The Endangered Species Act (“ESA”) is widely recognized as one of the strongest wildlife protection laws in the world. The primary function of the statute is to protect and conserve species that are at risk of extinction within at least a significant portion of a species’ range. However, not all species protected under the ESA are located entirely in the wild. Some species have members located in zoos, private animal sanctuaries, or even in agricultural operations. For those operations, it can be unclear how to proceed if a species that is part of the operation receives ESA protection. This uncertainty can be even greater if the species receives protection “wherever found.” In the decades since the ESA was first passed, various courts have considered how to treat members of a protected species that are held in captivity, even if the species is protected as “wherever found.”
Background: The ESA
The Endangered Species Act has played a vital role in the conservation and preservation of various species since its enactment in 1973. The primary function of the ESA is to protect and restore species facing the risk of extinction. To do so, the ESA directs the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) (collectively “the Services”) to identify species at risk of extinction and list them under the ESA for protection. To be listed under the ESA, a species must first be determined to be endangered or threatened. According to the ESA, a species is “endangered” when it is in danger of extinction throughout all or a significant portion of its range. 16 U.S.C. § 1532(6). A species is “threatened” when it is likely to become endangered within the foreseeable future. 16 U.S.C. § 1532(20).
Under the ESA, a species will be listed if it is endangered or threatened due to any of the following five factors; present or threatened destruction, modification, or curtailment of its habitat or range; over-utilization of the species for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and other natural or manmade factors affecting its continued existence. 16 U.S.C. § 1533(a)(1).
Once the Services have determined that a species is either threatened or endangered, it will be added to the list of protected species. A determination must then be made as to “over what portion of its range is [the species] endangered or threatened[.]” 16 U.S.C. § 1533(c)(1). This determination is reflected in the “Where Listed” column of the Federal List of Threatened and Endangered Species that the Services must complete when adding a new species to the federal list. Under the “Where Listed” section, specific geographic areas for a given species may be listed. For example, Grizzly Bears are currently listed as threatened within the lower 48 states. The Argali, a species of sheep, is listed as threatened in only Kyrgyzstan, Mongolia, and Tajikistan. However, it is not uncommon for a species to simply be listed as endangered or threatened “wherever found.” When a species is listed as endangered or threatened “wherever found” it typically means that the species will receive ESA protection no matter its physical location. While listing a species ‘wherever found’ may help to efficiently protect species located in the wild, it can pose a challenge when members of that species are kept in captivity. If a species is listed as endangered or threatened “wherever found,” will captive members of that species be affected?
To answer this question, it is important to understand how the ESA functions. The ESA, at its core, is designed for the conservation of species facing a risk of extinction. A key function of the ESA is its prohibition against the “taking” of an endangered or threatened species. “Take” is a term that includes many activities. The ESA defines take as, “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. §1532(3). This broad definition of “take” allows the ESA to prohibit many activities that are considered harmful to endangered or threatened species. However, this can be interpreted to prevent listed species from being held in captivity. In particular, the prohibitions against capturing or collecting an endangered or threatened species can be seen as preventing listed species from being held in captivity. In the decades since the ESA was passed, multiple courts have been asked to consider when a species listed as ‘wherever found’ may be held in captivity without causing a “take” of the species.
Courts on “Wherever Found”
The impact of the ESA on captive species was discussed in detail in Animal Legal Defense Fund v. Olympic Game Farm, Inc., 591 F. Supp. 3d 956, 967 (W.D. Wash. 2022). Here, the plaintiff brought an action against the defendant’s game farm, alleging that their possession of protected animals had violated the ESA. One of the protected species in captivity at this farm was the Canada Lynx, which the FWS had determined was threatened wherever found in the contiguous United States. However, the court referenced ESA regulations which state that a captive Canada Lynx may be “taken” when lawfully obtained. 50 C.F.R. § 17.40. Importantly, the court noted that in drafting these regulations, the FWS had reasoned that “captive-bred specimens have neither a positive nor negative effect on the species in the wild.”
The plaintiffs in Olympic Game Farm additionally brought claims regarding the treatment of the animals in captivity, alleging that the treatment would fall under the definition of “harass” in the ESA’s definition of take. Under the ESA, to “harass” means “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.” 50 C.F.R. § 17.3. In response to the plaintiffs’ claims, the court referenced ESA regulations which state that the definition of harass, when applied to captive wildlife, “exclude[s] generally accepted animal husbandry practices, breeding procedures, and provisions of veterinary care that are not likely to result in injury to the animal.” Captive-bred Wildlife Regulation, 63 FR 48634-02.
The court in Olympic Game Farm also noted that for an operation to fall within the captive wildlife exclusion, the ESA requires both compliance with the Animal Welfare Act (AWA) and that the animal husbandry practices employed by the operation be “generally accepted.” Animal husbandry practices encompass a wide variety of activities, such as how the captive animal is fed, the state of its habitat, and any breeding practices it may be subjected to. The court held that while compliance with the AWA will likely mean that the practice is “generally accepted,” a court would still need to examine the facts of the case at hand when those practices are challenged.
Finally, the court held that “when offering a standard other than the AWA against which defendants’ conduct is to be measured, plaintiff must show that it has been ‘generally accepted,’ meaning that it applies to the care or facilities at issue and that it has been widely adopted and accepted.” The court did not determine whether the defendant’s practices were generally accepted, instead concluding that there was a triable issue of fact as to whether the defendant’s practices amounted to a take under the ESA.
