ESA Take Prohibition Does Not Apply to Endangered Plants On Privately-Owned Wetlands

The Ninth Circuit issued a decision (PDF) recently in which it held that the removal of an endangered plant from privately-owned “waters of the United States” is not a violation of the Endangered Species Act (ESA). Section 9(a)(2)(B) of the ESA makes it unlawful to “remove and reduce to possession any [endangered species of plant] from areas under federal jurisdiction.” The court rejected plaintiffs’ argument that the term “areas under federal jurisdiction” includes areas that qualify as wetlands and other “waters of the United States” under the Clean Water Act. The decision is important because it is the first circuit court decision to interpret the jurisdictional scope of the plant protection provisions of section 9 of the ESA.

Employees of the California Department of Fish and Game identified the endangered Sebastopol meadowfoam on private land within an area determined to be an “adjacent wetland” under the federal Clean Water Act. Suspecting that the plants had been unlawfully transplanted, a Fish and Game employee removed the plants to a Fish and Game evidence locker. Plaintiffs sued the Fish and Game employees and the landowner for violating the ESA. The plaintiffs argued that the term “areas under federal jurisdiction” in section 9(a)(2) of the ESA included areas within the regulatory jurisdiction of the U.S. Army Corps of Engineers under section 404 of the Clean Water Act. The Ninth Circuit disagreed. It concluded that the term “areas under federal jurisdiction” was ambiguous, and interpreted the term “as not including all of the ‘waters of the United States’ as defined by the [Clean Water Act] and its regulations. The court acknowledged that the decision did not foreclose the possibility that the U.S. Fish and Wildlife Service might adopt some other statutory construction. In this case, the Service sided with the defendants and argued that ESA prohibition on “removing” endangered plants applies to endangered plants on federal land and on federal property interests such as conservation easements, leasehold estates, and special management areas.