1 of 15 documents united states code service

Functions of Commission. Act Dec. 28, 1979, P.L. 96-159, § 6(b), 93 Stat. 1230, provided: "Until such time as the Chairman, Members, and Executive Secretary of the International Convention Advisory Commission are appointed, but not later than 90 days after the date of the enactment of this Act [enacted Dec. 28, 1979], the functions of the Commission shall be carried out by the Endangered Species Scientific Authority as established by Executive Order Numbered 11911 [former 16 USCS § 1537 note], with staff and administrative support being provided by the Secretary of the Interior as set forth in that Executive order.".

Effective date of amendment made by Act Oct. 13, 1982. Act Oct. 13, 1982, P.L. 97-304, § 5(b), 96 Stat. 1422, provided: "The amendment made by paragraph (1) of subsection (a) [adding subsec. (c)(2) of this section] shall take effect January 1, 1981.".
NOTES:
Related Statutes & Rules:

This section is referred to in 16 USCS §§ 1542, 2912.

Research Guide:

Texts:

5 Treatise on Environmental Law (Matthew Bender), ch 12, Public Lands and Conservation § 12.04.

Interpretive Notes and Decisions:

In enacting 16 USCS § 1537a(c)(2), Congress eliminated not only need for population data, but also information on projected kill levels from each state before "no detriment" finding can be issued for that state. Defenders of Wildlife, Inc. v Endangered Species Scientific Authority (1984, App DC) 233 US App DC 199, 725 F2d 726, 20 Envt Rep Cas 1833, 14 ELR 20188.

9 of 15 DOCUMENTS
UNITED STATES CODE SERVICE

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*** CURRENT THROUGH PL 112-14, APPROVED 5/26/2011 ***
TITLE 16. CONSERVATION

CHAPTER 35. ENDANGERED SPECIES

Go to the United States Code Service Archive Directory
16 USCS § 1538
§ 1538. Prohibited acts
(a) Generally.

(1) Except as provided in sections 6(g)(2) and 10 of this Act [16 USCS §§ 1535(g)(2), 1539], with respect to any endangered species of fish or wildlife listed pursuant to section 4 of this Act [16 USCS § 1533] it is unlawful for any person subject to the jurisdiction of the United States to--

(A) import any such species into, or export any such species from the United States;

(B) take any such species within the United States or the territorial sea of the United States;

(C) take any such species upon the high seas;

(D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation of subparagraphs (B) and (C);

(E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any such species;

(F) sell or offer for sale in interstate or foreign commerce any such species; or

(G) violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed pursuant to section 4 of this Act [16 USCS § 1533] and promulgated by the Secretary pursuant to authority provided by this Act.

(2) Except as provided in sections 6(g)(2) and 10 of this Act [16 USCS §§ 1535(g)(2), 1539], with respect to any endangered species of plants listed pursuant to section 4 of this Act [16 USCS § 1533], it is unlawful for any person subject to the jurisdiction of the United States to--

(A) import any such species into, or export any such species from, the United States;

(B) remove and reduce to possession any such species from areas under Federal jurisdiction; maliciously damage or destroy any such species on any such area; or remove, cut, dig up, or damage or destroy any such species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law;

(C) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any such species;

(D) sell or offer for sale in interstate or foreign commerce any such species; or

(E) violate any regulation pertaining to such species or to any threatened species of plants listed pursuant to section 4 of this Act [16 USCS § 1533] and promulgated by the Secretary pursuant to authority provided by this Act.

(b) Species held in captivity or controlled environment.

(1) The provisions of subsections (a)(1)(A) and (a)(1)(G) of this section shall not apply to any fish or wildlife which was held in captivity or in a controlled environment on (A) December 28, 1973, or (B) the date of the publication in the Federal Register of a final regulation adding such fish or wildlife species to any list published pursuant to subsection (c) of section 4 of this Act [16 USCS § 1533(c)]: Provided, That such holding and any subsequent holding or use of the fish or wildlife was not in the course of a commercial activity. With respect to any act prohibited by subsections (a)(1)(A) and (a)(1)(G) of this section which occurs after a period of 180 days from (i) December 28, 1973, or (ii) the date of publication in the Federal Register of a final regulation adding such fish or wildlife species to any list published pursuant to subsection (c) of section 4 of this Act [16 USCS § 1533(c)], there shall be a rebuttable presumption that the fish or wildlife involved in such act is not entitled to the exemption contained in this subsection.

