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. - ~ . . MAYNES, BRADFORD & SHIPPS ATTORNEYS AT LAW 1060 MAIN AVENUE, SUITE 103 OL.D MAIN POST OF"FleE PROFESSIONAL. BUILDING POST OFFICE BOX 2117 DURANGO, COLORADO 81302-2717 FRANK E. (SAMI MAYNES T....OMAS \01. SHIPPS .JANICE C. SHEFTEL RICHARO L. S'SK SAM W. MAYNES 303/247-'755 F'AX: 303/247.e827 MEMORANDUM BYRON V. BRADFORO (1907.19851 TO: Tribal Council. Southern Ute Indian Tribe FROM: RE: Tribal Attorneys ABA Conference on Endangered Species Act ("ESA"l. April 6. 1990, Denver. Colorado DATE: April 30. 1990 All conference speakers agreed that the ESA is one of the Nation's strongest environmental protection acts, the "Pit Bull" of environmental Acts. There are over 3600 listed or candidate status species of endangered plants and animals. No species has ever been delisted through court action. The ESA makes all presumptions in favor of the endangered species. The Act was strengthened in 1982 so that it includes precise deadlines for listing and so that in determining whether a species should be listed. the Secretary of the Interior must consider only biological data, not economic data. With regard to the razorback sucker listing, there is no biological evidence available to avoid a listing. The listing is due to be published in the Federal Register in April. After one year. the razorback sucker will then be added to the list. The Service's Section 7 biological operation for the Animas-La Plata should include the razorback sucker. The definitions in the ESA are very broad. Under the Act. it is prohibited to take any endangered species within the United States or the territories of the United States. The term "take" means to harass. harm. pursue. hunt, shoot, wound, kill. trap. capture or collect an endangered species. The word "harm" means much more than killing or injuring an endangered species. "To harm" means to impair essential behavior. "To harm" may include habitat modification or degradation such as impairing the central behavioral patterns, including breeding, feeding or sheltering. "To harm" could be interpreted to include the actions of a bird watcher who walks so close to a bird's nest that the mother leaves the young unprotected and the young dies. If there is any doubt in a particular situation, the benefit of the doubt must go to the endangered species. Congress. in 1982. strengthened the penalty prOVISIOns of the ESA, increas- ing criminal fines from $10.000 to $50,000 per violation, and increasing civil penalties to $25.000 per violation. There is only a slim chance that if a takings claim is brought under the Fifth Amendment of the United States Constitution that it will succeed. The party will need to have exhausted administrative remedies. In a Pennsylvania coal case, the United States Supreme Court allowed a fifty percent diminishment in value for the use of the property and did not consider it a taking.