Swimming Upstream_ a Legal Analysis of Listing Atlantic Salmon As

Ocean and Coastal Law Journal
Volume 9 | Number 2 Article 9
2003
Swimming Upstream: A Legal Analysis Of Listing

Atlantic Salmon As An Endangered Species
John Elmen
University of Maine School of Law
Follow this and additional works at: http://digitalcommons.mainelaw.maine.edu/oclj
Recommended Citation
John Elmen, Swimming Upstream: A Legal Analysis Of Listing Atlantic Salmon As An Endangered Species, 9 Ocean & Coastal L.J. (2003).
Available at: http://digitalcommons.mainelaw.maine.edu/oclj/vol9/iss2/9
This Comment is brought to you for free and open access by the Journals at University of Maine School of Law Digital Commons. It has been accepted
for inclusion in Ocean and Coastal Law Journal by an authorized administrator of University of Maine School of Law Digital Commons. For more
information, please contact mdecrow@maine.edu.
SWIMMING UPSTREAM:
A LEGAL ANALYSIS OF LISTING ATLANTIC
SALMON AS AN ENDANGERED SPECIES
John Elmen*
I. INTRODUCTION
In 1993, a group of conservationists, 1concerned with the survival of the

Atlantic salmon (Salmo salar),petitioned the U.S. Fish and Wildlife Service
(FWS) and the National Marine Fisheries Service (NMFS) (collectively,
Services) to list anadromous Atlantic salmon as endangered throughout
their historic range in the United States. The petition, authorized under
Section 4 of the Endangered Species Act (ESA),2 presented information on
declines of Atlantic salmon populations, threats to the fish consisting of
commercial and sport fishing, pollution, barriers to their migration, adverse
land use practices, and genetic disruption.' In response to the petition, the
Services published a ninety-day finding that stated that the petition
contained substantial information and that the requested listing may be
warranted. In 1995, after examining the data on Atlantic salmon described
in the petition, a biological review team4 concluded that the salmon did not
meet the definition of a species for purposes of the ESA. As such, the
Services decided the request to list the salmon throughout its U.S. historic
range was not warranted. Alternatively, the Services determined that there
was a group of salmon, identified in seven rivers (later eight rivers), that
met the definition of a "distinct population segment" (DPS) of Atlantic
salmon that warranted protection as a species. The Services further
* University of Maine School of Law, Class of 2004.

1. Endangered and Threatened Wildlife and Plants, 59 Fed. Reg. 3067 (proposed Jan. 20,
1994). The petitioners included RESTORE: The North Woods, the Biodiversity Legal
Foundation, and Jeffery Elliot.
2. Endangered Species Act, 16 U.S.C. § 1533(b)(3)(A) (2003); 5U.S.C. § 553(e) (2003).
3. 59 Fed. Reg. at 3068.
4. Endangered and Threatened Wildlife and Plants, 60 Fed. Reg. 14,410 (proposed Mar.
17, 1995). The biological review team was composed of staff from the U.S. Fish and
Wildlife Service and National Marine Fisheries Service.
333
334 OCEAN AND COASTAL LAW JOURNAL [Vol. 9:333
indicated that a proposed rule to list the DPS was under development. Later
in 1995, the Services published a proposed rule to list the DPS as threat-
5
ened, rather than endangered, and a public comment period was opened.
The proposed rule "encouraged" the State of Maine (State) to take a lead
role and provide a conservation plan of its own that would "reduce threats
and promote conservation[.]" 6 The State, acting on the invitation, enacted
legislation that established the Atlantic salmon Commission7 and developed
an extensive conservation plan (State Plan).' In December of 1997, after a
public comment period and in light of the State Plan and other conservation
measures, the Services published their intent not to list the DPS as
threatened. 9 The Services retained oversight ofthe conservation efforts and
required an annual report from-the State on the status of the program. In
January of 1999, the State submitted its first annual report to the Services.
Following a biological assessment team's review of the report, which
indicated that the DPS continued to decline, the Services decided that the
Atlantic salmon should be listed as endangered.10 After publishing a
proposed rule to list the DPS as endangered in November of 1999, the
Services initiated a public hearing process. Twelve months later in
November of 2000, the Services published their final determination that the
DPS was endangered." Subsequent to the Services' determination, the
State filed suit against the Services and requested that the court set aside the
rule listing the DPS as endangered on the grounds that the Services'
5. Proposed Threatened Status for a Distinct Population Segment of Anadromous

Atlantic salmon in seven Maine Rivers, 60 Fed. Reg. 50,530 (proposed Sept. 29, 1995) (to
be codified at 50 C.F.R. pt. 17,227,425).
6. 60 Fed. Reg. at 50,530, 50,535.
7. 12 M.R.S.A. §9901 (2003). 'The Atlantic salmon Commission, referred to in this Part
as the 'commission,' is established to protect, preserve, enhance, restore and manage the
Atlantic salmon and its habitat; to secure a sustainable recreational fishery in the State; and
to conduct and coordinate all projects involving research, planning, management, restoration
or propagation of the Atlantic salmon." Id.
8. The Maine Atlantic Salmon Task Force,Atlantic Salmon ConservationPlanfor Seven
MaineRivers (March 1997), availableat http://www.state.me.us/asa/ascpall.htm (last visited
Dec. 1, 2003) [hereinafter STATE PLAN].
9. Endangered and Threatened Wildlife and Plants, 62 Fed. Reg. 66,325 (proposed Dec.
18, 1997). This decision was based upon the "efforts being made to protect the species
including development of the [State Plan], the extent of implementation of the [State Plan]
to date, private and federal efforts to restore the species, and international efforts[.]" Id. at
66,337.
10. Endangered and Threatened Species, 64 Fed Reg. 62,627 (Nov. 17, 1999). Citing
among other things, prior inaccurate information regarding status of salmon, the continued
decrease in returning "spawners," ineffectiveness of existing laws and incomplete
implementation of conservation efforts. Id. at 62,628.
11. Endangered and Threatened Species, 65 Fed. Reg. 69,459 (proposedNov. 17,2000)
(to be codified at 50 C.F.R. pt. 17, 224).
2004] Swimming Upstream
decision was, among other things, "arbitrary and capricious" and not based
on the best scientific and commercial data available. 2 In 2003, the U.S.
District Court of the District of Maine held, in Maine v. Norton, that the
Services' determination of endangered status was supported by the facts in
the record, and thus was not "arbitrary or capricious.""
This paper will examine the implications of the salmon listing as it
affects the relationship Maine citizens have with their environment and the
economy of the State. Part One provides background on the natural, socio-
economic, and legal landscapes that are tied together in the federal
government's efforts to protect a distinct segment of Maine's wild Atlantic
salmon. Part Two presents the chronology of federal, state, commercial,
and Non-Governmental Organization (NGO) actions that have shaped, and
have been shaped by, the implementation of the ESA. It includes a relevant
discussion of the ESA implementation process, from listing consideration
through critical habitat designation, and Section 4(d) "take" delineation.
Part Three focuses on critical habitat protection in the context of the ESA,
judicial interpretation of habitat statutes, and how well critical habitat
protection is working generally. Part Four considers the implementation of
the ESA within the context of the DPS of Maine Salmon and suggests that,
while the ESA does not allow implementation to be whittled away by socio-
economic concerns, implementation of the ESA may be structured to
accommodate the various stakeholders, but in the current state of implemen-
tation, problems can be anticipated.
II. NATURAL, SocIo-EcoNoMIc, AND LEGAL LANDSCAPES
The recovery of the DPS occurs within the context of Maine's natural
environment, the economy, which is partially dependent on the environ-
ment, and the laws that govern the State. In order to understand the process
of recovery directed by the ESA, an understanding of this natural, socio-
economic, and legal context is important.
12. "Arbitrary and capricious" is a judicial standard of review, the determination of

which is the basis for altering a decision of a federal agency. This standard requires that an
agency's decisions are supported by facts in the record and are reasonable under the
circumstances. "[A] court must consider whether the agency acted within the scope of its
legal authority, whether the agency adequately explained its decision, whether the agency
based its decision on facts in the record, and whether the agency considered the relevant
factors." Maine v. Norton, 257 F. Supp. 2d 357, 389 (D. Me. 2003) (citing Marsh v. Or.
Natural Res. Council, 490 U.S. 360,378 (1989); Citizens to Preserve Overton Park, Inc. v.
Volpe, 401402,415-16 (1971); Prof'l Drivers Council v. Bureau of Motor Carrier Safety,
706 F.2d 1216, 1220 (D. C. Cir.1983)).
13. Maine v. Norton, 257 F. Supp. 2d 357 (D. Me. 2003).
A. Maine'sNaturalEnvironment
Maine's borders enclose roughly 33,215 square miles of land with a