(2) (A) The provisions of subsection (a)(1) shall not apply to--

(i) any raptor legally held in captivity or in a controlled environment on the effective date of the Endangered Species Act Amendments of 1978; or

(ii) any progeny of any raptor described in clause (i);

until such time as any such raptor or progeny is intentionally returned to a wild state.

(B) Any person holding any raptor or progeny described in subparagraph (A) must be able to demonstrate that the raptor or progeny does, in fact, qualify under the provisions of this paragraph, and shall maintain and submit to the Secretary, on request, such inventories, documentation, and records as the Secretary may by regulation require as being reasonably appropriate to carry out the purposes of this paragraph. Such requirements shall not unnecessarily duplicate the requirements of other rules and regulations promulgated by the Secretary.

(c) Violation of Convention.

(1) It is unlawful for any person subject to the jurisdiction of the United States to engage in any trade in any specimens contrary to the provisions of the Convention, or to possess any specimens traded contrary to the provisions of the Convention, including the definitions of terms in article I thereof.

(2) Any importation into the United States of fish or wildlife shall, if--

(A) such fish or wildlife is not an endangered species listed pursuant to section 4 of this Act [16 USCS § 1533] but is listed in Appendix II to the Convention,

(B) the taking and exportation of such fish or wildlife is not contrary to the provisions of the Convention and all other applicable requirements of the Convention have been satisfied,

(C) the applicable requirements of subsections (d), (e), and (f) of this section have been satisfied, and

(D) such importation is not made in the course of a commercial activity,

be presumed to be an importation not in violation of any provision of this Act or any regulation issued pursuant to this Act.

(d) Imports and exports.

(1) In general. It is unlawful for any person, without first having obtained permission from the Secretary, to engage in business--

(A) as an importer or exporter of fish or wildlife (other than shellfish and fishery products which (i) are not listed pursuant to section 4 of this Act [16 USCS § 1533] as endangered species or threatened species, and (ii) are imported for purposes of human or animal consumption or taken in waters under the jurisdiction of the United States or on the high seas for recreational purposes) or plants; or

(B) as an importer or exporter of any amount of raw or worked African elephant ivory.

(2) Requirements. Any person required to obtain permission under paragraph (1) of this subsection shall--

(A) keep such records as will fully and correctly disclose each importation or exportation of fish, wildlife, plants, or African elephant ivory made by him and the subsequent disposition made by him with respect to such fish, wildlife, plants, or ivory;

(B) at all reasonable times upon notice by a duly authorized representative of the Secretary, afford such representative access to his place of business, an opportunity to examine his inventory of imported fish, wildlife, plants, or African elephant ivory and the records required to be kept under subparagraph (A) of this paragraph, and to copy such records; and

(C) file such reports as the Secretary may require.

(3) Regulations. The Secretary shall prescribe such regulations as are necessary and appropriate to carry out the purposes of this subsection.

(4) Restriction on consideration of value or amount of African elephant ivory imported or exported. In granting permission under this subsection for importation or exportation of African elephant ivory, the Secretary shall not vary the requirements for obtaining such permission on the basis of the value or amount of ivory imported or exported under such permission.

(e) Reports. It is unlawful for any person importing or exporting fish or wildlife (other than shellfish and fishery products which (1) are not listed pursuant to section 4 of this Act [16 USCS § 1533] as endangered or threatened species, and (2) are imported for purposes of human or animal consumption or taken in waters under the jurisdiction of the United States or on the high seas for recreational purposes) or plants to fail to file any declaration or report as the Secretary deems necessary to facilitate enforcement of this Act or to meet the obligations of the Convention.

