For 18 years, whenever the U.S. Fish and Wildlife
Service had to decide whether a proposed development violated the
Endangered Species Act, the agency applied a basic standard: Will
it affect the survival of an endangered species? From now on,
that’s not good enough, two federal courts have
ruled.
Instead, the Fish and Wildlife Service must also
consider whether developments will affect the long-term “recovery”
of endangered species. The rulings came in August, in a district
court case over off-road traffic in Mojave desert tortoise habitat,
and a 9th Circuit Court of Appeals case over logging in spotted owl
habitat.
Both environmental and property-rights activists
say the rulings could fundamentally alter the way the Endangered
Species Act is implemented. “A lot more projects will need to be
modified, or simply not done, because they’re slowly
whittling away at many species’ ability to recover,” says
Michael Lozeau, an Earthjustice attorney involved in the tortoise
case.
“The (appeals) court took a very broad-brushed view
of a very nuanced matter,” says Joe Nelson, legal counsel for the
National Endangered Species Act Coalition, a pro-industry group. It
will put “a much higher burden on the property owner,” he adds, and
makes development within critical habitat “awfully
difficult.”
The Fish and Wildlife Service is considering
whether to continue the court battle with another
appeal.
This article appeared in the print edition of the magazine with the headline For endangered species, survival no longer enough.
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