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oa2~34 The Search for a Conservation Planning Paradigm: Section 10 of the ESA Robert D. Thornton The twenty. year history of the Endangered Species Act (ESA) has been marked with many contentious conflicts berween endangered spe- cies conservation and resource development. But since the enactment of the "God Squad" amendments to the ESA in 1978, the conflicts have resulted in only four applications to the cabinet-level Endangered Species Committee for exemptions ftom the ESA. The commillec met in 1992 for the first time in over a decade when it considered applications to exempt timber sa- les in the spoiled owl habitat from ESA require- ments. The small number of exemption applica- tions, however, provide a misleading picture of the potential for endangered species conflicts in the future. First, the list of endangered and threatened species is likely to grow dramati- cally over the next few years as a result of the litigation settlement agreements entered into in the waning days of the Bush administration. These agreements commit the Fish and Wildlife SelVice (FWS) to act on'several hundred species that have been on the candidate species list for many years. Second, the environmental com. munity is making effective use of the action forcing provisions of the 1982 amendments to the ESA that require the FWS to act on private petitions to list a species within the time dead- lines established by the ESA (generally, two years from the date that FWS publishes a finding that the listing may be warranted). 16 D.S.C. $ 1533(b) (1988). Private listing petitions have resulted in the listing of the nonhern spotted owl and Pacific salmon runs in the Pacific Nonhwest, and the Delta smelt and the gnat. catcher in California-listings that have already generated acrimony of a son not seen since the days of the snail daner and Tellico Dam. Third, the ESA has progressed from the reg- ulation of federal agency activities under section 7 to the regulation of purely private activities through the application of the taking prohibition of section 9. For example, approximately 250,000 acres of some of California's most valuable real estate is affected by the March 1993 decision to list the California goatcatcher as a threatened spe- cies. This is in addition to 80,000 acres of land in the same area that has been off. limits to de- velopment since 1988 as a result of the listing of the Stephen's kangaroo rat. 111is land is owned by thousands of landowners ranging from individuals to large land developers. Unlike the successful record of resolving conflicts concerning federal agency activities through the section 7 consulta- tion process, it has proven very difficult to resolve conflicts involving private property-especially when many landowners are affected. Founh, the courts have shown a will ing- ness to enforce strictly the provisions of the ESA that require listing decisions to be based "solely" on scientific data without regard to the economic impact of the listing. Northern Spot- ted Owl v. Hodel, 716 F. Supp. 479 (W.O. Wash. 1988) (rejecting contention of FWS that listing of nonhern spotted owl was not warranted). As a result of these and other decisions, the Sec- retaries of Commerce and the Interior have very Ii mited discretion not to list a species once it is clearly demonsLCated that the species is en- dangered. The requirement that listing deci- sions be based solely on scientific data, however, is generating new disputes concerning whether FWS is obligated to obtain the raw data relied on by the listing petitioners. The listing of the California gnatcatcher, for example, has been challenged on the ground that the listing peti- tioner refused to allow public review of his data regarding the taxonomy and range of the gnat- catcher. Endangered Species Committee v. Babbitt, Civ. No. 92-2610 (D.D.C. filed Nov. 20, 1992). The courtS have also consistently inter- preted the ESA's prohibition on "taking" listed species broadly. Palila v. Hawaii Dep 't olLand & Natural Resources, 639 F.2d 495 (9th Cir. 1981); PaUla v. Hawaii Dep't 0/ Land & Nal. ural Resources, 852 F.2d 1 106 (9th Cir. 1988) (holding that Hawaii's sheep and goat manage- ment program in habitat of palila bird consti- tuted "taking" in violation of the ESA); Sierra Club v. Lyng, 694 F. Supp. 1260 (E.D. Tex. 1988), aU'd in part and rev'd In part, Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991) (holding that Forest SelVice timber manage- ment practices in habitat of red-cockaded woodpecker adversely affected woodpecker population and constituted taking in violation of section 9 of the ESA). Recently, the couns have upheld the regulatory definition of "harm" which includes "significant habitat modifica- tion . . . where it actually kills or injures wild. NR&E/SUMMER 1993 A1~ Thornton isa partner in Nossaman, Guthner, Knox & Elliott in Irvine, CalifornIa. He has represented public and private entities on several habt/at conservation plans. 21