it recognizes the international character of the problem of endangered wildlife and attempts to develop a variety of mechanisms to address that aspect of the problem. This chapter examines the many facets of the federal program to conserve endangered species. It begins by tracing the development of that program from its inception in 1966. It concludes with a detailed examination of the many complex provisions of the Endangered Species Act of 1973,2/ the first federal statute to embody a truly comprehensive federal effort at wildlife preservation. A. Background 1. The Endangered Species Preservation Act of 1966 The federal effort to protect endangered species of wildlife was initiated by the Endangered Species Preservation Act of 1966.3/ That Act directed the Secretary of the Interior to "carry out a program in the United States of conserving, protecting, restoring and propagating selected species of native fish and wildlife."4/ Although Congress took note that a wide vari 2/ 3/ 4/ 16 U.S.C. §§1531-43 (Supp. IV 1974), as amended by Act of July 12, 1976, Pub. L. No. 94-359. Pub. L. No. 89-669, §§1-3, 80 Stat. 926 (repealed 1973). Sections 4 and 5 of the Act, which consolidated various land units under the authority of the Department of the Interior into a single refuge system and established general standards for their administration, were subsequently designated as the National Wildlife Refuge System Administration Act of 1966. See Pub. L. No. 91-135, §12(f), 83 Stat. 275. That Act is discussed in Chapter Six supra at text accompanying notes 29-48. Pub. L. No. 89-669, §2(a), 80 Stat. 926. Although the Department of the Interior was of the view that its authority under existing law was adequate to initiate an endangered species program, the House Committee on Appropriations refused to make any money available for that purpose until In ety of causes, including loss of habitat, overexploitation, disease, and predation, contributed to the endangerment of many species of wildlife, the only clearly discernible element of the program it authorized was habitat protection. Thus, the 1966 Act authorized the Secretary to use the land acquisition authority of existing laws to carry out the new program, and in addition created a new source of acquisition authority for which he could use up to $15 million from the Land and Water Conservation Fund.5/ Beyond the land acquisition authority, the contents of new endangered species programs were vague and imprecise.6/ Thus, the Secretary was directed to review other programs under his authority, with a view to utilizing them, "to the extent practicable," for furthering the purposes of the endangered species program, and to "encourage other Federal agencies to utilize, where practicable, their authorities in furtherance of" that program. 7/ Closely related to these directives to "review" and to "encourage" was the Act's declaration of congressional policy that the Secretaries of the Interior, Agriculture and Defense and the heads of all agencies within their departments "shall seek to protect species of native fish and wildlife, including migratory birds, that are threatened with extinction, 5/ 6/ 7/ terior's legislative authority was clarified. The princi- Pub. L. No. 89-669, $$2(b) and 2(c), 80 Stat. 926. The Act See Palmer, Endangered Species Protection: A History of and, insofar as is practicable and consistent with the primary purposes of such bureaus, agencies, and services, shall preserve the habitats of such threatened species on lands under their jurisdiction."8/ The wildlife for which the newly authorized program was to be carried out were those native wildlife "threatened with extinction." A species was to be determined as threatened with extinction upon a finding by the Secretary of the Interior after consultation with the af- In making such determination, the Secretary was directed to "seek the advice and recommendations of interested persons," including wildlife scientists, and to publish in the Federal Register the names of all species found to be threatened with extinction.10/ The Act did not, however, specify any further procedures for the Secretary to follow in making such determinations. Finally, in addition to the obligation to consult with the states prior to listing particular endangered species, the Secretary was directed to "cooperate to the maximum extent practicable with the several States" in carrying out the program.11/ While the 1966 Act marked a significant first step in the effort to protect endangered species, it had a number of serious limitations, the most notable of which was that it placed no restriction whatever on their taking. That power remained solely with the states.12/ Nor did the Act restrict interstate commerce in endangered species. Further, very little was mandated in the way of habitat protection apart from the limited acquisition authority conferred on the Secretary, for the other major federal landholding agencies were only directed to preserve habitats "insofar as practicable and consistent with the primary purposes" of such agencies. Finally, the 1966 Act applied only to "native" wildlife, offering no protection for foreign wildlife in danger of extinction. 2. The Endangered Species Conservation Act of 1969 Some of these deficiencies of the 1966 Act were remedied three years later when it was supplemented by the Endangered Species Conservation Act of 1969.13/ That Act expanded somewhat the acquisition authority conferred by the 1966 Act, defined the types of wildlife subject to protection under the 1966 Act, and amended the Lacey and Black Bass Act so as to expand 12/ 13/ Arguably, the declaration of policy that the Interior, Agriculture and Defense Departments "seek to protect" endangered species obligated them to prohibit the taking of such species on lands under their jurisdiction. The legislative history seems to support such an interpretation. See Letter from the Office of the Secretary of the Interior to the Senate Commerce Comm., Sept. 7, 1965, quoted in Hearings on S.2117 Before the Subcomm. on Merchant Marine and Fisheries of the Senate Comm. on Commerce, 89th Cong., 1st Sess., ser. 89-44, at 32 (1965). However, at that time, the authority of the federal government to regulate the taking of wildlife on federal land in the absence of any threatened harm to the land was much in doubt. See Chapter Two supra at text accompanying notes 60-75. Pub. L. No. 91-135, 83 Stat. 275. their respective scopes. Its major innovation, however, was its authorization to the Secretary to promulgate a list of wildlife "threatened with worldwide extinction" and to prohibit their importation into the United States, except for certain limited purposes. For domestic wildlife, the changes introduced by the 1969 Act were relatively minor and, in one case, seemingly unncessary if the earlier legislation it amended had been give a literal interpretation. Thus, the 1969 Act amended the 1966 Act by adding to it a definition of "fish or wildlife" which limited it to "any wild mammal, fish, wild bird, amphibian, reptile, mollusk, or crustacean."14/ This definition was viewed as an expansion of the scope of the earlier Act only because the Department of the Interior had limited the undefined term "fish or wildlife" in that Act to vertebrate animals.15/ Similarly, the 1969 Act amended section 3 of the Lacey Act so as to expand its prohibition on interstate and foreign commerce in unlawfully taken wild birds and mammals to include reptiles, amphibians, mollusks and crustaceans.16/ Finally, the 1969 Act expanded somewhat the acquisition authority conferred by the 1966 Act by authorizing the appropriation of up to $1 million annually for three years to acquire privately owned lands within the boundaries of areas already administered by the Secretary, 17/ and by increasing from $750,000 to $2.5 million the maximum 14/ Id. $1. 16/ 15/ See letter of the Assistant Secretary of the Interior to the Speaker of the House of Representatives, dated January 17, 1969, in H.R. Rep. No. 382, 91st Cong., 1st Sess. 14 (1969). Pub. L. No. 91-135, §7(a), 83 Stat. 275, (amending 18 U.S.C. $43 (1964)). A major purpose behind this amendment was to achieve some measure of federal protection for the American alligator. See H.R. Rep. No. 382, 91st Cong., 1st Sess. 9 (1969). 17/ Pub. L. No. 91-135, §12(c), 83 Stat. 275. |