coastline of approximately 3,500 miles. It is the largest of the New England
states, bordered by New Hampshire, the Canadian provinces of Quebec and
New Brunswick, the Atlantic Ocean, and the Bay of Fundy. Approximately
eighty percent of Maine's land is covered with forests consisting of white
pine, hemlock, spruce, fir, and hardwoods. There are more than 2,200 lakes
and more than 5,000 streams and rivers. The 2000 census stated Maine's
population as 1,274,923 people. 14 The location of the rivers that are home
to the DPS - the Dennys, East Machias, Machias, Narraguagus, Ducktrap
and Sheepscot Rivers and Cove Brook - are situated in areas that are lightly
populated and are typically managed for forest products and low bush
blueberry production."5 Extensive aquaculture activities occur where the
mouths of the rivers intersect the ocean. The ocean in these areas provides
an ideal environment for finfish aquaculture. Large numbers of islands
dispersed throughout the area provide shelter from the open ocean and
substantial tides provide an abundance of circulated water.
B. Maine'sEconomy and the Environment
Maine's economy is based in no small part on its natural resources. In

addition to resource extraction industries such as lumber and paper mills,
Maine's economy has a strong agricultural component. Aquaculture,
salmon farming in particular, is another industry that significantly
contributes to Maine's economy.
Forestry activities constitute a large source of revenue for Maine,
however, these activities can potentially stress certain parts of the environ-
ment that are important to the DPS. Production of forestry materials in
1997 represented approximately eighteen percent of the State's economy, 6
providing resources for pulp and paper industries, lumber production, and
biomass energy production. Forestry activities affecting the DPS are
generally related to harvesting trees and the associated road building
activities. The related road construction may impact water quality in rivers
by creating non-point source pollution in the form of silt when disturbed
soil flows into the rivers from rain runoff.17 Another consequence of
14. Columbia Encyclopedia (6th ed. 2003). This source is also available at
http://www.infoplease.com/ce6/us/A0831252.html (last visited Dec. 4, 2003).
15. 65 Fed. Reg. at 69,459, 69,460.
16. STATE PLAN, supra note 8, at 212.
17. Non-point source means those sources of pollution that do not meet the definition
ofpoint source as defined under 33 U.S.C. § 1362(14). The term "point source" means any
discernible, confined and discrete conveyance, including but not limited to, any pipe, ditch,
forestry is the effect on river temperatures when riparian vegetation is
harvested or damaged and subsequently reduces the amount of shade along
rivers and streams.
Agriculture in Maine competes with salmon for fresh water resources.
State agricultural activities include dairy farming, hay, silage corn, horse
farming, sheep farming, beef cattle farming, Christmas trees, market
vegetables, blueberries, cranberries, landscape and horticultural plants, and
peat mining. 8 The two areas of agriculture that have the most potential for
affecting the Atlantic salmon are blueberry farming and cranberry farming.
Both of these agricultural activities occur on a large scale in areas where
salmon inhabit the rivers, and each requires substantial amounts of water for
a variety of reasons.
Significant blueberry farming operations are found in the watersheds of
the Narraguagus, Pleasant, Machias, East Machias and Dennys Rivers,
covering approximately 6,000 acres of land. 9 These operations are
expected to double over the next few years. Blueberry farming uses water
in three ways: irrigation, berry processing, and equipment cooling.
Cranberry farming is still relatively new to Maine, although it is
growing. In 1997, when the State Plan was created, production consisted
of 50 to 60 acres. By 2002 approximately 219 acres had been harvested. 20
For each acre of production, approximately three acre-feet" of water are
required even though water is "recycled." Cranberry production requires
water to irrigate the crop, to protect the berries from frost beginning in late
fall through the spring, and for harvesting the berries.'
Aquaculture poses one of the most direct threats to the DPS. The term
"aquaculture" describes a number of economic activities, including bait fish
production, salmon, trout, mussel, and oyster farming. Finfish aquaculture
presents the most serious problems. In 2002, aquaculture contributed $180
million to Maine's economy. The largest single generator of this revenue
channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal
feeding operation, or vessel or other floating craft, from which pollutants are or may be
discharged. This term does not include agricultural storm water discharges and return flows
from irrigated agriculture. Id.
19. Id.at 110.
20. New England Agricultural Statistics Service, 2002 U.S. CranberryProductionup
Six Percent (Jan. 27, 2003), available at http://www.nass.usda.gov/nh/cran03.pdf (last
visited Dec. 1, 2003) (citing Charles Armstrong, Cranberry Associate, University of Maine
Cooperative Extension). Maine's 2002 cranberry production was 20,450 barrels, a 14
percent increase from the previous year. There were 219 acres of cranberries harvested in
Maine in 2002, compared to 250.5 acres the previous year. Id.
21. An acre-foot of water is equal to an amount of water one foot deep covering an area
one acre in size.
was salmon finfish aquaculture. There are three primary companies that
comprise the salmon aquaculture industry in Maine.23 These salmon farms
generate approximately $50 million in revenue each year from direct sales
and contribute a substantial portion of an additional $50 million in indirect
economic activity in Maine.' The fish farms also provide 240 jobs to an
area of the State that struggles to provide employment opportunities to its
residents.2 5
C. State Laws andthe Environment
The listing of the DPS as endangered reflects the reality that State laws
alone have failed to protect the salmon. State statutes establish the
parameters that guide public interaction with natural resources. For that
reason State laws have a direct impact on the economy associated with the
use of natural resources. To the extent that many of those resources
comprise or directly affect the habitat of the DPS, a review of those laws
provides a better understanding of the context in which the ESA operates.
Resource-related statutes can be grouped into three broad categories: land
use and forestry related statutes, marine resource statutes, and environmen-
tal protection statutes.
1. Land Use and Forestry Related Statutes
One of the threats to the DPS is the direct removal of water from rivers
that comprise its habitats. 26 12 M.R.S.A. §§ 681-689 establishes the Maine
Land Use Regulation Commission (LURC), which is charged with
managing the planning and zoning of land use through the promulgation of
rules and regulations in the "unorganized" townships within the State;27
"prevent[ing] the despoliation, pollution and inappropriate use of the water
in these areas; and [preserving] ecological and natural values."28
23. Frank O'Hara, Economic Impact of Aquaculture in Maine (Oct. 14, 2003),
available at http://www.maineaquaculture.org/Aquaculture%2OReport.pdf(last visited Dec.
1, 2003). The three major stakeholders in the finfish aquaculture industry are Heritage
Salmon, a Canadian company; Stolt Sea Farm Holdings, a subsidiary of Stolt-Nielson S.A.;
and Atlantic Salmon of Maine, a subsidiary of Fjord Seafood. Id.
24. Id.
25. Id.
26. Fed. Reg. at 62,628.
27. 12 M.RS.A. § 683 (2003). LURC is responsible for oversight and management
of all land use issues in unorganized areas. "Unorganized" areas are those areas where there
is no local government to provide administrative services. Id. § 682(1).
28. Id. § 681 (2003).
20041 Swimming Upstream 339
Two byproducts of forestry activities occurring in close proximity to

rivers may threaten DPS. Silt from road building compromises gravel river
bottoms required for DPS spawning. Refuse from the harvesting process
may create barriers in a river, undermining DPS access to spawning
grounds. The Forest Practices Act, 12 M.R.S.A. §§ 8867-8869, addresses
"Cooperative Forestry Management." Among other things, it states that
"[t]he Commissioner of Conservation shall consult with the Commissioner
of Environmental Protection and the Commissioner of Inland Fisheries and
Wildlife to ensure that bureau rules are consistent with wildlife habitat and
environmental protection."29 It allows the Commissioner of Conservation
to "establish performance standards for timber harvesting activities in areas
adjacent to rivers, streams, ponds, wetlands and tidal waters."30 These
statutes establish forest harvest regulations that define standards. These
standards "protect water quality, minimize soil erosion, ... address adverse
impacts on wildlife habitat and provide for a healthy and sustainable
forest. 31 38 M.R.S.A. § 417 prohibits any person or entity from discharg-
ing, directly or indirectly, "[a]ny slabs, edgings, sawdust, shavings, chips,
bark or other forest products refuse" into the inland waters or tidal waters
32
of the State.
2. Marine Resource Statutes
In contrast to forest activities, dams do not pose a major problem to

DPS rivers. However, future stocking projects that occur in rivers not
currently populated with the DPS may be affected by dam regulations.33 12
M.R.S.A. §§ 6121-6125 provides authority to the Commissioner of Marine
Resources to make determinations as to the need for fishways in dams in
order to support the migration of anadromous fish and place the burden of
the cost of construction on the owner or lessee of the dam. 12 M.R.S.A.
sections 7701-A to 7702 grants the Commissioner of Inland Fisheries and
Wildlife the same authority as the Commissioner of Marine Resources
regarding fishways and dams.
In addition to addressing potential obstacles to DPS migration, marine
resources statutes attempt to protect DPS genetic characteristics. Geneti-
cally, distinct fish stocks used or produced by aquaculture operations could
29. Id. § 8867-A (2003).

