208 - Merissa Moeller - Endangered Species Act 101


[00:00:00] Andony Melathopoulos: The endangered species act is almost 50 years old and it has been a key piece of legislation for helping the recovery of threatened and endangered insect pollinators species. Here in Oregon, we have a number of bee species that are listed under the endangered species act. And we also have just last year, our first bee species, the bubble.

[00:00:21] Bombus Franklin eye Franklins bumblebee down in Southern Oregon. Now the endangered species act is a piece of legislation that I certainly wasn't familiar with. And so I was really excited to have our next guest run us through the kind of various features of the. Marissa Mueller is a natural environment and natural resources land use attorney at Stoll Reeves, a law firm out of Portland.

[00:00:45] She helps natural resource clients comply with environmental laws so that they can run their business and build healthier communities. She knows this she knows the endangered species act very well. And so in this episode, we go through the very history of the endangered species act, its intent, the various features associated with with the act and how it helps species recover.

[00:01:06] How listing how a species is proposed for the endangered species act. And some of the features of the kind of. From when a listing has petitioned for, to when the actual legislation comes into place. I think this is a real timely episode as there's a potentially other bumblebee species that may be listed in the future in the Pacific Northwest.

[00:01:27] So without further ado, Melissa mole, or this week on Polynesian,

[00:01:57] Okay welcome to pollinate.

[00:02:00] Merissa Moeller: Hi, thanks for having

[00:02:01] Andony Melathopoulos: me. It's great. Because over the past few months, I've got to get to know you as long as along with a bunch of other really amazing natural resource professionals through the real Oregon pro.

[00:02:14] Merissa Moeller: Yes, that has been the highlight of my year so far. I am really looking forward to going to Ontario next month and getting to hang out a bit.

[00:02:22] Andony Melathopoulos: Yeah, me too. It's been great meeting all of you. And we had one, we actually had somebody else from that group Charlie came on and talked about removing bees in his spare time, removing bees from crawl spaces and Roseburg, which was what. That's great. But here today, this is a topic that I've been really interested in.

[00:02:40] I know listeners have been really interested in it's the endangered species act, but before we get started, I think, you're a lawyer. You have a professional you're a professional, you're not here in that capacity.

[00:02:52] Merissa Moeller: Yes, I have to give my standard lawyer caveat, which is I'm a lawyer, but I'm not your lawyer listeners.

[00:02:59] So please don't take anything I say here is legal advice. And just for the record, not speaking on behalf of my employer or any clients, just as someone who works in this space, and it's very enthusiastic about the endangered species act and natural resource managers.

[00:03:13] Andony Melathopoulos: Fantastic. Thanks for the caveat.

[00:03:15] And I think, this is a large area and if you are in a situation where you do need legal advice, find legal advice for endangered species act related issues, but we are coming up on the 50th anniversary of the endangered species. And the, and this, there was federal legislation to protect wild animals before the endangered species act like the migratory bird conservation act of 1929.

[00:03:38] What were the specific conservation problems that the endangered species act was designed to solve? And what were the innovations of the act developed to address these problems?

[00:03:49] Merissa Moeller: Yes. Okay. That's a massive question. So I'll take it in a couple of parts. So in terms of the specific conservation problems that ESA was designed to solve, I think it's helpful to take a step back and think about the time in which this law was adopted.

[00:04:04] So this was the time of, a massive wave of environmental and natural resource legislation in the United States. The most significant that we've seen. To that date and seen sense. And this was during the late sixties through basically all of the seventies and at a federal level, the government adopted, the clean water act, the clean air act, the national environmental policy act NEPA.

[00:04:27] The Superfund law. Laws related to public land management and many others. So there was just a lot of enthusiasm, I think, for environmental and natural resource regulation that hadn't maybe existed up until that point. In addition, the ESA was adopted, it's primarily it's about, it was about the bald Eagle and other birds of prey.

