Wildlife Law Outline
Lewis & Clark Law School
PROPERTY RIGHTS IN WILDLIFE
wild game within state belongs to the people in their collective sovereign capacity. It is not the subject of private ownership except in so far as the people may elect to make it so; & they may, if they see fit, absolutely prohibit the taking of it, or traffic & commerce in it, if it is deemed necessary for protection or preservation of public good.
ownership of wild animals is in state, not as a proprietor but in sovereign capacity as representative & for benefit of all its people in common.
no private right in a citizen to take fish or game, except as either expressly given or inferentially suffered by state.
No person shall at any time/manner acquire any property in, or subject to his dominion or control, any of the game birds/ animals/fish, or any parts thereof, of those herein mentioned, but they shall always & under all circumstances be & remain property of state.
Neither the States nor Fed Govt has title to these creatures until they are reduced to possession by capture. It is important to its people that State have power to preserve & regulate exploitation of important resources. Under modern Commerce Clause analysis, the question is whether State has exercised its police power in conformity w/ federal laws & Constitution.
food fish of state are sole property of the people & the state, acting for the people, is dealing w/ its own property, over which its control is as absolute as that of any other owner over his property.
Where the violation of a § designed to protect the state's property causes injury to that property, state or a responsible exec agency of state has standing to seek compensation for injury.
Congress shall have Power to regulate Commerce among the several States, reflected a central concern of Framers that, in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization.
authorization for congressional action / restriction on permissible state regulation
A State is w/out power to prevent privately owned articles of trade from being shipped & sold in interstate commerce on the ground that they are required to satisfy local demands or b/c they are needed by the people of State.
Congress may act under Commerce Clause to achieve non-economic ends thru the regulation of commercial activity.
regulation of commercial land development, quite apart from the characteristics or range of the specific endangered species involved, has a plain & substantial effect on interstate commerce.
Where a general regulatory § bears a substantial relation to commerce, the de minimus character of individual instances arising under that § is of no consequence. much activity regulated by ESA bears a substantial relation to commerce.
STATE AUTHORITY TO REGULATE WILDLIFE
right to reduce animals feroe naturoe to possession has been subject to control of law-giving power.
attribute of govt to control the taking of animals feroe naturoe was vested in the colonial govts. the power passed to the states, & remains in them at the present day, in so far as its exercise may be not incompatible w/, or restrained by, the rights conveyed to the federal govt by the K.
the power or control pledged in the state, resulting from this common ownership, is to be exercised, as a trust for the benefit of the people, & not as a prerogative for the advantage of the govt, as distinct from the people, or for the benefit of private individuals as distinguished from the public good. the state represents its people, & the ownership is that of the people in their united sovereignty.
The state may exercise the police power wherever the public interests demand it, & in that particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests.
To justify the state in interposing its authority in behalf of the public, it must appear, 1, that the interests of the public gen., as distinguished from those of a particular class, require such interference; &, 2, that the means are reasonably necessary. for the accomplishment of the purpose, & not unduly oppressive upon individuals.
police power is not to be limited to guarding the physical or material interests of the citizen. His moral, intellectual & spiritual needs may also be considered.
In protecting beaver the NY Legislature did not exceed its powers. Nor did it so do in prohibiting their molestation.
dominion of the Fish & Game Council is confined. Wildlife it regulates are limited specifically to those species which are commonly the subjects of hunting & fishing, & even then the regulatory power is restricted. While it enjoys, in the discharge of this function, a certain flexibility permitting enlargement or limitation of the statutory designations, nevertheless the Council must condition such departures on the essential purpose its regs are designed to serve, the maintenance of a plentiful supply of game & fish for recreational hunting & fishing. Notice & public hearings as well as scientific investigation & research must precede adoption of & any changes in code regs & amendments thereto. statutory scheme expressly subjects any regulation, or amendment thereto, or repealer thereof to appropriate judicial review.
The govt’al interest in establishing regs to ensure a plentiful supply of game animals for consumption & sport is suitably furthered by placing a degree of regulatory control in the hands of a Fish & Game Council composed of sportsmen, farmers, & commercial fishermen. Opening the Council's membership to persons w/ differing philosophies is not a constitutional necessity.
Altho States have an interest in regulating & controlling those things they claim to "own," including Wildlife, it is not absolute. States may not compel the confinement of the benefits of their resources, even their Wildlife, to their own people whenever such hoarding & confinement impedes interstate commerce.
PUBLIC TRUST DOCTRINE
By the law of nature these things are common to mankind: the air, running water, the sea & the shores of the sea. From this origin in Roman law, the English common law evolved concept of public trust, under which the sovereign owns all of its navigable waterways & the lands lying beneath them as trustee of a public trust for the benefit/people. The state acquired title as trustee to such lands/waterways upon its admission to the union; from the earliest days its judicial decisions have recognized & enforced the trust obligation.
state's authority as sovereign to exercise a continuous supervision & control over the navigable waters of the state & the lands underlying those waters. corollary rule that evolved in tideland & lakeshore cases barring conveyance of rights free of the trust except to serve trust purposes cannot apply without modification to flowing waters. The prosperity & habitability of much of this state requires the diversion of great quantities of water from its streams for purposes unconnected to any navigation, commerce, fishing, recreation, or ecological use relating to the source stream. The state must have the power to grant non-vested usufructuary rights to appropriate water even if diversions harm public trust uses. Approval of such diversion without considering public trust values may result in needless destruction of those values.
[usufruct = a legal right to use & derive profit from property belonging to someone else provided that the property is not injured in any way]
state's proprietary interest in its fish - state holds its title as trustee for the common good.
In U.S., the public trust is not limited by the reach of the tides, but encompasses all navigable lakes & streams.
If the public trust doctrine applies to constrain fills that destroy navigation & other public trust uses in navigable waters, it should equally apply to constrain the extraction of water that destroys navigation & other public interests.
public trust doctrine protects navigable waters from harm caused by diversion of nonnavigable tributaries.
Parties acquiring rights in trust property hold those rights subject to the trust, & can assert no vested right to use those rights in a manner harmful to the trust.
state, as trustee for the benefit of the people, has power to deal w/ its navigable waters in any manner consistent w/ the improvement of commercial intercourse, whether navigational or o/wise.
state has power to use public property for public purposes.
state has duty to protect the people's common heritage of streams, lakes, marshlands, & tidelands surrendering that right of protection only in rare cases when the abandonment of that right is consistent w/ the purposes of the trust.
state has duty to take the public trust into account in the planning & allocation of water resources, & to protect public trust uses whenever feasible. As a matter of practical necessity, the state may have to approve appropriations despite foreseeable harm to public trust uses. In so doing, the state must bear in mind its duty as trustee to consider the effect of the taking on the public trust & to preserve the uses protected by the trust.
