Private property and the Endangered Species Act
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Approximately half of the species listed as endangered or threatened have around 80 percent of their habitat on privately owned land. The Endangered Species Act (ESA) prohibits individuals from taking listed species. To take a species is to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct with a listed species. In addition, the U.S. Fish and Wildlife Service is required to designate land and habitat for a listed species' conservation. Because federal law prohibits harmful interactions, including an activity that adversely modifies a species' habitat, with listed species, private property use can be regulated unless a landowner receives federal approval.[1]
Background
The Endangered Species Act (ESA) requires that the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) maintain a list of endangered or threatened species (the NMFS has jurisdiction over all marine species). Listing an animal species provides that species' population with federal protection. Listed animal species are protected primarily through the enforcement of the take prohibition as it is applied to a species and its habitat. The Section 7 consultation process between a federal agency and the Fish and Wildlife Service occurs if proposed federal projects and federally permitted activities (such as filling in wetlands) could result in the taking of listed species. When the Fish and Wildlife Service considers a species for listing, it is required to base its decision on the best scientific and commercial data. The law does not require the agency to base its listing decisions on economic costs or the impact on private property. In addition, the law allows the designation of critical habitats, which are areas considered crucial to a listed species' conservation. When it designates critical habitat areas, the Fish and Wildlife Service can base its decision on "economic impact and any other relevant impact" in addition to scientific data. Any other relevant impact can include the impact on private individuals and their property as well as the impact on other federal agencies.[2][3]
ESA and private property
Federal law prohibits the taking of a listed species. Under Endangered Species Act, to take a species is to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct." The U.S. Fish and Wildlife Service further defines harm to mean "an act which actually kills or injures wildlife." According to federal law, harassing a species is defined as "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering." State governments may apply further restrictions on the taking of a listed species.[3]
Under the Endangered Species Act, individuals who knowingly take a listed species can be fined up to $25,000 each violation or instance. Individuals who otherwise unknowingly take a species can be fined up to $500 for each violation or instance. The text of the law containing all federal penalties can be found here.[4][5][6]
Permits
Private landowners who plan modify their land can apply for an incidental take permit, which authorizes the incidental taking of a listed species even if a member of the species is potentially harmed. Before a permit is granted, property owners must submit a habitat conservation plan, which must contain information on the relevant and predicted effects of the individual's taking of a listed species, how the effects will be minimized and/or mitigated, and how the plan will be financed. Individuals must document that they have considered all possible protective actions for the listed species before finalizing a habitat conservation plan.[2][3]
The Endangered Species Act allows the taking of a listed species if individuals are protecting themselves from bodily harm. Under the Endangered Species Act, the protection an individual's property from a listed species is not considered a permissible defense against potential federal penalties. For example, an individual cannot kill a listed animal to prevent damage to a house, a building, or other piece of property unless individual was also protecting himself or herself from bodily harm.
In some circumstances, landowners are permitted to kill listed animals for the damage done to some forms of property. For example, private landowners in North Carolina were permitted to kill or injure red wolves attacking livestock. Federal officials have been permitted to harm gray wolves attacking livestock and crops in Minnesota. These instances were permitted under specific federal regulations.[2][3]
Administrative changes
In 1999, administrative changes were made to lessen the potential impact of federal regulations on private property use. The U.S. Fish and Wildlife Service and the National Oceanic Atmospheric Administration revised permit processes for landowners with less property and instituted the following policies allowing landowners to conserve a listed animal species on privately owned land:[2]
- "Safe harbor agreements" between landowners and the U.S. Fish and Wildlife Service permit landowners to modify or expand their land to conserve a listed species' habitat. Landowners are allowed to return their property to its original condition if the species' population begins to recover.
- The "no surprises policy" requires that the Fish and Wildlife Service will not apply additional land use regulations beyond the original terms and conditions of a habitat conservation plan agreed upon between the landowners and the federal government.
Another administrative change gave the Fish and Wildlife Service more discretion to regulate threatened species. The Fish and Wildlife Service authorizes the taking of threatened animal species in circumstances involving property damage without a federal permit. In these instances, authorized government officials are allowed to prevent listed animals from destroying private property unless federal regulations otherwise specify.[2]
See also
- Endangered Species Act
- Implementation of the Endangered Species Act
- U.S. Fish and Wildlife Service
- Endangered species
Footnotes
- ↑ U.S. Fish and Wildlife Service ,"Our Endangered Species Program and How It Works with Landowners," July 2009
- ↑ 2.0 2.1 2.2 2.3 2.4 U.S. Congressional Research Service, "The Endangered Species Act (ESA) and Claims of Property Rights 'Takings'," January 7, 2013
- ↑ 3.0 3.1 3.2 3.3 U.S. Fish and Wildlife Service, "ESA Basics," accessed September 26, 2014
- ↑ U.S. Environmental Protection Agency, " Endangered Species Act (ESA) Requirements for Construction Activities," accessed September 26, 2014
- ↑ National Wildlife Service, "Endangered Species Act," accessed January 29, 2015
- ↑ Lieberman & Belcher, "What Constitutes Harassment of an Endangered Species," March 17, 2015