30. Id. § 8867-B (2003).
31. Id. § 8869(2) (2003).
32 38 M.R.SA. § 417(1) (2003).
33. See John Richardson, Penobscot to Lose Dams, Gain Salmon, PORTLAND PRESS
HERALD, Oct. 7, 2003, at 9A (article about dams being decommissioned on the Penobscot
River, involving state, and federal government).
compete for habitat and interbreed with native DPS stocks should they
escape. Within this context, 12 M.R.S.A. section 6071places a ban on the
"import for introduction into any waters of the State any Atlantic salmon,
live or as eggs, that originate in any Icelandic or European territorial waters
or any other species of salmon, exclusive of rainbow trout, originating west
of the North America continental divide. 34 12 M.R.S.A. sections 7671-
7675 addresses the establishment of, and procedures for, fish hatcheries. It
also allows the Commissioner of Inland Fisheries and Wildlife to designate
any inland water as a fish spawning area.
Uniquely directed towards the management of Salmon as a marine
resource, the Atlantic Salmon Commission was established by 12 M.R.S.A
sections 9901-9909. Its mission is to "protect, preserve, enhance, restore
and manage the Atlantic salmon and its habitat; to secure a sustainable
recreational fisheries in the State; and to conduct and coordinate all projects
involving research, planning, management, restoration or propagation of the
Atlantic salmon."3 The commission has broad authority to adopt rules and
regulations dealing with the management of salmon.3 6
3. Environmental Protection Statutes
Maine's Department of Environmental Protection (DEP) administers

State water pollution control activities. The DEP was established to
"prevent, abate and control the pollution of the air, water and land and
preserve, improve and prevent diminution of the natural environment of the
State."37 These laws directly affect the quality of the DPS habitat.
12 M.R.S.A. §§ 401-407 addresses Maine's rivers and their manage-
ment. Among other things, these- statutes declare Maine's rivers to be
"important natural resources, historically vital to the state's commerce and
industry and to the quality of life enjoyed by Maine people"3 and that the
"well-being of the citizens of this State depends on striking a carefully
considered and well-reasoned balance among the competing uses of the
State's rivers and streams." 39 The statutes declare certain rivers as "out-
standing" rivers that are afforded special protections from development,
especially from hydropower.4 0 Violations of the protections would be
34. 12 M.R.S.A. § 6071(4) (2003).

35. Id. § 9901(1) (2003).
36. Id. § 9902(4).
37. 38 M.R.S.A. § 341-A(1) (2003).
38. 12 M.R.S.A. § 401(1) (2003).
39. Id. § 402(1).
40. Id. § 403. Included in the list of outstanding rivers are the eight rivers identified
by the Services where the Gulf of Maine DPS is located. Id.
violations of the State's water quality laws. Finally, the statutes call for the
"State Planning Office, with assistance from the Department of Inland
Fisheries and Wildlife, the Department of Marine Resources, the Depart-
ment of Environmental Protection and other state agencies" to develop a
river resource management plan that takes into consideration and identifies
aquatic habitat requirements, including stream flows."
Issues of water quality are addressed by Maine statutes 38 M.R.S.A .§§
361-372, 401-404, 410-424, 451-452, 464-470, and 571. Maine has
implemented a two-method approach to protect its waters from pollution.
The first method that the State employs is a permitting system referred to
as the Maine Pollutant Discharge Elimination System (MPDES), which
requires that a permit be obtained to discharge "pollutants" into Maine's
waters.42 The MPDES program is a partnership between the State and the
Federal Government, authorized by the Clean Water Act (CWA).43 One
piece of the CWA is the National Pollutant Discharge Elimination System
(NPDES), which requires national permits in order to legally discharge any
pollutant into U.S. waters." The NPDES program allows for local
administration of the program by qualified state agencies. In 1999, Maine
applied for administrative control, and, effective January 12, 2001, Maine
received authorization to administer the program now known as MPDES. 45
Salmon aquaculture companies, as part of their operating agreement with
the State, are required to obtain an MPDES permit.46
The second method used by the State to control water quality is a water
classification system, which describes water quality standards for various
bodies of water and establishes minimum quantifiable measures of
cleanliness.4 7
41. Id. § 407.

42. Clean Water Act, 33 U.S.C. § 1362(6) (2003). The term "pollutant" means
"dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste
discharged into water." Id.
43. Clean Water Apt, 33 U.S.C. § 1251 (2003). The Clean Water Act is the federal
regulatory mechanism that regulates the discharge of pollutants into the waters of the United
States. Id.
44. Id. § 1342(b).
45. National Pollutant Discharge Elimination System Memorandum of Agreement
Between the State of Maine and the Unit ed States Environmental Protection Agency Region
1, available at http://www.state.me.us/dep/blwq/delegation/moa.pdf (last visited Dec. 1,
2003) [hereinafter Agreement].
46. See Maine Pollutant Discharge Elimination System Permit and Maine Waste
Discharge License, Fact Sheet, available at http://www.maine.gov/dep/blwq/docstand/
aquaculture/factsheetdec9.pdf (last visited Dec. 1, 2003).
47. 38 M.R.S.A. § 465 (1)(A) (2003). Water quality standards are composed of two
The Mandatory Shore Land Zoning Act, 38 M.R.S.A. §§ 435-449,

requires State municipalities to enact zoning laws regulating activities
within 250 feet of any "great pond," river, saltwater body, the upland edge
of a coastal wetland, and the upland edge of a freshwater wetland.41 It also
requires zoning to regulate activity within seventy-five feet of the high-
water line of a stream. "The purposes of these controls are ... to protect fish
spawning grounds, aquatic life, bird and other wildlife habitat."49
'
The Natural Resources Protection Act, 38 M.R.S.A. §§ 480-A to
480-U, requires that those performing certain activities in, around, on or in
close proximity to, most water bodies, coastal and freshwater wetlands, and
significant wildlife habitat, obtain a permit from the DEP The activities,
including "dredging, bulldozing, removing or displacing soil, sand,
[a]ny
vegetation or other materials; ... draining or otherwise dewatering; ...
construction, repair or alteration of any permanent structure," would have
the potential to adversely affect DPS habitat.5° Furthermore, the Maine
Waterway Development and Conservation Act, 38 M.R.S.A. §§ 630-637,
640, controls the permitting of hydroelectric power facilities. The Maine
Dam Registration, Abandonment and Water Level Act, 38 M.R.S.A. §§
815-818, 830-843, provides that the State can create a water-level regime
and, if applicable, minimum flow requirements for the body of water
impounded by any dam that is not controlled by some other State or federal
statute. It especially protects natural habitats.
38 M.R.S.A. sections 470-A-G requires comprehensive reporting of
water consumption that exceeds certain thresholds from rivers, streams,
lakes, ponds, and ground water sources. The purpose of this reporting is to
support a statewide water utilization plan. These statutes were coinciden-
tally established in 2001, shortly after the DPS was listed as endangered.
parts. First, there is a usage descriptor that indicates what activities are to be supported by
a particular segment of water. For example, "Class AA waters [, of which the Dennys River
is designated,] shall be of such quality that they are suitable for the designated uses of
drinking water after disinfection, fishing, agriculture, recreation in and on the water,
navigation and as habitat for fish and other aquatic life. The habitat shall be characterized
as free flowing and natural." Id. § 465(l)(A). These physical criteria provide aquantitative
goal against which current water quality can be measured. Second, in addition to the usage
description, there is a scientific criterion that specifically identifies the chemical and
biological composition for each of the three designations. For example, "the aquatic life,
dissolved oxygen and bacteria content of Class AA waters shall be as naturally occurs." Id.
§ 465(l)(B). These biological and chemical criteria represent the minimum physical
characteristics of the water necessary to support the described intended use.
48. 38 M.R.S.A. § 435 (2003).
49. Id.
50. Id. at § 480-C(2) (2003).
2004] Swimming Upstream 343
One of the problems in the DPS listing was the lack of a State law coordi-
51
nating water utilization.
While it seems as though these statutes are comprehensive, the fact
remains that they have not been sufficient to prevent the decline of the DPS.
Enforcement may be lacking or the statutes may simply not be stringent
enough.
IMl. ENDANGERED SPECIES ACT
In 1973, Congress passed the Endangered Species Act52 (ESA) after

determining that:
various species of fish, wildlife, and plants in the United States
have been rendered extinct as a consequence of economic growth
and development untempered by adequate concern and conserva-
tion; 3 other species of fish, wildlife, and plants have been so
depleted in numbers that they are in danger of or threatened with
extinction[.] 5
Believing that nature needed a helping hand, Congress passed the ESA
to "provide a means whereby the ecosystems upon which endangered
species and threatened species depend may be conserved.5 In order for a
species to receive protection under the ESA, it must be determined to be
"threatened" or "endangered." The language of the Act defines a "threat-
ened species" as one that is likely to become "endangered" within the
"foreseeable future throughout all or a significant portion of its range."56
An "endangered species" is one that "is in danger of extinction throughout
all or a significant portion of its range."57 For the purpose of the Act, the
term "species" includes "any subspecies of fish or wildlife or plants, and
any distinct population segment of any species of vertebrate fish or wildlife
which interbreeds when mature."" Congress gave authority to the
Secretaries of Commerce and Interior (Secretaries), who have delegated
responsibility to the FWS and NMFS as lead agencies managing the
process. 59 Any interested person may petition the Secretaries via the
51. 60 Fed. Reg. 50,530, 50,532 (Sept. 29, 1995).