Once the state has approved an appropriation, the public trust imposes a duty of continuing supervision over the taking & use of the appropriated water. In exercising its sovereign power to allocate water resources in the public interest, the state is not confined by past allocation decisions that may be incorrect in light of current knowledge or inconsistent w/ current needs. state has the power to reconsider allocation decisions even tho those decisions were made after due consideration of their effect on the public trust.
The case for reconsidering a particular decision is even stronger when that decision failed to weigh & consider public trust uses.
environmental factors & appropriation rights must be taken into account when conducting a study of the effect of the diversions on the public trust.
Any member of the general public has standing to raise a claim of harm to the public trust.
§s purporting to authorize an abandonment of public use will be carefully scanned to ascertain whether or not such was the legislative intention, & that intent must be clearly expressed or necessarily implied. It will not be implied if any other inference is reasonably possible. if any interpretation of the § is reasonably possible which would not involve a destruction of the public use or an intention to terminate it in violation of the trust, the courts will give the § such interpretation.
STATE TORT LIABILITY
state's policy of not maintaining highway roadside parks was a policy determination & exempted the state from liability.
the implementation of the policy, as to how & when to cease maintenance were operational decisions, required the state to act w/ reasonable care, & thus did subject the state to tort liability.
policy = no liability / operational = liability
Legal justification may always be interposed as a defense by a person charged w/ killing a wild animal contrary to law. the killing of game protected by the § or regs is not prevented by them when reasonably necessary for the protection of person or property.
a § forbidding the killing of game under penalty does not apply to a killing which is necessary for the defense of person or property. To justify such a killing, it must be reasonably necessary for the protection of a person or property.
person has a right to protect his property against the depredations of wild animals if reasonably necessary. To justify such killing, it must be reasonably necessary & that all other remedies should be exhausted before killing such animals. Whether the remedies have been exhausted depends on the facts of case.
"hunting" - chasing, driving, flushing, attacking, pursuing, worrying, following after or on the trail of, shooting at, stalking, or lying in wait for, any Wildlife whether or not such Wildlife is then or subseq captured, killed, taken, or wounded. "Hunting" does not include stalking, attracting, searching for, or lying in wait for any Wildlife by an unarmed person solely for the purpose of watching/taking pictures.
Even in the absence of injury to itself, an association may have standing solely as the representative of its members. association must allege that its members, or any one of them, are suffering immediately or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit. So long as this can be established & so long as the nature of the claim & of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of cause, the association may be an appropriate rep of its members, entitled to invoke the court's jurisdiction.
Where the violation of a § designed to protect the state's property causes injury to that property, the state or a responsible executive agency of state has standing to seek compensation for injury.
Any member of general public has standing to raise a claim of harm to public trust.
Indian treaties entered into by U.S. are part of supreme law of land which the states & their officials are bound to observe.
SCOTUS has noted that while the courts cannot vary plain language of an Indian treaty, such treaties are to be construed as that unlettered people understood it, &, as justice & reason demand in all cases where power is exerted by the strong over those to whom they owe care & protection, & counterpoise the inequality by the superior justice which looks only to the substance of the right, without regard to technical rules.
court's responsibility to see that terms of treaty are carried out in accordance w/ the meaning they were understood to have by tribal reps at the council, & in a spirit which generously recognizes the full obligation of this nation to protect interests of a dependent people.
policy of U.S. to extinguish Indian rights in OR territory by negotiation rather than by conquest is firmly established in Act of 1848, which establishes the OR territory. That act declares that nothing in it shall be construed to impair rights of persons or property now pertaining to Indians in said territory, so long as such rights shall remain unextinguished by treaty between U.S. & such Indians. act also extends to OR territory the provisions of the Northwest Ordinance of 1787 which provided that good faith shall always be observed towards Indians; their land & property shall never be taken from them without consent.
Statehood does not deprive federal govt of power to enter into treaties affecting fish & game w/in a state, especially migratory species. Nor did subsequent statehood diminish the treaty-secured fishing right.
Indians enjoy exclusive treaty rights to hunt & fish on lands reserved to them, unless such rights were clearly relinquished by treaty or have been modified by Congress. These rights need not be expressly mentioned in treaty.
Congress has the power to abrogate the provisions of an Indian treaty, tho presumably such power will be exercised only when circumstances arise which will not only justify the govt in disregarding the stipulations of treaty, but may demand, in interest of country & Indians themselves, that it should do so.
Fed Courts have required that Congress' intention to abrogate Indian treaty rights be clear & plain. Absent explicit statutory language, courts have been reluctant to find congressional abrogation of treaty rights. In the absence of explicit statement, intention to abrogate or modify a treaty is not to be lightly imputed to Congress. Indian treaty rights are too fundamental to be easily cast aside.
Where the evidence of congressional intent to abrogate a treaty is compelling, the weight of authority indicates that such an intent can be found by a reviewing court from clear & reliable evidence in the legislative hx of a §. What is essential is clear evidence that Congress actually considered the conflict between its intended action & Indian treaty rights, & chose to resolve that conflict by abrogating the treaty.
TREATY OF 1859
1855 - U.S. negotiated separate treaties w/ Confederated Tribes & Bands of Yakima Reservation & the Confederated Tribes & Bands of Umatilla Reservation composed of Walla Walla, Cayuse, the Umatilla Bands or Tribes, & Nez Perce Indian Tribe. treaties were ratified & proclaimed by U.S. in 1859.
> * Each of these treaties contains a substantially identical provision securing to tribes right of taking fish at all usual & accustomed places in common w/ citizens of territory.
Treaty/1859 provides: exclusive right of taking fish in all the streams, where running thru or bordering said reservation, is further secured to said confederated tribes & bands of Native Amer’s, as also the right of taking fish at all usual & accustomed places, in common w/ citizens of territory, & of erecting temporary buildings for curing them; together w/ privilege of hunting, gathering roots & berries, & pasturing their horses & cattle upon open & unclaimed land.
1859 Treaty between U.S. & Indians of Yakima Nation in Washington is not a grant of rights to Indians, but a grant of rights from them -- a reservation of those granted.
In determining the scope of the reserved rights of hunting & fishing, court must not give a treaty narrowest construction it will bear.
