Features – A Pathfinder to Information on the Endangered Species Act of 1973

Mary Kilpatrick graduated from the University of Florida in 1996 with a degree in English, and attended law school at New York University School of Law, earning her degree in 1999. Mary was a graduate fellow at the College of Information Studies at the University of Maryland at College Park, and received her Master’s degree in December. She is currently a reference librarian at the Massachusetts School of Law.

TABLE OF CONTENTS

I ntroduction

This pathfinder is intended to provide pointers to information on the federal Endangered Species Act of 1973. The pathfinder also includes some information on Maryland protection of endangered species. This pathfinder is selective rather than comprehensive. Resources have been selected and annotated to provide an overview of the range of legal materials available related to the Endangered Species Act of 1973.

Overview of the Endangered Species Act of 1973 (ESA)

The Endangered Species Act (ESA) was passed in 1973 as a response to concern in the United States about the decline of species around the world. It is considered one of the most comprehensive wildlife conservation laws in the world.

Purpose

The purpose of the ESA is to “conserve the ecosystems upon which threatened or endangered species depend” and to conserve and recover listed species. Under the law, species may be listed as either “threatened” or “endangered.” Endangered means that a species is in danger of becoming extinct throughout all or a significant portion of its range. Threatened means that a species is likely to become endangered within the foreseeable future. All species of animals and plants, with the exception of pest insects, are eligible for listing.

Administration

The Interior Department’s U.S. Fish and Wildlife Service (FWS) and the Commerce Department’s National Marine Fisheries Service (NMFS) jointly administer the act. FWS administers terrestrial, fresh water species, and migratory birds, while NMFS administers marine species.

History and Amendments

The 1973 Act replaced 1969 and 1966 laws which provided for listing of endangered species but provided little meaningful protection. The 1973 Act has been reauthorized eight times. Significant amendments have been enacted in 1978, 1982, and 1988, while the overall framework of the 1973 Act has remained essentially unchanged.

Overview of Major Provisions

Listing

As with most other Federal regulations, a species is proposed for addition to the lists (50 C.F.R. § 17) in the Federal Register. The public is offered an opportunity to comment, and the rule is finalized or withdrawn. Species are selected by the Service for proposed rules from a list of “candidates.” To determine which species should become candidates, FWS and NMFS rely largely upon citizen petitions, FWS, NMFS and other agencies’ surveys, and other substantiated reports on field studies. The Act provides very specific procedures on how species are to be placed on the list (e.g., listing criteria, public comment periods, hearings, notifications, time limit for final action). These latter requirements are found in the regulations at 50 C.F.R. § 424. Selection from the list of candidates for a proposed rule is based upon a priority system.

Recovery

The ultimate purpose of the Act is to save species from extinction. The goal of FWS and NMFS is to recover listed species and remove them from the list. This is accomplished through a variety of tools, including recovery planning, consultation, and scientific and incidental take permits. Depending on the species, plans are either prepared by a panel of recognized experts under the direction of an FWS or NMFS employee, or they are contracted to an appropriate consultant on the species. In either case, Regional Directors are responsible for approving recovery plans for listed species occurring in their Region. Within 60 days of listing, the responsible Region must prepare a one-page outline of the major recovery actions needed for the species. The recovery plan is usually begun soon after listing, depending on the state of knowledge of the recovery needs of the species and available funds.

Consultation

All Federal agencies must consult with FWS or NMFS when any activity permitted, funded or conducted by that agency may affect a listed species or designated critical habitat, or is likely to jeopardize proposed species or adversely modify proposed critical habitat. FWS and NMFS conduct several types of consultations on Federal agency activities, including informal, formal, early and emergency consultations for listed species or designated critical habitats, and informal and formal conferences for proposed species or proposed critical habitats.

Takings

The ESA prohibits any person subject to the jurisdiction of the United States to “take” any endangered species of fish or wildlife, but not plants, within the United States. The term “take” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” This meaning of this provision has been extensively litigated and is likely to generate future cases.

