The marbled murrelet is a seabird that dwells in old growth forests. What do these fellas have to do with a legal 101 blog? Well, the marbled murrelet is an endangered species under the Endangered Species Act (ESA). Its sole habitat is old growth forests. An old growth forest is thereby considered critical habitat, which is legally protected. Do you see the dilemma here? Let’s say a company owns thousands of acres of old growth forest. If there is a presence of marbled murrelets, the company might not be permitted to use the land for whatever purpose it so desires. The land could be rendered useless to the company. This is where attorneys come into the picture. For this blog post, we are going to delve a little into the ESA (now in its 50th year!) as it applies to land use and why the marbled murrelet is a legally complex case.
The marbled murrelet was labeled endangered in 1992. Over the course of the last several decades, there have been a plethora of cases involving the protection of the critical habitat of the marbled murrelet. Critical habitat is a very important piece of being an endangered species. When an area is considered critical habitat for an endangered species to survive, all government agencies must consult with the National Oceanic Atmospheric Administration (NOAA) and the US Fish and Wildlife Service (FWS) to make sure the correct efforts are being taken to ensure the habitat is viable for the endangered species. Critical habitat is habitat within a geographical area that is occupied by the species at the time of ESA listing. It contains physical or biological features essential to conservation that may require special management considerations or protection. Lands outside the geographical area occupied by the species can be considered critical habitat if the agency determines that the area itself is essential for conservation. This is where most problems arise.
You may be saying, but if I own the land, can’t I do what I want with it? Well…that depends: do you need a permit for whatever you are trying to do on the land? If you do, then whatever department you apply to for that permit will have to consult with NOAA or FWS if that permit will affect any critical habitat even if it is “downstream” of the activity you are taking.
Let’s take an example: say you are one of the biggest timber companies in the northern hemisphere and want to cut down some trees. If those trees are considered part of an old growth forest where the murrelet nests, we have a problem! Old growth forests are critical habitat of the marbled murrelet and cannot be harvested for timber without running afoul of the ESA. As for the timber company, are you just out of luck? Are your hundreds of thousands of acres useless? As we like to say in the law, it depends!
There are some ways to make use of that land; one route a company can take to protect both its assets and the marbled murrelet habitat is a Safe Harbor Agreement (SHA). A SHA is a legal agreement between the landowner and either NOAA or FWS in which the landowner agrees to take actions that contribute to the recovery of the listed species on the non-federal lands they own. In return for these legally binding promises, the FWS/NOAA give the landowner an Enhancement of Survival Permit where NOAA/FWS agree not to require any additional or different management activities without the landowner's consent and also allow the landowner to have “incidental take rights” (for some actions taken) under the SHA. This allows the landowner to use their land in a manner that is financially beneficial while still protecting the marbled murrelet’s nesting grounds. SHA are one of the largest tools that the ESA has to get private parties involved in the conservation and protection of critical habitat, which is so important for these endangered species.
Now that you know a little more about endangered species, we hope you will do something special to celebrate the ESA’s 50th anniversary. Cheers to the marbled murrelet!
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