Endangered Species in the United States

Presidential Memoranda

Presidential Memoranda regarding Proposed Revised Habitat for the Spotted Owl: Minimizing Regulatory Burdens (February 28, 2012):

“Today, compelled by court order, the Department of the Interior (Department) proposed critical habitat for the northern spotted owl. The proposal is an initial step in gathering important information that will inform a final decision on what areas should be designated as critical habitat for the spotted owl, based on a full evaluation of all key criteria: the relevant science, economic considerations, the impact on national security, and a balancing of other factors.

Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review), explicitly states that our “regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation” (emphasis added). Consistent with this mandate, Executive Order 13563 requires agencies to tailor “regulations to impose the least burden on society, consistent with obtaining regulatory objectives” (emphasis added). Executive Order 13563 also requires agencies to “identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice” while selecting “those approaches that maximize net benefits.” To the extent permitted by law, our regulatory system must respect these requirements.

The Endangered Species Act (ESA) states: “[t]he Secretary shall designate critical habitat . . . on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat” (emphasis added). 16 U.S.C. 1533(b). The ESA also provides that “[t]he Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned” (emphasis added). Id. Under the ESA, scientific, economic, and other considerations are relevant to critical habitat designations. Under a regulation issued by the Department in 1984, however, the economic analysis follows the scientific assessment, rather than being presented simultaneously with it; one of the purposes of this memorandum is to direct you to propose revisions to that regulation.

Consistent with the ESA and Executive Order 13563, today’s proposed rule emphasizes the importance of flexibility and pragmatism. The proposed rule notes the need to consider “the economic impact” of the proposed rule, outlines a series of potential exclusions from the proposed critical habitat, and asks for public comments on those exclusions and on other possible exclusions. Private lands and State lands are among the potential exclusions, based on a recognition that habitat typically is best protected when landowners are working cooperatively to promote forest health, and a recognition — as discussed in the proposed rule — that the benefits of excluding private lands and State lands may be greater than the benefits of including those areas in critical habitat.

Importantly, the proposed rule recommends, on the basis of extensive scientific analysis, that areas identified as critical habitat should be subject to active management, including logging, in order to produce the variety of stands of trees required for healthy forests. The proposal rejects the traditional view that land managers should take a “hands off” approach to forest habitat in order to promote species health; on-going logging activity may be needed to enhance forest resilience.

In order to avoid unnecessary costs and burdens and to advance the principles of Executive Order 13563, consistent with the ESA, I hereby direct you to take the following actions:

(1) publish, within 90 days of the date of this memorandum, a full analysis of the economic impacts of the proposed rule, including job impacts, and make that analysis available for public comment;

(2) consider excluding private lands and State lands from the final revised critical habitat, consistent with applicable law and science;

(3) develop clear direction, as part of the final rule, for evaluating logging activity in areas of critical habitat, in accordance with the scientific principles of active forestry management and to the extent permitted by law;

(4) carefully consider all public comments on the relevant science and economics, including those comments that suggest potential methods for minimizing regulatory burdens;

(5) give careful consideration to providing the maximum exclusion from the final revised critical habitat, consistent with applicable law and science; and

(6) to the extent permitted by law, adopt the least burdensome means, including avoidance of unnecessary burdens on States, tribes, localities, and the private sector, of promoting compliance with the ESA, considering the range of innovative ecosystem management tools available to the Department and landowners.

Executive Order 13563 states that our regulatory system “must promote predictability and reduce uncertainty.” Uncertainty on the part of the public may be avoided, and public comment improved, by simultaneous presentation of the best scientific data available and the analysis of economic and other impacts. Accordingly, in order to provide more complete information in the future regarding potential economic impacts when critical habitat proposals are first offered to the public, I direct you to take prompt steps to propose revisions to the current rule (which, as noted, was promulgated in 1984 and requires that an economic analysis be completed after critical habitat has been proposed) to provide that the economic analysis be completed and made available for public comment at the time of publication of a proposed rule to designate critical habitat.”

ILLEGAL IMPORTATION OF PROTECTED SPECIES

Some important cases brought by the Department of Justice are:

United States v. Nathaniel Swanson (W.D. Wash.)

On January 24 and 17, 2014, Cheuk Yin Ko, Nathaniel Swanson, and Tak Ming Tsang were sentenced after previously pleading guilty to conspiracy to smuggle various turtle and reptile species from the United States. Working with two foreign nationals residing in the United States, including Tsang, Swanson illegally exported species including Eastern box turtles, North American wood turtles, and ornate box turtles to buyers located in Hong Kong. Swanson also was involved in importing several protected species from Hong Kong, including black-breasted leaf turtles, Chinese striped-necked turtles, big-headed turtles, fly river turtles, and an Arakan forest turtle. The Arakan forest turtle is critically endangered, having once been presumed extinct. The illegal trafficking spanned approximately four years. As part of the sentencing, Ko was ordered to forfeit almost 150 reptiles, including 40 eastern box turtles, ten ball pythons, four Gila monsters, and one boa constrictor. Several others remain under indictment. Animals that survived and were seized by law enforcement have been receiving care from wildlife rehabilitation centers and local zoos. Swanson will serve one year and one day of incarceration, followed by three years’ supervised release. Tsang and Ko will serve six and five months’ incarceration, respectively. Tsang also will be subject to two years’ supervised release. All three defendants were held jointly and severally liable for $28,583 in restitution to be paid as follows: $16,029 to the Sarvey Wildlife Care Center and $12,554 to the Woodland Park Zoo.

United States v. Patty Chen (N.D. Calif., S.D. Fla.)

On May 9, 2014, Patty Chen was sentenced to serve a three-year term of probation and to pay $29,760 in restitution to the Lacey Act Reward Fund after previously pleading guilty to false statement and Lacey Act violations for illegally importing wildlife products (including shark fins, shark fin noodles, sea horses, dried conch, dried fish, and eel maw) into the United States from Ecuador. These items have been valued at nearly $30,000. In November 2009 and October 2011, Chen illegally brought wildlife into the United States by falsifying customs documentation, denying that she had any wildlife in her possession.

Endangered Species Act (ESA) Background

Citizen-Suit Claims under § 11(g)(1) of the Endangered Species Act

This section discusses generally the subject of Citizen-Suit Claims under § 11(g)(1) of the Endangered Species Act, how to determine the facts essential to Citizen-Suit Claims under § 11(g)(1) of the Endangered Species Act, and, to some extent, how to prove it in litigation and defense. Related topics are also addressed.