Overview of Major Amendments

1978 Amendments

  • Provisions were added to the act allowing Federal agencies to undertake an action that would jeopardize listed species if the action were exempted by a cabinet-level committee convened for this purpose.
  • Critical habitat was required to be designated concurrently with the listing of a species, when prudent, and economic and other impacts of designation were required to be considered in deciding on boundaries.
  • The Secretaries of Interior and Agriculture (for the Forest Service) were directed to develop a program for conserving fish, wildlife and plants, including listed species, and land acquisition authority was extended to conserve species.
  • The definition of “species” with respect to “populations” was restricted to vertebrates; otherwise, any species, subspecies or variety of plant, or species or subspecies of animal remained listable under the Act.

1982 Amendments:

  • Determinations of the status of species were required to be made solely on the basis of biological and trade information, without any consideration of possible economic or other effects.
  • A final rule to determine the status of a species was required to follow within one year of its proposal as a candidate species unless withdrawn for cause.
  • Provision was made for designation of experimental populations of listed species that could be subject to different treatment for critical habitat designations and federal agency actions.
  • A prohibition was inserted against removing listed plants from land under Federal jurisdiction and reducing them to possession [section 9].

1988 Amendments:

  • Monitoring of candidate and recovered species was required, with adoption of emergency listing when there is evidence of significant risk.
  • Several amendments dealt with recovery matters: 1) recovery plans will undergo public notice and review, and affected Federal agencies must give consideration to those comments; 2) section 4(g) requires five years of monitoring of species that have recovered; and 3) biennial reports are required on the development and implementation of recovery plans and on the status of all species with plans.
  • A new section 18 requires a report of all reasonably identifiable expenditures on a species-by-species basis be made on the recovery of endangered or threatened species by the States and the Federal government.
  • Protection for endangered plants was extended to include destruction on Federal land and other taking when it violates State law.

THE TEXT OF THE ESA

Endangered Species Act of 1973, 16 U.S.C.A. §§ 1531-1544 (1985 & Supp. 2000).

F ederal Regulations

Endangered Species Act of 1973, as Amended, 50 C.F.R. § 402 (2000).

  • The Secretaries of the Interior and Commerce have jointly promulgated regulations governing the implementation of the Act at 50 C.F.R. § 402. The regulations specify the procedures that federal agencies must go through in consultation with FWS or NMFS before they take an action that may adversely affect a listed species.

    • These regulations were found by consulting the U.S.C.A. volume discussed previously.

  • Text of 50 C.F.R. § 402 (Cornell Legal Information Institute).

Endangered and Threatened Wildlife and Plants, 50 C.F.R. § 17 (2000).

  • These regulations, promulgated by FWS and NMFS, specify the listing procedure and enumerate protected species of animals and plants.

    • These regulations were found by consulting the U.S.C.A. volume discussed previously.

  • Text of 50 C.F.R. § 17 (Cornell Legal Information Institute).

L egislative History

Pre-compiled Legislative Histories

U.S. Congress. Senate. Committee on Environment and Public Works. A Legislative History of the Endangered Species Act of 1973, as Amended in 1976, 1977, 1978, 1979, and 1980; Together with a section-by-section index prepared by the Legislative Research Service of the Library of Congress. Washington, DC: U.S. Government Printing Office, 1982 (Committee Print. 97th Congress, 2d Session. Serial #97-6) Y4.P96/10:97-6. LC 82-602255.

Overview: This pre-compiled legislative history of the ESA and amendments through 1980 provides and overview of previous legislation, a chronology, House and Senate actions, conference actions, presidential statement on signing, annotated bibliographies of hearings, and a bibliography of references and government reports.

This resource was found by consulting Federal Legislative Histories, an Annotated Bibliography and Index to Officially Published Sources (Bernard Reams, ed. 1994).

Availability in DC Area: This committee print is available at the law libraries of Reed, Smith, Shaw & McClay; Howrey & Simon; Sullivan & Cromwell; the Maryland State Law Library; Morgan, Lewis, and Bockius; Patton, Boggs, & Blow; the Department of the Interior Law Library; and Pepper Hamilton & Sheetz. Many federal document depository libraries will contain a microfilm copy, including the McKeldin Library at the University of Maryland, College Park.

