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Document Type

Comment

Abstract

In October 1993, a citizen petition was filed under the Endangered Species Act of 1973 (ESA or Act) to list the anadromous Atlantic salmon as an endangered species throughout its historic range in the contiguous United States. The National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) responded in January 1994, by forming a joint biological review team to perform a detailed Status Review of the requested listing. Following completion of the Status Review, the two Services announced that the petitioned U.S.-wide listing was not warranted, but acknowledged that listings for populations in certain New England rivers might be. In September 1995, the Services proposed listing only a distinct population segment (DPS) of the Atlantic salmon, found only in certain Maine rivers, as threatened. The NMFS and FWS issued a proposed rule (Rule) establishing joint regulations, prohibitions, and protective measures. On the day before the comment period closed, Maine Governor Angus King delivered a letter to the Services objecting to the listing "in the strongest possible terms," and called on the Services to enter into a cooperative agreement with Maine to implement an alternative plan to listing developed in early 1996 by a task force appointed by Governor King. Thus, at the time this Comment goes to print it will not be known whether the Services will change their Rule or what impact Governor King's comments will have on concurrent jurisdiction and federal-state cooperation in protecting Atlantic salmon. This Comment addresses several debated aspects of the proposed listing, proposes an alternative method of deciding listings more in keeping with the goals and purposes of the Endangered Species Act, and describes several congressional attempts to limit the scope of the ESA. Specifically, Part II summarizes the threshold tests used in the listing process and describes how these tests were applied to the listing of the Atlantic salmon. Part III begins by criticizing the standard the Services used to determine which populations to list and the eventual limitation of ESA protection to seven "downeast" Maine rivers instead of the dozens of other rivers throughout the species' historic range. Part III continues by criticizing the Services' proposed rule for failing to consider threats to the ecosystem and the habitat of the Atlantic salmon, as well as ignoring other federal requirements and agreements. Part HI concludes that in addition to scholarly criticism and debate, the legality of the proposed rule may be challenged as being arbitrary and capricious. Part IV describes an alternative standard that is more consistent with ESA goals and purposes. Part V discusses the significance of several misguided proposed amendments to the ESA that would prohibit federal agencies from even considering listings below the species level in the future. The Comment concludes that the Services' proposed rule is a prime example of the interplay between biology and law in a political context. Even if one believes that the Services used a logical method to define which populations to list, they did so to minimize political pressure calling for limited federal involvement and greater state control. Additionally, the Services' sensitivity to this atmosphere of reform may be indicative of future approaches to administering the Act. This result would be unfortunate because the Services' proposed rule fails to extend ESA protection to populations which may be crucial to the survival of Atlantic salmon, and whose habitat is similarly important.

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