Endangered and Threatened Species Preservation Act of 1973 Nears Final Passage

In March of this year, after the United States signed the Convention on International Trade in Endangered Species of Wild Fauna and Flora,¹ two bills designed to implement the Convention were introduced in the House of Representatives. The two measures, one proposed by the Administration, the other by Representative John Dingell, were analyzed in a Comment in the April, 1973, issue of ELR.² On September 18, a toughened version of the Dingell bill passed the House by an overwhelming 390-12 vote; in the Senate, a similar bill was approved unanimously in July. Although the two measures differ significantly, both would grant the Secretary of the Interior sweeping new power to take actions necessary to preserve species currently or potentially in danger of extinction.

The Convention required compilation of three lists: animals and plants in imminent danger of extinction; those which may become threatened with extinction unless trade in the species is regulated closely; and those which are protected within signatory countries irrespective of the danger of extinction. For the first category, trade in the species is permitted only for noncommercial purposes, and with the permission of both the importing and exporting countries; for the second and third, trade is allowed only with a permit from the country of export. The House and Senate bills, which direct the Secretary of the Interior to prepare such lists for this country, are designed to bring United States law into conformity with the Convention even before its ratification.

The legal basis for the two bills is a Supreme Court case, Missouri v. Holland,³ which remains something of an oddity in American constitutional law.A treaty was concluded in 1916 between the United States and Great Britain to provide protection for migratory birds traversing parts of the U.S. and Canada. Two years later, Congress enacted the Migratory Bird Treaty Act, prohibiting the taking or sale or migratory birds, and authorizing the Secretary of Agriculture to prepare implementing regulations. The state of Missouri brought a bill in equity, charging an unconstitutional interference with the state's Tenth Amendment rights, as well as an infringement of the state's property rights in birds within its jurisdiction.

The Supreme Court, by Justice Holmes, noted that earlier congressional attempts to regulate the killing of migratory birds had been invalidated at the district court level on the theory that the birds belonged to the states, for the benefit of their citizens, and the federal government was without power to legislate in this area. The case before it was, however, not simply a federal statute but a statute implementing a treaty, and by Article VI of the Constitution, treaties made under the authority of the United States, as well as laws made pursuant to them, are the supreme law of the land. Without deciding whether the earlier district court decisions were correct, the Court ruled that what Congress could not legally accomplish on its own authority it might be able to do when acting pursuant to a validly concluded treaty.

In the case of the bill now before Congress, this reasoning is employed to give broad new authority to the Secretary of the Interior. Among the major features of the legislation are these:

1) The taking of endangered or threatened species is a federal offense, punishable by fines of up to $20,000 and imprisonment for not more than one year. Any instrumentality used in an illegal taking or importation, including vessels and aircraft, is subject to forfeiture, and informers may be rewarded.

2) The Secretary is empowered to make any regulation he deems necessary to protect the species which he declares endangered or threatened.

3) The Secretary may increase purchases of habitat areas for threatened and endangered species.

4) The Secretary may expend counterpart funds (sums in foreign currencies accumulated in foreign countries as payment for American agricultural commodities) to assist other governments in protection of endangered and threatened species abroad. "Anything mutually considered as desirable" may be financed. Allotments may also be made to states to assist them with suitable conservation programs.

Some of the differences between the House and Senate versions of the bill are relatively minor:

1) The House bill makes it a federal offense to take endangered or threatened species anywhere, including in foreign countries, while the Senate bill prohibits only those takings which occur in the United States or at sea.

2) The Senate version includes an amendment offered by Senator Eastland which exempts from the bill's coverage any "species of the order insectica [sic] determined by the Secretary to constitute a pest whose protection under the provisions of this Act would present an overwhelming and overriding risk to man." This provision is allegedly designed to prevent the unlikely eventuality [3 ELR 10154] that different branches of the government would simultaneously be attempting the eradication and preservation of a species. There is no equivalent feature in the House version. It is to be hoped that if the House agrees to this seemingly unnecessary amendment, it will substitute "class Insecta" for Senator Eastland's taxonomic novelty.

3) The Senate measure directs the Secretary of the Interior to consult with other countries in listing fish or wildlife that are normally found in another country or harvested from the ocean by nationals of that country. The House bill merely requires the Secretary, in determining whether or not a species should be listed, to take into account efforts made by other nations to preserve that species within its boundaries.

4) The Senate bill provides for establishment of an Advisory Committee on Endangered and Threatened Species which would make recommendations to the Secretary of species for inclusion on the lists.

Other points of divergence between the bills are more significant. The house bill provides that "any violation" of the act or regulations issued under it is a federal offense, while the Senate bill states that knowing violation must be proved in any prosecution. Proponents of the House bill fear that under the Senate version, it might be impossible to obtain convictions.

Both bills authorize the Secretary to enter into cooperative agreements with the states to assist them in undertaking conservation and management programs for endangered and threatened species. The Senate bill provides for the federal government to pay up to half of the cost of such a program, and up to two-thirds if two or more states agree on a joint program. The House bill increases the federal share to two-thirds and three-quarters. The Senate version limits such federal expenditures to $10 million through the fiscal year ending June 30, 1977, while the House bill authorizes the appropriation of "such sums as may be necessary" for the same period.

The principal difference between the bills is in their positions on federal-state relationships. Though both seek to encourage states to adopt conservation plans so that state and federal authorities may exercise concurrent jurisdiction over endangered and threatened species, this goal is approached in different ways. The House bill gives authority to the Secretary of the Interior to adopt whatever regulations he deems necessary for the protection of endangered and threatened species, but with regard to threatened species these apply, in a state which has entered into cooperative agreement with the federal government, only to the extent that the state has adopted the regulations. States which desire to have a say in the conservation and management of their wildlife have a strong incentive to prepare suitable plans to replace the Secretary's regulations. The Senate bill, on the other hand, repeals existing law giving authority to the Department of the Interior to conduct conservation and management programs, but provides that the Secretary may not issue new regulations until states have had 15 months in which to prepare and seek approval of their own plans. Proponents of the House bill fear that in the 15-month hiatus permitted by the Senate measure, the survival of some species might be jeopardized.

In addition, the House bill makes clear that a state plan may be approved only if the state can prove the adequacy of its proposed regulations and programs and its capacity to enforce and implement them. The Senate measure directs that a state plan is to take effect unless the Secretary of the Interior finds that it is not in accordance with the act. The Senate bill, by granting a presumption of compliance to any state plan, might well permit the adoption of insufficiently protective programs.

1. ELR 40336.

2. Comment, Recent Federal and International Measures to Protect Wildlife, 3 ELR 10040 (April, 1973).

3. 252 U.S. 416 (1920).