This information was located using the Union List of Legislative Histories: 47th Congress, 1881-101st Congress, 1990.

Legislative Histories Compiled In-House

Availability in DC Area: These legislative histories, compiled by librarians in the D.C. metro area, are available at the following locations: the Department of Agriculture library, Arnold & Porter; Covington & Burling; Shea & Gardner; U.S. Supreme Court library; Hogan & Hartson; Crowell & Moring; McKenna & Cureo; and Steptoe & Johnson.

This information was located using the Union List of Legislative Histories: 47th Congress, 1881-101st Congress, 1990.

Other Resources for Legislative History Information

Dorothy A. Gray. “Wildlife Legislation before and after the Endangered Species Act of 1973.” 3 Reference Services Review 81 (1988).

Gray provides an overview of federal wildlife legislation, including citations to legislative history documents and other resources. This source was found by performing a search in the database Library Literature on the term “endangered species.”

Legislative History of the 1988 Amendments to the ESA (Pub. L. No. 100-478)

This information was compiled using CIS On-Line through Lexis-Nexis Academic Universe and searching on the term “endangered species.”

Bills:

  • H.R. 1027, 99th Cong. (1986).
  • S. 725, 99th Cong. (1986).
  • H.R. 2999, 100th Cong. (1987).
  • H.R. 4849,100th Cong. (1987).
  • S. 675, 100th Cong. (1987).

Congressional Debate:

  • 131 Cong. Rec. H6456 (1986). House consideration of H.R.1027.
  • 133 Cong. Rec. H11248 (1987). House consideration of H.R. 1467).
  • 133 Cong. Rec. H11617 (1987). House consideration and passage of H.R. 1467).
  • 134 Cong. Rec. S9725 (1988). Senate consideration of S. 675.
  • 134 Cong. Rec. S10162 (1988). Senate consideration of S. 675, consideration and passage of H.R. 1467 with amendments, and indefinite postponement of S. 675, Senate insistence on its amendments to H.R. 1467, request for a conference, and appointment of conferees.
  • 134 Cong. Rec. S6435 (1988) House disagreement to the Senate amendments to H.R. 1467, agreement to a conference, and appointment of conferees.
  • 134 Cong. Rec. H6583 (1988) House consideration and passage of H.R. 2999.
  • 134 Cong. Rec. S12557 (1988) Senate agreement to the conference report on H.R. 1467.
  • 134 Cong. Rec. H7714 (1988) Submission in the House of the conference report on H.R. 1467.
  • 134 Cong. Rec. H8249 (1988) House agreement to the conference report on H.R. 1467.

Reports:

99th Congress

  • H.R. Rep. No. 99-124 (1985). “Endangered Species Act Authorization for FY86-FY88.”
  • S. Rep. No. 99-261 (1986). “Authorizing Appropriations To Carry out the Endangered Species Act of 1973.”

100th Congress

  • H.R. Rep. No. 100-467 (1987). “Endangered Species Act Amendments of 1987.”
  • S. Rep. No. 100-240 (1987). “Endangered Species Act Amendments of 1987.”
  • H.R. Rep. No. 100-827 (1988). “African Elephant Conservation Act.”
  • H.R. Rep. No.100-928 (1988). “Endangered Species Act Amendments of 1988.”

Hearings:

99th Congress

  • Endangered Species Act: Hearings before the Subcommittee on Fisheries and Wildlife Conservation and the Environment, Committee on Merchant Marine and Fisheries, 99th Cong. (1985).
  • Endangered Species Act Authorizations: Hearings before the Subcommittee on Environmental Pollution, Committee on the Environment and Public Works, 99th Cong. (1985).

