The Endangered Species Acts—Tools of the Trade for Protecting Species Diversity and Forest Health


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In the time of the Anthropocene, human activities have triggered what has become known as the “sixth great extinction period.” As far back as the 1970s, citizens and lawmakers alike saw this massive crisis unfolding and began to take steps towards reversing the downward spiral of species in California and across the United States.

In California, 1970 was a landmark year for historic environmental legislation, with the enactment of the California Environmental Quality Act (CEQA), and the original version of the California Endangered Species Act (CESA). Yes, believe it or not, CESA actually came before the current version of the Endangered Species Act. The modern version of CESA came into being in 1984, and was substantially amended into its current form in 1997.

In 1973, Congress enacted the modern version of the Endangered Species Act (ESA). In enacting the ESA, Congress found that “various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untampered by adequate concern and conservation.” The law was clear in its ambition; as the United States Supreme Court found, the “plain intent” of Congress in enacting the ESA “was to halt and reverse the trend toward species extinction, whatever the cost.” Similarly, in enacting CESA, the California state legislature found that untampered economic growth and development had driven certain species to extinction, and threatened to push other species toward extinction. As such, in enacting CESA, the California legislature declared that it is the policy of the state to “conserve, protect, restore, and enhance” threatened and endangered species in the state.

Both the ESA and CESA are founded on the basic underpinning of preventing “take” of threatened or endangered species listed pursuant to the Acts. “Take,” however, is defined differently in the ESA and CESA. The fundamental difference in the “take” definitions is that the ESA includes the terms “harm” and “harass” as prohibited actions, whereas CESA does not. The prohibitions of both acts apply to any “person” who may engage in a prohibited activity.

Both the ESA and CESA contain fundamental mandates for agencies responsible for implementation of the Acts to “conserve” species listed as threatened or endangered. In both Acts, the term “conserve” essentially means that agencies and governments must utilize any means necessary to protect and recover threatened or endangered species to the point where listing is no longer necessary.

EPIC’s efforts to defend biodiversity

Over the years, EPIC has successfully utilized the tools of the ESA to protect threatened and endangered species from damaging human activities, primarily logging of suitable habitat for old-growth dependent species. In EPIC’s first federal Endangered Species Act case, Marbled Murrelet v. Pacific Lumber Co. (1993), a federal court determined that Pacific Lumber’s plans to log 237 acres of contiguous old-growth forest in Owl Creek under would violate the ESA by harassing and harming the threatened marbled murrelet. This landmark decision was