Despite phrase "in common w/ citizens of the Territory," Treaty/1859 confers upon Yakima continuing rights, beyond those which other citizens may enjoy, to fish at their "usual & accustomed places" in the ceded area. report of the proceedings in long council at which treaty agreement was reached, evinces strong desire Native Americans had to retain the right to hunt & fish in accordance w/ the immemorial customs of their tribes.
State (WA) is without power to charge Yakimas a fee for fishing.
purpose of licensing act: provide for support of state govt & its existing public institutions. license fees prescribed are regulatory as well as revenue producing. But it is clear that their regulatory purpose could be accomplished o/wise, that imposition of license fees is not indispensable to effectiveness of a state conservation program. Even tho this method may be both convenient &, in its general impact, fair, it acts upon Native Americans as a charge for exercising the very right their ancestors intended to reserve. Such exaction of fees as a prerequisite to the enjoyment of fishing in "usual & accustomed places" cannot be reconciled w/ a fair construction of 1859 Treaty
right to fish at all usual & accustomed places may not be qualified by the state, even tho all Indians born in U.S. are now citizens of U.S.
the manner of fishing, the size of take, restriction of commercial fishing, & the like may be regulated by state in interest of conservation, provided the regulation does not discriminate against Indians.
state may regulate fishing by non-Indians to achieve a wide variety of management or conservation objectives. Its selection of regs to achieve these objectives is limited only by its own organic law & the standards of reasonableness required by 14th Amend
when it is regulating federal right of Indians to take fish at their usual & accustomed places, it does not have the same latitude in prescribing the management objectives & regulatory means of achieving them. state may not qualify federal right by subordinating it to some other state objective. It may use its police power only to extent necessary to prevent exercise of that right in a manner that will imperil continued existence of fish resource.
limits on state's power to regulate the exercise of the Indians' federal treaty right:
1 regulation must be necessary for conservation of fish.
2 state restrictions on Indian treaty fishing must not discriminate against Indians.
3 they must meet appropriate standards.
To extent necessary for conservation of fish, state could exercise police power to impose appropriate restrictions on the time & manner of fishing that does not discriminate against Indians.
To prove necessity, state must show there is a need to limit the taking of fish & that the particular regulation sought to be imposed upon the exercise of treaty right is necessary to the accomplishment of the needed limitation. This applies to regs restricting the type of gear which Indians may use as much as it does to restrictions on the time at which Indians may fish.
state has full & complete power to regulate all kinds of fishing, including the Indian fishery, to end that the resource is preserved.
In prescribing restrictions upon the exercise of Indian treaty rights, state may adopt regs permitting the treaty Indians to fish at their usual & accustomed places by means which it prohibits to non-Indians. While the treaties do not give the Indians the right to insist that the state restrict non-Indians to a greater degree than it restricts Indians, neither do they limit the state's authority to restrict non-Indian fishing.
appropriate regulation: consider the interests to be protected or objective to be served. In the case of regs affecting Indian treaty fishing rights, the protection of treaty right to take fish at Indians' usual & accustomed places must be an objective of state's regulatory policy co-equal w/ conservation of fish runs for other users. restrictions on exercise of treaty right must be expressed w/ such particularity that Indian can know in advance of his actions precisely the extent of the restriction which state has found to be necessary for conservation.
state must recognize that federal right which Indians have is distinct from fishing rights of others over which state has a broader latitude of regulatory control & that tribal entities are interested parties to any regulation affecting treaty fishing right. They, & members to whom the regs will apply, are entitled to be heard on subject &, consistent w/ need for dealing w/ emergency or changing situations on short notice, to be given appropriate notice & opportunity to participate meaningfully in rule-making process.
state's police power gives it adequate authority to regulate exercise of treaty-secured Indian off-reservation fishing rights, provided its regs meet the standards which that court has prescribed.
state's authority to prescribe restrictions w/in the limitations imposed by the treaties & directly binding upon Indians is not dependent upon assent of tribes or of Sec/Interior. But agreements w/ tribes or deference to tribal preference or regulation on specific aspects pertaining to exercise of treaty fishing rights are means which state may adopt in exercise of its jurisdiction over such fishing rights. Both state & tribes should be encouraged to pursue such a cooperative approach.
illegal to transport any Wildlife taken in violation of any law, treaty, or regulation of U.S.
unlawful for any person to import, export, transport, sell, receive, acquire, or purchase any fish or Wildlife taken, possessed, transported, or sold in violation of any law or regulation of any state or in violation of any foreign law.
to violate the Lacey Act, a person must do something to Wildlife that has already been taken or possessed in violation of law.
verb "to acquire" is eiusdem generis as "sell," "receive," "purchase." "acquire" / has no similarity to "to shoot." The kind of acquiring condemned is of a bird already taken.
Altho Lacey Act does depend upon violations of foreign law, U.S. govt is not applying foreign law per se, but rather is looking to foreign law to determine if Act's provisions are triggered; if so, then it will apply Act, & not the foreign law. the Act delegates no power to foreign govts, & does not violate First Amendment.
use of term "any foreign law" to define Lacey Act violations satisfies constitutional standards of due process.
prohibition of Lacey Act on sale of Wildlife illegally obtained does not encompass sale of guiding services, b/c one would have to speculate whether such conduct falls w/in prohibition on selling Wildlife.
civil penalties, criminal penalties, & forfeiture of illegally taken fish & Wildlife.
No reason exists to suppose that Congress intended any foreign law to mean something difft in criminal context than in forfeiture context.
criminal sanctions provision only allows for imposition of criminal penalties if a violator knew or, in exercise of due care, should have known that he was taking fish unlawfully under any underlying law, treaty, or regulation.
criminal sanctions only upon a showing of culpability. the Act itself protects the reasonably naive from unwarranted criminal penalties.
criminal penalty provision does not require that fishermen violate the regulation, but only that they take part in importing salmon when they know, or should have known, that the salmon had been taken in violation of the regulation.
Altho one may be held strictly liable under forfeiture provision for violations, one must be significantly more blameworthy to be subject to Lacey Act's criminal penalties.
The added scienter element prevents Lacey Act from criminally punishing those who violate Act's provisions but are reasonably unaware that they are doing so. The protections inserted by Congress prevent Act from trapping innocent by not providing fair warning, & therefore mitigate any potential vagueness.
language Lacey Act provides the reasonable degree of certainty that is demanded in this area to w/stand an attack for failure to provide sufficient notice.
