The Endangered Species Act

By John Krist,
Senior reporter

Early American settlers likely would be astonished by modern efforts to restore the gray wolf, which they feared and hated. Federal and state laws offered bounties for wolves, which by 1925 had nearly been extirpated from the United States.

It's easy to become confused by the debate involving listed species and the protections afforded them under the Endangered Species Act. If wolves are endangered, for example, why are hunters allowed to shoot them when they attack livestock? What is the difference between an endangered species and a threatened species?

The ESA became law in 1973, providing a mechanism by which rare plants and animals - and their habitat - may be protected from harm. It establishes a process by which species may be declared either endangered (likely to become extinct in all or part of their range in the near future) or threatened (likely to become endangered in the near future).

In general, it is illegal to "take" a listed species, "take" being defined as "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect" or to attempt to engage in any of these activities. "Harass" mean "create the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns. "Harm" not only means to actually kill or injure fish or wildlife, but to modify or degrade habitat if this results in death or injury to the listed species.

There are several mechanisms by which the federal government may allow the killing of a listed species. It may issue an "incidental take" permit allowing harm to occur to a protected plant or animal in the course of otherwise legal activity as long as it will not jeopardize the species' continued existence. It may also issue a permit providing an exemption from the ESA's prohibitions for "scientific purposes or to enhance the propagation or survival" of a species. Capturing the last few wild California condors in order to launch a captive breeding program is an example.

The federal government may also authorize takings to avoid "undue economic hardship" - if, for example, a developer entered into binding contracts regarding a housing project only to have a plant on that site later declared threatened or endangered.

Meriwether Lewis and William Clark were greatly impressed by the ferocity and strength of the grizzly bear, which they first encountered in eastern Montana. They referred to grizzles as the "white bear," and noted with some alarm that the animals commonly pursued their men for as much as a mile across the Plains even after having been shot numerous times through the lungs and heart.

The federal government used another strategy when it introduced gray wolves into Yellowstone National Park and Idaho. It designated these wolves "experimental and nonessential," allowing them to be managed under a different set of rules than are applied to naturally occurring gray wolf populations. The Idaho and Yellowstone wolves may be killed or relocated without violating the ESA when it is determined that they have killed or harassed livestock.

For threatened species such as the grizzly, the federal government is authorized to issue regulations specifying under what circumstances the animal may be killed without a permit - in self-defense, for example. A hunter who surprises a mother grizzly with cubs and then shoots her when she charges him would therefore not be in violation of the ESA. A poacher who sets out deliberately to bring down a grizzly would be, and could face criminal penalties of up to a year in prison and a $50,000 fine, plus civil penalties of up to $25,000.

Sources: U.S. Fish and Wildlife Service; Planning and Conservation League Foundation's "Guide to the Federal and California Endangered Species Laws"