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<br />002ii77 <br /> <br />MANAGING ESA ISSUES <br /> <br />HOLLAND & HART LLP <br /> <br />2(b) provides that one purpose of the Act is to "provide a means whereby the ecosystems <br />upon which listed species depend may be conserved.,,23 Second, Section 7(a)( 1) directs <br />all federal agencies to use their authorities to further the purposes of the ESA by <br />carrying out programs for the conservation of listed species.2' Although conserving the <br />ecosystems upon which endangered species depend is one of the identified purposes of <br />the ESA, there is no specific ESA program to implement this purpose25 The critical <br />habitat provisions of the ESA are not coterminous with an ecosystem conservation <br />approach because critical habitat often is not designated for listed species26 Also, the <br />critical habitat designation and protections focus only on the essential elements of the <br />habitat for the listed species and not all of the ecosystem functions of that habitat. <br /> <br />Nevertheless, despite the absence of a specific ESA program for ecosystem <br />conservation, at least one federal court has indicated that the Section 2(b) purposes and <br />Section 7(a)(I) obligations form the basis for a required ecosystem management <br />approach. In Seattle Audubon Society v. Lyons,27 Judge Dwyer upheld the President's <br />Forest Plan for the Pacific Northwest old growth forests in the range of the northern <br />spotted owl, and stated that the Bureau of Land Management and the Forest Service had <br />to plan on an ecosystem basis to address forest conditions in that area, Thus, the ESA at <br />times can be, as Professor Houck has observed, "a surrogate law for ecosystems.,,28 <br /> <br />Some Reoresentative Leadinl! Cases on ESA Issues <br /> <br />. United States v. Glenn-Colusa Irrigation District, 788 F. Supp. 1126 (ED, Cal. <br />1992) (court enjoined irrigation district's water pumping that was "taking" listed <br />Sacramento River winter-run chinook salmon by impaling juvenile salmon against fish <br />screens at pumping station). <br /> <br />. O'Neill v. United States, 50 F.3d 677 (9th Cir, 1995) (federal reclamation contract <br />does not require government to deliver full amount of water contracted for when that <br /> <br />23 16 U.S,C. ~ 1531(b). The Supreme Court noted in Sweet Home that lhis ecosystem conservation <br />purpose is one of the "central purposes" of the ESA, Sweet Home, 115 S. Ct. at 2413. <br /> <br />"Id. !i 1536(a)(I), <br /> <br />25 See, e.g" National Research Council, Science and the Endangered Species Act at 179 (1995) (noting <br />that while "ecosystem protection is of paramount importance to lhe overall preservation of species," <br />the ESA focuses on listing species and any policy for implementing ecosystem protection is <br />"untested"). <br /> <br />26 Id. at 76, ("That nearly 80% of all species lisled do not have critical habitat designations is a cause <br />for concern. "). <br /> <br />27871 F, Supp. 1291, 1311 (W.D. Wash. 1994), a/I'd on other grounds sub nom. Seattle Audubon <br />Soc'y v. Moseley, 80 F.3d 1401 (9th Cir. 1996). <br /> <br />28 Professor Oliver Houck, Tulane UniversilY, as quoted in Narure, Nurture and Property Rights, The <br />Economist, July 8, 1995, at 24,25, <br /> <br />- 4 - <br />