Lacey Act is not rendered un-K by fact that it, unlike many other federal laws, requires of a person a knowledge of underlying §s. culpable intent requirements eliminate chance that criminal punishment will be imposed on one who violates Act as a result of having no English translation.
sets forth sufficiently explicit standards when defining what constitutes a crime.
MBTA - Migratory Bird Treaty Act
prohibits killing, capturing or selling any of the migratory birds included in the terms of the International Convention for the Protection of Migratory Birds, 1916, except as permitted by regs, which are now administered by the Department Interior.
govt needs to prove only that a single bird has been killed to establish violation
Interior Department's FWS authorized to issue depredation permits for killing or taking of migratory birds that become seriously injurious to agricultural or other interests in any particular community.
Hunting migratory birds over an area where seed or other bait is scattered is generally prohibited BUT
2 exceptions in a regulation by FWS:
Not prohibited: 1) The taking of all migratory game birds, including waterfowl, on or over grains found scattered solely as the result of normal agricultural planting or harvesting; &
2) The taking of all migratory game birds, except waterfowl, on or over any lands where wheat or other grain is distributed or scattered as the result of bona fide agricultural operations or procedures.
misdemeanor violations, including hunting in a baited area, have been interpreted by majority of courts as strict liability crimes, not requiring govt to prove any intent element.
not necessary that govt prove that D violated its MBTA provisions w/ guilty knowledge or specific intent to commit violation.
what matters is whether someone has killed or is attempting to kill or capture or take a protected bird, without a permit & outside of any designated hunting season. Nothing in § 703 turns on identity of perpetrator - MBTA applies to actions of federal govt.
MMPA - Marine Mammal Protection Act
unlawful for any person to "take" a MM in U.S. waters (or high seas)
prohibits the taking of marine mammals without a permit.
"take" = harass, hunt, capture, or kill, or to attempt to harass, hunt, capture, or kill any MM.
regs applicable to porpoises, issued by National Marine Fisheries Service (NMFS), do not define "harass" but further define "take" as including: the collection of dead animals, or parts thereof; the restraint or detention of a MM, no matter how temporary; tagging a MM; the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in disturbing or molesting a MM; & feeding or attempting to feed a MM in the wild.
Congress directs sec commerce to promulgate regs w/ respect to taking & importing of each species of MM.
both civil & criminal penalties, but criminal apply only to persons who "knowingly" violate any provision
ANIMAL DAMAGE CONTROL ACT - ADCA
Fed authority for animal damage management programs emanates from ADCA of 1931, which directs the Sec Agriculture to conduct campaigns for destruction of animals injurious to agriculture & livestock on natl forest & public domain.
Authority to conduct ADC programs currently resides w/ Animal & Plant Health Inspection Service (APHIS).
National Forest Management Act (NFMA), authorizes Forest Service to manage land designated as National Forests & assess environmental impact of animal damage control programs.
Forest Service Manual (FSM) prepared under authority of NFMA provides further guidance for implementation of animal damage management programs. In FSM, forest service recognizes authority of APHIS--ADC to conduct animal damage management services. FSM requires both forest service & APHIS--ADC to reduce damage done to Wildlife by predation & to conduct ADM activities when predation causes or threatens to cause damage to livestock.
In establishing ADC, the forest service is subject to other statutory constraints. forest service must comply w/ NEPA by analyzing environmental effects of proposed ADC program. If program involves serious environmental impact, agency must prepare an EIS. If the agency determines that proposed program will involve minimal enviro impact, Decision Notice & Finding of No Significant Injury (FONSI), agency fulfills its NEPA mandate by preparing a less comprehensive environmental assessment (EA).
To establish need for an Animal Damage Control, forest supervisors need only show that damage from predators is threatened.
Altho disagreement exists concerning effectiveness of predator control programs, record establishes a rational basis for effectiveness.
Under NFMA, Forest Service must act in accordance w/ forest plan promulgated for each forest. The respective forest plans permit predator control if needed.
NEPA - National Environmental Policy Act
imposes procedural requirement on agencies, requiring them to engage in an extensive inquiry as to the effect of federal actions on environment;
mandates preparation of an EIS on any (major) federal action significantly affecting quality of the human environment.
to comply w/ NEPA, before an agency may undertake a major federal action which would significantly affect quality of human environment, agency must prepare EIS. if after careful examination thru an EA, it is determined that the action would not be significant, then EIS is not necessary. Thus, at conclusion of EA, the Forest Service prepares either a FONSI or an EIS. Thruout this process, all environmental info collected must be made available to public officials & citizens before decisions are made & before actions are taken. info must be of high quality. accurate scientific analysis, expert agency comments, & public scrutiny are essential to implementing NEPA.
EA must be based on independent analysis.
EA (a) Means a concise public doc for which a Fed agency is responsible that serves to:
Briefly provide sufficient evidence & analysis for determining whether to prepare EIS or FONSI.
Aid an agency's compliance w/ the Act when no EIS is necessary.
Facilitate preparation of a statement when one is necessary.
(b) Shall include brief discussion of the need for the proposal, of alternatives, of enviro impacts of proposed action & alternatives, & a listing of agencies & persons consulted.
standard for determining whether implementation of a proposal would significantly affect the quality of the human environment is whether P has alleged facts which, if true, show that proposed project may significantly degrade some human environmental factor.
A determination that significant effects on human enviro will occur is not essential. If substantial questions are raised whether a project may have a significant effect upon human enviro, an EIS must be prepared.
A central purpose of EIS is to force the consideration of enviro impacts in decision-making process / requires that NEPA process be integrated w/ agency planning at earliest possible time, & purpose cannot be fully served if consideration of cumulative effects of successive, interdependent steps is delayed until 1st step has already been taken
required scope of EIS: range of actions, alternatives, & impacts to be considered.
To determine scope of EISs, agencies shall consider: connected, cumulative, & similar actions, alternatives & mitigating measures, & impacts, which may be direct, indirect, & cumulative.
"Cumulative impact" - impact on environment which results from incremental impact of an action when added to other past, present, & reasonably foreseeable future actions. regardless of what agency (federal or non-federal) or person undertakes such other actions.
Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
impacts shall be discussed in proportion to their significance.
While true that administrative agencies must be given considerable discretion in defining scope of EIS, there are situations in which agency is required to consider several related actions in a single EIS. Not to require this would permit dividing a project into multiple "actions," each of which individually has an insignificant environmental impact, but which collectively have a substantial impact.
