the designation or
revision of critical habitat. All other proposed rules shall be subject to a
comment period of at least 30 days following publication in the Federal
Register. The Secretary may extend or reopen the period for public comment on a
proposed rule upon a finding that there is good cause to do so. A notice of any
such extension or reopening shall be published in the Federal Register, and
shall specify the basis for so doing.
(3) Public hearings. The Secretary shall promptly hold at least one public hearing if any person so requests within 45 days of publication of a proposed regulation to list, delist, or reclassify a species, or to designate or revise critical habitat. Notice of the location and time of any such hearing shall be published in the Federal Register not less than 15 days before the hearing is held.