(f) Designation of ports.

(1) It is unlawful for any person subject to the jurisdiction of the United States to import into or export from the United States any fish or wildlife (other than shellfish and fishery products which (A) are not listed pursuant to section 4 of this Act [16 USCS § 1533] as endangered species or threatened species, and (B) are imported for purposes of human or animal consumption or taken in waters under the jurisdiction of the United States or on the high seas for recreational purposes) or plants, except at a port or ports designated by the Secretary of the Interior. For the purpose of facilitating enforcement of this Act and reducing the costs thereof, the Secretary of the Interior, with approval of the Secretary of the Treasury and after notice and opportunity for public hearing, may, by regulation, designate ports and change such designations. The Secretary of the Interior, under such terms and conditions as he may prescribe, may permit the importation or exportation at nondesignated ports in the interest of the health or safety of the fish or wildlife or plants, or for other reasons if, in his discretion, he deems it appropriate and consistent with the purpose of this subsection.

(2) Any port designated by the Secretary of the Interior under the authority of section 4(d) of the Act of December 5, 1969 (16 U.S.C. 666cc-4(d)), shall, if such designation is in effect on the day before the date of the enactment of this Act [enacted Dec. 28, 1973], be deemed to be a port designated by the Secretary under paragraph (1) of this subsection until such time as the Secretary otherwise provides.

(g) Violations. It is unlawful for any person subject to the jurisdiction of the United States to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in this section.
HISTORY:

(Dec. 28, 1973, P.L. 93-205, § 9, 87 Stat. 893; Nov. 10, 1978, P.L. 95-632, § 4, 92 Stat. 3760; Oct. 13, 1982, P.L. 97-304, § 9(b), 96 Stat. 1426; Oct. 7, 1988, P.L. 100-478, Title I, § 1006, Title II, Part III, § 2301, 102 Stat. 2308, 2321; Nov. 14, 1988, P.L. 100-653, Title IX, § 905, 102 Stat. 3835.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

References in text:

"This Act", referred to in this section, is Act Dec. 28, 1973, P.L. 93-205, 87 Stat. 884, which appears generally as 16 USCS §§ 1531 et seq. For full classification of this Act, consult USCS Tables volumes.

"The effective date of the Endangered Species Act Amendments of 1978", referred to in this section, is probably the date of enactment of P.L. 95-632, 92 Stat. 3751, which is Nov. 10, 1978.

"Section 4(d) of the Act of December 5, 1969 (16 U.S.C. 666cc-4(d)", referred to in this section, is § 4(d) of Act Dec. 5, 1969, P.L. 91-135, 83 Stat. 276, which formerly appeared as 16 USCS § 668cc-4(d), and which was repealed by Act Dec. 28, 1973, P.L. 93-205, § 14, 87 Stat. 903.

Effective date of section:

This section is effective on the date of its enactment on Dec. 28, 1973, as provided by Act Dec. 28, 1973, P.L. 93-205, § 16, 87 Stat. 903, which appears as 16 USCS § 1531 note.

Amendments:

1978. Act Nov. 10, 1978, in subsec. (b), designated existing provisions as para. (1), and added para. (2).

1982. Act Oct. 13, 1982, in subsec. (a)(2), redesignated subparas. (B), (C), and (D) as subparas. (C), (D), and (E), respectively, and added a new subpara. (B); and, in subsec. (b), substituted para. (1) for one which read: "The provisions of this section shall not apply to any fish or wildlife held in captivity or in a controlled environment on the effective date of this Act if the purposes of such holding are not contrary to the purposes of this Act; except that this subsection shall not apply in the case of any fish or wildlife held in the course of a commercial activity. With respect to any act prohibited by this section which occurs after a period of 180 days from the effective date of this Act, there shall be a rebuttable presumption that the fish or wildlife involved in such act was not held in captivity or in a controlled environment on such effective date.", and, in para. (2)(A), substituted "The provisions of subsection (a)(1) shall not apply to" for "This section shall not apply to".