In determining if an action may have significant effects, CEQ NEPA Regs require that Ds consider "severity of impact" on: Unique characteristics of geologic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild & scenic rivers, or ecologically critical areas; The degree to which effects on quality of the human environment are likely to be highly controversial; The degree to which possible effects on human enviro are highly uncertain or involve unique or unknown risks; Whether action is related to other actions w/ individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulative significant impact on enviro; The degree to which action may adversely affect district, sites, highways, structures, or objects listed in or eligible for listing on National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources; The degree to which action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under ESA; Whether action threatens a violation of federal, state, or local law or req’s imposed on the protection of enviro.
EIS must cover subsequent stages when the dependency is such that it would be irrational or unwise to undertake 1st phase if subsequent phases were not also undertaken.
EIS shall be analytical rather than encyclopedic.
environmental impacts of a single highway segment may be evaluated separately from those of the rest of highway only if segment has "independent utility," which means utility such that agency might reasonably consider constructing only segment in question.
NEPA does not requires agencies to analyze environmental consequences of alternatives it has in good faith rejected as too remote, speculative, or impractical or ineffective.
only role for court is to insure that agency has taken a hard look at environmental consequences. A court must enforce § by ensuring that agencies comply w/ NEPA's procedures, & not by trying to coax agency decision-makers to reach certain results.
role of the judiciary - ensure that agency has adequately considered & disclosed environmental impact of its actions & that its decision is not arbitrary & capricious.
in assessing whether agency has complied w/ NEPA, reviewing court should consider whether agency has considered "all reasonable alternatives" to proposed action, & whether it has assessed cumulative impact or effects of its proposed action. What is required is info sufficient to permit a reasoned choice of alternatives as far as enviro aspects are concerned.
In reviewing federal agency's compliance w/ NEPA, the court employs a highly deferential standard of review. Neither NEPA nor its legislative hx contemplates that a court should substitute its judgment for that of agency as to environmental consequences of its actions.
In determining whether agency properly decided not to conduct an EIS, court may not substitute its judgment of enviro impact for judgment of agency, once agency has adequately studied issue.
ENDANGERED SPECIES ACT - ESA
requires Sec/Interior to determine whether a given species qualifies for protection as endangered or threatened, & confers significant protection on species so listed.
Sec/Interior: declare species "endangered" & identify "critical habitat". Once a species or its habitat is listed, ESA effective.
requires that listing determination be based solely on basis of best scientific & commercial data available.
economic analysis is not a factor in the listing determination.
substantive: prevent loss of any endangered species, regardless of cost.
purposes: provide a means whereby ecosystems upon which endangered & threatened species depend may be conserved, & to provide a program for conservation of such species.
listed species: any species that has been determined to be either endangered or threatened
All persons, including federal agencies, are specifically instructed not to "take" endangered species, meaning that no one is to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect any.
prohibits the taking or importation of endangered species
mandates that Forest Service place conservation above any of agency's competing interests.
Congress viewed value of endangered species as "incalculable."
does not constitute a general regulation of land use.
authorizes interested persons to petition the Sec/Interior to list a species as endangered.
Endangered species are to be afforded the highest of priorities.
process set forth in ESA for protection of endangered & threatened species & conservation of their ecosystem begins by granting Sec/Interior, thru FWS, authority to list species in need of protection as either endangered or threatened.
*Factors to be considered when making a listing/de-listing decision includes the present or threatened destruction, modification, or curtailment of its habitat or range.
Gray wolves are protected based on where they are found, not where they originate. Canadian gray wolves that migrate into northern U.S. assume protected status when they cross border.
permissible interpretation of the § to rest the jeopardy analysis on a habitat proxy.
Test for whether a habitat proxy is permissible is whether it "reasonably ensures" that proxy results mirror reality.
protection of endangered species cannot fairly be described as a power which the Founders denied the National Govt & reposed in the states. Rather, preservation of endangered species is historically a federal function, & invalidating this application of the ESA, would call into question the historic power of federal govt to preserve scarce resources in one locality for future benefit of all Americans. To sustain challenges of this nature would require courts to move abruptly from preserving traditional state roles to dismantling historic federal ones.
Regulation of the taking of endangered species does not involve an area of traditional state concern, one to which states lay claim by right of history & expertise. while states & localities possess broad regulatory & zoning authority over land w/in their jdxs, it is well established that Congress can regulate even private land use for environmental & Wildlife conservation. It is clear from our laws & precedent that federal regulation of endangered Wildlife does not trench impermissibly upon state powers.
affirmative obligations to conserve under sect 7
shall utilize their authorities in furtherance of purposes of Act by carrying out programs for conservation of endangered species.
all Federal Depts & agencies shall seek to conserve endangered & threatened species.
Congress - gave endangered species priority over "primary missions" of fed agencies
use all methods & procedures which are necessary to preserve endangered species.
required to afford 1st priority to declared natl policy of saving endangered species.
required to ensure that their actions are not likely to jeopardize continued existence of any endangered or threatened species or result in destruction or adverse modification of critical habitat
Once listed, all federal agencies are required to consult w/ FWS to insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered or threatened species.
agency proposing an action must first determine whether the action "may affect" listed species. How this determination is made is left up to agency. If an agency determines that its actions "may affect" a protected species or its habitat, then that agency must enter into consultation w/ FWS to ensure that the actions are not likely to jeopardize continued existence of any listed species. two forms of consultation: formal & informal.
3-step process to ensure compliance w/ substantive provisions by fed agencies. Each of first two steps serves a screening function to determine if successive steps are required. (1) agency proposing to take an action must inquire of F&WS whether any threatened or endangered species may be present in area of proposed action. (2) If answer is yes, agency must prepare a BA to determine whether such species is likely to be affected by the action. BA may be part of an EA or EIS. (3) If assessment determines that a threatened or endangered species is likely to be affected, the agency must formally consult w/ F&WS.
FWS action that is prohibited is both (1) action that is likely to jeopardize existence of a listed species & (2) action that is likely to result in adverse modification of any area w/in a critical habitat designation (CHD).
If FWS concludes that activities are not likely to jeopardize a species, it may provide for incidental take of the species.
federal agency cannot abrogate its responsibility to ensure that its actions will not jeopardize a listed species; its decision to rely on a FWS BiOp must not be arbitrary or capricious. even when FWS's opinion is based on admittedly weak info, another agency's reliance on that opinion will satisfy its obligations under Act if a challenging party can point to no new info, that is, info FWS did not take into account, which challenges opinion's conclusions.
Action violating jeopardy standard is action reasonably expected to reduce appreciably likelihood of both survival & recovery of a listed species.