52. Endangered Species Act,16 U.S.C. § 1531 et seq. (2003).
53. Id.§ 1531(a)(1).
54. Id.§ 1531(a)(2).
55. Id.§ 1531(b).
56. Id. § 1532 (20).
57. 16 U.S.C. § 1532(6).
58. Id. § 1532(16).
59. Id. § 1532(15); Endangered and Threatened Wildlife and Plants 50 C.F.R. §
402.01(b) (2003). "The Secretary shall by regulation promulgate in accordance with
appropriate Service, with the support of substantial and credible informa-

tion, to have a species listed as threatened or endangered.' The Services
must list a species as endangered if they determine that any of five
enumerated criteria have been met.61 When listing factors are considered,
the ESA requires that all decisions be based "solely" on the "best scientific
and commercial data available," free from any economic influences. 62
When a final rule listing a species as endangered or threatened is promul-
gated, the Act requires that the Secretary, "to the maximum extent prudent
and determinable," concurrently "designate" the habitat of the species that
is considered to be "critical habitat. '63 After listing, the ESA mandates that
the Secretary develop and implement a recovery plan "for the conservation
and survival of [listed] endangered and threatened species..., unless he 6
finds that such a plan will not promote the conservation of the species."
A recovery plan presents a set of "site specific management actions" and
"measurable criteria" to help determine when a species may be de-listed,
and it also includes cost information. 6' The ESA imposes a two prong
consultative requirement between the Secretaries and other federal agencies
to prevent "any action authorized, funded, or carried out" by a federal
government agency from injuring listed species. This is to ensure that the
agency actions will not (1) "jeopardize the continued existence of any
[listed] species" or (2) "result in the destruction or adverse modification of
[critical habitat] of such species. 66 The agency is obligated to seek
alternative means of accomplishing the objective or must obtain an
exemption if the agency's actions jeopardize or adversely affect a species
or its habitat. 67 The ESA applies to persons, as well as the federal
subsection (b) of this section determine whether any species is an endangered species or a
threatened species." 6 U.S. C. § 1533(a)(1). "The U.S. Fish and Wildlife Service (FWS)
and the National Marine Fisheries Service (NMFS) share responsibilities for administering
the Act." 50 C.F.R. § 402.01(b).
60. 16 U.S.C. § 1533(b)(3)(A); 5 U.S.C. § 553(e) (2003).
61. 16 U.S.C. § 1533(a)(1)(a)-(d). "Criteria for listing include the present or
threatened destruction, modification, or curtailment of [a species's] habitat or range; over
utilization for commercial, recreational, scientific, or educational purposes; disease or
predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade
factors affecting its continued existence." Id.
62. Id. § 1533(b)(1)(a).
63. Id. § 1533(a)(3). There is a requirement that the critical habitat regulation be
published in conjunction with the regulation for listing an endangered species, except where
the urgency of the situation requires an immediate publishing of the listing regulations or
where the habitat will not be ascertained for some period of time. 50 C.F.R § 424.12(a).
64. 16 U.S.C. § 1533(f).
65. Id.
66. Id. § 1536(a)(2).
67. Id. § 1536(b)(3)(B).
government, by making it illegal to "take" any endangered species without
a permit.6" The term "take" is defined as to "harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect" an endangered species.69 The
Services' regulations define "harm" to include an act that significantly
modifies or degrades a species's habitat, resulting in actual death or injury
to the species.7" Due to the objective of educating the public, the Services
include in the rule a list of actions that they will consider to be "take
violations, sometimes referred to as a 4(d) take.
A. Maine's Experience
The listing of an endangered species and the designation of its critical

habitat is a process that, by its very nature, affects many different constitu-
ents with competing interests. This is reflected in the statement of
congressional findings and in the statement ofpurpose of the ESA itself. On
one side, you there are interests of the species, typically represented by
NGOs. On the other side of the process, there are the interests of those
people and organizations who are ultimately affected financially by the
outcome of the application of the ESA. This coalition is typically
comprised of industry, private landowners, state government, and, in certain
instances, other departments of the federal government who are sponsors of
federal projects. The following discussion examines in greater detail the
major components of the ESA and the interplay of competing interests
within the context of the listing of the Gulf of Maine DPS.
As mentioned earlier, the first step in the conservation process is the
listing of a threatened or endangered species. Any "interested person" may
petition the Secretary or the appropriate Service to have a species listed as
threatened or endangered.7 1 The petitioner must provide "substantial
scientific or commercial information indicating that the petitioned action
may be warranted."'72 Once the petition has been presented, the Secretary
has ninety days in which to evaluate the petition data and determine
whether it is substantial enough to warrant proceeding further.73 In practice,
68. Id. § 1539(a)(1)(A) and (B).

69. 16 U.S.C. § 1532(19).
70. Endangered and Threatened Species, 50 C.F.R. § 17.3(c)(3) (2003).
71. 16 U.S.C. § 1533(b)(3)(A); 5 U.S.C. § 553(e) (2003).
72. N. Spotted Owl v. Hodel, 716 F. Supp. 479,479 (W.D. Wash. 1988) (Petition for
listing); Endangered Species Comm. of the Bldg. Indus. Ass'n of S. Cal. v. Babbitt, 852 F.
Supp. 32, 33 (D.D.C. 1994) (failure to make raw data available requires new notice and
commentproceeding for listing of Coastal California Gnatcatcher); Or. Natural Res. Council
v. Daley, 6 F. Supp. 2d 1139, 1161 (D. Or. 1998) (finding that NMFS's decision not to list
Coho was arbitrary and capricious).
73. 16 U.S.C. § 1533(b)(3)(A) (2003).
NGOs have played a big role due to their ability to muster the resources for
gathering the scientific data and expertise required by the statute to sustain
a listing. This was the case in the 1993 petition to have the DPS of Atlantic
salmon listed as endangered. 4
The NGOs that filed the petition for the Atlantic salmon provided
current and historical information on salmon populations, provided
numerous scientific articles, and identified possible threats, which included
commercial and sport fishing, pollution, barriers, land use practices, and
genetic disruptions. 5 In January of 1994, the Services published their
ninety day finding in the Federal Register, concluding that there was
credible information provided and announcing that they would commence
a more extensive twelve month investigation of the status of the species.76
The conclusions reached during this extensive investigation must be
based on the "best scientific and commercial data available" and be free of
any economic considerations." The ESA requires that the Secretaries, after
an additional twelve months, publish one of three possible determinations
in the Federal Register: first, that there is no basis to the petition; second,
that the petition for action is warranted and will be followed by a proposed
rule to list the species; or third, that the petition is reasonable but must be
delayed due to some other agency activity related to listing.7" The Services'
twelve month investigation concluded that the salmon identified in the
petition did not meet the definition of a species for the purposes of the ESA.
As such, there was no reason to list the salmon as endangered throughout
its historical range in the United States. Alternatively, the review team
concluded that the identified salmon did meet the criteria for a "distinct
population segment" and could be treated as a species for purposes of the
ESA. This language has been the source of debate and has produced
litigation over how to apply those words to various living organisms."
74. See STATE PLAN supra note 8; see also Ctr. for Biological Diversity v. Norton, 212
F. Supp. 2d 1217 (S.D. Cal. 2002) (suit brought by NGO against Secretary of the Interior
claiming violation ofESA by determining critical habitat designation for certain species was
arbitrary and capricious); Forest Guardians v. Babbitt, 174 F.3d 1178 (10t' Cir. 1999) (suit
brought by NGO to compel Secretary of Interior to designate critical habitat for Silvery
Minnow).
75. 59 Fed. Reg. at 3068.
76. 59 Fed. Reg. at 3067.
77. 16 U.S.C. § 1533(b)(1)(A) (2003). "The Secretary shall make determinations
required by subsection (a)(1) of this section solely on the basis of the best scientific and
commercial data available to him." Id. (emphasis added).
78. Id. § 1533(b)(3)(B).
79. Holly Doremus, ListingDecisions Under the EndangeredSpecies Act: Why Better
Science Isn't Always Better Policy, 75 Wash. U. L.Q. 1029 (1997). Recognition of
subspecies and distinct population groups, by contrast, has often been highly controversial.
The boundaries between subspecies and population groups, which can be crucial in
The Atlantic salmon is found in the United States, Canada, Greenland,
and Europe. At one time in the United States, it could be found as far south
as Connecticut's Housatonic River and as far north as tributaries feeding the
St. Johns River."0 According to the Services, indigenous salmon popula-
tions found south of Maine's Kennebec River were extirpated during the
1800s." Any Atlantic salmon found in those rivers now are the result of
restoration efforts using non-indigenous stocks. Hence, listing Atlantic
salmon as an endangered species throughout its historic range in the
contiguous United States was unwarranted. 82 There are remaining isolated
subgroups of indigenous Atlantic salmon that return to certain rivers in
Maine to spawn. Maine represents the southernmost point of the Atlantic
salmon's present day range. The best available scientific information
concludes that Maine's salmon populations retain genetically unique
characteristics that help them to survive in this southerly environment due
to the segregation of reproductive activities over time. These traits improve
the extended outlook for the survival of the Atlantic salmon as a whole. For
this reason, Maine's native salmon subgroup is deemed a "distinct
population segment." 3 Six months after concluding that the Maine rivers'
salmon population was a DPS, the Services published a proposed rule
listing the DPS as threatened because of the determination that the "salmon
[population] in these rivers [was] likely to become endangered in the
foreseeable future .... ,,sThis determination was made after considering
five factors, including "the present or threatened destruction, modification,
or curtailment of [a species'] habitat or range; over utilization for commer-
cial, recreational, scientific, or educational purposes; disease or predation;
determining whether a group is entitled to the protections of the ESA, may turn on
distinctions easily made to appear trivial.
For example, one recent listing dispute depended on the taxonomic status of the
California gnatcatcher, a small songbird found in the southwestern United States and
northwestern Mexico. FWS determined that the species included two distinct
subspecies, differing slightly in bill length and other minor morphological characteris-
tics. One subspecies was found north of about 30 degrees north latitude in Baja,
California and the other south of that line. The location of the boundary drawn
between the subspecies led to listing of the northern subspecies, which was reduced
to a very small population. Ifconsidered as a whole, the species likely would not have
qualified for listing.
Id. at 1104.
80. 60 Fed. Reg. 14,410 (Mar. 15, 1995).
81. Id.
82. Id.
83. 16 U.S.C. § 1532(16) (2003). The term "species" includes any subspecies of fish
or wildlife or plants, and any distinct population segment of any species of vertebrate fish
or wildlife that interbreeds when mature. 50 C.F.R. § 81.1(h) (2003).
84. 60 Fed. Reg. at 50,530.
the inadequacy of existing regulatory mechanisms; or other natural or
manmade factors affecting its continued existence." 5 After reviewing and
considering the best scientific and commercial information, the biological
review team determined that poaching, low survival of fish during the first
winter at sea, and activities related to aquaculture posed a threat to the
DPS.86
A rule is proposed once a threat is determined. All stakeholders have
an opportunity to provide input to the rule making process 87 so that the
"final action resulting from the proposal will be as accurate and effective as
possible. '8 These stakeholders especially include State government, 9 as
well as other federal agencies, affected industry, and private citizens. The
Services requested that the State develop a conservation plan that would
allow the State "to maintain the lead role in the management" of conserva-
tion activities relative to the DPS. 90
The State's objective in participating in the conservation effort was,
arguably, to avoid the listing of the DPS as a threatened or endangered
species. The State's anxiety over listing the DPS can be understood in the
context of the overarching nature of the ESA. Its nature was demonstrated
in Tennessee Valley Authority v. Hill.91 There, the Supreme Court
considered whether the plain language of the ESA would protect another
endangered fish, the snail darter, by blocking the completion of a hydroelec-
tric dam project on which millions of federal dollars had already been spent.
The Court stated that "[t]he plain intent of Congress in enacting this statute
was to halt and reverse the trend toward species extinction, whatever the
cost."'92 The Court enjoined the completion of the dam while speculating
that Congress would ultimately pass separate legislation allowing the
project's completion.93 State concerns were succinctly articulated in
comments made by Angus King, former governor of Maine, during the
public hearing process for the second proposed rule to list the DPS as
endangered in 1999. Governor King expressed the underlying anxiety of
affected industry and the State when he stated, "[w]e're concerned
principally about two dangers. One is regulation, the other is [private
citizen lawsuits]."'
85. 16 U.S.C. § 1533(a)(1)(A)-(E) (2003).

