7852

• UCREFRP Catalog Number: 7852
• Author: Bolin, J. H.
• Title: Of Razorbacks and Reservoirs
• USFW Year: 1993
• USFW - Doc Type: The Endangered Species Act's Protection of Endangered Colorado River Basin Fish
• Copyright Material: YES

r;;VIEW

[Vol. 11

section also directs
,"48 unless doing so
alerting collectors
~ ESA defines "crit-

al area occupied
. on which are
: (I) essential to
ich may require
~ection; and
I area occupied
on a detennina-
,ssential for the

;he ESA explicitly
fits of designating
its of excluding it,
a species' extinc-
deration based on
~ taking into COD-
'f other relevant

)[ the ESA, 16 U.S.C.
~reatened species, 16
C. ~ 1533(cXl) (1988);
88); issuing protective
jeveloping and imple-
lethe endangered and
ing a system to moni-
)ved from the list, 16
. agency guidelines to
under section 7 of the
and consulting with

1993]

OF RAZORBACKS AND RESiJ. \ ulRS

The ESA offers two types of protection to listed species,
the section 7 "consultation" process,53 and the section 9 "tak-
ing" prohibition. 54 Section 9 provides that it is unlawful for
any actor, private or governmental, to "take" any listed spe-
cies, defining that term as "to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect or attempt to en-
gage in any such conduct."55 FWS regulations further define
"harm" to include "significant habitat modification or degra-
dation where it actually kills or injures wildlife by signifi-
cantly impairing essential behavioral patterns, including
breeding, feeding or sheltering. "56 Given that the term "take"
is so expansively defined, it might seem at first that section
9's protection would be relatively clear. In application, how-
ever, the section is not a bright line rule, as it implicates the
murky issues of causation that emerge when legal rules are
applied to actual injuries. Damage to habitats is even less
easily defin~d, especially in an ecosystem with as many users
as the Colorado River Basin.57
Section 7 is the heart of the ESA, and the source of most
of its requirements. Its first subsection, 7(a)(1), requires that
all federal agencies "shall . . . carry[ ] out programs for the
conservation of endangered species and threatened species
. . . ."58 The ESA defines "conservation" to mean ". . . the use
of all methods and procedures which are necessary to bring
any endangered species to the point at which the measures
provided pursuant to [the ESA] are no longer necessary."59
Section 7(a)(1) thus can be read to require agencies to take
affirmative steps to aid species' recovery, and some Courts
have so held.60

53. 16 V.S.C. ~ 1536 (1988).
54. 16 V.S.C. ~ 1538 (1988).
55. 16 V.S.C. ~ 1532(19) (1988).
56. 50 C.F.R. ~ 17.3 (1992).
57. For further discussion, see supra, notes 14-26 and accompanying text.
58. 16 V.S.C. ~ 1536(a)(1) (1988).
59. 16 V.S.C. ~ 1532(3) (1988) (emphasis added).
60. For an authoritative discussion of section 7(a)(1) and the cases inter-
preting it, see James C. Kilbourne, The Endangered Species Act Under the Mi-
croscope: A Closeup Look from a Litigator's Perspective, 21 ENVTL. L. 499, 564-
72 (1991); see also DANIEL J. ROHLF, THE ENDANGERED SPECIES ACT: A GUIDE
TO ITs PROTECTIONS AND IMPLEMENTATION 92-100 (1989).

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