Special Status of Wildlife Receives Judicial Approval

A number of judicial decisions have made 1976 a watershed year in the area of federal wildlife law, presaging increased litigation over the balance to be drawn between animals (particularly where Congress has mandated special consideration) and those forces that tend to promote commercial use of resources at the inevitable expense of wildlife. It is a battle that has been fought for years on the grand scale of the preservationists versus the developers, but now that greater interest has focused on the problem, the conflict has become particularized. And in the process, wildlife is beginning to obtain the protection that Congress has declared it is due.

Progress has not been easy. Although the Endangered Species Act¹ became law in 1973, it was not until this year that the important § 7, which mandates that federal activity may not "jeopardize the continued existence" of endangered and threatened species, has been given real substance by courts and agencies.² Concern for the simple survival of the last 40 Mississippi sandhill cranes resulted in blocking an interstate highway from running through the cranes' habitat,³ but the fact that only about 2 percent of the entire population of 700,000 Indiana bats were in such imminent danger allowed a dam project to continue.⁴ In addition, opponents seeking to halt the Tellico Dam in the Little Tennessee River turned, as a last ditch effort, to the strategy of preserving the snail darter, a small fish that was discovered in 1973 and put on the endangered species list by the Interior Department in November 1975.⁵ In the United States Supreme Court, the doctrine of implied federal reservation of rights in water was used to prevent withdrawal of water by a nearby farmer from the Devil's Hole National Monument which would have exterminated the unique Devil's Hole pupfish, the preservation of which was one of the purposes behind creation of the National Monument.⁶

Judicial interpretations of two other statutes of recent vintage are particularly significant as examples of emerging judicial enforcement of congressionally-designated special status for certain species. In Committee for Humane Legislation, Inc. v. Richardson,⁷ the D.C. Circuit held that the killing of porpoises incidental to tuna fishing, and the regulations of the National Marine Fisheries Service (NMFS) permitting this practice, violated the 1972 Marine Mammal Protection Act's⁸ policy of preserving the "optimum sustainable population" of certain species of marine mammals.⁹ In a more recent decision, American Horse Protection Association, Inc. v. Kleppe,¹⁰ the federal district court in Washington, D.C. declared illegal and enjoined a proposed Bureau of Land Management roundup of wild horses near Challis, Idaho because the process by which the decision to round up 130 to 260 wild horses was made and the [6 ELR 10271] roundup plan itself violated both the Wild Free-Roaming Houses and Burros Act¹¹ and the National Environmental Policy Act.¹² These two decisions break new ground in wildlife law by enforcing the special status with which Congress has endowed certain species of animals, and this special status automatically gives a form of priority to certain uses within the broad concept of resource management.

Tuna-Porpoise Controversy

The 1972 Marine Mammal Protection Act is one of the statutes that signaled a change from the traditional policy of managing wildlife to maximize human economic use of various species to one recognizing and protecting the esthetic and recreational values in wildlife as well as its economic utility. Notwithstanding fairly strict statutory limitations on takings of marine mammals, the tuna industry was allowed by NMFS to continue its fishing, because of a two-tear grace period and inadequately-drawn regulations, whereby enormous numbers of porpoises were killed unintentionlly but unavoidably. The Committee for Humane Legislation lawsuit was aimed at NMFS and and was based on the allegation that the agency had neglected its task under the Marine Mammal Protection Act to protect porpoises. Plaintiffs argued that the Act's purpose was to protect marine mammals outright rather than permitting a balancing between the animals and the economic interests of the tuna fishing industry. The court unequivocally agreed with this argument:

The MMPA does not direct the defendants to afford porpoises only that amount of protection which is consistent with the maintenance of a healthy tuna industry. The interests of the marine mammals come first under the statutory scheme, and the interests of the industry, important as they are, must be served only after protection of the animals is assured.¹³

