Summary of Environmental Law in the United States

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17 Conservation of Biological Diversity and Wildlife

 

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17.1 Institutions

 

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The following institutions have significant authority over biological diversity or endangered species: (1) the U.S. Fish and Wildlife Service, (2) the National Marine Fisheries Service, and (3) state wildlife agencies.

United States Fish and Wildlife Service

The Fish and Wildlife Service (USFWS) of the Department of the Interior (DOI) is the lead federal agency for management and conservation of the nation's migratory birds, threatened and endangered species, non-marine mammals, and sport fishes. Among other duties, the USFWS manages national wildlife refuges, operates federal fish hatcheries, regulates hunting of migratory game birds, provides financial and technical assistance to state wildlife agencies, and implements with respect to the U.S. most international wildlife conventions to which the U.S. is a party.

National Marine Fisheries Service

The National Marine Fisheries Service (NMFS), a part of the Department of Commerce, is responsible for federal efforts to conserve and maintain fish stocks and some marine mammals.

State Wildlife Agencies

States have broad authority to regulate and manage their wildlife and fish resources. Every state has a Department of Fish and Wildlife or some analogous agency charged with managing state wildlife conservation areas and regulating hunting and fishing.

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17.2 Protection and Management of Wildlife

 

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Most power to protect and manage wildlife is retained by the states. Federal activities in protecting and managing wildlife are limited to: managing wildlife on federal lands; regulating the hunting, killing, "taking," or sale of certain federally protected species; regulating interstate and U.S. foreign commerce in wildlife; and, requiring federal agencies to consider wildlife impacts. Federally protected species include: migratory birds, bald and golden eagles, wild horses and burros, marine mammals, and endangered and threatened species.

Migratory Birds

The Migratory Bird Treaty Act, 16 U.S.C. sec. 703, makes illegal all hunting, capturing, killing, possessing, purchasing, selling, importing, or exporting of migratory birds, except as allowed by the Department of Interior (DOI). Hunting is generally restricted under these federal regulations to a relatively small number of ducks, grouse, pheasants, doves, and similar game birds. 50 C.F.R. pt. 20. The Migratory Bird Treaty Act implements treaty agreements with both Canada and Mexico, as well as Russia and Japan. Violations of the act can result in criminal fines of up to US$500 and six months imprisonment. See Section 25.8: Agreements Relating to the Protection of Flora and Fauna.

Bald and Golden Eagles

Under the Bald Eagle Protection Act, 16 U.S.C. secs. 668-668d, any person who kills, takes, possesses, transports, sells, purchases, imports, or exports any bald or golden eagles or their parts, feathers, nests, or eggs is subject to one year imprisonment and a fine of up to US$100,000. Certain limited exceptions apply to: scientific exhibitions, zoos or museums, religious practices of Native Americans, and certain actions taken to protect domesticated animals or agriculture.

Wild Horses and Burros

The Wild Free-Roaming Horses and Burros Act, 16 U.S.C. secs. 1331-1340, imposes a criminal fine up to US$100,000 and one year imprisonment on any person who causes the death or harassment of a wild horse or burro, who processes such a horse or burro into a commercial product, who willfully removes a horse or burro from .federal lands, or who sells a wild horse or burro caught on private lands. Federal land managers can remove a certain number of animals each year to prevent damage to public lands.

Marine Mammals

The Marine Mammal Protection Act of 1972 (MMPA), 16 U.S.C. secs. 1361-1362, 1371-1384, and 1401-1407, established an indefinite moratorium on: the taking or importing of all marine mammals, except for scientific exhibitions; subsistence hunting by Native Americans; incidental takings by commercial fishers; and, certain takings pursuant to international treaties. 16 U.S.C. sec. 1371. The MMPA also allows import restrictions on certain products from countries that impede attainment of the MMPA's goals. 16 U.S.C. sec. 1415. Administration of the Act is split between the USFWS and the NMFS. Violators are subject to fines as high as US$100,000 and imprisonment for up to one year.

Recreational Fisheries

The National Recreation Fishing Coordination Council was created by Executive Order 12962 and is charged with oversight of federal agency actions to improve the quality, function and sustainable productivity of US aquatic resources. In addition, the council is to develop a comprehensive recreational fishery resources conservation plan.

Federal Regulation of Interstate Commerce

The Lacey Act of 1900, ch. 553, 31 Stat. 1897, 16 U.S.C. secs. 701, 3371-78, and 18 U.S.C. sec. 42, prohibits import, export, transport, selling, receiving, acquiring, or purchasing of any fish, wildlife, or plant that is taken, possessed, transported, or sold in violation of any federal, state, foreign, or Indian tribal law. The Lacey Act also prohibits the importation of certain species deemed potentially harmful to U.S. agriculture or other interests. Most violators of the Lacey Act are subject to one year imprisonment and a US$100,000 fine, however where certain commercial activities or importation or exportation are involved, the maximum penalties increase to five year imprisonment and a US$250,000 fine. The specific federal statutes addressing migratory birds, eagles, and wild horses and burros also include restrictions on interstate commerce.