Fed agency shall, in consultation w/ & w/ assistance of secretary, insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize continued existence of any endangered species or threatened species or result in destruction or adverse modification of habitat of such species which is determined by secretary, after consultation w/ affected states, to be critical, unless such agency has been granted an exemption for such action by the committee pursuant to subsection (h) of this section. (ES Committee, aka God Squad)
Iudicial review of administrative decisions involving ESA is governed by Administrative Procedure Act (APA). Under § 706, reviewing court must satisfy itself that agency decisions are not arbitrary, capricious, an abuse of discretion, or o/wise not in accordance w/ law.
relevant inquiry is whether agency considered relevant factors & articulated a rational connection between facts found & choice made. court reviews de novo district court's application of this standard, as well as its legal conclusions under ESA. The court reviews district court's findings of fact for clear error.
Sec/Interior is to be afforded some discretion in ascertaining how best to fulfill mandate to conserve under sect 7
case law is well settled that federal agencies are accorded discretion in determining how to fulfill ESA obligations.
Fashioning appropriate standards for issuing permits under §10 for takings that would o/wise violate §9 requires exercise of broad discretion. proper interpretation of a term such as "harm" involves a complex policy choice. When Congress has entrusted the secretary w/ broad discretion, court is reluctant to substitute its views of wise policy for his.
ESA - DEFINITIONS
"action area" = all areas to be affected directly or indirectly by federal action & not merely immediate area involved in the action.
"conserve" - to use & the use of all methods & procedures which are necessary to bring any endangered or threatened species to point at which measures provided pursuant to this chapter are no longer necessary
Conservation = all methods that can be employed to bring any endangered or threatened species to point at which measures provided pursuant to ESA are no longer necessary
Critical habitat = includes specific areas occupied by the species which are essential to conservation of species & specific areas outside geographical area occupied by the species that are essential for conservation of the species.
"cumulative effects" - effects of future state or private activities, not involving fed activities, that are reasonably certain to occur w/in action area of federal action subject to consultation.
"endangered species" = any species which is in danger of extinction thruout all or a significant portion of its range other than a species of Class Insecta determined by Sec/Interior to constitute a pest whose protection under provisions of this chapter would present an overwhelming & overriding risk to man. Act covers every animal & plant species, subspecies, & population in world needing protection.
"harass" [in def "take"] - an intentional or negligent act or omission which creates 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.
"Harm" ["take"] - an act which actually kills or injures Wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures Wildlife by significantly impairing essential behavior patterns, including breeding, feeding, or sheltering. "Harm" must be demonstrated by actual evidence, which may be in form of scientific studies. in order for a reviewing court to issue an injunction, ESA does not require that the harm to the endangered species have already occurred.
"Take" - to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or to attempt to engage in such conduct. includes to harass or harm.
"Threatened species" - those species that are likely to become an endangered species w/in foreseeable future thruout all or a significant portion of their range.
ESA § 4
FWS is required to develop & implement a recovery plan for the conservation & survival of a listed endangered or threatened species.
authorizes the Sec/FWS to promulgate regs applicable to threatened species as he deems necessary & advisable to provide for conservation of such species.
Sec/Interior is vested w/ exclusive authority to determine whether a species such as the snail darter is "endangered" or "threatened" & to ascertain factors which have led to such a precarious existence. By §4, Congress has authorized/commanded Sec to issue such regs as he deems necessary & advisable to provide for conservation of such species.
ESA § 7
affects all projects which remain to be authorized, funded, or carried out. under Act, there could be no "retroactive" application since any prior action of federal agency which would have come under scope of Act must have already resulted in destruction of an endangered species or its critical habitat. the species would have already been extirpated or its habitat destroyed; Act would then have no subject matter to which it might apply.
when fed agency undertakes or permits actions that may affect a listed species, agency must consult w/ FWS to insure that their activities are not likely to jeopardize continued existence of any endangered or threatened species or result in destruction or adverse modification of critical habitat of such species.
affirmatively command all fed agencies to insure that actions authorized, funded, or carried out by them do not jeopardize continued existence of an endangered species or result in destruction or modification of habitat of such species - no exception.
agency must use best scientific & commercial data available
agency must have discretion to rely on reasonable opinions of its own qualified experts even if a court might find contrary views more persuasive.
compels agencies to consider effect of their projects on endangered species,
compels agencies to take such actions as are necessary to insure that species are not extirpated as a result of federal activities.
the loss of any endangered species has been determined by Congress to be environmentally "significant."
Compliance w/ Northwest Forest Plan does not in itself generate the same protection for habitat as ESA Section 7 compliance. existing or potential conservation measures outside of critical habitat cannot properly be a substitute for maintenance of critical habitat that is required by Section 7.
it matters not if there is worthwhile & possibly suitable habitat outside of designated "critical habitat;" what matters is to protect against loss or degradation of designated "critical habitat" itself.
ESA § 9
unlawful for any person subject to jurisdiction of US to "take" any member of any endangered or threatened species.
secretary has promulgated a regulation that defines the §'s prohibition on takings to include significant habitat modification or degradation where it actually kills or injures Wildlife.
illegal to violate any regs issued under ESA.
acts to regulate commercial dev. of land inhabited by the endangered species, it may be reached by Congress b/c it asserts a substantial economic effect on interstate commerce
ESA § 10
creates a number of limited "hardship exemptions" BUT not for federal agencies.
authorizes Sec/Interior to grant a permit for any taking o/wise prohibited by §9 if such taking is incidental to, & not purpose of, the carrying out of an o/wise lawful activity.
incidental take exception of reg does not apply to "deliberate action."
regulatory exception has two requirements: 1) that the take be incidental, & 2), that it be reported w/in 24 hours to FWS.
ITP - incidental take permit
If FWS concludes that activities are not likely to jeopardize a species, it may provide for incidental take of the species.
authorizes its holder to take some members of protected species when the taking is incidental to carrying out an o/wise lawful activity.
permittee is not liable for any taking that falls w/in scope of permit.
To obtain, an applicant must develop & submit a habitat conservation plan (HCP), which specifies (1) the likely impact from the proposed takings; (2) the steps the applicant will take to minimize & mitigate such impacts & the funding available for such mitigation; (3) alternative actions considered, & the reasons for not selecting them; & (4) such other measures as the Sec/Interior may require as necessary or appropriate for purposes of plan.
no incidental take permit may be issued unless applicant submits a HCP
Sec/Interior shall issue permit, if he finds, after public comment, that (i) the taking will be incidental; (ii) the applicant will, to max extent practicable, minimize & mitigate impacts of such taking; (iii) applicant will ensure that adequate funding for plan will be provided; (iv) the taking will not appreciably reduce likelihood of survival & recovery of the species in wild; & (v) other measures required by secretary will be met.
