7626

• UCREFRP Catalog Number: 7626
• Author: Sidle, J. G. and D. B. Bowman
• Title: Habitat Protection under the Endangered Species Act
• USFW Year: 1988
• USFW - Doc Type: Conservation Biology
• Copyright Material: YES

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Habitat Protection

Palila II stated that the Act "does not allow a 'balancing'
approach for multiple use considerations." All the mou-
flon sheep must go. Besides, there are other areas in
Hawaii where they can be hunted. Section 9 does not
allow other management strategies or policies for placa-
live purposes that would play "Russian roulette with a
critically endangered species."
Support for the palila decisions reaches back to the
famous snail darter (Percina tanasi) case (Tennessee
Valley Authority v. Hil~ 437 US. 153 [1978]). Aside
from Section 7 violations, the US. Supreme Court also
indicated that environmental effects (loss of spawning
habitat, siltation, and low oxygen content of the reser-
voir) of a completed Tellico Dam might amount to a
taking of snail darters under Section 9. Snail darters
floating belly up were not required.
The 1982 amendments to the Act, however, allowed
for incidental taking in Section 7 consultations. Section
7(b)( 4) permits taking of some individuals of an endan.
gered species if the taking is incidental to the federal
action under consultation, and if such incidental taking
is not to the degree that the continued existence of the
species is likely to be jeopardized (50 Code of Federal
Regulations 402.14[ i]). For example, the US. Fish and
Wildlife Service (1987) has determined that construc-
tion and operation of the proposed Two Forks Dam on
the South Platte River in Colorado will result in a non-
jeopardizing incidental take of the endangered interior
population of the least tern (Sterna antillarum) and
threatened piping plover (Charadrius melodus) down-
stream on the Platte River, Nebraska. Because the proj-
ect sponsor has agreed to implement reasonable and
prudent measures to minimize the incidental take of
least terns and piping plovers, the project may proceed
without violating Section 9.
Incidental taking aside, the palila decisions enunci-
ated a broad taking concept that potentially subjects
many private landowners to risk of prosecution or civil

Conservation Biology
Volume 2, No.1, March 1988

Sidle & Bowman

suit against land development activities for taking
through habitat destruction. Habitat status is usually the
determining factor in a species' road to recovery. Stron-
ger habitat protection is the key to the effectiveness of
most endangered species conservation (Vaughn 1987).
According to Palila I and II, the Department of the In-
terior's definition of "harm" gives great leverage to the
enforcement of habitat protection under Section 9 of
the Act. Such enforcement may require considerable
political will (Bean 1983), and some believe that federal
agencies are not inclined to invoke Section 9 to curtail
either drastic or subtle long-term habitat modifications
(Vaughn 1987).

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Literature Cited

Bean, M.J. 1983. The evolution of national wildlife law. Prae-
ger, New York, New York, USA.

Bean, M. J. 1987. The federal endangered species program.
Pages 147-160 in R. 1. DiSilvestro, editor. Audubon wildlife
report 1987, National Audubon Society, New York, New York,
USA.

Sidle, J. G. 1987. Critical habitat designation: is it prudent?
Environmental Management 11:429-437.

Sparling, O. W. 1987. The endangered pallia of Hawaii. Endan-
gered Species Technical Bulletin 12(9):6.

U.S. Fish and Wildlife Service. 1986. Revised palila recovery
plan.

U.S. Fish and Wildlife Service. 1987. Biological opinion on the
Platte River off-site effects of the Denver Water Department's
Two Forks Dam project. Letter from U.S. Fish and Wildlife
Service, Denver, Colorado to U.S. Army Corps of Engineers,
Omaha, Nebraska dated October 14, 1987.

Vaughn, D. C. 1987. The whooping crane, the Platte River, and
endangered species legislation. Nebraska Law Review 66:175-
211.

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