100th Congress

  • National Marine Fisheries Service Budget, FY88: Hearings before the House Subcommittee on Fisheries and Wildlife Conservation and the Environment, Committee on Merchant Marine and Fisheries, 100th Cong. (1987).
  • Endangered Species Act Reauthorization: Hearings before the House Subcommittee on Fisheries and Wildlife Conservation and the Environment, Committee on Merchant Marine and Fisheries, 100th Cong. (1987).
  • Reauthorization of the Endangered Species Act: Hearings before the Senate Subcommittee on Environmental Protection, Committee on the Environment and Public Works, 100th Cong. (1987).
  • Implementation of the Endangered Species Act in the State of Maine: Hearings before the Senate Subcommittee on Environmental Protection, Committee on the Environment and Public Works, 100th Cong. (1987).
  • African Elephant Conservation: Hearings before the House Subcommittee on Fisheries and Wildlife Conservation and the Environment, Committee on Merchant Marine and Fisheries. 100th Cong. (1988).

Note: Summaries of most of these legislative materials are available in CIS/Index. The full-text of the documents is often available in Congressional Universe (a CIS database that includes CIS/Index), or from a federal depository library.

Quick Start Guides

Encyclopedia of Legal Information Sources (Brian L. Baker & Patrick S. Petit eds., 2d ed. 1993)

Indexing: The index entry for endangered species refers the reader to the index entries for wildlife and animals. The animals section focuses on animal rights. The wildlife section contains the most information directly related to endangered species.

Usefulness: This source provides citations to relevant treatises, law reviews, newsletters and papers, bibliographies, directories, databases and audiovisuals related to wildlife law. The source also lists the contact information for associations, professional societies and research centers that study or work with wildlife law issues.

Legal Encyclopedias

Corpus Juris Secundum (C.J.S.): 38 C.J.S. Game §§ 11-21,66,68 (1996 & Supp. 2000).

Indexing: Endangered species are listed under fish and game in the index.

Usefulness: C.J.S. includes and entire section on the ESA, including case references and West key number references. This source is useful both for providing an overview of the ESA and as a finding-tool for cases and other library resources.

Overview: The primary discussion of the ESA is located in sections 11-21. The discussion includes and overview of the act, prohibitions, exceptions, listing, regulations, duties and restrictions of federal agencies, procedural requirements, judicial review and enforcement, and private suits under the act. Criminal penalties under the ESA are discussed in section 68 and forfeiture of property under the ESA is discussed in section 66. The Game section also includes discussions of related wildlife laws, including the Migratory Bird Acts §§ 22 et seq. and the Lacey Act § 41.

American Jurisprudence Second (Am. Jur. 2d): 35 Am. Jur. 2d Fish and Game § 32 (1967 & Supp. 2000); 21A Am. Jur. 2d Customs and Duties §§ 380, 428 (1998); 35 Indians § 68 (1995)

Indexing: Endangered species are listed under Endangered species in the index, with cross references to Customs and Duties and Indians.

Usefulness: Unlike C.J.S., Am. Jur. 2d does not have a section that comprehensively overviews the ESA. However, it does provide overviews of a few specific issues under the ESA with case references.

Overview: Fish and Game § 32 describes the right to hunt and fish and the permissible scopes of federal and state regulation of the taking or selling of fish and game, including the federal government’s power to limit hunting in order to carry out treaties protecting migratory birds.

Customs and Duties § 380 discusses offenses and prosecutions for importing or exporting wildlife in violation of the ESA. It is unlawful to import or export wildlife or plants, or African ivory without permission from the Secretary of the Interior. Violations are subject to criminal and civil penalties. Customs and Duties § 428 discusses the presumptions and burdens of proof for prosecutions for violating the import and export provisions of the ESA. Fraudulent alteration of an export permit is one way the show a violation of the Act.

Indians § 68 provides an overview of the Eagle Protection Act. The Eagle Protection Act was passed to divest members of an Indian group of their right to hunt bald eagles on their reservation. Because of arguments that the ESA did not abrogate Native American treaty rights to hunt and fish species on their lands, the Eagle Protection Act was passed to specifically abrogate the treaty rights with respect to the bald eagle.

Treatises

Michael J. Bean and Melanie J. Rowland, The Evolution on National Wildlife Law (3rd ed. 1997).

