fully operative, its value as a wildlife conservation device will be limited by the fact that the international trade which it seeks to control is but one of several causes of wildlife endangerment.

B. The Endangered Species Act of 1973

In particular, it

Even as the Convention was being signed in early 1973, it was already apparent to many in the United States that the task of conserving endangered wildlife would require a more comprehensive effort than the 1966 and 1969 Acts had authorized. was widely felt that the protection those Acts afforded was often too little and too late. President Nixon had echoed that sentiment a year earlier in his Environmental Message of February 8, 1972, in which he said that existing law "simply does not provide the kind of management tools needed to act early enough to save a vanishing species."50/ Congress also had already accepted that principle when it provided in the Marine Mammal Protection Act that marine mammals might be considered "depleted," and therefore eligible for special protection, even before they became endangered.51/

50/

51/

The failure of the protective provisions of the

tion. The United States, which was the first country to
ratify the Convention did not designate its Management and
Scientific Authorities until April, 1976, Exec. Order No.
11911, 41 Fed. Reg. 15683 (April 14, 1976), or propose reg-
ulations to implement the Convention until June, 1976. See
41 Fed. Reg. 24367 (June 16, 1976). As of November, 1976,
only 33 countries had ratified or acceded to the Convention.
Conspicuously absent from this number were some of the
world's major wildlife importing countries, including
France, Belgium, Italy, and the Netherlands.

8 Weekly Comp. of Pres. Doc. 218, 223-24 (Feb. 8, 1972).
For a discussion of the concept of "depletion" under the
Marine Mammal Protection Act, see Chapter Eleven supra at
text accompanying notes 60-70.

1966 and 1969 Acts to come into play early enough was not their only recognized shortcoming. They also failed to give any measure of protection to endangered populations of otherwise healthy species. Again, however, the Marine Mammal Protection Act, through its provision for protection of individual population stocks, offered a model for change.52/

The existing federal endangered species program was hobbled in two other critical respects. The first was that it included no prohibition on the taking of endangered species, preferring instead to leave the traditional authority of the states to regulate the taking of resident wildlife undisturbed. Here too, however, the Marine Mammal Protection Act, by providing for an indefinite federal preemption of that authority, was indicative of Congress' willingness to reconsider those traditional allocations of responsibility.53/ Finally, to the extent that the 1966 and 1969 Acts contained an obligation to avoid adverse impacts of proposed federal activities on endangered species and their habitats, that obligation was limited to a few designated agencies and was hedged by considerations of what was "practicable and consistent with the primary purposes" of those agencies.54/

To rectify these and other perceived inadequacies, Congress enacted the Endangered Species Act of 1973.55/ Its statement of congressional findings and purposes and its definitions reflect the truly comprehensive

52/

53/

54/

55/

See Chapter Eleven supra at note 11.

For a discussion of the respective state and federal roles
under the Marine Mammal Protection Act, see Chapter Eleven
supra at text accompanying notes 141-60.
See text accompanying notes 7-8 supra.

16 U.S.C. $$1531-43 (Supp. IV 1974), as amended by Pub. L.
No. 94-359, 90 Stat. 913.

sweep which it was intended to have. Recognizing that endangered species of wildlife and plants "are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people, "56/ the Act declares the bold purpose of providing "a means whereby the ecosystems upon which [they] depend may be conserved."57/ To accomplish this, it further declares a policy "that all Federal departments and agencies shall seek to conserve endangered species and shall utilize their authorities in furtherance of the purposes of this Act."58/ The conservation measures it requires include "all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary."59/ Finally, to eliminate any chance for a more restrictive interpretation, the Act defines the wildlife eligible for its protection as including "any member of the animal kingdom."60/

The 1973 Act borrows from the Convention and the Marine Mammal Protection Act the principle that the "species" of wildlife to be protected may include not only true species and subspecies, but distinct populations thereof as well.61/ So also, it borrows the con

58/

59/

60/

61/

Id. $1531 (c) (emphasis added). Compare the much more circumscribed statement of policy found in the 1966 Act at text accompanying note 7 supra.

