A. The Endangered Species Act

The Endangered Species Act (ESA) is a federal law passed by the United States Congress in 1973. The Act protects both endangered species, defined as those “in danger of extinction throughout all or a significant portion of their range,” and threatened species, those likely to become endangered “within the forseeable future.” Under the Act, the term “species” includes species and subspecies of fish, wildlife and plants, as well as geographically distinct populations of vertebrate wildlife (including fish) even though the species as a whole may not be endangered. This flexibility in the Act allows action to be taken to protect certain members of a species before the entire population becomes threatened.

The Endangered Species Act serves to fulfil the United States commitment to various international treaties on wildlife conservation (such as CITES). It is a powerful tool designed to resolve conflicts between proposals for development and the survival of species. The Endangerd Species Act has proven to be so effective in helping to protect species that is has served as a model for the development of similar wildlife protection laws in almost every state and in other countries.

Two federal agencies are responsible for enforcing the Endangered Species Act. The U.S. Fish and Wildlife Service of the Department of the Interior administers the Act for animals and plants found on land or in fresh water. The National Marine Fisheries Service of the Commerce Department administers the Act for marine plants and animals.

The focal point of the Endangered Species Act is the list of endangered and threatened species. Once a species is added to the list, it enjoys legal protection designed to help it recover. For all animal species listed as endangered, it is illegal to kill, hunt, collect, injure or harass them, or to destruct their habitat in any way. It is also illegal to buy or sell any species (or products made from species) listed as endangered. The laws that apply to threatened species can vary depending upon the conservation needs of the species. Threatened species may often have the same level of protection as endangered species.

Once a species has been listed, critical habitat is designated to assure the survival or recovery of the species. The critical habitat may consist of the area inhabited by the listed species, a portion of the area, or even additional areas outside the inhabited area- what ever area is determined “critical” for the species’ survival. After listing a species and defining its critical habitat, the appropriate federal agency (i.e., U.S. Fish and Wildlife Service for terrestrial plants and animals or those found in fresh water and National Marine Fisheries Service for marine plants and animals) prepares a recovery plan that is designed to restore the species to a point where it can be removed from the list.

According to the Act, the decision to list a species is to be based solely on sound biological information such as the current population size and how close the species appears to be to extinction. Economic factors are only to be considered after the species has been listed- in establishing the location and boundaries for the critical habitat and in the development of the species’ recovery plans.

B. The Marine Mammal Protection Act

In 1972 the United States Congress passed the Marine Mammal Protection Act (MMPA). The Act was one of the first laws developed to protect a separate category of wildlife, and makes it illegal for any person under legal jurisdiction of the United States to kill, hunt, injure or harass all species of marine mammals, regardless of their population status. In addition, the Marine Mammal Protection Act also makes it illegal for anyone to import marine mammals or products made from them into the United States. Marine mammals protected under this Act include: dolphins, whales, seals, sea lions, sea otters, polar bears, manatees, dugongs and walruses.

Some exceptions to the Marine Mammal Protection Act exist that allow certain numbers of marine mammals to be collected for scientific and public display purposes, to be hunted for subsistence use by natives of the North Pacific and Arctic coasts, and to be caught incidental to commercial fishing operations.

Similar to the Endangered Species Act, the responsibility for administering the Marine Mammal Protection Act is shared by two federal agencies. The National Marine Fisheries Service of the Commerce Department has authority with regard to all members of the order Cetacea (whales, dolphins and porpoises) and all members of the order Pinnipedia (seals) except walruses. The U.S. Fish and Wildlife Service of the Department of the Interior administers the Act with respect to all other species of marine mammals (walruses, sea otters, polar bears, manatees and dugongs).

In addition, a special scientific advisory board was created under the Act called the Marine Mammal Commission. The purpose of the Marine Mammal Commission is to serve as an impartial and non-political source of expert scientific advice relating to marine mammals. Both the National Marine Fisheries Service and The U.S. Fish and Wildlife Service are required to consult with the Marine Mammal Commission in administering their duties under the Marine Mammal Protection Act. The major role of the Marine Mammal Commission is to conduct a continual review and study of all populations of marine mammals and of all activities relating to marine mammals that involve the United States. The Commission is also responsible for making formal recommendations for studies and actions it feels are necessary for the protection and conservation of marine mammals.

The policies embodied in the Marine Mammal Protection Act serve as the official policies of the United States in the negotiation of international agreements concerning marine mammals (such as CITES and the International Whaling Convention). The Marine Mammal Protection Act also provides economic incentives for other nations to protect marine mammals by restricting the importation of certain products from foreign countries whose fishing or other practices significantly reduce the ability of the Act to acheive its goals. The Marine Mammal Protection Act has also served as a model for the development of laws protecting marine mammals in other countries.

C. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

It became apparent during the 1960s that one of the greatest threats to the survival of many species was the incredible amount of international trade in live plants and animals and in products derived from them. Trade in wildlife products is big business, estimated to gross between five and seventeen million dollars each year. Ivory, rhinoceros horn, tortoise shell jewelry and animal pelts are just a sampling of the products involved. In order to help prevent the continued depletion of wild animal and plant populations to satisfy the demands for trade, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) was formed.

CITES is an international treaty that provides protection for wild animal and plant species in international trade. Final negotiations for the treaty were completed in 1973, but CITES did not come into force until 1975 after it was ratified by the United States and 9 other countries. Today 120 nations, including most major wildlife producing and consuming countries have become “parties” to the Convention. Becoming a party to CITES means that the countries have signed the treaty and have agreed to implement it in territories under their legal jurisdiction. To implement CITES, all parties are required to develop wildlife protection laws in their countries, and to establish a Management Authority to issue trade permits for wildlife products and a Scientific Authority to provide scientific expertise on the status of species considered for trade. Overall administration of CITES is through the The United Nations Environmental Program, a body of the United Nations.

CITES is designed to promote the conservation of endangered species while allowing trade in wildlife species that can withstand the pressures of trade. Under the Convention, there are three categories of protection. Species listed in Appendix I are threatened with extinction and are or may be affected by trade. Commercial trade in Appendix I species is strictly prohibited. Appendix II includes species that are not necessarily threatened with extinction but that may become threatened if their trade is not carefully regulated. Species listed in Appendix II may be traded commercially under certain conditions and with special permits. Appendix III includes species legally protected within the borders of a party nation that have been determined by that nation to need international trade control. As with Appendix II species, some trade in Appendix III species is allowed with special permits.

Currently, over 700 species are listed on Appendix I, including some of the most endangered plants and animals in the world. The great whales, the great apes, all sea turtles and rhinoceroses, elephants, most of the large cats and several species of catcti and orchids are among those listed in Appendix I. Among the more than 27,000 species included in Appendix II are all cetaceans, monkeys, parrots, reptiles, and orchids not listed in Appendix I, as well as many others.

In the United States, CITES is administered by the U.S. Fish and Wildlife Service which contains the officies of the U.S. Management Authority and the U.S. Scientific Authority. In addition, the Division of Law Enforcement enforces CITES by inspecting thousands of wildlife shipments that enter the United States each year.