[00:04:48] Andony Melathopoulos: Oh, I remember that. That was the bald Eagles, the the connection with DDT and Rachel Carson, there was this whole issue going on at the time. Exactly.

[00:04:56] Merissa Moeller: So this was about a decade after Rachel Carson published silent spring and the public was concerned about DDD and its effect on basically thinning eggshells for birds of prey and the ability of those species to basically procreate and per se.

[00:05:11] And in fact, the bald Eagle and Paragon Falcons are often cited as one of the major success stories of the endangered species act. And so when Congress have had an adopted the ESA, that was really an issue that was top of mind. And it's wild to think now, but the ESA was passed by Congress almost unanimously.

[00:05:30] So the pen, excuse me, the Senate passed it unanimously. And I think there were only four votes against it in the house. Which is just a little bit bananas as someone who lives in 2021 or 2022 in the United States. And then I think another thing that's interesting to think about, so you can go ahead and read the rational purpose statement of the law, which is for all your legal nerds out there at 16 USC section 1531.

[00:05:55] And among other things, Congress sites, the quote, economic growth and development. Untampered by adequate concern for conservation, as a reason for adopting the law. As you said there are still, and there were before the ESA earlier federal laws to protect wild animals, but BSA is much, much broader in scope than those logs were traditionally regulation of our lives.

[00:06:19] States. And so the ESA is inherently innovative in that it's massive federal legislation to address threats, to protected wildlife and plant species. And I want to also mention, and just highlight it. The ESA covers plants, which is something that many people forget about.

[00:06:36] Andony Melathopoulos: Oh yeah, of course. When we think about bald Eagles, people don't think about endanger plants.

[00:06:41] And I guess this is coming up now because we've had our first listing of bee species. We've had butterfly. Listings for awhile now, but invertebrates are also covered under the.

[00:06:53] Merissa Moeller: That's right. And again, as you said, I think when the ESA was adopted, many people were thinking about these sort of iconic species, like the bald Eagle or what we call charismatic, megafauna, elephants and tigers and bears and.

[00:07:07] Not top of mind. We're, the fish, the little tiny fish or the invertebrates, as you said, that have become really a significant parts of how the ESA has implemented.

[00:07:17] Andony Melathopoulos: Thank you. That was a really great crisp overview. Let's get into it in a little bit more detail. I know enough to know that ESA has these two categories and people probably heard them threatened and endangered.

[00:07:29] What's the difference between the. And does listing under one of these categories make a difference when it comes to how recovery is instituted across a range of listed species?

[00:07:41] Merissa Moeller: Yes. Great question. So there is a difference, there's a legal difference, and then there is a practical difference. And so the legal difference is that an endangered species is one that is in danger of extinction throughout all, or a significant portion of its range.

[00:07:57] And a threatened species, which is a lower listing status is one that is reasonably likely to become endangered in the foreseeable future. And so the difference there really is temporal, is the species on the brink of extinction now, or is it headed that direction in the foreseeable future? And as a practical matter, the reason this is, this matters is that.

[00:08:20] The take prohibition, which I do want to talk about does not automatically magically apply to threaten species. And so although the service can choose to extend it. So under section nine of the ESA, which is one of the most impactful innovations of VSA, and basically the reason it's such a powerful law, It's unlawful for any person to Cod's take of an endangered wildlife species.

[00:08:45] And as I said, this doesn't necessarily apply to threatened species, although in some cases, wait a sec.

[00:08:51] Andony Melathopoulos: So take, I can imagine in the example of a bald Eagle, somebody's hunting bald Eagle, but what let's say was accidentally done, you have a structure or a windmill and it hits a threatened. Is that.

[00:09:01] Merissa Moeller: It could be.

[00:09:02] And that's a great question. So cake is an old legal term that has historically been applied to wildlife and it comes from the idea that wildlife is the property of the sovereign, at its oldest version, the king. Yeah. And but under the ESA, as you said, the term take includes direct actions like hunting or trapping or killing or protected species, but it also includes indirect actions that harass or harm wildlife.