86. 60 Fed. Reg. at 50,533.
87. 50 C.F.R. § 424.13 (2003).
88. 60 Fed. Reg. at 50,537.
89. 16 U.S.C. § 1535(a) (2003).
90. 60 Fed. Reg. at 50,535.
91. Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978).
92. Id. at 184.
93. Id. at 210.
94. Transcripts of comments by Maine Governor Angus King at Ellsworth Middle
With this concern in mind and presented with the opportunity to affect
decisions about listing, the State embarked on the development of the State
Conservation Plan, which included input from affected parties.9" As part of
the effort, the State, through legislation, reorganized the bureaucracy
responsible for Atlantic salmon issues. The legislation created a new
Atlantic Salmon Commission whose purpose was "to protect, preserve,
enhance, restore and manage the Atlantic salmon and its habitat ... and to
conduct and coordinate all projects involving research, planning, manage-
ment, restoration or propagation of the Atlantic salmon." 6' The Services,
obligated to take into consideration State conservation efforts,97 determined
that the rule listing the DPS as threatened was not necessary in light of all
conservation measures and withdrew the rule in 1997.98 The potential for
influencing the process through participation in it was thus demonstrated.
Listing of the DPS as endangered ultimately did occur in November 2000,
two years after the State's 1998 Annual Progress Report on the implementa-
tion of the State Conservation Plan. The report indicated that the plight of
the DPS was worsening.99 In response, the Services left the door open to
review their decision,"° and proposed a new rule in 1999 to list the DPS as
endangered. 101 Unhappy with the newly proposed rule, a coalition of
interested parties, which included the State and other business interests,
embarked on a path of litigation culminating in Maine v. Norton.10 2 They
challenged the characterization of the salmon as a "distinct population
segment" and asserted that the determination was "arbitrary and capri-
School on the proposed listing of the U.S. Gulf of Maine-stocks of wild Atlantic salm on as
endangered pursuant to the federal Endangered Species Act, availableathttp://www./penba-
y.org/kingsalm.html (last visited Sept. 14, 2003).
95. STATE PLAN supra note 8.
96. 12 M.R.SA. § 9901(1) (2003).
97. 16 U.S.C. § 1533(b)(1)(A) (2003).
98. Withdrawal of Proposed Rule to List a Distinct Population Segment of Atlantic
Salmon (Salmo salar)as Threatened, 62 Fed. Reg. 66,325 (Dec. 18, 1997).
99. 65 Fed. Reg. at 69,459, 69,475- 69,477. Lists the categorical threats to the DPS of
Atlantic salmon, which include Present or Threatened Destruction, Modification or
Curtailment of Habitat; Over-Utilization for Commercial, Recreational, Scientific, or
Educational Purposes; Disease and Predation; Inadequacy of Existing Regulatory
Mechanisms; and Other Natural or Man-Made Factors Affecting its Continued Existence.
100. 62 Fed. Reg at 66,338. The Services indicated that if the DPS became threatened
or endangered in the future as a result of inadequate Conservation Plan implementation,
inability to adapt to new threats, or as a result of an unforeseen emergency, the listing
process might be reinstated. Id.
101. See Proposed Endangered Status for a Distinct Population Segment ofAnadromous
Atlantic Salmon (Salmo salar)in the Gulf of Maine, 64 Fed. Reg. 62,627 (Nov.17, 1999)
(to be codified at 50 C.F.R. pts. 17,224).
102. Me. v. Norton, 257 F. Supp. 2d 357 (D. Me. 2003).
cious."' 3 In 2003, the District Court ruled in favor of the Services, and the
State appealed. The appeal was subsequently withdrawn as a result of the
2002 change in the State's political administration.
Once the final rule listing a species as endangered or threatened is
promulgated, several activities must take place. First, the Act requires that
the Secretaries, to the extent possible, publish the species' "critical
habitat."'" This process is discussed in greater detail in part IV of this
discussion. Second, the Secretaries, as they deem necessary, are required
to issue regulations to protect the species from a take."0 5 In the case of the
DPS, the Services listed a variety of activities that on their face meet the
definition of a "take."'4 3 6 Such activities would be a violation of federal
103. Id. at 361-62. The State asserted that the rule was "arbitrary, capricious, and abuse
of discretion, and/or otherwise not in accordance with law." Id. Other business interests
asserted:
(1) that the distinct population segment designation is both procedurally and factually
illegal because it was not based on the best scientific and commercial data; (2) that
the listing failed to provide a summary showing the relationship of the data relied
upon to the final listing rule and that the designation of the Gulf of Maine distinct
population segment is overly broad and unduly vague so as to violate the constitu-
tional requirements of due process; (3) that the decision to list the Gulf of Maine
distinct population segment now, without extending time for decision to allow for
consideration of the National Academy of Sciences' study and without allowing
interested parties sufficient notice and opportunity to comment, is arbitrary and
capricious, an abuse of discretion, and against substantial evidence; and (4) that the
ESA unconstitutionally delegates legislative authority regarding what constitutes a
distinct population segment and that the ESA provision authorizing the listing of a
distinct population segment is an unconstitutional violation of the Commerce Clause.
Id.
104. 16 U.S.C. § 1533(a)(3) (2003) (requiring the publishing of critical habitat
regulation in conjunction with the regulation for listing as endangered except where the
urgency of the situation requires an immediate publishing of the listing regulations or where
the habitat is as yet unascertained and will not be for some period of time). See also 50
C.F.R. § 424.12(a) (2003).
105. 16 U.S.C. § 1533(d) (2003). The term "take" means to"harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."
Id. § 1532(19).
106. 65 Fed. Reg. 69,459 (Nov. 17, 2000).
Activities that the Services believe could result in violation of section 9 prohibitions
against "take" of the Gulf of Maine DPS of anadromous Atlantic salmon include, but
are not limited to, the following: (1) the escapement of reproductively viable non-
North American strain or non-North American hybrid Atlantic salmon in freshwater
hatcheries within the DPS range; (2) the escapement from marine cages or freshwater
hatcheries of domesticated salmon such that they are found entering or existing in
rivers within the DPS range; (3) failure to adopt and implement fish health practices
that adequately protect against the introduction and spread of disease; (4) siting and/or
operating aquaculture facilities in a manner that negatively impacts water quality
and/or benthic habitat; (5) targeted recreational and commercial fishing, bycatch
associated with commercial and recreational fisheries, and illegal harvest; (6)
law.1" Any conflicting State laws are preempted because the ESA
explicitly declares that federal law takes precedence in these matters."1
Third, the Secretaries must implement a recovery plan that will work toward
°
removing the species from the endangered list at some point in the future.'
The plan must include "site specific management actions," "objective
measurable criteria" for determining when goals have been met, and an
0
estimate as to the duration and the cost of such a plan. n" Final plans must
allow for public comment and feedback and must consider public input.
Finally, the FWS and NMFS "may procure the services of appropriate
public and private agencies and institutions, and other qualified persons."..
These aspects of a recovery plan represent another opportunity for
stakeholders to affect their own activities. While the Services have not
proposed a recovery plan as of yet, one can speculate what the plan will
contain based on the identified threats to the salmon outlined in the final
listing rule. 2
Section 7 of the ESA compels other federal agencies to be part of the
conservation process. The Act imposes a dual consultative requirement on
federal agencies when their actions are likely "to jeopardize the continued
existence of any endangered species or threatened species or result in the '13
destruction or adverse modification of [critical] habitat of such species."
Acting as a clearinghouse for listed species and critical habitat information,
other agencies must inquire with the Services whether any endangered
species or critical habitats are present within the areas affected by their
actions.!1 To the extent that private lands are affected by a federal agency
discharging (point and non-point source) or dumping toxic chemicals, silt, fertilizers,
pesticides, heavy metals, oil, organic wastes or other pollutants into waters supporting
the DPS; (7) blocking migration routes; (8) destruction and/or alteration of the
species' habitat; (9) violations of discharge or water withdrawal permits that are
protective of the DPS and its habitat; (10) unauthorized collecting or handling of the
species; and (11) other activities not identified here will be reviewed on a case-by-case
basis to determine if violation of section 9 of the ESA may be likely to result from
such activities. We do not consider these lists to be exhaustive and provide them as
information to the public.
Id. at 69,479.
107. 16 U.S.C. § 1538(g) (2003).
108. Id. § 1535(f).
109. Id. § 1533(f)(1)(B)(ii).
110. Id. § 1533(f)(1)(B).
111. Id. § 1533(t)(2).
112. The recovery plan could include specific water level requirements and flow rates
for DPS river habitats, periods of time during which water withdrawals are allowed, caps on
various agriculturally related chemicals detected in water, and more stringent rules on
hatchery practices, etc.
113. 16 U.S.C. § 1536(a)(2) (2003).
114. Id. § 1536(c)(1).
decision, such as forestry or mining operations, those private holdings may