Federal Agency Consideration of Wildlife Impacts

Several statutes contain specific requirements mandating consideration of wildlife impacts. As part of the environmental impact assessment requirements of the National Environmental Policy Act, federal agencies must review impacts on wildlife populations and biodiversity. See Section 7: Environmental Impact Assessment. The Endangered Species Act (ESA) requires all federal agencies to consult with USFWS or NMFS to "insure" that any agency action is not likely to jeopardize any endangered or threatened species, or adversely impact any designated critical habitat for the species. The Fish and Wildlife Coordination Act of 1958, 16 U.S.C. sec. 661, requires federal agencies to consult with USFWS to identify potential mitigation steps before permitting or licensing certain water development projects.

State regulations

Every state has detailed hunting and fishing regulations, which typically require purchasing annual licenses or permits. Such regulations also contain detailed restrictions on, for example, the seasons and locations in which specific activities can occur, size and number limits on the wildlife or fish that can be taken in a season or day, equipment restrictions, and reporting requirements for some species. State conservation officers and game wardens enforce wildlife laws with essentially the same range of authority as police officers.

Threatened and Endangered Species

The Endangered Species Act (ESA), 16 U.S.C. secs. 1531-1544, is the primary federal statute for protecting threatened and endangered species. An "endangered species" is any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. sec. 1532(6). A "threatened species" is any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. sec. 1532(20). Distinct, vertebrate population segment or subspecies can be listed separately. The USFWS is responsible for listing all species, except for certain marine species that are listed by the NMFS. Citizens can also petition to list or change the status of a species. Listings must be made solely on the basis of the best available biological assessments. Critical habitat should also be identified at or near the same time as a listing is made.

The listing of a species under the ESA triggers several requirements. First, the USFWS or NMFS must adopt a recovery plan with the goal of bringing the species, and the ecosystem on which it depends, back to healthy condition so that the protective measures of the Act are no longer needed. Recovery plans must describe site-specific management actions necessary to achieve the conservation and survival of the species, objective measurable criteria for determining that the species be removed from the list, and estimates of the time and cost required to carry out the plan. 16 U.S.C. sec. 1533(f).

Second, all federal agencies must consult with the expert agency and "insure" that any agency action is not likely to jeopardize the continued existence of any endangered or threatened species or destroy any designated critical habitat for the species. Only the Endangered Species Committee, comprised of high ranking officials from the federal government and affected states, can grant an exemption from this prohibition. 16 U.S.C. sec. 1536(h). The Committee can only grant the exemption if it determines on the record after a public hearing that: no reasonable alternatives to the agency action exist, the benefits of such action clearly outweigh the benefits from alternatives consistent with conservation of the species, the action is of regional or national significance and is in the public interest, and there has been no irreversible commitment of resources otherwise prohibited by the Act. The Committee must also establish some means for mitigating the loss to the species. Since its creation under a 1978 amendment, only very few cases have been heard by the Committee.

Third, the ESA regulates many activities relating to the species, including, for example, importing, exporting, selling, or shipping the species. Most importantly, the ESA also prohibits the "taking" of listed species by any person, even on private lands. See 16 U.S.C. secs. 1534, 1536, 1538. To "take" an endangered species is defined broadly to include activities that "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect." 16 U.S.C. sec. 1532(19). "Take" also includes habitat modification that would indirectly harm a listed species. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S.Ct. 2407 (1995). Private parties can gain a permit to "take" endangered species, but only if the taking is for scientific research, to enhance the propagation or the survival of the species, or incidental to otherwise lawful activity and is accompanied by a habitat conservation plan approved by the DOI. 16 U.S.C. sec. 1539(a).

Any citizen can bring an action to enjoin any person from violating the ESA or to compel the appropriate Secretary to take certain non-discretionary actions. Except with respect to a suit challenging an exemption granted by the Committee and except for emergencies involving the failure of the Secretary to take certain discretionary actions, citizens cannot bring a suit without first providing 60-days notice to the defendant. The ESA also bars citizen suits if the U.S. or a state is already diligently prosecuting a civil action for the same violation.

State Endangered Species Acts

Almost every state has its own law protecting wildlife threatened or endangered within the state's borders. Each state's law may vary on how species are categorized for protection, although most rely on the best available science and provide for substantial public participation. The laws also vary according to what requirements they may impose. Some, for example, prohibit state or local agencies from approving any project that may harm endangered species. Some prohibit destruction of critical habitat and others rely on economic incentives to encourage private landowners to support protection.

