The Endangered Species Act of 1973 (“Act”) is a comprehensive statutory scheme aimed at conserving endangered and threatened species and the ecosystems on which they depend[i].  The Act protects not only threatened and endangered animals and plants, but their habitats as well, from direct and indirect threats such as hunting and development.

The Act is administered by two federal agencies, the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA).

The purposes of this Act are to:

• provide a means whereby the ecosystems upon which endangered species and threatened species depend are conserved;
• provide a program for the conservation of such endangered species and threatened species;
• take such steps as appropriate to achieve the purposes of the treaties and conventions envisaged to protect wildlife[ii].

The Act defines endangered species and threatened species.  Endangered species are “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species is “a species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range[iii].”

The Secretary of Commerce or the Secretary of the Interior determine by regulation whether any species is endangered or threatened.  The following facts are considered to list a species as endangered or threatened. They are:

• the present or threatened destruction, modification, or curtailment of its habitat or range;
• over utilization for commercial, recreational, scientific, or education purposes;
• disease or predation;
• inadequacy of existing regulatory mechanisms; or
• other natural or manmade factors affecting its continued existence[iv].

The Secretary of Interior develops and implements recovery plans for its conservation and survival, after listing a species under the Act as endangered or threatened[v].

The Act provides for inter agency cooperation.  After listing a species, each federal agency must, in consultation with and with the assistance of the Secretary making that determination, insure that their action is not likely to jeopardize the continued existence of such species[vi].

The Act prescribed certain acts as prohibited[vii]. They include:

• importing any listed species into, or export any such species from the U.S.;
• taking any listed species within the U.S. or the territorial sea of the U.S.;
• taking any listed species upon the high seas;

• possessing, selling, delivering, carrying, transporting, or shipping any listed species;
• delivering, receiving, carrying, transporting, or shipping any listed species in interstate or foreign commerce in the course of a commercial activity;
• selling or offering for sale in interstate or foreign commerce any listed species; or
• violating any regulation pertaining to listed species or to any threatened species of fish or wildlife.

However, the Secretary of Commerce or the Secretary of the Interior issue a permit to allow certain acts which are otherwise prohibited[viii].

For the violation of a prohibition, the Act provides for civil and criminal penalties.  “Any person who knowingly violates, and any person engaged in business as an importer or exporter of fish, wildlife, or plants who violates, any provision of this Act, or any provision of any permit or certificate issued hereunder, or any regulation issued in order to implement subsection may be assessed a civil penalty by the Secretary of not more than $ 25,000 for each violation[ix].”  And “Any person who knowingly violates any provision of this Act, of any permit or certificate issued hereunder, or of any regulation issued shall, upon conviction, be fined not more than $ 50,000 or imprisoned for not more than one year, or both[x].”

The Secretary of Commerce is entitled to remit or mitigate a civil penalty.

Upon criminal violation of the Act, the head of any federal agency which has issued a lease, license, permit, or other agreement authorizing a person to import or export fish, wildlife, or plants, can modify, suspend, or revoke each lease, license, permit, or other agreement.

The district courts of the U.S. enjoys jurisdiction over any actions arising under the Act[xi].

The Act also provides for the enforcement of the provisions of the Act.  The provisions of the Act, the regulations made there under and the permits issued pursuant thereto are enforced by the Secretary, the Secretary of the Treasury, or the Secretary of the Department in which the Coast Guard is operating[xii].

The Act also provides for the commencement of a civil suit by a private party:

• to enjoin any person, including the U.S. and any other governmental instrumentality or agency who is alleged to be in violation of any provision of the Act or regulation issued under the authority thereof;
• to compel the Secretary to apply the prohibitions set forth in or authorized pursuant to the Act with respect to the taking of any resident endangered species or threatened species within any state; or
• against the Secretary where there is alleged a failure of the Secretary of Commerce to perform any act or duty under the Act, which is not discretionary with the Secretary[xiii].

[i] 16 USCS § 1531.

[ii] Id.

[iii] 16 USCS § 1532.

[iv] 16 USCS § 1533.

[v] Id.

[vi] 16 USCS § 1536.

[vii] 16 USCS § 1538.

[viii] 16 USCS § 1539.

[ix] 16 USCS § 1540.

[x] Id.

[xi] Id.

[xii] Id.

[xiii] Id.