be impacted. A "biological assessment" is performed to determine whether
any species or habitat is within an affected area. If so, a "biological
opinion" must be obtained to assess the impact the action is likely to have
on the species or habitat. 5
The consultative relationship has been demonstrated in Maine through
the MPDES program referred to earlier in the discussion. In 2003, the State
completed work on a MPDES permit for Atlantic salmon aquacultureY 6
While the State has administrative control over the MPDES program, the
EPA has oversight responsibilities and, therefore, must consult with the
Services regarding actions that would impact the DPS. "' Many of the
"take" actions in the final rule that lists the DPS as endangered are directly
attributable to salmon aquaculture activities. As a result, there are various
requirements within the MPDES permit to protect the DPS." s
Section 9 of the ESA proscribes taking of any species, plant, or animal.
The definition of "take" is rather expansive. However, it has withstood
challenges at the Supreme Court level." 9 Among other things, "take"
means that it is illegal to "possess, sell, deliver, carry, transport, or ship, by
any means whatsoever, any such [endangered or threatened] species."
Further developing the broad definition of"take," federal regulations define
"[h]arm in the definition of 'take' in the Act [as meaning] an act which
actually kills or injures wildlife. Such act may include significant habitat
modification or degradation where it actually kills or injures wildlife by
significantly impairing essential behavioral patterns, including breeding,
feeding or sheltering."' 20 This definition of "take" reflects an actor's
intention to directly affect the species, however, there are activities that may
result in a "take" without the intent of harm. Those results are referred to
as an "incidental take."''
115. See 50 C.F.R. § 402.14 (2003).

116. Maine Pollutant Discharge Elimination System General Permit for Atlantic Salmon
Aquaculture, availableat http://www.state.me.us/dep/blwq/docstand/aquaculture/MEGI 3
OOOO.pdf (last visited Dec. 1, 2003) [hereinafter MPDES].
117. Agreement, supra note 45.
118. See MPDES, supranote 116. In order to minimize the potential for diseases to be
transmitted from domestic to wild salmon, the recently defined MPDES permit maintains
certain requirements for fish densities within net pens, fallowing periods, use of chemicals
to control parasites, and protocols for the use of various antibiotics. Some of the permit
requirements are to prevent farmed fish from escaping, and marking and tagging fish so that
they are recognizable as farmed fish. One of the most dramatic impacts of this permit will
be the requirement that salmon farms not be allowed to raise non-North American species.
119. Babbitt v. Sweet Home Chapter of Comms. for a Greater Or., 515 U.S. 687, 704
(1995).
120. 50 C.F.R. § 17.3 (2003).
121. Id. "Incidental taking" means "any taking otherwise prohibited, if such taking is
20041 Swimming Upstream
Congress recognized that there were certain situations where an

endangered species could not absolutely be protected and would allow
certain "incidental takings."" The statute allows an agency action that
otherwise would violate the "no jeopardy" standard so long as the action is
significant "regionally or nationally" and there are no "reasonable and
prudent alternatives to the agency action" and "reasonable mitigation and
enhancement measures [are in place] ..as are necessary and appropriate to
minimize the adverse effects of the agency action upon the endangered
species, threatened species, or critical habitat concerned."' 2 3 Congress, in
Section 10 of the ESA, provided a similar opportunity to non-federal actors.
Upon receipt of a permit, an actor can incidentally "take" during projects
where there is no intent to do harm to a species or its habitat. The permit
requires a Habitat Conservation Plan (HCP) that articulates the likely
impact of the taking, how the party intends to "mitigate and minimize" the
impact, the alternatives that were considered and why the alternatives were
rejected."2
incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." Id.
122. 16 U.S.C. § 1536(b)(4)(C)(I) (2003).
123. Id. § 1536(h)(1).
124. Id. § 1539(a)(2)(A).
IV. CRrrICAL HABITAT
In its final form, the ESA's stated purpose is "to provide a means
whereby the ecosystems upon which endangered species and threatened
species depend may be conserved."125 ' In Tennessee Valley Authority, the
Court noted that, when considering the legislation that would eventually
become the ESA, "Congress started from the finding that '[t]he two major
causes of extinction are hunting and destruction of natural habitat."' 12 6 It
is noted that, "[o]f these twin threats, Congress was informed that [the]
greatest was the destruction of natural habitats.""' It is not the simple act
of listing a species that is all-powerful: "Of equal or more importance is the
determination of the habitat necessary for the species' continued existence
... the ultimate effectiveness of the [ESA depends] on the designation of
critical habitats.""12 In Middle Rio Grande Conservancy District v.
Babbitt,29 the court points out that the "ESA gives designation of critical
habitat the same priority as the listing [of the species]." 3 0 The court also
noted the broader importance of critical habitat stating:
[t]he [ESA] clearly intends to do more than save endangered
species and threatened species from jeopardy; it is intended to
bring endangered and threatened species back from the brink of
extinction to a point where statutory protections are no longer
necessary."' The designation of critical habitat therefore serves as
the principal means for conserving an endangered species, by
protecting not simply the species, but also the ecosystem upon
which the species depends.132
Recognizing its importance, Congress made identification of critical
habitat a non-discretionary act. In Forest Guardiansv. Babbitt, 3 the court
held "that [the Service] violated [its] non-discretionary duty by failing to
designate the critical habitat for the Rio Grande silvery minnow by the
125. Id. § 1531(b).