The protective device used in the Marine Mammal Protection Act is that permitted takings must be dependent upon their anticipated effect on the "optimum sustainable population" (OSP) of the marine mammals because the population of species should not be allowed to fall below the OSP.¹⁴ Thus, before its regulations can permit any takings, NMFS must produce data not only on the current population of the marine mammals but the OSP and the expected impact on the OSP of the proposed takings.¹⁵

The Committee for Humane Legislation decision caused consternation among the tuna fishermen and a flurry of congressional activity to overturn the decision.¹⁶ The Ninth Circuit has just upheld the ban on further fishing because the 1976 quota of permitted porpoise killings has been reached, and NMFS has moved to respond to the court's decision.¹⁷ Nonethless, the decision was a major advance in judicial willingness to enforce a congressional declaration of the special status for wildlife species.

Wild Horses Act

The Wild-Free Roaming Horses and Burros Act, which became law in December 1971, put management and protection of the animals, "as components of the public lands," under the jurisdiction of the federal government because they are "living symbols of the historic and pioneer spirit of the West … [and] they contribute to the diversity of life forms within the Nation and enrich the lives of the American people."¹⁸ The Act survived its first major hurdle when the Supreme Court upheld its constitutonality, based on the Property Clause and the federal government's ultimate authority over federal lands.¹⁹

The first court case construing implementation of the Wild Horses Act²⁰ essentially rejected the notion of any special status created by the Act and emphasized instead that the Bureau of Land Management had discretion, under a multiple-use sustained-yield management,²¹ to choose a reasonable method to alleviate an over-grazing problem that had caused deterioration in established BLM grazing districts. In this instance, where both domestic cattle and wild horses grazed the land, the court found BLM's decision to remove some of the wild horses to be neither arbitrary, capricious, nor an abuse of discretion.²²

Under a similar fact situation, plaintiffs tried again to halt a proposed wild horse roundup in American Horse Protection Association, Inc. v. Kleppe.²³ In this instance, the U.S. District Court for the District of Columbia,²⁴ noting [6 ELR 10272] that an earlier decision²⁵ had required BLM to prepare a comprehensive NEPA environmental impact analysis for all BLM grazing districts, held that the EIS for the area involved here had not been completed. A decision of the disposition of wild horses in the grazing district could not be made, therefore, until the comprehensive environmental review had been completed, which had to cover discussion of all alternative use patterns including the relative importance of domestic livestock grazing and wild horse grazing. More importantly, however, the court emphasized the requirement in the Wild Horses Act that management activities of wild horses be at the "minimum feasible level."²⁶ Because there was a possibly less drastic alternative than the proposed roundup to manage the grazing lands and allow use by both livestock and wild horses, because BLM had failed to consider adequately this alternative, and because the data upon which BLM based its roundup decision was conflicting, the court enjoined the roundup pending procedural compliance with NEPA and the Wild Horses Act.

The result of this holding may well be that, notwithstanding the court's almost blunt conclusion that the less drastic alternative must be adopted, BLM will complete the full environmental review and still find that the proposed roundup is the most feasible way to manage the grazing lands.²⁷ Barring blatant inconsistencies in the impact statement and the revised administrative record, the court may be foreclosed from reversing the agency decision,²⁸ which was essentially made on substantive grounds. Nonetheless, BLM has been put on notice, by one court at least, that the "exalted" status for wild horses and burros mandated by the Act does require special consideration.²⁹

Both the Marine Mammal Protection Act and the Wild Horses Act speak of their subject wildlife not as isolated species but as integral parts of their surroundings,³⁰ and protection of marine mammals has been given statutory precedence over economic exploitation. On the federal lands, notwithstanding the equality of uses contemplated under multiple-use sustained-yield principles, management of wild horses and burros must be at the "minimum feasible level." Congress provided special protection for these species of wildlife partially because it feared their extinction, but also because it considered that the species played valuable roles in their ecosystem. Despite the ever-present possibility of statutory amendment, the court decisions on the two statutes stand as first soundings of a policy that may precede full public acceptance but which promise greater assurance of the right to survive and thrive for the nation's and the world's wildlife resources.

