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Environmental Law

: ESA Blawg

Plants only partly protected by ESA

By Keith Rizzardi

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Pursuant to the ESA, §9, “take” of animal species is prohibited. Take has further been defined to include harm and harassment of animals. Plants, however, receive significantly less protection pursuant to the ESA.

As FWS Virginia field office explained in a fact sheet: "It is not prohibited by the ESA to destroy, damage or move protected plants UNLESS such activities involve an endangered species on Federal land or if the action occurs in violation of State laws. If a person wishes to develop private land, with no Federal jurisdiction involved, in accordance with State law, then the potential destruction, damage, or movement of endangered or threatened plants does not violate the ESA."

This interpretation of the ESA has also been upheld by the federal courts. See, California Native Plant Society v. Norton, 2004 WL 1118537 (S.D. Cal. Feb 3, 2004)(upholding §404 permit and biological opinion allowing transplanting of protected willowy monardella and rejecting argument that ESA prohibited take of plants).

Photo of willowy monardella from City of San Diego

Importantly, despite the inapplicability of the take prohibition to plant species, the ESA does offer some important protection against excessive plant collecting, because it restricts the import and export of listed plant species, an issue that arises, for example, with orchidcollectors.

OTHER RESOURCES:

For more information about the applicability of the ESA to plants, see Kevin Regan, "Protecting Florida's Rare Plants from Extinction," Florida Bar Journal (July 1, 2003), available online.
Article clarifying misperceptions about ESA and CITES (Convention on International Trade in Endangered Species) available online, as published in Endangered Species Bulletin (Sept. 1, 2005)

ESA Section 9(a)(2) states as follows:

Except as provided in sections 6(g)(2) and 10 of this Act, with respect to any endangered species of plants listed pursuant to section 4 of this Act, 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 and promulgated by the Secretary pursuant to authority provided by this Act.

Full post as published by ESA Blawg on February 19, 2008 (boomark / email).