Usefulness: This treatise is considered one of the leading works on federal wildlife law. It is referred to by many other sources, including the Encyclopedia of Legal Information Sources discussed above. It includes an extensive discussion of the ESA, but it also places the ESA within the context of other federal wildlife policies.

Overview: The volume was produced by the Environmental Defense Fund and the World Wildlife Fund-U.S. Part I includes information on the historical framework of federal wildlife law and the regulation of commerce in wildlife. The second part focuses on species conservation, with sections on wild birds, marine mammals, ocean fish, and endangered species. Part III examines wildlife law in relation to laws governing land and water. The final part of the book examines federal wildlife law in relation to state and international wildlife law. Endangered species are discussed in Chapter 7, pg. 193-281. The chapter covers predecessors to the modern ESA, and a thorough discussion of the ESA of 1973, including listing, habitat protection, exemption, enforcement, federalism issues, and the international component of the act.

Ray Vaughan, Endangered Species Act Handbook (1994).

Usefulness: This handbook focuses more on the problems that might face a practitioner working on ESA issues than on the policy of the ESA. It focuses on black-letter law and strategies for coping with potential ESA problems that might be encountered by clients. This source was found by consulting the catalog at the library of the Department of the Interior.

Overview: This handbook covers the basic structure of the ESA, the listing process, the federal permit process, enforcement, judicial interpretations, and an overview of other statutes that protect wildlife.Two different chapters of the book coverhow to identify potential ESA problems, including advice on avoiding problems and checklists of factors to watch for in land acquisitions and development. Another section of the book discusses how to resolve ESA problems once they arise, including a section on public relations and dealing with environmental organizations.

American Law Reports

Usefulness: American Law Reports (A.L.R.) contain annotations of selected federal and state appellate court cases.The annotations are written by editors who research the entire area of the law and collect cases from all jurisdictions that discuss the annotation topic. The annotations provide in-depth discussions of the law and often include research guides and tables of cases.

Indexing: Annotations related to endangered species protection can be located in A.L.R. using the multi-volume A.L.R. index and looking under the topics endangered species, game and game laws, and wild animals.Once you have found an annotation on your topic, make sure to check the Annotation History Table in the T-Z volume of the A.L.R. Index to see if the annotation has been superceded or supplemented.Also, once you have located an annotation, check the pocket-part in the back of the volume to see if the annotation has been updated.

Overview: A search of A.L.R. revealed four annotations relevant to the topic of endangered species, listed and discussed below:

  • Job. A. Sandoval, Annotation, Validity and Construction of Statute Prohibiting Sale within State of Skin or Body of Specified Wild Animals or of the Animal Itself, 44 A.L.R. 3d 1008 (1972).

    • This brief annotation discusses state laws that attempt to protect species by prohibiting sales of animals and animal parts within the state. The annotation also discusses how such laws interact with the ESA and other federal wildlife protections. See the pocket part for additional cases.

  • Michael DiSabatino, Annotation, Validity, Construction, and Application of Endangered Species Act of 1973 (16 USCS §§ 1531-1543), 32 A.L.R. Fed. 332 (1977).

    • The annotation provides an overview of the act, a discussion of cooperation between state and federal agencies, a discussion of prohibited acts, and penalties and enforcement. The act has been amended several times since the annotation was written, so consulting the pocket part is essential.

  • John A. Bourdeau, Annotation, Validity, Construction, and Application of the Marine Mammal Protection Act of 1972 (16 USCS §§ 1361 et seq.), 124 A.L.R. Fed. 593 (1995).

    • This annotation provides an extensive discussion of the MMPA including extensive resource references.Consult the pocket parts for later cases.

  • Tammy Hinshaw, Annotation, Criminal Prosecution Under the Endangered Species Act of 1973 (16 USCS §§ 1531-1543), 128 A.L.R. Fed. 271 (1995).

    • Includes table of cases, research references, a reprint of the relevant section of the ESA, elements of the crime, defenses, and other issues. See the pocket part for additional cases.

