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Si~8 ~W~ j, lq~ ?J3-!e- Note Habitat Protection Under the Endangered Species Act :. 1 JOHN G. SIDLE DAVID B. BOWMAN Endangered Species Division U.S. Fish and Wildlife Service 2604 Saint Patrick Avenue Grand Island, Nebraska U.S.A. 68803 t Although some species have been hunted into extinc- tion, the major cause of extinctions has been the de- struction of natural habitat. One of the purposes of the United States Endangered Species Act of 1973, as amended, is "to provide a means whereby the ecosys- tems upon which endangered species and threatened species depend may be conserved." However, protection of habitat of species listed as endangered or threatened pursuant to the Act is incom- plete. Although not often done, the federal government can acquire habitat and create refuges for species under Section 5 of the Act. Also infrequent is the designation or labeling of public or private land (not acquisition) as critical habitat under Section 4 for subsequent protec- tion under Section 7 (Sidle 1987). Under Section 7, fed- eral agencies must ensure. that any action authorized, funded, or carried out by such agencies will not jeop- ardize the continued existence of endangered or threat- ened species, or result in the destruction or adverse modification of designated critical habitat. However, Section 7 does not apply to state agencies, private citi- zens, and organizations unless federal permits or funds are involved. Sadly, in spite of the Act, the habitats of endangered and threaten,d species can slowly or quickly disappear. 1 Section 9 details prohibitions regarding the taking, possession, and importation of listed species. These ac- tivities generally involve direct human contact with listed species. For some listed species, the Act may ap- pear to convey an inadequate conservation standard: for example, shooting an endangered bird is a crime, but bulldozing its habitat may not be. However, the Act de- fines "take" very broadly to include "harass, harm, pur- sue, hunt, shoot, wound, kill, trap, capture or collect, or 116 Conservation Biology Volume 2, No.1, March 1988 to attempt to engage in any such conduct" (16 Url:ited States Code 1532 [19]). Section 9 does not specifi<rally mention the destruction of habitat. Prior to November 1981, regulations promulgated by the U.S. Departnilent of the Interior defined harm in the above definitioh of take as such (50 Code of Federal Regulations ~ 17.3): "Harm" in the definition of "take" in the Act means an act or omission which actually injures or kills wildlife, including acts which annoy it to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding or shel- tering; significant environmental modification or degra- dation which has such effects is included within the meaning of "harm." Environmental modification and destruction often, oc- cur over a long period, and species slide into oblivion without a corpus delecti. An example is the endangered palila (Loxioides bailleui), a honeycreeper that num- bered about 3444 ::!:: 956 in 1987 (Sparling 1987) and is endemic to the remaining mamane (Sophora chryso- phylla) and naio (Myoporum sandwicense) forests on the slopes of Mauna Kea on the island of Hawaii be- tween the elevations of 2000 and 2900 meters--about 10 percent of the bird's historical range (U.S. Fish and Wildlife Service 1986). Mamane trees provide the palila with food, shelter, and nest sites. Naio trees also provide nest sites and food. Feral goats and sheep, which were introduced in the late eighteenth century, browse mamane seedlings and shoots, curtail forest regeneration, and have caused the decline of the palila's habitat (U.S. Fish and Wildlife Service 1986). For many years hunting interests pre- vailed against proposals to eradicate sheep and goats -~';J!!!,,:: (,:~ ,;u;::: t\.) 1::.11. r"', *'T! jdffE i~~;~~--f;J;~;, C";..~ tr7.'~ -"~'r-' ""'b Q;lF ~'Ffj Ni \..0 -