1. 16 U.S.C. §§ 1531 et seq., ELR 41825.

2. Section 7 provides that all federal agencies shall utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species … and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary … to be critical.

16 U.S.C. § 1536. This obviously goes beyond the mere information-gathering requirements of NEPA. See generally, Wood, Section 7 of the Endangered Species Act of 1973: A Significant Restriction for All Federal Activities, 5 ELR 50189 (1975).

3. National Wildlife Federation v. Coleman, 529 F.2d 359, 6 ELR 20344 (5th Cir. 1976), petition for cert. filed sub nom. Boteler v. National Wildlife Federation, 45 U.S.L.W. 3319 (U.S. Sept. 7, 1976) (No. 76-351). See also Comment, Implementing § 7 of the Endangered Species Act of 1973: First Notices from the Courts, 6 ELR 10120 (June 1976).

4. Sierra Club v. Froehlke, 534 F.2d 1289, 6 ELR 20448 (8th Cir. 1976).

5. Hill v. Tennessee Valley Authority, __ F. Supp. __, 6 ELR 20583 (E.D. Tenn. May 25, 1976). The court concluded that the Endangered Species Act would be violated if the dam project were completed. The project was so far completed, the court said, however, that since Congress and TVA had at least considered the snail darter problem, the dam should be finished. Following two hearings this past summer before Judge Weick of the Sixth Circuit that resulted in an order against closure of the dam gates creating the artificial lake, which was not scheduled until 1977 anyway, the appeal in Hill was heard by a Sixth Circuit panel on expedited hearing on October 14. Since the dam construction work may continue and the only action halted is the not-yet-scheduled dam-gate closure, halting the project at this point to save the little fish will result in a hundred million dollar pile of concrete in the middle of the river. On a more hopeful note, TVA is apparently having some success at transplanting the snail darters to other portions of the river.

Earlier court opinions in the Tellico Dam matter, primarily discussing the environmental impact statement, may be found at Environmental Defense Fund, Inc. v. Tennessee Valley Authority, 492 F.2d 466, 4 ELR 20225 (6th Cir. 1974), aff'g 371 F. Supp. 1004, 4 ELR 20120 (E.D. Tenn. 1973); 468 F.2d 1164, 2 ELR 20726 (6th Cir. 1972), aff'g 339 F. Supp. 806, 2 ELR 20044 (E.D. Tenn. 1972).

6. Cappaert v. United States, 426 U.S. 128, 6 ELR 20540 (U.S. June 7, 1976).

7. 414 F. Supp. 297, 6 ELR 20500 (D.D.C. May 11, 1976). See Comment, Federal Courts and Congress Review Tuna-Porpoise Controversy, 6 ELR 10147 (July 1976).

8. 16 U.S.C. §§ 1361 et seq., ELR 42815. See generally Gaines & Schmidt, Wildlife Population Management Under the Marine Miammal Protection Act of 1972, 6 ELR 50096 (Sept. 1976).

9. 16 U.S.C. § 1362(8).

10. __ F. Supp. __, 6 ELR 20801 (D.D.C. Sept. 9, 1976).

11. 16 U.S.C. §§ 1331-40, ELR 41834.

12. 42 U.S.C. §§ 4321 et seq., ELR 41009.

13. 414 F. Supp. at 309, 6 ELR at 20505.

14. 16 U.S.C. § 1361.

15. 414 F. Supp. at 312, 6 ELR at 20506.

16. See Comment, supra note 7. HR 13865, the bill that would have effectively overruled the court's decision, failed to pass the 94th Congress.

