Professor Richard Hildreth is the Co-Director of the Ocean and Coastal Law Center, University of Oregon. Jeanne Thompson earned her J.D. in 1994 from the University of Oregon.

The federal law seeks to prevent the extinction of species that are endangered or threatened by severely restricting the circumstances under which such species can be intentionally or unintentionally "taken." This legal term means not only killed, but also harassed, harmed, and subjected to several other prohibited actions. The law does not stop at protecting listed species; it seeks to promote their recovery.

Under section 4 of the Endangered Species Act, the Secretary of the Interior, acting through the U.S. Fish and Wildlife Service (USFWS), is charged with listing species determined to be threatened or endangered. Endangered species are those that the agency has determined to be "in danger of extinction throughout all or a significant portion of their range." Threatened species are those determined "likely to become an endangered species within the foreseeable future." "Interested persons" (including environmental or other organizations) can petition to have species listed.

Protections

Section 9 of the Endangered Species Act makes it unlawful for any person subject to the jurisdiction of the United States to take, import, export, possess, sell, deliver, carry, transport, or ship any species listed as endangered. The complete legal definition of "take" includes harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, collecting, or attempting to collect. However, under section 10 of the law, takings that are "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity" not targeted on a listed species may be authorized by permit. So, for example, fishing practices that target listed salmon species on the Snake River are prohibited by section 9. But whether takings of listed species can be permitted as ''incidental'' in the context of mixed stock salmon fisheries has not been definitely determined.

Section 7 of the Endangered Species Act prohibits federal agencies from carrying out actions that would be likely to "jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species . . . determined . . . to be critical."

Either the National Marine Fisheries Service (NMFS), the agency responsible for salmon, or the USFWS must study a proposed federal action's effects on listed species and issue a "biological opinion." This document describes whether the action would violate section 7 by jeopardizing the species' continued existence or adversely modifying its critical habitat. If a violation is found, the biological opinion suggests reasonable and prudent alternatives to the proposed action. If no section 7 violation is found, but the proposed federal action nevertheless would result in the incidental taking of a listed species, NMFS or the USFWS will issue an "incidental take statement" specifying the conditions under which the take will be allowed. Biological opinions may also include nonbinding conservation recommendations.

Critical Habitat

"Critical habitat" is defined under the Endangered Species Act as "specific areas . . . occupied by the species . . . on which are found those physical or biological features (1) essential to the conservation of the species and (2) which may require special management considerations or protection." The law also allows the Secretary (of Interior or Commerce) to designate other "specific areas outside the area occupied by the species" that are "essential for the conservation of
the species."

As an example, in December 1993 NMFS designated critical habitat for the Snake River sockeye, spring/summer chinook, and fall chinook salmon. The designation consists of four habitat components: spawning and juvenile rearing areas; juvenile migration corridors; areas for growth and development to adulthood; and adult migration corridors. Specific areas, furthermore, were designated for each of these components. NMFS also identified the essential elements of each component that qualified these areas as critical habitat for the listed species.

The designated habitat embraces the Columbia, Snake, and Salmon Rivers, many Snake and Salmon River tributaries, and adjacent riparian zones 300 feet wide on each bank. Ocean areas used by the listed species are not included; nevertheless, ocean resource uses relevant to the salmon's recovery are affected by other Endangered Species Act requirements.

In addition to its designation of critical habitat, NMFS determined that some activities taking place in or around the critical habitat areas may require "special management considerations" in order to protect the integrity of the critical habitat. These activities include timber harvesting, livestock grazing, mining, road construction, hydropower plant operations, water storage, and barge transportation. NMFS specifically cited the U.S. Army Corps of Engineers, the Bureau of Reclamation, the Bureau of Land Management, and the Forest Service as among those federal agencies that would be affected by the critical habitat designations.

Economic Considerations

Section 4(b) of the Endangered Species Act mandates that the benefits and costs of designating particular areas as critical habitat be identified by the listing agency. This provision can be misleading. In critical habitat designations, the focus is on the incremental net costs specifically resulting from critical habitat designation, over and above the economic effects attributable to listing the species. Economic analyses submitted by commenters as part of the critical habitat designation process must clearly distinguish the incremental costs directly attributable to designating specified areas as critical habitat.

For critical habitat designation and recovery planning for listed Snake River salmon, NMFS commissioned an independent report on the economic effects within the range of potential critical habitat designations. The agency also requested public comments on both the scientific and economic aspects before proposing critical habitat.

Recovery Plans

Section 4 of the Endangered Species Act establishes guidelines for recovery plans for endangered species. Developing and implementing such a plan is mandatory, like the designation of critical habitat, "unless the [Secretary] finds that such a plan will not promote the conservation of the species." Although the statutory language describing the content and implementation of recovery plans is minimal, if developed and implemented, recovery plans have the potential to provide a strong tool for the protection and possible recovery of endangered or threatened species.

Recovery plans are "for the conservation and survival" of listed species. Importantly, the Endangered Species Act defines "conservation" as "the use of all methods . . . necessary to bring any endangered . . . or threatened species to the point at which the[se] measures are no longer necessary." The definition states that "such methods . . . include . . . all activities associated with scientific resource management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation."

This definition of conservation is important because it states that "scientific resource management" is to be used over other, more politically or economically oriented management tools.

Section 4(f) sets out three guidelines for recovery plans. They require a description of the management actions needed for conservation and survival of the species; objective, measurable criteria which, when met would allow "delisting" of the species; and estimates of the time and cost necessary to reach the recovery plan's goal, together with specific interim steps.

While the Endangered Species Act specifies that designation of critical habitat shall include consideration of the economic impacts of such a designation, recovery plans give priority to those areas specifically affected by economic activity.

An area excluded from critical habitat for economic considerations could still be included in a recovery plan.

For More Information

This article was adapted from "Legal Aspects of Columbia-Snake River Salmon Recovery," Ocean and Coastal Law Memo 41 (May 1994). The Memo is distributed by the Extension Sea Grant Program, Oregon State University, ADS 422-A, Corvallis, OR 97331-2119.

Extreme limitations on the coastal salmon fishing season this year have left some fishermen with few options. The fishing limitations were designed to protect dwindling salmon runs. In August fishermen and local officials along the west coast were still waiting anxiously to learn how the federal government plans to allocate $15.7 million in economic disaster relief promised in May. Among the proposals under discussion was a jobs program for dislocated fishermen, employing them to help restore degraded salmon habitat.