Acropora spp., endangered -legal background

Jamie D. Bechtel warrior at
Sun Feb 28 11:06:13 EST 1999

hello all - i have been following the debate with some interest and thought
some background information may be helpful.  there is an excellent article
discussing the role of science in the listing of endangered species.
Bogert, Laurence Michael "That's my story and i'm sticking to it: is the
best available science any available science under the endangered species
act." 31 Idaho Law Review 85 (1994). 

despite some recent flexibility mechanisms built into the ESA, it remains a
strong legislative tool. the endangered species act (ESA) is unique in
terms of environmental legislation in that it contains a flat, substanative
prohibition. weighing heavily in favor of the application of the endangered
species act is the fact that, beyond a shadow of doubt, congress intended
to grant high priority status to endangered species.  consequently, the ESA
remains a strong legislative tool and is upheld uniformily and consistently
in district courts.

Sec. 7 of the ESA supplies much of the force of the ESA in  "insur[ing]
that actions authorized, funded, or carried out by [federal deptarments and
agencies] do not jeapardize the continued existence of such endangered
species and threatended species or result in the destruction or
modification of habitat of such species which is determined by the
Secretary, after consultation as appropriate with the affected States, to
be critical".

in short, if a project will cause harm to an endangered species, that
project can likely be brought to a relatively quick halt. 

1n 1995, sec 9 (regarding illegal taking species w/i the US and the
territorial sea) of the ESA won its day in court.  the supreme court
allowed the definition of "harm" to include "significant habitat
modification or degradation where it actually kills or injures wildlife by
significantly impairing essential behavioral patterns, including breeding,
feeding, or sheltering (babbit v. Sweet Home Chapter of Communities for a
Great Oregon, S. Ct. US 1995)

it should be noted that, while application of the ESA is unlikely (not
impossible) to improve current water quality and habitat conditions, it
could go along way in preventing further decline(although some interesting
battles are coming up with regards to language in the esa to promote
conservation of species). the law was not designed to determine protective
measures for different reproductive behaviors. it is likely that we do not
need to consider recruitment fitness.  (criteria listed below)

it should also be noted that in determining whether a population is
threatened, it need not be threatened globally, but throughout a portion of
its range.  many examples exist, such as the protection of the bald eagle
in US domestic populations despite a thriving population in Alaska.
distinct population segments can be protected. this arguement is likely to
be stronger when additional populations occur outside US states and
territories but are threatened within the US. 

the esa also allows critical habitat to be protected - slightly more
complicated to achieve but based on an endangered species listing. 

the application of esa relies solely on the "best scientific and commercial
data available." the act allows that listing of a species as endangered or
threatend follows certain criteria: if the species experiences 1. present
or threatened destruction or modification of its habitat or range. 2.
overutilization for commercial, recreational, scientific, or education
purposes 3. disease/predation 4. inadequacy of existing regulatory
mechanism or other natural or manmade factors affect its continued existence

listing of an organmism that is not truly endangered can be extremely
dangerous in providing fuel for politicians and industry trying to bring an
end to the act. 

final thoughts, the legal arena is constantly changing and many questions
regarding application of the ESA remain untested until they appear in court.  

one thought permeating the legal environment is the idea that scientist
don't agree on any thing and data is untrustworthy. unfortunately, a few
bad apples etc... however, as a scientist interacting in the legal
community, i find it disheartening to have to constantly defend the
workings of the scientific community. any suggestions on how to begin
dispelling the myth and providing explanation?

hope this information is helpful -



Jamie D. Bechtel					Jamie D. Bechtel
Boston University					Boston College School of Law
Graduate School of Biology				885 Centre Street	
5 Cummington Street					Newton, MA 02159
Boston, MA 02215

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