Periodicals

Finding Aids

The following two indexes are useful tools for locating relevant articles on endangered species. Current Law Index is recommended for researching articles published since 1980. The Index to Legal Periodicals must be used to locate articles published before 1980. Relevant indexing terms are listed for each resource.

Current Law Index (American Association of Law Libraries, 1980 -).

  • wildlife conservation

  • wild animal trade

  • plant conservation

  • exotic animals

  • wildlife management

  • birds, protection of

  • fishery conservation

  • forest reserves

  • rare animals

  • wetland conservation

The Index to Legal Periodicals & Books (H.W. Wilson Co., 1908 -).

  • endangered species

  • animals

  • environmental protection

Articles

Shannon Petersen, Congress and Charismatic Megafauna: A Legislative History of the Endangered Species Act, 29 Envtl. L. 463 (1999).

Petersen explores the legislative history of the ESA in order to analyze Congress’ intentions and expectations when the bill was passed in 1973. She argues that many of the current problems that have arisen in enforcing the act were unforeseen, such as the large scale of threatened extinctions, and that, as a result, enforcing the act requires a much greater effort and cost than anticipated. However, she believes that the ESA can provide insight into optimal future environmental protection.

This article was found by searching all law reviews in Lexis-Nexis for article with the terms endangered species and legislative history in the title.

Oliver A. Houck, The Endangered Species Act and its Implementation by the U.S. Departments of Interior and Commerce, 64 U. Colo. L. Rev. 277 (1993).

After a discussion of the emerging findings that the key to protection of endangered species is habitat conservation, Houck reflects on the ESA’s failure to win public support for habitat protection. Houck believes that the ESA causes discomfort among opponents on two fronts. First, it threatens federal welfare for developers, in the form of subsidies for development and in real estate tax incentives. Second, it also forces to humans to ask uncomfortable questions about the sustainability of life.

This article was mentioned in the treatise The Evolution of National Wildlife Law, discussed above.

Cases

Finding Aids

West Key Number System: The key number system is West’s classification system for issues within a case. The key numbers can be used to find cases either in digests or on Westlaw.

  • 176 Fish

    • k8 Power to protect and regulate

    • k10 Licenses

    • k12 Preservation and propagation

    • k14 Penalties for violation of regulations

  • 187 Game

    • k3.5 Power to protect and regulate

    • k5 Licenses

    • k7-10 Criminal offenses, penalties, etc.

  • 199 Health and the Environment

    • k25.5 Environmental protection in general

MAJOR COURT DECISIONS (citations include subsequent history, if any)

Section 4: Judicial Review of the Listing Process

Northern Spotted Owl v. Hodel, 716 F. Supp. 479 (W.D. Wash. 1988).

The court held that the FWS’ failure to provide an explanation for its finding that the spotted owl should not be protected, the FWS’ decision not to list the owl was arbitrary and capricious. The court found that the FWS disregarded “all the expert opinion on population viability, including that of its own expert, that the owl is facing extinction.” The court remanded the matter to the agency for reconsideration. This case is mentioned in many sources, including U.S.C.A. and The Evolution of National Wildlife Law (discussed above).

Section 7: Federal Agency Actions

Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978).

In of the most celebrated cases in environmental law, the Supreme Court affirmed the broad protections the Act provides to Endangered Species. The plaintiff challenged the Tennessee Valley Authority’s construction of a dam on the Tellico River. The dam threatened to destroy the virtually the entire habitat of the endangered snail darter, a species that had recently been discovered. The Supreme Court held that the dam could not be completed. The case addresses the issue of how to balance economic interests against those of wildlife in the administration of the ESA. This case is mentioned in many sources, including U.S.C.A. and The Evolution of National Wildlife Law (discussed above).

Section 9: Protection Against Takings

Palila v. Hawaii Department of Land and Natural Resources, 471 F. Supp. 985 (D. Haw. 1979), aff’d, 639 F.2d 495 (9th Cir. 1981).