Importantly, the court made specific note of the FWS’ reasoning that captive-bred specimens have neither “a positive nor a negative effect” on animals in the wild. This is in line with the purpose of the ESA, which is the protection and conservation of endangered or threatened species. A captive-bred specimen that was born and raised in isolation is not generally expected to negatively affect the conservation and protection of its wild counterparts. The ESA is primarily concerned with how captive members of a listed species are cared for.
This is reflected in the exclusions under the definition of “harass” as applied to captive-bred specimens. The FWS will not penalize game farms adhering to “generally accepted animal husbandry practices” or farms in compliance with the AWA. 50 C.F.R. § 17.3. The definition of what is a “generally accepted” practice can vary, and it is helpful to examine some cases where this issue was discussed to better understand this standard.
For example, in Graham v. San Antonio Zoological Society, 261 F. Supp. 3d 711 (W.D. Tex. 2017), a plaintiff filed suit against the San Antonio Zoo, alleging that its treatment of a captive Asian elephant amounted to a prohibited “take” under the ESA. In this case, the defendant argued that “when APHIS determines there is no AWA violation, there is no ESA take liability, as a matter of law.” The court rejected this argument, holding that such determinations may be evidence of compliance with the ESA, but “the court must independently assess the Zoo’s animal husbandry practices under the AWA.”
In other words, the court in Graham found that while evidence of compliance with the AWA could weigh in favor of concluding that the defendant had not caused a take under the ESA, AWA compliance on its own was not enough to reach that conclusion. Instead, the court held that “it substitutes the compliance standards of the AWA as the substantive standard for whether an ESA violation has occurred, and requires such a determination to be made through the typical adversarial process.” More simply, the court determined that prior AWA compliance is not on its own sufficient for captive-game operations to avoid being found liable for a take under the ESA. There must still be a case-by-case determination by the courts on whether the farm or zoo’s practices are “generally accepted.”
Based on the statutory language and the aforementioned cases, possessing a listed species in captivity will not amount to a “take” under the ESA if the species is being properly cared for. In Graham and Olympic Game Farm, courts found that “generally accepted animal husbandry practices” are excluded from the ESA definition of harass so that keeping a listed species in confinement will not be considered a taking when the species is properly cared for. While the courts may not have referenced the specific regulations or “animal husbandry practices” that are accepted, they have interpreted these practices to be insufficient to constitute a “take” under the ESA. Therefore, operations with listed species in captivity need to stay up-to-date and knowledgeable on the regulations governing their field.
The practice of listing species as threatened or endangered wherever they are found poses unique challenges to agriculture. Species that are listed “wherever found” may not be slaughtered or sold for food without violating the ESA prohibition on “take.” Although the ESA does contain some exceptions to allow “take” under certain circumstances, none of those exceptions apply to agriculture. 16 U.S.C. § 1539. No language in the ESA allows for the slaughter and sale of these captive species.
Previously, FWS has attempted to provide an exemption to “take” prohibitions for captive-bred specimens of certain listed species. In 2005, FWS listed three species of antelope as endangered. At the same time that FWS listed the antelope, it also issued a rule specifically exempting captive-bred members of the antelope species from the “take” prohibitions of the ESA. At the time of listing, members of the three antelope species were kept in captivity in various types of facilities including ranches that allowed sport hunters to kill the antelope for a fee. However, in issuing its captive-bred exemption, FWS reasoned that captive breeding programs had helped contribute significantly to the conservation of the antelope species. Ultimately, the captive-bred exemption was challenged by environmental groups and overturned by a federal court. In Friends of Animals v. Salazar, 626 F.Supp.2d 102 (D. D.C., June 22, 2009), the court concluded that the captive-bred exemption violated the ESA because the text of the statute explains that exemptions to the prohibition on “take” are to be issued on a case-by-case basis following an application and public consideration, not as a blanket exemption.
Impacts to Agriculture
One area of agriculture that will certainly be impacted by the ESA is aquaculture. The term aquaculture refers to the breeding, rearing, and harvesting of fish and other aquatic organisms in all types of aquatic environments. Aquaculture can include both marine and freshwater facilities, depending on the type of organisms being farmed and the environment in which they are farmed. There are several species of fish currently being bred and harvested for aquaculture operations that are or could be listed on the ESA.
For example, Atlantic Salmon is often raised in aquaculture operations and has been listed under the ESA. Currently, Atlantic Salmon are listed as a protected species in the New England, Mid-Atlantic, and Gulf of Maine regions. While not listed “wherever found,” this species still has the potential to fall under such listing in the future. Currently, only farm-raised Atlantic Salmon are permitted in U.S. seafood markets, meaning that all Atlantic Salmon consumed in the U.S. come from captivity. The commercial fishing of Atlantic Salmon is completely prohibited.
While the Atlantic Salmon is listed under the ESA, its listing is geographically specific, which allows the species to still be reared and harvested within aquaculture facilities that are not located within the geographic region where the Atlantic Salmon is considered endangered. For species that are listed as threatened or endangered wherever they are found, the issue becomes more complex for aquaculture producers. While there is some question as to the practice of simply listing a species “wherever found,” particularly when that species is known to be commonly raised in captivity for agricultural purposes, that question has yet to be addressed by either courts or the Services. With no clear case law or statutory language on this issue, producers that raise a species which becomes listed as threatened or endangered wherever it is found are unlikely to have a legal option under the ESA for continuing their operations.
To read the text of the ESA, click here.
To learn more about the ESA and agriculture, click here to view NALC’s ESA Manual.
For more National Agricultural Law Center resources on the ESA, click here.