If secretary finds that a permittee is not complying w/ terms & conditions of permit, he "shall revoke" permit.
burden of proving applicability of such an exemption is expressly on person claiming benefit. regs, are silent regarding BoP.
FWS authority to create experimental populations - § 10(j)
Each experimental population has own set of rules so that the Sec/FWS has more managerial discretion.
population qualifies as experimental only when population is wholly separate geographically from non-experimental populations of same species.
When experimental & non-experimental populations overlap, even if seasonally, §10(j) populations lose experimental status.
2 specific findings req. for regs: (1) that establishment of such a population will further species' conservation; & (2) that population is either essential or nonessential to species' conservation.
courts must defer to FWS reasonable interpretation of §10(j) particularly where interpretation involves agency expertise.
allow gray wolves to be taken from Canadian population & reintroduced to an area where wolves had been extirpated. Neither ESA nor its implementing regs expressly permits FWS to obtain experimental populations from unlisted populations, but agency's interpretation of ESA, which it is charged w/ administering, is entitled to great deference.
D need not have known he was shooting a wolf to "knowingly violate" regs protecting experimental population.
Any person may take a gray wolf provided that the take is incidental to an o/wise lawful activity, accidental, unavoidable, unintentional, not resulting from negligent conduct lacking reasonable due care, & due care was exercised to avoid taking a gray wolf.
ESA § 11 CITIZEN SUIT
allows any person to commence a civil action in a U.S. District Court to, i.a., enjoin any person, including U.S. & any other govt’al instrumentality or agency, to extent permitted by 11th Amend to K, who is alleged to be in violation of any provision of Act or regulation issued under authority thereof.
provides criminal penalties for knowing violations of regs.
ESA - CRITICAL HABITAT (CH)
Sec/Interior has administratively construed CH to mean any air, land, or water area, exclusive of those existing man-made structures or settlements which are not necessary to survival & recovery of a listed species, & constituent elements thereof, the loss of which would appreciably decrease likelihood of survival & recovery of a listed species or a distinct segment of its population.
purpose - set aside certain areas as "essential" for survival & recovery of species.
To create, there is extensive study, detailed analysis, & ultimately notice & comment rule-making.
Once designated, critical habitat receives its legal protection b/c it is subject to Section 7 consultations.
Elements include: physical structures & topography, biota, climate, human activity, & the quality & chemical content of land, water, & air.
may represent any portion of present habitat of a listed species & may include additional areas for reasonable population expansion.
may include specific areas found both inside of & outside of geographic area occupied by species.
Act requires agency to designate critical habitat for all listed species, to extent determinable
CHD is required to be based on best scientific data available considering economic impact, & any other relevant impact, of specifying any particular area as CH.
FWS req. to perform an economic analysis of effects of CHD before making a final designation
agency may exclude a particular area from CHD if agency determines that benefits of such exclusion outweigh benefits of specifying such area as part of CH, unless failure to designate such area will result in extinction of species concerned.
Once CH is designated, federal agencies must consult w/ FWS to insure that any action authorized, funded, or carried out by such agency is not likely to result in the destruction or adverse modification of designated CH.
baseline approach to economic analysis is not in accord w/ language or intent of ESA
FWS - "destruction or adverse modification": a direct or indirect alteration that appreciably diminishes value of CH for both survival & recovery of a listed species.
Alterations include alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.
adv mod inquiry must examine a given project's effect on CH, that is, the land specifically designated by Sec/Interior for that purpose.
ESA - DELISTING
Objective, measurable criteria must be directed towards the goal of removing an endangered or threatened species from the list. Since the same 5 statutory factors must be considered in delisting as in listing, FWS, in designing objective, measurable criteria, must address each of the 5 statutory delisting factors & measure whether threats to species have been ameliorated.
an agency may either enter into formal consultation w/ FWS or engage in informal consultation to determine whether formal consultation is appropriate or necessary.
If, during informal consultation, agency & FWS concur in writing that proposed action is not likely to adversely affect a protected species, then consultation process is complete & formal consultation is unnec. if it is agreed that the action will not adversely affect a protected species, then FWS does not have to prepare a BiOp.
if, during informal consultation, agency determines that its actions may have an adverse effect on a protected species, then agency must request formal consultation w/ FWS. if formal consultation is required, then a BiOp by FWS is required to advise agency whether jeopardy is likely to occur &, if so, whether reasonable & prudent alternatives exist to avoid a "jeopardy" situation.
For any federal action that may affect a threatened or endangered species (or habitat), axn agency must consult w/ consulting agency to ensure that federal action is not likely to jeopardize "the continued existence of" an endangered or threatened species & that the federal action will not result in "destruction or adverse modification" of designated CH of listed species. ("Section 7" consultations). action agency typically makes a written request to consulting agency, &, after formal consultation, process concludes w/ consulting agency issuing a BiOp.
formal consultation results in a BiOp issued by F&WS. If BiOp concludes that proposed action would jeopardize species or destroy or adversely modify critical habitat, then the action may not go forward unless F&WS can suggest an alternative that avoids such jeopardization, destruction, or adverse modification. If opinion concludes that the action will not violate Act, F&WS may still require measures to minimize its impact.
Consultation on freshwater or land-based species - consulting agency is FWS
Bio Assessment (BA)
formal consultation: agency prepares BA that evaluates impact of its activities on listed species, & FWS, after evaluation of BA & best scientific & commercial data available, issues BiOp detailing how agency action affects species & whether the action is likely to jeopardize continued existence of species.
Consulting agencies do not have duty to evaluate cumulative effects in BAs they prepare.
Agencies are required to assess effect on endangered species of projects in areas where such species may be present.
determines whether proposed action is likely to jeopardize continuing existence of species.
must include an analysis of effects of action on species when added to environmental baseline -- an analysis of total impact on species. there must be analysis of impact of total amount of take authorized, not simply a listing of those numbers.
is arbitrary & capricious & will be set aside when it has failed to articulate a satisfactory explanation for its conclusions or it has entirely failed to consider an important aspect of problem.
should address both the jeopardy & CH prongs of Section 7 by considering the current status of the species, the environmental baseline, the effects of the proposed action, & the cumulative effects of the proposed action.
FWS is obligated by regulation to develop its BiOp based upon the best scientific & commercial data available regardless of the sufficiency of that data.