126. Tenn. Valley Auth., 437 U.S. at 179.
127. Id. (quoting statement of Associated Deputy Chief for National Forest System,
Dept. of Agriculture, 1973 House Hearings 236).
128. Ctr. for Biological Diversity v. Norton, 240 F. Supp. 2d 1090, 1098 (D. Ariz. 2003)
(quoting H.R. REP. No. 94-887, at 3 (1976)) (emphasis added).
129. Middle Rio Grande Conservancy Dist. v. Babbitt, 206 F. Supp. 2d 1156, 1169 (D.
N.M. 2000).
130. Id. at 1169.
131. Id. (citing Tenn. Valley Auth., 437 U.S. at 184).
132. Id.
133. 164 F.3d 1261 (10th Cir. 1998).
statutory deadline." 34 More recently, the Fifth Circuit, in Sierra Club v.
U.S. Fish and Wildlife Service,135 reaffirmed that "[t]he ESA requires the
Secretary of the Interior to 'designate any habitat of such species which is
then considered to be critical habitat' concurrently with the listing of a
threatened species, unless a statutory exception applies. '1 36 The general
rule is that designation occurs simultaneously with the final rule listing a
species. 31 However, the statute does provide some leeway regarding the
timing. 13' The only exceptions to designation are when the designation is
not "prudent" or when the habitat is not "determinable. ' 139 While the ESA
does not define what prudent means, the Services' regulations interpret "not
prudent" to include: (1) if critical habitat would increase the threat to the
endangered species or (2) if the designation of habitat would not have any
benefit to the species.""4 Judicial construction of the Services' rules
defining "prudence" requires that "the Service[s] adequately 'conside[r] the
relevant factors and articulat[e] a rational connection between the facts
found and the choice made,"' rather than use4 "prudence" as a mechanism
to not consider or designate critical habitat.' 1
"When considering the designation of critical'habitat, the Secretaries
shall focus on the principal biological or physical constituent elements
within the defined area that are essential to the conservation of the
species.""' 2 Determination of critical habitat is made "on the basis of the
best scientific data available and after taking into consideration the
economic impact, and any other relevant impact, of specifying any
particular area as critical habitat.' 43 Critical habitat is limited to an area
"on which are found those physical or biological features essential to the
conservation of the species and which may require special management
considerations or protection; and specific areas outside the geographical
area occupied by the species ...[if] such areas are essential for the
134. Id. at 1274.

135. 245 F.3d 434 (2001).
136. Id. at 436 (challenging the decision of the Services not to designate critical habitat
for the Gulf sturgeon).
137. 16 U.S.C. § 1533(b)(6)C) (2003).
138. Id. §§ 1533(b)(6)(A), 1533(b)(6)(C)(ii).
139. Id. § 1533(a)(3).
140. 50 C.F.R. § 424.12(a)(1)(i)(ii).
141. NRDC v. U.S. Dep't of Interior, 113 F.3d 1121, 1125 (9th Cir. 1997) (citing Res.
Ltd., Inc., v. Robertson, 35 F.3d 1300, 1304 (9th Cir. 1993) (quoting Pyramid Lake Paiute
Tribe v. U.S. Dep't. of Navy, 898 F.2d 1410, 1414 (9th Cir. 1990)).
142. 50 C.F.R. § 424.12(b)(5) (2003). Relative to the DPS, constituent elements may
include, but are not limited to: spawning sites, feeding sites, water quality or quantity,
geological formation, vegetation type along riparian areas, and river bottom characteristics.
Id.
143. 16 U.S.C. § 1533(b)(2) (2003).
conservation of the species."'" Habitat outside the immediately occupied

areas may be designated only if the Secretaries determine
14 5
"that such areas
are essential for the conservation of the species."'
The Secretaries can exclude habitat after performing a benefits analysis
unless they determine that "failure to designate such areas as critical habitat
will result in the extinction of the species concerned." 1" Private land may
be designated as critical habitat if it contains the constituent elements
necessary for survival of the species and the economic or other impacts do
not outweigh the benefit of designation. 4 7 The courts have noted two
benefits to critical habitat designation on private lands. "First, even if no
federal activity currently occurs on the land, there may be such activity in
the future, ... [and] [s]econd, the designation itself informs the public as
well as the state and local governments [that the species is endangered or
threatened and which areas are important to the species]."' 48
As a result of the 1978 amendments to the ESA, the designation of
critical habitat allows for economic impact considerations. The designation
of critical habitat is the only time the ESA allows for the consideration of
economics. As such, this process should be important to all stakeholders.
Courts have ruled that the economic parameters to be considered include all
costs resulting4
from listing and any incremental costs of critical habitat
designation. 1
Full consultation under Section 7 of the ESA discussed earlier is
dependent on a designation of critical habitat.' In Defenders of Wildlife
v. Norton,'5 ' the D.C. Circuit stated that species "cannot, by definition,
receive the full extent of protection provided by the ESA and the Section
7 consultation process until its critical habitat is designated."' 52 The court
enjoined the Services from conducting a Section 7 consultation until they
completed critical habitat designation for the endangered Canadian Lynx.5 3
144. Id. § 1532(5)(A)(i)-(ii).

145. Id. § 1532(5)(A)(ii).
146. Id. § 1533(b)(2).
147. See Middle Rio Grande Conservancy v. Babbitt, 206 F. Supp. 2d at 1173.
148. Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d 1280, 1286 (D. Haw.
1998); see also Middle Rio Grande ConservancyDistrict,206 F. Supp. 2d at 1174.
149. New Mexico Cattle Growers Ass'n v. U.S. Fish and Wildlife Service, 248 F.3d
1277, 1285 (10th Cir. 2001).
150. It should be noted that under the current statute, Section 7 recognizes two
conditions that require consultation by federal agencies. First, if an agency action would
"jeopardize the continued existence of any endangered species or threatened species[,] or
result in the destruction or adverse modification of habitat of such species .... ." Bennet v.
Spear, 520 U.S. 154, 158 (1997) (quoting 16 U.S.C. § 1536(a)(2) (1994)).
151. Defenders of Wildlife v. Norton, 239 F. Supp. 2d 9 (D.D.C. 2002).
152. Id. at 24.
153. Id. at 25.
In another critical habitat case, the U.S. District Court for the District of
Arizona, in Centerfor Biological Diversity v. Norton,TM recognized the
diminished protection provided by Section 7 consultations as a result of
failing to designate critical habitat on certain lands in Arizona and New
Mexico for the Mexican spotted owl.155
While the above discussion has described in detail how important
critical habitat protection is to fulfill Congress's vision of preserving the
ecosystems on which species depend, the reality is that critical habitat has
not been designated for many endangered and threatened species. As of the
date of the writing of this paper, the Services, in violation of the plain
language of the ESA, have not issued a rule identifying the critical habitat
of the DPS in Maine.156 Failure to designate is due in large measure to the
backlog of court-ordered critical habitat designations for other species as a
result of under-funding by Congress. 57
154. Center for Biological Diversity, 240 F. Supp. 2d at 1090.