16 U.S.C. $1532 (2) (Supp. IV 1974).

"

Id. $1532(5). The Act's definition of "plant" likewise in-
cludes "any member of the plant kingdom. Id. $1532(9).
For reasons not readily apparent, the Act distinguishes be-
tween animals and plants in this regard; protection of popu-
lations extends only to the former. Thus, the Act's defini-
tion of "species" includes "any subspecies of fish or wild-
life or plants and any other group of fish or wildlife of
the same species or smaller taxa in common spatial arrange-
ment that interbreed when mature." Id. $1532(11).

cept of recognizing differing degrees of vulnerability and establishing protective measures appropriate to those differences. Thus, the Act establishes two groups of protected species: those "endangered" and those "threatened." The former includes "any species which is in danger of extinction throughout all or a significant portion of its range; "62/ the latter includes "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."63/ The category of "threatened" was intended to function not only as a means of giving some protection to species before they became endangered, but also as a means of gradually reducing the level of protection for previously endangered species which had been successfully "restored" to the point at which the extreme protective measures provided for that category were no longer necessary.64/

62/

63/

64/

Id. $1532(4). For a discussion of some of the conceptual difficulties of determining what constitutes a "significant portion" of a given species' range, see Lachenmeier, The Endangered Species Act of 1973: Preservation or Pandemonium,

5 Envt'l L. 29, 36-37 (1974). The Fish and Wildlife Ser-
vice's implementing regulations give no guidance whatsoever.
See 50 C.F.R. $17.3 (1975). The only species ineligible for
protection as endangered species are insects "determined by
the Secretary to constitute a pest whose protection under
the provisions of this Act would present an overwhelming and
overriding risk to man." No occasion has yet arisen to test
this limited exception, and it seems unlikely that it ever
will, for the closer any insect pest approaches to the brink
of extinction, the risk it poses to man will almost neces-
sarily be reduced in significance.

16 U.S.C. §1532(15) (Supp. IV 1974). When the Marine Mammal
Protection Act was passed, its category of "depleted" spe-
cies was, at least in part, the functional equivalent of the
threatened status described in the text. When that Act was
amended by the Endangered Species Act of 1973, however, the
depleted category became, in effect, a category of marine
mammals likely to become threatened. See Chapter Eleven
supra at text accompanying notes 63-70.
Assistant Secretary of the Interior Nathaniel P. Reed in
1972 likened the procedure of moving a given species from
the endangered list to the then proposed threatened list "to

Endangered species are protected by a number of stringent prohibitions to be described later; threatened species are protected by "such regulations as . . . [are] necessary and advisable to provide for the conservation of such species," which may be as restrictive as the prohibitions applicable to endangered species.65/ Because the Act defines "species" so as to include distinct geographic populations, it is possible to have a particular species subject to stringent protection as an endangered species in one area, less stringent protection as a threatened species in another, and no federal protection at all elsewhere.66/

1. The Listing Process

Before discussing the substance of the protective measures applicable to endangered and threatened spe cies, the process by which those species come to be designated as such will be described. Under the 1966 and 1969 Acts, certain species had already been designated as threatened with extinction. The 1973 Act directed that any species so designated at the time of its enactment should be deemed an endangered species pending republication of the lists of such species so as to conform to the new classifications of "endan

65/

66/

that of a hospital where the patient is transferred from the intensive care unit to the general ward until he is ready to be discharged." Endangered Species Conservation Act of 1972: Hearings on S. 249, S. 2199 and S.3818 Before the Subcomm. on the Environment of the Senate Comm. on Commerce, 92d Cong., 2d Sess. 70 (1972).

16 U.S.C. $1533 (d) (Supp. IV 1974). As a general rule, the Fish and Wildlife Service has, by regulation, made threatened species subject to the same restrictions as endangered species. See 50 C.F.R. §17.31(a)(1975).

The American alligator is an example of a species that is endangered in certain locales and only threatened elsewhere. See 40 Fed. Reg. 44412 (Sept. 26, 1975).