1988. Act Oct. 7, 1988 substituted subsec. (a)(2)(B) for one which read: "remove and reduce to possession any such species from areas under Federal jurisdiction;".

Such Act further substituted subsec. (d) for one which read:

"(d) Imports and exports.

(1) It is unlawful for any person to engage in business as an importer or exporter of fish or wildlife (other than shellfish and fishery products which (A) are not listed pursuant to section 4 of this Act as endangered species or threatened species, and (B) are imported for purposes of human or animal consumption or taken in waters under the jurisdiction of the United States or on the high seas for recreational purposes) or plants without first having obtained permission from the Secretary.

"(2) Any person required to obtain permission under paragraph (1) of this subsection shall--

"(A) keep such records as will fully and correctly disclose each importation or exportation of fish, wildlife, or plants made by him and the subsequent disposition made by him with respect to such fish, wildlife, or plants;

"(B) at all reasonable times upon notice by a duly authorized representative of the Secretary, afford such representative access to his places of business, an opportunity to examine his inventory of imported fish, wildlife, or plants and the records required to be kept under subparagraph (A) of this paragraph, and to copy such records; and

"(C) file such reports as the Secretary may require.

"(3) The Secretary shall prescribe such regulations as are necessary and appropriate to carry out the purposes of this subsection.".

Act Nov. 14, 1988, in subsec. (d)(1)(A), substituted "recreational purposes) or plants; or" for "recreational purposes); or".

Other provisions:

Territorial sea of United States. For extension of territorial sea of the United States, see Proc. No. 5928, which appears as 32 USCS § 1331 note.

Human activities within proximity of whales. Act April 30, 1994, P.L. 103-238, § 17, 108 Stat. 559, provides:

"(a) Lawful approaches. In waters of the United States surrounding the State of Hawaii, it is lawful for a person subject to the jurisdiction of the United States to approach, by any means other than an aircraft, no closer than 100 yards to a humpback whale, regardless of whether the approach is made in waters designated under section 222.31 of title 50, Code of Federal Regulations, as cow/calf waters.

"(b) Termination of legal effect of certain regulations. Subsection (b) of section 222.31 of title 50, Code of Federal Regulations, shall cease to be in force and effect.".
NOTES:
Code of Federal Regulations:

Animal and Plant Health Inspection Service, Department of Agriculture--Endangered species regulations concerning terrestrial plants, 7 CFR 355.1 et seq.

United States Fish and Wildlife Service, Department of the Interior--General permit procedures, 50 CFR 13.1 et seq.

United States Fish and Wildlife Service, Department of the Interior--Importation, exportation, and transportation of wildlife, 50 CFR 14.1 et seq.

United States Fish and Wildlife Service, Department of the Interior--Endangered and threatened wildlife and plants, 50 CFR 17.1 et seq.

United States Fish and Wildlife Service, Department of the Interior--Importation and exportation of plants, 50 CFR 24.1 et seq.

Related Statutes & Rules:

This section is referred to in 16 USCS §§ 1533, 1535, 1536, 1539, 1540.

Research Guide:

Federal Procedure:

9A Fed Proc L Ed, Criminal Procedure § 22:1492.

12 Fed Proc L Ed, Evidence § 33:87.

Am Jur:

35A Am Jur 2d, Fish, Game, and Wildlife Conservation § 68.

Am Jur Proof of Facts:

89 Am Jur Proof of Facts 3d, Citizen-Suit Claims Under § 11(g)(1) of the Endangered Species Act, p. 125.

Annotations:

Criminal prosecution under Endangered Species Act of 1973 (16 USCS §§ 1531-1543). 128 ALR Fed 271.

Texts:

2A Environmental Law Practice Guide (Matthew Bender), ch 12C, Criminal Enforcement § 12C.03.

2A Environmental Law Practice Guide (Matthew Bender), ch 15A, Indian Country Environmental Law § 15A.02.

