This week we are beginning our inquiry into section 9 of the Endangered Species Act (“ESA”) prohibiting the “taking” of an endangered species. As we will see, taking is defined very broadly and may even include harming an endangered species habitat. Section 9 applies not only to endangered species but also to threatened species. This prohibition against taking of endangered and threatened species however is not without exception. The most common exception is in the case of obtaining an incidental take permit. In such case a Habitat Conservation Plan (“HCP”) must be developed and is legally binding on both the government and the permit holder.
The law of takings under the ESA is currently the focus of legal action in our own backyard. Please see the link below of a news article describing how two bald eagles have nested on private property along Irondequoit Bay in Rochester. This is an active nest and the Eagles have produced a number of eaglets over the past few years. Accordingly, both state and federal officials have all but formally rejected any desire by the property owners to develop the land. As the article mentions, the property owners paid $1.5 million for the 16 acre parcel prior to the Eagles beginning to nest in the area. This is prime waterfront property adjacent to the property owners existing businesses. Development would require harvesting some timber and the building of roads. What do you think . . . taking or not? would an incidental take permit and corresponding HCP satisfy the goals of the FWS or the developer when he bought the property prior to the nesting?