gered" and "threatened."67/ The listing of any other species, however, can only be accomplished pursuant to a rigorous procedural and substantive review.

Authority to list particular species as endangered or threatened resides exclusively in the Secretary of the Interior, except as to those species over which the Secretary of Commerce was given authority by an executive reorganization in 1970.68/ For these, the Secretary of Commerce may determine to list a species initially or to change its status from threatened to endangered, and the Secretary of the Interior has the ministerial duty to effectuate such listing or change in status.69/ If, on the other hand, the Secretary of Commerce recommends the removal of any such species from a protected status or the downgrading of such species from endangered to threatened, the Secretary of the Interior must concur in that determination before it becomes effective.70/

Listings, de-listings, and changes in status may be initiated by the appropriate Secretary, or pursuant to petition from any interested person.71/ In the

671

68/

69/

70/

71/

16 U.S.C. $1533 (c) (3) (Supp. IV 1974). To date, no wholesale
republication of the pre-1973 lists has occurred, and it ap-
pears doubtful that it ever will. The status of a few spe-
cies on the earlier lists has been changed, but without
utilizing the statutory opportunity to effect republication
without public hearing or comment. The 1969 Act required a
review of the status of each listed species every five
years. The 1973 Act deletes that requirement.

See Reorg. Plan No. 4 of 1970, 35 Fed. Reg. 15627, 84 Stat.
2090. Although the Secretary of Agriculture has no authori-
ty with respect to the listing of plants, he is charged with
the enforcement of the Act and the Convention insofar as
they pertain to the importation and exportation of terres-
trial plants. 16 U.S.C. $1532 (10) (Supp. IV 1974).
Id. $1533(a)(2) (A).

Id. $1533(a) (2) (B).

The 1973 Act's provision for the initiation of listings by private petition was one of several innovations designed to encourage public participation in its implementation. See

event of a private petition, the Secretary is obliged to conduct a review of the status of the species covered by the petition if he finds that "substantial evidence" has been presented by the petitioner warranting such a review.72/ Whether initiated by the Secretary or by private petition, any action affecting the listing of any species must be "on the basis of the best scientific and commercial data available."73/ In addition, where the affected species is a "resident species," the Secretary must give advance notice to the governor of any state in which the species is known to occur and allow 90 days for comments and recommendations of such state. 74/ If the species is normally found in foreign countries or if foreign citizens harvest it on the high seas, the Secretary's action must follow appropriate consultation with such countries.75/

72/

73/

74/

75/

also text accompanying notes 104 and 128 infra.

Id. $1533(c) (2). Notwithstanding that neither the Act nor
the implementing regulations attempt to quantify how much
evidence is required to be "substantial," a number of list-
ings have in fact been initiated by private petition. See
e.g., 41 Fed. Reg. 24062 (June 14, 1976).

16 U.S.C. $1533 (b) (1) (Supp. IV 1974). See note 21 supra.
Id. This obligation applies only with respect to resident
species of wildlife, and not to plants. Although the Act
does not define the term "resident species," implementing
regulations interpret it, with respect to any given state,
to include any "species which exists in the wild in that
State during any part of its life." See 41 Fed. Reg. 47509
(Oct. 9, 1975) and 41 Fed. Reg. 24354 (June 16, 1976).
These provisions respecting notice to the states were sub-
stituted by the Conference Committee for provisions in the
Senate passed bill which would have required the establish-
ment of a special Advisory Committee on Endangered and
Threatened Species to make recommendations periodically con-
cerning the listing or delisting of particular species. See
H.R. Rep. No. 740, 93d Cong., 1st Sess. 24-25 (1973) (Con-
ference Report). This Advisory Committee would have func-
tioned similarly to the Marine Mammal Commission under the
Marine Mammal Protection Act. See Chapter Eleven supra at
text accompanying notes 14-16.

The required consul

16 U.S.C. $1533(b) (1) (Supp. IV 1974).
tation is to be undertaken "in cooperation with the Secre-
tary of State."

In addition to the foregoing, any regulation proposed to carry out the Act must be promulgated pursuant to procedures essentially identical to the informal rulemaking procedures of the Administrative Procedure Act, 76/ and may also be the subject of a public hearing, if objected to by a person adversely affected thereby.77/

One final feature of the listing process is the authority to designate any species as endangered or threatened if it is so similar in appearance to any other listed species that effective protection of the latter species requires listing of the former.78/ This provision, derived from a similar provision in the Convention, 79/ is potentially of very broad scope, since it is frequently very difficult to distinguish the products of one species from those of related species.