155. Id. at 1102.
156. The Federal Register rule publication occurred inNovember of2000. The deadline
for critical habitat designation was November 2002, which means that the designation is
nearly two years overdue.
157.
Status of Court-Ordered Critical Habitat Actions
The following court-ordered critical habitat actions (proposed or final rulemakings)
requiring work in FY 2003 will be proposed for deferral into FY 2004 due to lack of
funding:
Case Name Species
Bldg. Indus. Legal Def. Found., et al. v. Gale Southwestern Arroyo toad (proposed and
Norton, et al. final rule)
Case No. 01-cv-231 1 JDB (D.D.C.) Riverside fairy shrimp (proposed and final
rule)
Biodiversity Legal Found. Topeka shiner (final rule)
Civ. No. 00-118 0 (D.Colo.)
CBD v Norton (0l-cv-2101 EEG (LAB)) and Lane Mountain milk-vetch (proposed rule);
BILD v Norton (01-cv-2145 EEG (LAB)) Fish slough milk-vetch (proposed rule);
(cons.) Spreading navaretia and San Jacinto crown
scale (proposed nile)
Natn'l Ass'n of Home Builders v. Norton Cactus ferruginous pygmy-owl (final rule)
and Defenders of Wildlife (CIV-00-0903-
PHX-SRB)
Alliance for the Wild Rockies Inc., Friends Bull trout (St. Mary, Puget Sound and
of the Wild Swan, Inc v. Badgley et al. (CV Jarbidge DPS) (proposed rule); Bull trout
01-127 -JO (D. Ore.) (Columbia Basin/Klamath DPS) (final rule)
CBD v. USFWS, (C-01-0352 SI (ADR) Ventua Marsh milk-vetch (final rule)
N.D.Cal.) II
The reasons for the under-funding, which began in 1995 and continue
today, are beyond the scope of this paper. 5 Assistant Secretary of the
Interior Craig Manson has indicated that he would like to see Congress
overhaul the critical habitat designation rule because he views it as "[a]
process that provides little real conservation benefit[,] consumes enormous
agency resources and imposes huge social and economic costs. ' 159 As
mentioned above, the issue of whether critical habitat. designation is
mandatory has been addressed in the courts on several occasions. Courts
are unwilling to grant the Services an exemption from having to declare
critical habitat for lack of finding. Nevertheless, courts recognize that the
Services must have funding in order to perform critical habitat designation.
This has resulted in courts' decisions making designations conditional on
CBD, Dine Care, and Ctr. for Native Ecosys- Mexican spotted owl (proposed rule)
tens v. Norton (CIV-01-409-TUCACM)
SWCB et al v. Babbitt et al (C-99-2992 La Graciosa thistle (final rule)
CRB-.D-CAN)
S. Appalachian Biodiversity Project v. Nort- Eggert's sunflower (proposed rule); Mobile
on (CN 2:00-CV-3 61 (E.D. TN)) basin bivalves (includes 11 TN bivalves)
(final rule);
Cumberlandian elktoe and 4 TN bivalves
(final rule)
CBD and BLF v. Babbitt (CV 00-1980 D. Colorado butterfly plant (proposed rule)
CO) Southwestern Arroyo toad (proposed and
final rule)
Home Builders Ass'n of N. Cal., et al. v. California red-legged frog (proposed rule)
Norton et al. (CV01-1291 RJL) D.D.C.
Santa Ana Sucker, Cal. Trout v. Babbitt, No. Santa Ana Sucker (final rule)
97 -3779 SI (N.D. Cal.) I
available at http://endangered fws.gov/criticalhabitat/ch-actions.pdf (last visited Dec. 1,
2003).
158. See generally Thomas F. Darin, DesignatingCriticalHabitatUnder
the EndangeredSpecies Act: Habitat Protection Versus Agency Discretion, 24 HARV.
ENVTL. L. REV. 209 (2000).
159. Craig Manson, Testimony of Craig Manson, Assistant Secretary for Fish and
Wildlife and Parks, Department of the Interior,Before the Subcommittee on Fisheries,
Wildlife and Water of the Senate Committee on Environment andPublic Works, Regarding
the Designation of CriticalHabitat Under the EndangeredSpecies Act, Apr. 10, 2003,
availableat http://laws.fws.gov/TESTIMON/2003/2003aprill0.html (last visited Apr. 16,
2004). Assistant Secretary Manson has, in a news release and on the Fish and Wildlife
Service Website, indicated that the process for designating critical habitat is "broken" based
on his observation of two conditions. First there is a shortfall of available funding, and
second, there is a high level of litigation surrounding unfulfilled habitat designation.
According to Assistant Secretary Manson, litigation has increased since a 1997 rule stating
that "not prudent" determinations were not an acceptable place-holder for no determinations
at all. See NRDC, 113 F.3d at 1121. In addition, Manson suggests litigation was further
fueled by a 1999 Tenth Circuit ruling that held that courts do not have the authority to
exempt the FWS from issuing habitat rules, when due, even when resources are unavailable.
Forest Guardians v. Babbitt, 174 F.3d 1178 (10th Cir. 1999).
the Services' receipt of funds from Congress. 1" Regardless of the Assistant
Secretary's personal beliefs, the statutory and judicial construction require
that the Services designate critical habitat.
V. CONCLUSION
It can be concluded from this discussion that courts will not allow the
application of the ESA to wander outside of the four comers of the statute
regardless of socio-economic pressures. To the extent that the language of
the ESA is vague, it provides some flexibility to the executive agencies in
how they implement the statute as reflected in the Services' regulations.
Beyond that, the only flexibility found is in the exceptions provided by the
statute itself and the willingness of those on the ground to enforce the ESA
rules. The ESA, while not allowing major deviations, will accommodate
financial stakeholders to the extent that they do not seriously compromise
endangered species and to the extent that they provide some net benefit to
conservation efforts, notwithstanding "takes" of species. In Maine, salmon
farms are allowed to raise Atlantic salmon within the constraints ofMPDES
permits, forest harvesters can operate so long as they do not disturb riparian
habitat or create non-point source pollution, and blueberry and cranberry
producers may use water resources. However, they will have to do so
within the constraints of a future water management plan.
The current state of the ESA in Maine can be described as only partially
implemented in light of the absence of a declaration of critical habitat. By
not considering critical habitat at the same level as that of the species, the
designation's importance is diminished. Without a formal designation of
critical habitat, there are, arguably, other ways in which critical habitat
could be accounted for. The Services could consider critical habitat in other
provisions of the ESA, such as a conservation plan, or list it explicitly as
part of the Section 4(d) "takes" articulated in a listing rule. This approach
is clearly not what Congress had envisioned. Regardless of one's opinion
as to the merits of Congress's approach to protection of species and their
ecosystems, the ESA must be viewed as a system, not as a group of isolated
functions. The ESA works because one component supports and drives the
other components, i.e., critical habitat designation acts as a trigger for
consultation. If one arbitrarily decides not to enforce one aspect of the
ESA, such non-action ripples through and diminishes the whole process.
Another aspect of the system that Congress created is the ability to
160. Envtl. Def. Ctr. v. Babbitt, 73 F.3d 867 (9th Cir. 1995) (ruling that an appropria-
tions rider limiting funds available for listing, while not modifying obligations under the
ESA to list species, prevented the Secretary of the Interior from complying with the ESA
requirements).
incorporate input from those stakeholders affected by it. Critical habitat

designation represents a significant aspect of the stakeholder input process,
recalling that it is the only point where economics are considered. Failure
to execute this aspect of the system potentially removes the possibility that
economics can be legitimately considered. Finally, failure to designate
critical habitat may signal that habitat is not important. Rules do send
messages. Maine legislated for a centralized water plan shortly after
promulgation of the rule listing the DPS as endangered. Lack of water
resource coordination was listed as a threat and possible Section 4(d) "take"
in the rule. Whether the timing was coincidental or not is unknown.
One can only speculate how this will play out in Maine. If one
considers the backlog of court-ordered habitat declarations, the current
budgetary limitations of the Services, the perception of key administrators
that declaration of critical habitat is non-productive, and an intent by those
same administrators to request that Congress limit funds available for
critical habitat, it is reasonable to conclude that concerned citizens will have
to pursue habitat declaration through the courts just as others are doing. In
Maine, conservationists have shown a willingness to litigate where they see
environmental failures. This has been demonstrated by the protracted
litigation involving the DPS listing. 6 '
Ironically, the agency administrators who complain that the system is
failing due to spiraling litigation are increasing the likelihood that litigation
will occur by altering the system to their liking. Not only will environmen-
talists continue to file suit for failure of the Services to fulfill their non-
discretionary duties, but other unhappy stakeholders who have lost their
economic voice due to the removal of certain feedback mechanisms 62 will
become potential litigants as well. Additionally, the failure to declare
critical habitat injects a quantum of risk into any business activities that
utilize the rivers as a resource. This risk may stifle legitimate use of river
resources because of the unresolved regulatory forces. New businesses
might be loath to take advantage of a public resource not knowing if their
use of the resource will be the basis for a legal challenge if and when the
critical habitat regulatory regime is finally implemented. Economic interest 63
may be better served with onerous but fully executed known policies.
161. See Me. v. Norton, 257 F. Supp. 2d 357 (D. Me. 2003).
162. Economic considerations are only allowed during the consideration of critical
habitat.
163. The legal troubles that Atlantic Salmon of Maine confronted reflect the risks for
businesses operating in an environment with unpredictable regulatory forces. See David
Sharp, Maine Salmon Farm, Crippled by Court Decisions, is Put Up ForSale, available at
http://www4.fosters.com/news2004/March20O4/March_1 I/News/reg.me_0311.04j.asp (last
visited Mar. 31, 2004).
The struggle that salmon populations endure as they swim upstream to
perpetuate their own survival seems to be a metaphor for the struggle in
which conservationists currently find themselves.

Swimming Upstream_ a Legal Analysis of Listing Atlantic Salmon As

Uploaded by

Copyright:

Available Formats

Swimming Upstream_ a Legal Analysis of Listing Atlantic Salmon As

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Swimming Upstream_ a Legal Analysis of Listing Atlantic Salmon As

Uploaded by

Copyright:

Available Formats

Ocean and Coastal Law Journal

Volume 9 | Number 2 Article 9

Swimming Upstream: A Legal Analysis Of Listing

Follow this and additional works at: http://digitalcommons.mainelaw.maine.edu/oclj

In 1993, a group of conservationists, 1concerned with the survival of the

* University of Maine School of Law, Class of 2004.

5. Proposed Threatened Status for a Distinct Population Segment of Anadromous

II. NATURAL, SocIo-EcoNoMIc, AND LEGAL LANDSCAPES

12. "Arbitrary and capricious" is a judicial standard of review, the determination of

Maine's borders enclose roughly 33,215 square miles of land with a

B. Maine'sEconomy and the Environment

Maine's economy is based in no small part on its natural resources. In

C. State Laws andthe Environment

1. Land Use and Forestry Related Statutes

Two byproducts of forestry activities occurring in close proximity to

2. Marine Resource Statutes

In contrast to forest activities, dams do not pose a major problem to

29. Id. § 8867-A (2003).

3. Environmental Protection Statutes

Maine's Department of Environmental Protection (DEP) administers

34. 12 M.R.S.A. § 6071(4) (2003).

41. Id. § 407.

The Mandatory Shore Land Zoning Act, 38 M.R.S.A. §§ 435-449,

IMl. ENDANGERED SPECIES ACT

In 1973, Congress passed the Endangered Species Act52 (ESA) after

51. 60 Fed. Reg. 50,530, 50,532 (Sept. 29, 1995).

appropriate Service, with the support of substantial and credible informa-

The listing of an endangered species and the designation of its critical

68. Id. § 1539(a)(1)(A) and (B).

85. 16 U.S.C. § 1533(a)(1)(A)-(E) (2003).

decision, such as forestry or mining operations, those private holdings may

115. See 50 C.F.R. § 402.14 (2003).

Congress recognized that there were certain situations where an

IV. CRrrICAL HABITAT

125. Id. § 1531(b).

134. Id. at 1274.

conservation of the species."'" Habitat outside the immediately occupied

144. Id. § 1532(5)(A)(i)-(ii).

154. Center for Biological Diversity, 240 F. Supp. 2d at 1090.

incorporate input from those stakeholders affected by it. Critical habitat

You might also like