[00:09:29] And importantly harm. The term harm has been interpreted by the federal agency rule to include habitat modification that actually kills her injures animals by interfering with their essential behavioral patterns. So for example, if you want to build, to use your example of windmill, maybe in an area where a listed bird goes to eat a specific type of grass, you could potentially be liable for taking.

[00:09:52] The other thing that's important there about the TIG prohibition is that it's a strict liability prohibition. So strict liability means that intent and mental state are irrelevant. So under the tape prohibition, it doesn't matter if you intend to cause harm to protected animal. And it doesn't matter if you intend to cause the action that harms the animal.

[00:10:13] What matters is that you took the action that harmed the. So if you

[00:10:17] Andony Melathopoulos: had done something on a farm or something, and it was, you didn't have the intent of perhaps degrading the environment for a threatened fish or something that the law wouldn't look at that it's not your intent. It's like that you actually, that this occurred.

[00:10:33] Am I getting this right? And I imagine when it comes to lock and just see your legal face screwing up as there's no, this is a matter of, this is not the

[00:10:41] Merissa Moeller: I would say that's true, but I think that's exactly right. That's the general concept that it's extremely broad and as a matter of civil liability yes.

[00:10:50] Your intent to cause the action that harms an animal is irrelevant.

[00:10:57] Andony Melathopoulos: Okay. So let me get this straight. So when we look at, there are these two categories and dangered and threatened and so threatened really is like something that might. It's as you mentioned, it's temporal it's, it's. If things continue this way, it may be coming dangerous. So you want to. Do something at this point to prevent that from happening and endangered is where across the whole range where this species lives it's reached levels, which, if continued, it will go extinct.

[00:11:25] And the, I guess what you were saying is one of the driving differences is that there is that this take provision is really exclusively focused on when something gets to the endangered category. Is that.

[00:11:38] Merissa Moeller: So I would say the tape prohibition does not automatically apply to threatened species.

[00:11:43] It always applies to endangered species, but one of the benefits of a lower listing, a threatened listing from the perspective of the federal wildlife agencies, as well as the regulated community is that a threatened listing can potentially create some more flexibility around management. And so one of those pathways.

[00:12:03] When a species is lit and us listed as threatened is that there is an opportunity for the service federal wildlife service to issue. What's called a 4d rule. And this is basically a special administrative rule that allows the agency to customize prohibitions and regulate activities that might affect the species.

[00:12:23] So one example might be when a forest service or excuse me, a forest species is listed as threatened. The service might conclude that certain types of logging activities can be operated within certain parameters that are designed to protect the species. And there's yeah, so there's some additional flexibility around management.

[00:12:39] Andony Melathopoulos: Okay. So around this provision, if like I can imagine the stakeholders get together and they say what the biologists and this kind of practice really reduces. Incidental take or degradation of habitat if you use these practices here that and you can demonstrate using these practices that, gives you some standing if something happens down the road.

[00:13:01] Merissa Moeller: Yeah. So it's a proactive opportunity to make some decisions about how to best, manage economics, economic activity to protect species.

[00:13:11] Andony Melathopoulos: Okay. All right. Let's take a quick break. I want to sit down and digest this. We're going to come back. I want to ask you about the actual process of how this goes.

[00:13:19] There's all sorts of, bees and butterflies that may have some issues with their populations. I I want to walk through the steps of getting a listing.

[00:13:29] Okay, we're back. Okay. You talked about, the broad law that is endangered and threatened species categories, and some of the ways, some of the provisions that are available to people managing on on working lands is that the, we cover everything or is there more,

[00:13:44] Merissa Moeller: well, there's always more, but I do have a couple of other provisions I think we should talk about.

[00:13:49] So you asked, what were the significant innovations of this law and. Most important beyond the section nine, take prohibition is section seven of the endangered species act. And so section seven creates an obligation for all federal agencies to avoid taking actions that are likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of designated critical habitat.

