Thursday, January 23, 2014


Critically endangered black rhinoceros.
Despite this fabulous photo of a rhino, my favorite endangered animals are whales.  You’ll have to read to the end to see an amazing whale photo.  Just this morning my friend told me that when humans are out trying to capture baby orcas and put them in prisons (like Sea World) the daddy orcas swim along the surface trying to lure the humans in one direction while the mommy and baby orcas swim underwater in the other direction.  If we didn’t have helicopters and sonar the trick might work, but we do and it doesn’t.

Whether your favorite creature is a charismatic mammal like an orca or some weird looking thing like a mole rat the benefits of getting listed on the United State’s Endangered Species list are numerous.

If you like to learn by reading by all means read on.  If you’re more of a video type I found this one put out by the government.  (Of course, the government doesn’t read between the lines for you like I do, but it is worth a watch if you have ten minutes for this topic.)


Unfortunately, we’re currently experiencing the worst spate of species die-offs since the loss of the dinosaurs 65 million years ago.  And, unlike past mass extinctions that were caused by huge volcano explosions or astroids pounding our sweet Earth, this one seems to be largely our fault.  We are just so good at figuring out how to make use of the resources of our lovely planet that we’ve managed to elbow thousands of others out of the way.

Here is a slide show of some recently extinct animals.

The International Union for Conservation of Nature has assessed roughly 3 percent of described species and identified 16,928 species worldwide as being threatened with extinction, or roughly 38 percent of those assessed.

Back in the seventies everyone’s favorite President, President Nixon, declared that we weren’t doing enough to protect the extinction of species. 

 If you are surprised by that, you shouldn’t be, during his 5.5 years in office, Nixon helped enact a stack of environmental laws, executive orders and international agreements.  His environmental laws totaled “more than any other administration in history,” said Lee Talbot, professor of environmental science at George Mason University, (The Oregonian 12/28/1998).  According to Talbot:

From 1970 to 1972, Nixon created the Environmental Protection Agency and signed laws including the Clean Air Act, the Clean Water Act, and the Marine Mammal Protection Act. 
He also signed executive orders and international agreements on environmental issues. 
Nixon called for stronger wildlife protection in his State of the Union speech in 1973, and he signed the legislation that complied with the Convention on International Trade in Endangered Species of Wild Fauna and Flora into law in December 1973.   
By the time Nixon resigned in 1974, his administration had had a hand in a stack of environmental laws, executive orders and international agreements that totaled “more than any other administration in history,” Talbot said.
“We could never have done it had the president not been willing to go along,” — Lee Talbot

So, Lesson One on the Endangered Species Act: 

Thank goodness for Nixon.


The Endangered Species Act is administered by both the U.S. Fish and Wildlife Service (FWS) and the Commerce Department’s National Marine Fisheries Service (NMFS). The FWS has primary responsibility for terrestrial and freshwater organisms, while the responsibilities of NMFS are mainly marine wildlife such as whales and anadromons fish such as salmon.

Under the ESA, species may be listed as either “endangered” or “threatened.” 

“Endangered” means a species is in danger of extinction throughout all or a significant portion of its range. 

“Threatened” means a species is likely to become endangered within the foreseeable future. 

All species of plants and animals, except pest insects, are eligible for listing as endangered or threatened. For the purposes of the ESA, Congress defined “species” to include subspecies, varieties, and, for vertebrates, distinct population segments.

As of January 2013, the FWS has listed 2,054 species worldwide as endangered or threatened, of which 1,436 occur in the United States.

The ESA protects endangered and threatened species and their habitats by prohibiting the “take” of listed animals and the interstate or international trade in listed plants and animals, including their parts and products, except under Federal permit. Such permits generally are available for conservation and scientific purposes.

You have to look in the definition section of a statute (or read judicial opinions and related regulations if there is no definition provided) to learn what a certain word means.  So, right now, you should be asking yourself, “If the ESA makes it unlawful for a person to take a listed animal without a permit, I need to know what they mean by “take”.

“Take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct.” 

If you think that is enough of an explanation, you aren’t thinking like a creative real estate development lawyer.  

We need definitions of all of those words too.  Like “harm.”  “Harm,” is defined through regulations as “an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.”

This focus on habitat is the basis of much of the enormous political anger over the ESA.  The ESA says that, when you list a species, you have to draw a map of its critical habitat and, within that area, any project that will have a significant impact has to be reviewed.  There are arguments coming from both the conservation and the property rights side about whether or not habitat protection equals animal protection.

Unlike animals, listed plants are not protected from “take,” although it is illegal to collect or maliciously harm them on Federal land. Protection from commercial trade and the effects of Federal actions do apply to plants. 

Of course,  your state may have its own laws restricting activity involving listed species that expand, but do not limit, the federal laws.

(See my bit on federal preemption here.)

The law’s ultimate goal is to “recover” species so they no longer need protection under the ESA. Recovery plans describe the steps needed to restore a species to ecological health. FWS biologists write and implement these plans with the assistance of species experts; other Federal, State, and local agencies; Tribes; nongovernmental organizations; academia; and other stakeholders.


Before a plant or animal species can receive the protection provided by the Endangered Species Act, it must first be added to the Federal lists of threatened and endangered wildlife and plants. The List of Endangered and Threatened Wildlife (50 CFR 17.11) and the List of Endangered and Threatened Plants (50 CFR 17.12) contain the names of all species of mammals, birds, reptiles, amphibians, fishes, insects, plants, and other creatures that have been determined by the Fish and Wildlife Service and the National Marine Fisheries Service to be in the greatest need of Federal protection.

Section 4 of the ESA requires species to be listed as endangered or threatened solely on the basis of their biological status and threats to their existence.  The Fish and Wildlife Service breaks this down into five factors that it considers when evaluating a species for listing:

1) damage to, or destruction of, a species’ habitat;
2) over utilization of the species for commercial, recreational, scientific, or educational purposes;
3) disease or predation;
4) inadequacy of existing protection; and
5) other natural or manmade factors that affect the continued existence of the species. 

Even the FWS admits that the process to get a plant or animal listed is cumbersome, complex, and generally poorly understood. 

Basically, there are two paths:

1) the petition process or
2) the government initiated candidate assessment process

The petition process is what you would use.  The ESA provides that any interested person may petition the Secretary of the Interior to add a species to, or to remove a species from, the list of endangered and threatened species. I wouldn’t try to go it alone, though, they want an enormous amount of research to back up the petitions.  Through the candidate assessment process, government biologists may identify a  species at risk directly without waiting for anyone to file a petition.

For all the details, download this Listing fact sheet provided by the FWS.

Unfortunately, there are many species for which the government has enough information to warrant proposing them for listing but is “precluded” from doing so by higher listing priorities. This designation of “warranted but precluded” is allowed under the ESA if a lack of resources prevents the government body from assembling the information needed to support a listing proposal and if it is also making “expeditious progress” in listing more “imperiled species.”

Confused?  Here is your Ask Roxy translation: “Get In Line.” 

There are currently more than 250 species waiting, including many that have been languishing for two decades or more. 

On the bright side, if you get your species listed as a candidate, the federal government does try to work with your state, any local tribes, private landowners, private partners, and other federal agencies in an attempt to carry out conservation actions to prevent further decline.  Hopefully, these actions alone will eliminate the need for listing the object of your affections as it’s done for other species.

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