4 Environmental Law Practice Guide (Matthew Bender), ch 24, Wildlife and Habitat Protection §§ 24.03, 24.05.

5 Environmental Law Practice Guide (Matthew Bender), ch 34A, Agricultural Environmental Law § 34A.05.

6 Environmental Law Practice Guide (Matthew Bender), ch 43, Alaska § 43.11.

6 Environmental Law Practice Guide (Matthew Bender), ch 46, California § 46.12.

5 Treatise on Environmental Law (Matthew Bender), ch 12, Public Lands and Conservation § 12.04.

Law Review Articles:

Boudreaux. Understanding "Take" in the Endangered Species Act. 34 Ariz St LJ 733, Fall 2002.

Fischman; Hall-Rivera. A Lesson for Conservation from Pollution Control Law: Cooperative Federalism for Recovery under the Endangered Species Act. 27 Colum J Envtl L 45, 2002.

Estes. The effect of the Federal Endangered Species Act on state water rights. 22 Envtl L 1027, 1992.

Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species Act. 30 Envtl L 769, Fall 2000.

Karkkainen. Default Rules in Private and Public Law: Extending Default Rules Beyond Purely Economic Relationships: Information-Forcing Environmental Regulation. 33 Fla St UL Rev 861, Spring 2006.

Rosenberry. The Effect of the Endangered Species Act on Housing Construction. 33 Hastings L J 551-582, January 1982.

Gray. The Endangered Species Act: Reform or Refutation? 13 Hastings W-NW J Env L & Pol'y 1, Winter 2007.

Klee; Mecham. The Nez Perce Indian Water Right Settlement-Federal Perspective. 42 Idaho L Rev 595, 2006.

Strack. Pandora's Box or Golden Opportunity? Using the Settlement of Indian Reserved Water Right Claims to Affirm State Sovereignty Over Idaho Water and Promote Intergovernmental Cooperation. 42 Idaho L Rev 633, 2006.

Cosens. Nez Perce Water Rights Settlement Article: Truth or Consequences: Settling Water Disputes in the Face of Uncertainty. 42 Idaho L Rev 717, 2006.

Benson. So Much Conflict, Yet So Much in Common: Considering the Similarities between Western Water Law and the Endangered Species Act. 44 Nat Resources J 29, Winter 2004.

Arnold. Conserving habitats and building habitats: the emerging impact of the Endangered Species Act on land use development. 10 Stan Envtl L J 1, 1991.

Cheever. An introduction to the prohibition against takings in section 9 of the Endangered Species Act of 1973: learning to live with a powerful species preservation law. 62 U Colo L Rev 109, 1991.

Moore. Back to the Drawing Board: a Proposal for Adopting a Listed Species Reporting System under the Endangered Species Act. 24 UCLA J Envtl L & Pol'y 105, 2006.

Doremus. New Directions in Environmental Law: the Endangered Species Act: Static Law Meets Dynamic World. 32 Wash U JL & Pol'y 175, 2010.

Davison. The Aftermath of Sweet Home Chapter: Modification of Wildlife Habitat as a Prohibited Taking in Violation of the Endangered Species Act. 27 Wm & Mary Envtl L & Pol'y Rev 541, Spring 2003.

Interpretive Notes and Decisions:

1. Generally 2. Constitutionality 3. Relationship to other provisions 4. Validity of regulations 5. What constitutes "taking" 6.--Incidental taking 7.--Harm 8.--Particular conduct 9.----Hunting 10.----Land development 11.----Logging 12.----Pesticide or rodenticide use 13.----Water diversion 14. Exception for species held in captivity 15. Practice and procedure 16.--Evidence 17.--Forfeiture proceedings 18. Miscellaneous

1. Generally

16 USCS § 1538(a)(1) forbids taking of endangered animal under any circumstances. Sierra Club v Clark (1985, CA8 Minn) 755 F2d 608, 15 ELR 20391 (criticized in Humane Soc'y of the United States v Kempthorne (2006, DC Dist Col) 481 F Supp 2d 53).