76/

77/

Unlike informal rulemaking under the Administrative Proce-
dure Act, 5 U.S.C. $553 (1970), the Act requires publication
of proposed regulations at least 60 days prior to their ef-
fective date. 16 U.S.C. $1533(f) (2) (A) (i) (Supp. IV 1974).
In addition, the publication of any proposed or final regu-
lation must "include a statement by the Secretary of the
facts on which such regulation is based and the relationship
of such facts to such regulation." Id. §1533(f) (3). Cer-
tain of these procedures may be waived temporarily in the
case of any regulation issued "in regard to any emergency
posing a significant risk to the well being of any species
of fish or wildlife." Id. §1533 (f) (2) (B).

Id. $1533(f) (2) (A) (ii). To date, the only time that a pub-
lic hearing has been held with respect to a proposed listing
was when the National Marine Fisheries Service unilaterally
determined to hold a hearing with respect to the joint pro-
posal of the Departments of Commerce and the Interior to list
three species of sea turtles. See 40 Fed. Reg. 21974 (May
20, 1975). When the two departments subsequently published
a somewhat different proposal respecting the same species,
they denied a request for a second public hearing. See 41
Fed. Reg. 45573 (Oct. 15, 1976). The two departments have
been unable to resolve which has jurisdiction over sea tur-
tles under the terms of the 1970 executive reorganization.
16 U.S.C. $1533 (e) (Supp. IV 1974).

78/

79/

See text accompanying notes 32-33 supra.

To date, however, this authority has been used very sparingly, principally to designate certain populations of a single species as threatened when other populations of the same species are in fact biologically threatened or endangered, as with the American alligator.80/

The Secretaries of Commerce and the Interior have virtually unlimited discretion in deciding when to consider the status of any listed or unlisted species. The Act prescribed no deadlines and establishes no priorities among potential candidates for addition to or deletion from the lists. Not even the Secretary's duty to conduct a review pursuant to a private petition is subject to any time limitation. In fact, the only time that the Act imposes a clear duty to act with respect to any particular species is when it requires that the Secretary give "full consideration" to "[s]pecies which have been designated as requiring protection from unrestricted commerce by any foreign country, or pursuant to any international agreement."81/

80/

81/

See 40 Fed. Reg. 44412 (Sept. 26, 1975). At the same time
that the Fish and Wildlife Service made its determination
with respect to the American alligator, it announced that it
would promptly initiate a rulemaking proceeding to list sev-
eral other crocodilian species pursuant to the same authori-
ty. Such a proposal would have constituted a substantially
more far-reaching exercise of the similarity of appearance
authority. To date, however, the promised regulation has
not appeared.

16 U.S.C. §1533(b) (3) (Supp. IV 1974). Although Appendix I
of the Convention is comprised of species "threatened with
extinction", the Fish and Wildlife Service has taken the
view that the appearance of a species there does not ipso
facto qualify it for listing as an endangered species under
the Endangered Species Act of 1973. See 41 Fed. Reg. 24062
(June 14, 1976). Similarly, although section 12 of the Act
required the Smithsonian Institution to report to Congress
on plants needing federal protection, 16 U.S.C. $1541 (Supp.
IV 1974), the Service has treated the Smithsonian's report
as an ordinary petition for listing of the species identi-
fied in it. See 41 Fed. Reg. 24524 (June 16, 1976).

A final issue concerning the listing process concerns the applicability of the National Environmental Policy Act to it.82/ To date, despite a great many listings and proposed listings, only one impact statement has been prepared.83/ It has been suggested that since the listing or delisting of a species is strictly a biological matter with respect to which no administrative discretion may be exercised, the preparation of an environmental impact statement would serve no useful purpose. 84/ It seems equally clear, however, that the listing or delisting of many species could have significant direct effects on the environment, including other endangered or threatened species, as well as potentially major indirect effects resulting from the operation of other provisions of the Act.85/ Accordingly, it is exceedingly difficult to reconcile the established administrative practice with the non-discretionary duty to prepare an impact statement for each major federal activity having significant environmental effects.

2. Prohibitions and Penalties

When a fish or wildlife species has been listed as an endangered species, it becomes subject to certain very stringent protections. One of the most significant of these is that no person subject to the jurisdiction of the United States may "take" anywhere in the United States, its territorial sea, or on the high

82/ 83/

841

85/

See Chapter Seven supra at text accompanying notes 59-91.
Department of Commerce, National Marine Fisheries Service,
Draft EIS, Proposed Listing of the Green Sea Turtle (Chelon-
ia Mydas), Loggerhead Sea Turtle (Caretta caretta), and
Pacific Ridley Sea Turtle (Lepidochelys olivacea) as Threat-
ened Species Under the Endangered Species Act of 1973.
See Lachenmeier, supra note 62 at 44.

See the discussion of section 7 of the Act at text accom-
panying notes 117-45 infra.