[00:14:16] And so section seven is the way that the ESA really permeates basically every single federal decision. And that is how the act really can federalize private actions that need federal decisions to authorize them. And so I'll give an example. So basically what section seven means is that anytime a federal agency is going to, list Is going to issue a permit or sign a lease or, issue some grant funding.

[00:14:45] The agency that's about to take that action is subject to the section seven consultation requirement. And so that agency has to. Basically it's called consult with one of the federal wildlife agencies. There are two, the us special wildlife service manages terrestrial species and non-anonymous meaning not going to the ocean aquatic species.

[00:15:09] And then the national Marine fishery service manages an address, CCS like salmon Marine species. And so section seven says that, if the U S army Corps of engineers is going to issue a permit to Drudge a river before issuing that permit the coordinates to consult with probably nymphs and get that expert wildlife agencies take on the impacts of this proposed action on protected species.

[00:15:35] And the relevant, the federal wildlife agency then has very significant discretion and latitude to impose conditions as a practical matter on the permitted activity to protect the species. So as I said, it's a way that the act basically federalized his private actions and brings them under the ESA and can really affect what regulated entities and permittees can.

[00:15:57] Andony Melathopoulos: All right with that example, just to clarify. So I could understand if, a federal agency like us forest service wants to log in an area that might be a a habitat to an endangered species. They would have to go to U S fish and wildlife service and say, if it's not an oceangoing critter or plant and say what do you think of this?

[00:16:16] And they say I think it's okay. Or this may have some impact. There's this only extent of federal agencies or let's say you're a private timber companies is the same.

[00:16:26] Merissa Moeller: And that's exactly the tricky nuance there. So it probably does apply to a private timber company to the extent that company needs to get a permit from the us forest service.

[00:16:39] Gotcha. So it's, again, it's a way that the act is a little bit sneaky in that it, it takes this federal agency obligation, but transfers it onto regulated non-federal entities. Okay, so

[00:16:51] Andony Melathopoulos: that was, this is one of the provisions you said there was a few that we really should know about what was it, what were some of the.

[00:16:56] Yes.

[00:16:57] Merissa Moeller: Another one is section 11, which is the section of the endangered species act that authorizes citizen suits. So the idea here is that private citizens, in addition to the government have a legal cause of action to enforce the law and they can do this through federal court litigation so long as they can demonstrate they've met certain legal requirements.

[00:17:19] And the citizen suit avenue is typical of other environmental laws of this era, although not all of them. But it's important because if you take the citizen suit provision and you couple it with section nine to take prohibition, you create a very potentially expansive framework for liability and risk of getting sued.

[00:17:39] If you're an entity engaging in activities that may affect a protected species. And so we've seen, and we'll talk about this maybe a bit more later, that litigation has a really important role in driving policy decisions under the ESA.

[00:17:55] Andony Melathopoulos: Okay. Yeah. Because the agencies may not have their eyes and ears everywhere private citizens group or private citizen can say, Hey, listen, this is, I noticed this is going on.

[00:18:05] And I don't think this is, I think this is in contravention of the. Exactly. Okay. All right.

[00:18:12] Merissa Moeller: And then the last point I want to talk about because I'm a lawyer for regulated entities and this is a space ideal in is that the section 10 of the ESA does create an avenue for regulated entities to basically get permits, to authorize that.

[00:18:26] Continue activities that may affect protected species. And so the result is called an incidental, excuse me, an incidental take permit or ITP. And to get one, you basically have to prepare a habitat conservation plan, which is a proposal about how you're going to take certain conservation measures to minimize and mitigate your impacts on protected species.

[00:18:47] And then after an incredible amount of process, Legal process and administrative process B service can issue an ITP. So this is a pathway to insulate regulated entities from this very expansive risk of liability, but it's also a way to proactively develop conservation measures for the benefit of species in coordination with the wildlife service.