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17.3 Protection and Management of Ocean Fisheries

 

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Concern over the future of the U.S. fisheries industry led to passage of the Magnuson Fishery Conservation and Management Act in 1976 (the "Magnuson Act"). 16 U.S.C. secs. 1801-1882. The Magnuson Act asserted U.S. sovereignty over living marine resources, including fisheries, throughout the 200-mile U.S. Exclusive Economic Zone (EEZ). Ultimate management responsibility for these fisheries lies with NMFS, a department of the National Oceanic and Atmospheric Administration (NOAA), which in turn is part of the Department of Commerce.

The Magnuson Act established eight regional fishery councils charged with preparing Fishery Management Plans (FMPs) for all fisheries in need of management or conservation. The Secretary of Commerce reviews every FMP for compliance with eight specific national standards for conservation, equity, and efficiency. 16 U.S.C. sec. 1851(a). There are now more than 30 approved FMP's for U.S. fisheries. Most FMP's include open access management tools, whereby no restriction is placed on the number of fishers (although there may be restrictions on equipment, length of season, size of fish, or total catch). Because these tools have failed to reverse the decline in fisheries, a few fisheries have begun to experiment with limiting access to a certain category of fishers. All limited access plans must be aimed at achieving optimum yield from a fishery and can be approved only after the regional council and the Secretary of Commerce have considered several factors, including: past and present participation in the fishery, the economics of the fishery, the ability of fishing vessels to switch to other fisheries, the cultural and social framework relevant to the fishery and any affected fishing community, and any other relevant considerations. 16 U.S.C. sec. 1853(b)(6). The 1996 Sustainable Fisheries Act, has placed a moratorium, until October 1, 2000, on any fishery management plan, plan amendment, or regulation under the Magnuson Act which creates a new individual fishing quota program. Pub. L. No. 104-297, 110 Stat. 3559.

US fishing vessels on the high seas are subject to the licensing, reporting, and other regulatory requirements of the Fisheries Act of 1995, 109 Stat. 366.

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17.4 Protection of Habitats and Ecosystems

 

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See Section 9.7: Protection of Freshwater Ecosystems; Section 15: Private Land Use Planning and Management; Section 16: Environmental Management of Public Lands.

Under the principle of multiple-use management, most federally owned lands may be managed in part for wildlife purposes. See Section 16. The National Wildlife Refuge System, however, is managed by the USFWS primarily for wildlife conservation. Other "compatible" uses are allowed in each refuge. Depending on the purpose of the refuge, compatible uses might include hunting, fishing, grazing, mining, agricultural practices, and recreational activities. See the National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. secs. 668dd, 668ee. Special provisions apply to the vast wildlife refuges added by the Alaska National Interest Lands Conservation Act of 1980, Pub. L. No. 96-487, 94 Stat. 2371 (codified in scattered sections of 16 U.S.C. and 43 U.S.C.).

Critical Habitat for Endangered Species

Under the ESA, critical habitat must be designated for all endangered and threatened species to the maximum extent prudent. All federal agency actions that are likely to result in the destruction or adverse modification of such critical habitat are prohibited. 16 U.S.C. sec. 1536(a).

Federal Funds for Wildlife Management and Habitat Acquisition

Several federal statutes have established special funds for habitat acquisition or wildlife management, typically with earmarked revenue collected through a user fee or specific excise tax. The broadest such effort was the Land and Water Conservation Fund Act of 1965, Pub. L. No. 88-578, 78 Stat. 898, 16 U.S.C. secs. 460l-4601ll, which gathers revenue from a number of outdoor recreation activities and applies the funds generally to federal and state efforts to maintain and increase outdoor recreation activities. Other federal statutes have been more narrowly tailored. For example, the Migratory Bird Hunting and Conservation Stamp Act, 16 U.S.C. sec. 718, requires all waterfowl hunters to purchase a federal hunting stamp. The Wetlands Loan Act, 16 U.S.C. sec. 715, appropriated funds for acquiring conservation easements in wetlands used for waterfowl breeding. The Wildlife Restoration Act, 16 U.S.C. secs. 669-669i, imposed an excise tax on the sale of guns and ammunition to fund federal grants to state wildlife restoration efforts. The Fish Restoration and Management Projects Act, 16 U.S.C. secs. 777-777k, imposed an excise tax on the sale of fishing equipment to provide federal grants to state fish restoration efforts. The Fish and Wildlife Conservation Act of 1980, 16 U.S.C. secs. 2901-2911, provides funding for state efforts to conserve non-game species.

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2003