In this case, the Sierra Club and others charged that the state of Hawaii was taking the palila, an endangered bird, by maintaining a population of sheep and goats for sport hunting in native Hawaiian forest on state land. The court found that the destruction of habitat by

the sheep and goats constituted a harm that fit within the FWS’ definition of taking. The court of appeals affirmed on the basis that the state’s maintenance of the sheep and goats threatened the palila.

Palila v. Hawaii Department of Land and Natural Resources, 649 F. Supp. 1070 (D. Haw. 1986), aff’d, 852 F.2d 1106 (9th Cir. 1988).

This case, known as Palila II, also deals with the grazing sheep and goats and their affect on the palila. Again, the court of appeals affirms a lower court ruling that the sheep and goats must be removed. The courts in both cases are struggling with the definition of taking and whether habitat degradation and/or destruction constitute takings as defined by the ESA.

These cases are mentioned in many sources, including U.S.C.A. and The Evolution of National Wildlife Law (discussed above).

Under Consideration

Solid Waste Agency of Northern Cook County v. U.S. Army Corp. of Engineers, 163 F.R.D. 268, 34 , Fed. R.Serv. 3d 163 (N.D. Ill. 1995), aff’d in part, 101 F.3d 503 (7th Cir. 1996), remanded, 998 F.Supp. 946 (N.D. Ill. 1998), aff’d 191 F.3d 845 (7th Cir. 1999), cert. granted, __ U.S. ___, 120 S. Ct. 2003 (2000) (NO. 99-1178).

Although it does not deal directly with the ESA, this case, currently being considered by the Supreme Court, may place a limit on the government’s ability to regulate the environment for species conservation. Twenty-three Cook County municipalities sought a permit from the Corps of Engineers to use abandoned gravel pits that had become ponds as a landfill. The Corps said the ponds were protected U.S. waters because migratory birds choose to land there. The Court must decide whether Congress has the ability to regulate waters that exist entirely within one state under its power to regulate Interstate Commerce. This case was argued Oct. 31, 2000, and a transcript of the argument is available online from The Supreme Court website at http://www.supremecourtus.gov/.

I heard about this case on NPR. I then looked for some newspaper articles in Lexis-Nexis on the case and found the lower court decisions in Lexis-Nexis.

Related Federal Laws and Treaties

These related laws are mentioned in C.J.S. For more information on other wildlife conservation laws, consult the Federal Wildlife & Related Laws Handbook.

Maryland Protection of Endangered Species

Maryland Statutes

Endangered Species of Fish Conservation Act, Md. Code Ann., Nat. Res. §§ 4-2A-01 et seq. (1989).

Nongame and Endangered Species Conservation Act, Md. Code Ann., Nat. Res. §§ 10-2A-01 et seq. (1990).

Under these acts, species that are threatened or endangered under the federal ESA shall be deemed threatened or endangered within Maryland. The statutes parallel the federal ESA in many respects. They are administered by the Maryland Department of Natural Resources.

Maryland legal materials, including the Maryland code, are available online from the Cornell Legal Information Institute at http://www.law.cornell.edu/states/maryland.html.

These acts were found by consulting the State Wildlife Laws Handbook (discussed below).

Maryland Administrative Regulations

Md. Regs. Code tit. 8, § 3 part 8 (1996)

These regulations, covering Threatened and Endangered Species and promulgated by the Maryland Department of natural resources, implement the two Maryland endangered species conservation laws discussed above. They contain definitions, procedures for obtaining permits under the act, procedures for petitioning for the listing of species, penalties for violating the act, and lists of threatened and endangered wildlife.

This regulation was found by consulting the State Wildlife Laws Handbook (discussed below).

Maryland Legal Encyclopedia

11 Md. Law Encyclopedia Fish and Game §§ 1-7 (1998 & Supp. 2000)

Indexing: There is no index listing for endangered species. Relevant information is located under the heading for Fish and Game.

Usefulness: The encyclopedia section on fish and game is most useful for providing an overview of wildlife regulations for hunting and fishing. There is no discussion of endangered species or conservation.