Term "convention" referred to in 16 USCS § 1538 refers to Convention as of date offense is committed, not Convention as of March 3, 1973. United States v Ivey (1991, CA5 Tex) 949 F2d 759, 14 BNA Intl Trade Rep 1203, cert den (1992) 506 US 819, 121 L Ed 2d 32, 113 S Ct 64, magistrate's recommendation (1994, WD Tex) 1994 US Dist LEXIS 20373, approved, adopted, motion to vacate den, dismd (1994, WD Tex) 1994 US Dist LEXIS 19993.

Party may proceed without Incidental Take Permit but risks civil and criminal penalties if "take" occurs. Defenders of Wildlife v Bernal (1999, CA9 Ariz) 204 F3d 920, supplemented (2000, CA9 Ariz) 2000 CDOS 1477, 2000 Daily Journal DAR 2103, 50 Envt Rep Cas 1146, 46 FR Serv 3d 120, 30 ELR 20403.

16 USCS § 1538(a)(1)(B) prohibits hunting of endangered species. Defenders of Wildlife v Andrus (1977, DC Dist Col) 428 F Supp 167, 9 Envt Rep Cas 1889, 7 ELR 20269.

Doctrine of primary jurisdiction does not require dismissal of environmental organizations' 16 USCS § 1538 claim against lumber company on behalf of coho salmon, even though approval of "habitat conservation plan" and "incidental take permit" are pending before federal and state agencies, because issues in those proceedings are slightly different and should not interfere with citizen-suit provision designed to protect endangered or threatened species. Coho Salmon v Pacific Lumber Co. (1998, ND Cal) 30 F Supp 2d 1231, 47 Envt Rep Cas 2008, 29 ELR 20508.

Challenge to regulation, promulgated under 16 USCS § 1538(a), restricting extent to which citizens can "take" red wolf that has strayed off government land, must fail, where there is clear nexus between protection of endangered red wolves from taking and interstate commerce, because regulation at issue is legitimate exercise of federal power under Commerce Clause. Gibbs v Babbitt (1998, ED NC) 31 F Supp 2d 531, affd (2000, CA4 NC) 214 F3d 483, 50 Envt Rep Cas 1863, 30 ELR 20602, cert den (2001) 531 US 1145, 148 L Ed 2d 957, 121 S Ct 1081, 52 Envt Rep Cas 1352.

Whatever "areas under Federal jurisdiction" means under 16 USCS § 1538(a)(2), part of Endangered Species Act (ESA), it is not so broad as to encompass wetlands that are adjacent to navigable waters and therefore subject to requirements of Clean Water Act, 33 USCS §§ 1251 et seq.; there is nothing in language or structure of ESA that suggests Congress had such regulatory jurisdiction in mind when it used words "areas under Federal jurisdiction." To contrary, examination of ESA as whole reveals that Congress did not intend removal and reduce to possession portion of 16 USCS § 1538(a)(2)(B) to apply to private property that is merely regulated by federal government. N. Cal. River Watch v Wilcox (2008, ND Cal) 547 F Supp 2d 1071, 67 Envt Rep Cas 1600, affd (2010, CA9 Cal) 620 F3d 1075, 71 Envt Rep Cas 1710, 40 ELR 20233, reprinted as amd on other grounds (2011, CA9 Cal) 2011 US App LEXIS 1752 and amd on other grounds, clarified (2011, CA9 Cal) 2011 US App LEXIS 1753.

Canada lynx's status as threatened as opposed to endangered species does not take it outside prohibitions against taking in 16 USCS § 1538(a)(1)(B). Animal Welfare Inst. v Martin (2008, DC Me) 588 F Supp 2d 70, 69 Envt Rep Cas 1067, injunction den (2008, DC Me) 588 F Supp 2d 110, injunction den, motion den (2009, DC Me) 665 F Supp 2d 19, findings of fact/conclusions of law, injunction den (2009, DC Me) 668 F Supp 2d 254, 71 Envt Rep Cas 1154, affd (2010, CA1 Me) 623 F3d 19, 71 Envt Rep Cas 1705, 41 ELR 20001.