17. NMFS prohibited the import of tuna caught by following porpoises as of October 22, 1976, because the 1976 killing quota had been reached. The tuna industry, however, obtained a restraining order against this prohibition in the U.S. District Court in San Diego. 41 Fed. Reg. 47254 (Oct. 28, 1976). The matter was then appealed to the 9th Circuit Court of Appeals which upheld the government ban and halted tuna fishing for the rest of the year. American Tunaboat Ass'n v. Richardson, No. 76-3369 (9th Cir. Nov. 11, 1976). Immediately after the Ninth Circuit decision, plaintiffs requested emergency relief from Justice Rehnquist on the Supreme Court, but relief was denied. M/V Theresa Ann v. Richardson, No. A-394 (Rehnquist, Circuit Justice, Nov. 12, 1976); American Tunaboat Ass'n v. Richardson, No. A-398 (Rehnquist, Circuit Justice; app. filed Nov. 13, app. denied Nov. 15, 1976).

18. 16 U.S.C. §§ 1331, 1333(a).

19. Kleppe v. New Mexico, 426 U.S. __, 96 S. Ct. 2285, 6 ELR 20545 (U.S. June 17, 1976).

20. American Horse Protection Association, Inc. v. Frizzell, 403 F. Supp. 1206, 6 ELR 20249 (digest) (D. Nev. 1975).

21. Classification and Multiple-Use Act, 43 U.S.C. §§ 1411-18, ELR 41408-09. BLM has the discretion to either remove wild horses, 16 U.S.C. § 1333(b), or restrict livestock grazing under the Taylor Grazing Act, 43 U.S.C. § 315, ELR 41406.

22. The court's reluctance to plumb agency discretion, because the methodology of decision-making appears comprehensive, is not unusual. For a recent example see Westside Property Owners v. Schlesinger, 415 F. Supp. 1298, 6 ELR 20798 (digest) (D. Ariz. 1976).

23. __ F. Supp. __, 6 ELR 20801 (D.D.C. Sept. 9, 1976).

24. Plaintiffs argued that venue is proper either in Idaho, where the roundup was to occur, or in the District of Columbia. 28 U.S.C. § 1391(e). The court rejected defendants' motion for a change of venue to Idaho.

25. Natural Resources Defense Council, Inc. v. Morton, 388 F. Supp. 829, 5 ELR 20327 (D.D.C. 1974), cert. denied, 45 U.S.L.W. 3756 (U.S. June 30, 1976).

26. 16 U.S.C. § 1333(a).

27. In addition, BLM will doubtless make better provision for veterinary attendance at the roundup. One of the issues addressed by the court was that the proposed roundup made inadequate provision for professional veterinary assistance in violation of 16 U.S.C. § 1333(b) which requires that removal of excess animals be under "humane conditions and care."

28. The decisions discussed in this Comment raise some interesting speculation as to the course of environmental litigation. In the beginning, the emphasis was on NEPA and procedural issues, enforcing consideration in the decision-making process of the environmental impact of proposed government actions. Litigation under § 7 of the Endangered Species Act, the Marine Mammal Protection Act, and the Wild Horses Act indicate that the "second generation" of environmental litigation may have arrived, emphasizing substantive issues of protection. If so, BLM may be required to adopt the alternative grazing plan proposed by Judge Richey in the American House Protection Association v. Kleppe decision, 6 ELR at 20801.

29. The Wild Horses Act is the subject of other litigation, now awaiting decision by the Court of Appeals for the District of Columbia Circuit, over the authority of state officials to determine ownership of horses located on federal lands. American Horse Protection Association, Inc. v. Department of the Interior, Nos. 75-1033 and -1196 (D.C. Cir. arg. Jan. 14, 1976).

30. Marine mammal populations an "not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem … [and] the primary objective of their management should be to maintain the health and stability of the marine ecosystem." 16 U.S.C. § 1361. The wild free-roaming horses and burros "are to be considered in the area where presently found, as an integral part of the natural system of the public lands." 16 U.S.C. § 1331.