Overview: The source concentrates on the rights to hunt and fish in Maryland and the penalties for violations of hunting and fishing laws. Cases and other library references are provided.

Maryland State Cases

Meredith v. Talbot County, 80 Md. App. 174, 560 A.2d 599 (Md. App.1989).

A developer brought suit arguing that the county’s refusal to allow unrestricted subdivision of his land constituted a taking without just compensation. The county wanted to restrict subdivision in order to protect two endangered species that resided on the property, the bald eagle and the Delmarva fox squirrel. The Maryland Court of Appeals held that a prior agreement between the developer and the county, in which the developer agreed to not to subdivide certain areas in exchange for other permits was binding.

This case was found by searching Westlaw in the Maryland Digest on the key number 187 Game k3.5 Power to protect and regulate.

Other Resources for State Endangered Species Laws

Ruth S. Musgrave and Mary Anne Stein. State Wildlife Laws Handbook (1993).

Indexing: The book does not have an index, but information on endangered species is located within each state summary, organized alphabetically, and in the opening section of Part 1 on pg. 11-12. Maryland wildlife laws are covered beginning on page 289. This source was found by consulting the catalog at the library of the Department of the Interior.

Usefulness: The source provides an overview of the wildlife laws of each state, including citations to statutes and regulations and narrative discussions of the laws.

Overview: Part 1 of the book provides an overview of wildlife laws, including federal and international laws. Part II of the book covers state wildlife laws.Part III compares the state laws, including tables comparing the laws, policy recommendations, and sample statutes. Each state summary includes state wildlife policy, relevant wildlife definitions, state fish and wildlife agencies, protected species of wildlife, general exceptions to protection, hunting, fishing, and trapping provisions, animal damage control, enforcement of wildlife laws, habitat protection, and Native American Wildlife Provisions.

Rebecca L. Gardner, Jeanne E. Boyle, and Ellen Calhoun, Official State Lists of Endangered, Threatened or Rare Species, 21 Ref. Services Rev. 43 (1991).

The authors have compiled citations and annotations to official state publications of lists of threatened or endangered species. This source was found by searching the database Library Literature on the term endangered species.

State Endangered Species Acts: http://www.defenders.org/stateesa.html

The GrassRoots Environmental Effectiveness Network’s guide to state endangered species laws. This website was found on the website EE-Link.

State Endangered Species Lists: http://eelink.net/EndSpp/organizations-stateandregional.html

EE-Link’s guide to online endangered species lists by state and region. The EE-Link site was found by searching

Related Websites

Endangered Species Program, U.S. Fish & Wildlife Service: http://endangered.fws.gov/

The FWS’ endangered species program website includes links to summaries of the ESA, lists of and information about listed species, FWS ESA policy documents, recovery plans, native American tribal rights, and other ESA information. This website was found by searching the website of the Department of the Interior for information on endangered species.

National Marine Fisheries Service (NMFS): http://www.nmfs.noaa.gov/

The NMFS site includes information on how marine animals are managed under the Endangered Species Act, lists of protected species, and overviews of NMFS’ species recovery programs. This website was found on the EE-Link website.

Maryland Department of Natural Resources Endangered Species Site: http://www.dnr.state.md.us/wildlife/espaa.html

The Maryland DNR site includes lists of Maryland endangered wildlife, DNR policy information related to endangered species, and current DNR conservation activities. This website was found by searching the Maryland Department of the Interior site for information on endangered species.

EE-Link Endangered Species Site: http://eelink.net/EndSpp/

EE-Link provides links to many government, scientific, and non-profit websites that include information on endangered species. Government sites covered include international, national, and state sites. This website was found using the search engine Google for information on endangered species.

Pace Virtual Environmental Law Library: http://www.law.pace.edu/env/vell6.html

This site is a library of environmental law on the Internet maintained by a librarian at Pace University School of Law. The site includes links to sites with the full-text of national, international, and state environmental laws as well as discussions of international, comparative, national, and state environmental laws. This site was found using Cornell Law School’s online Legal Research Encyclopedia.

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