Section 7 consultations require that in every BiOp, consulting agency ensure that proposed action "is not likely to jeopardize the continued existence of" an endangered or threatened species & that the federal action will not result in "destruction or adverse modification" of designated "critical habitat" of listed species.
If a BiOp concludes that jeopardy is not likely & that there will not be adverse modification of CH, or that there is a "reasonable & prudent alternative" to the agency action that avoids jeopardy & adverse modification, FWS can issue an incidental take statement which, if followed, exempts action agency from prohibition on takings found in §9.
If jeopardy or adverse modification cannot be avoided, BiOp would exempt action agency from §9's prohibition on taking & strict civil & criminal penalties association w/ such unlawful takings.
discovery of new facts does not justify an "amendment" to a BiOp, but mandates reinitiating formal consultations.
ESA - RECOVERY PLANS
Congress intended that conservation & survival be two difft (tho complementary) goals
Sec/Interior shall develop & implement plans for conservation & survival of endangered & threatened species.
FWS is required to develop & implement a recovery plan for conservation & survival of species. Any such recovery plan is supposed to be a basic road map to recovery, i.e., process that stops or reverses decline of species & neutralizes threats to its existence.
Purpose of establishing "critical habitat" is for govt to carve out territory that is not only necessary for species' survival but also essential for recovery.
"Conservation" is broader concept than survival. definition of "conservation" in ESA speaks to recovery. ESA distinguishes between "conservation" & "survival." Requiring consultation only where an action affects value of CH to both recovery & survival of a species imposes a higher threshold than the statutory language permits.
recovery plan that recognizes specific threats to conservation & survival of a threatened or endangered species, but fails to recommend corrective action or explain why it is impracticable or unnec. to recommend such action, would not meet ESA standard.
Sec/FWS has broad discretion to determine methods to use in species conservation.
Adoption of recovery plans is discretionary
ESA - PENALTIES
max sentence: 6 months/jail, $25,000 fine, or both.
addition of $25,000 fine to a prison term of not more than 6 months does not reflect a clear congressional determination that violation of an Interior Department reg pertaining to endangered or threatened species is a serious offense. fact that Congress chose to impose a prison sentence of more than 6 months for all save one of the other violations of ESA, suggests that Congress specifically intended that violations of Interior Department regs should be regarded as petty.
To find D guilty of knowingly taking an endangered species, such as a grizzly bear, govt must prove, beyond a reasonable doubt, that: (1) D knowingly killed a bear; (2) bear was a grizzly; (3) D had no permit from FWS to kill a grizzly bear; & (4) D did not act in self-defense or in defense of others.
regs - grizzly bear may be taken in self-defense or defense of others, but any such taking must be reported w/in 5 days to FWS.
Given a substantial procedural violation, in connexn w/ a federal project, remedy must be an injunction of project pending compliance.
Absent unusual circumstances, injunction is appropriate remedy for violation of NEPA’s procedural reqs. Irreparable damage is presumed to flow from a failure properly to evaluate environmental impact of a major federal action. same principle applies to procedural violations of ESA.
P’s burden in establishing procedural violation of ESA is to show that circumstances triggering procedural req exist, & that required procedures have not been followed.
requires that where appropriate & to extent practicable, FS shall preserve & enhance diversity of plant & animal communities so that it is at least as great as that which would be expected in a natural forest.
reductions in diversity of plant/animal communities & tree species from that which would be expected in a natural forest or from that similar to existing diversity in planning area may be prescribed only where needed to meet overall multiple-use objectives.
General obligation that FS gather & keep data to ensure species diversity in planning area.
Forest Planning shall provide for diversity of plant & animal communities & tree species consistent w/ overall multiple use objectives of planning area. Such diversity shall be considered thruout planning process. Inventories shall include quantitative data making possible the evaluation of diversity in terms of its prior & present condition.
Forest Service must monitor population of Management Indicator Species.
BALD & GOLDEN EAGLE PROTECTION ACT - BGEPA
federal crime to [knowingly] take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner any bald eagle commonly known as the American eagle or any golden eagle, alive or dead, or any part, nest, or egg thereof.
govt's interest in protecting eagles as a threatened or endangered species is compelling. permit scheme of BGEPA, is the least restrictive means of pursuing that interest b/c it still permits access to eagles & eagle parts for religious purposes, albeit not in as convenient a manner as some may like.
authorizes Sec/Interior to permit the taking, possession, & transportation of eagles for religious purposes of Indian tribes, & for certain other narrow purposes, if such taking, possession, or transportation is compatible w/ preservation of bald or golden eagle.
members of federally recognized Indian tribes can apply for permits to possess & transport eagles or eagle parts for religious purposes.
Fed Wildlife agents who find eagle carcasses send them to repository in CO, which fills applications on first-come, first-served basis.
Circuits have split over exclusion of nonmember Indians from permit program of BGEPA. 11th Circuit: restricting permits to members of federally recognized tribes is least restrictive means of pursuing a compelling interest in restoring Indian treaty rights. 10th Circuit has recognized a compelling interest in preserving Native American culture & religion & fulfilling trust obligations to Native Americans, it has held that govt had failed to prove that exclusion of nonmembers was least restrictive means to address interest. In 10th Circuit's view, govt had failed to show that broader eligibility would result in an increased wait substantial enough to endanger Native American cultures. 9th Circuit does not believe RFRA requires govt to make showing 10th Circuit demands of it.
RELIGIOUS FREEDOM RESTORATION ACT (RFRA)
suspends generally applicable federal laws that substantially burden a person's exercise of religion unless laws are the least restrictive means of furthering compelling govt’al interest.
TAYLOR GRAZING ACT
TGA authorizes Sec/Interior in his discretion, by order, to establish grazing districts on public lands, which in his opinion are chiefly valuable for grazing & raising forage crops.
established a system for administering grazing districts, thru issuance of grazing permits & collection of grazing fees.
Exec. Order No. 7509
provides that natural forage resources on Russell Range shall be 1st utilized for purpose of sustaining in a healthy condition a max of 400,000 sharptail grouse, & 1,500 antelope, the primary species, & such nonpredatory secondary species in such numbers as may be necessary to maintain balanced Wildlife population, but in no case shall consumption of forage by combined population of Wildlife species be allowed to increase burden of range dedicated to primary species.
> * Beyond those limits, Wildlife & livestock have equal priority in access to the forage resources.
all forage resources w/in this range or preserve shall be available, except as herein o/wise provided w/ respect to Wildlife, for domestic livestock under rules & regs promulgated by Sec/Interior.