Threatened and Endangered Species Recovery Act of 2005

THREATENED AND ENDANGERED SPECIES RECOVERY ACT OF 2005 -- (Extensions of Remarks - October 07, 2005)

The House in Committee of the Whole House on the State of the Union had under consideration the bill (H.R. 3824) to amend and reauthorize the Endangered Species Act of 1973 to provide greater results conserving and recovering listed species, and for other purposes:

* Mr. COSTA. Mr. Chairman, I rise today to clarify the intent and importance of language in H.R. 3824 regarding the discretionary nature of recovery plans under the ESA. Language in TESRA states that, ``Nothing in a recovery plan shall be construed to establish regulatory requirements.'' This important language will ensure that, as is currently the case, recovery plans cannot be used as a regulatory ``hammer'' on private landowners or others. Let me elaborate.

* The ESA §4(f) states that the Secretaries of Interior and Commerce ``shall develop and implement recovery plans'' for listed species, ``unless ..... such a plan will not promote the conservation of the species.'' This responsibility has been delegated to the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration Fisheries Service (NOAA Fisheries) (collectively, the Services).

* Thus, as a general matter, the ESA compels the Services to develop recovery plans. While FWS and NOAA Fisheries are under a general duty to develop a recovery plan for listed species, the federal courts are in unanimous agreement that the contents of a recovery plan are discretionary with the Services. Recovery plans do not impose legal obligations or requirements on anyone--not on private landowners, not on local or state government units, and not even on the federal government itself. Rather, the case law makes clear that recovery plans are guidance documents.

* For example, the 11th Circuit Court of Appeals rejected the argument of an environmental group that would have ``elevate[d] the 1987 [Florida panther] recovery plan into a document with the force of law.'' Fund for Animals v. Rice, 85 F.3d 535,547 (11th Cir. 1996). The 11th Circuit wrote that ESA §4(f):

``makes it plain that recovery plans are for guidance purposes only. ..... By providing general guidance as to what is required in a recovery plan, the ESA `breathe[s] discretion at every pore.' ''

* Similarly, environmental groups claimed that the recovery plan for certain whale species was deficient because it failed to include substantive, mandatory requirements. The court disagreed, holding that ``[c]ase law instructs that [FWS is] correct in [its] assertion that the content of recovery plans is discretionary.'' Strahan v. Linnon, 967 F.Supp. 581, 597 (D.Mass. 1997), aff'd, 187 F.3d 623 (1st Cir. 1998). The court recognized that FWS is under a statutory duty to develop a recovery plan ``to the extent that it is feasible and possible,'' but that ``requirement does not mean that the agency can be forced to include specific measures in its recovery plan.'' Id. at 598. Environmental groups also argued that the recovery plan for the Perdido Key beach mouse must include an expansion of the species' critical habitat. The court, aligned with all of the other opinions on the topic, rejected the environmentalists' argument because ``the contents of the [recovery plan] are discretionary.'' Morrill v. Lujan, 802 F.Supp. 424, 433 (S.D.Ala. 1992).

* There is a strong policy justification for finding that recovery plans are discretionary: namely, to allow FWS to allocate its scarce resources as it sees fit. ``Congress recognized that the development of recovery plans for listed species would take significant time and resources. It therefore provided in the ESA that the Secretary could establish a priority system for developing and implementing such plans. This priority system allows the Secretary broad discretion to allocate scarce resources to those species that he or she determines would most likely benefit from development of a recovery plan.'' Oregon Natural Resources Council, supra, 863 F.Supp. at 1282-83 (emphasis supplied).

* To conclude, in a rare show of agreement among court interpretations of the ESA, the federal judges that have addressed this point have all agreed that recovery plans are simply discretionary guidance documents, with no binding effect. It is clearly the intent of H.R. 3824 to not only remain consistent with this established line of precedent, but to codify this important fact.

http://thomas.loc.gov/cgi-bin/query/D?r109:6:./temp/~r1096rrHEF::