[00:19:13] Andony Melathopoulos: Okay, that's great. And I imagine this is when I've been introduced to this in my limited introduction to this, it's not like a one farmer, it'd be more like a group of people working in a region of the Northwest forest or something. It would be something along that's the kind of size of these things is that.

[00:19:34] Merissa Moeller: Yes. And in there, I should say, there's, there's a range in how big an HCP can be. It can be pretty limited and it can be very expansive. But as it's very resource intensive to develop one, sometimes it can be. And so you do often see them on this sort of programmatic level to try to address.

[00:19:53] Similar activities across a large geographical

[00:19:56] Andony Melathopoulos: area. It seems like a great, I'll just as an external observer looking inwards, it seems like a great provision because it allows an industry to get together with conservation scientists and really think through the steps were, their activity can continue without without really threatening the recovery of the species, like thinking.

[00:20:15] What can we do different? What kind of steps can we implement that might make this recovery possible at the same time as doing our.

[00:20:24] Merissa Moeller: Totally. Totally agree. And I also think it's important to know that sometimes it's the only option to, continue on as an essential business.

[00:20:32] There are certain businesses and activities that we maybe don't think about as implicating the ESA. And, for example, local governments are covered by the ESA and, I work a lot with water utilities and entities that may have protected species in. Water is that they rely on an HCP can be an option to basically continue delivering water and protect listed species that may or may be impacted by those operations.

[00:20:59] Andony Melathopoulos: Okay, great. Thanks. That was great. I think we've, this is, I'm sure there's more to this,

[00:21:07] but okay. I want to get into this process of how listing takes place and how does a listing get proposed? Like where does that even come from? Because I hear this with bumblebees, there's been a number of a proposed listings. I don't quite understand how they get started, how that ball gets rolling.

[00:21:21] Merissa Moeller: Great question. So they're basically two different paths. And this process is set for in section four of the essay. We're going to cover all the sections. It's not a very long law. So basically there are two options. One, the federal wildlife service can initiate a listing of its own accord. But they're very busy.

[00:21:39] And often what we see is that a listing gets initiated through the formal petition process. And so basically anybody can file a petition to the federal wildlife agency and ask them to evaluate whether a listing is warranted for a particular species. And. This is a public process. The listing process is a public process throughout.

[00:22:02] There are a lot of opportunities along the way to challenge the decisions that the federal agency has made. So there are a lot of opportunities to file lawsuits. And so frankly, we see a lot of litigation around this process. Once the service receives a petition, they have to evaluate the merits of that petition.

[00:22:20] And they go through a process it's called a species status assessment. And basically the service is taking stock of the species viability and they do this based on the best available science that's the legal term used in the act. And best available science means just what it says. It means the science that is available.

[00:22:40] So the service is not necessarily under any obligation to go out and develop more science they can if they want to. And then in response to the petition, the service ultimately has to make a finding about whether listing is either not warranted warranted or as the third alternative warranted, but precluded by a higher priority listing efforts.

[00:22:59] And so that determination is subject to judicial review. If someone files a lawsuit and then moving on, if the service does determine that listing is warranted, the service will publish a proposed rule in the federal register. And it will explain its decision to list and its reasoning. There's an opportunity for public comment on what the service is proposing to do.

[00:23:20] And ultimately the service has to respond to those public comments and publish the final rule, deciding to list or not list. And then again, there's an opportunity for litigation.

[00:23:29] Andony Melathopoulos: Okay. So I guess there's checks and balances to the whole process. It starts with somebody who's, it could be a NGO, or it could be, a local conservationist who's been watching a population.

[00:23:41] They assemble this petition, which has the evidence that the agency is to consider. Then I think I understood that the agency then needs to do this assessment. The species status assessment, or does it have to evaluate it on the first pass and say I don't email thoughtless actually doesn't know anything about frocks.

[00:24:04] Merissa Moeller: That is a good point. The service can basically knock out a petition at an earlier stage and determine there's not substantial information to move forward. But once the service gets past that point, the services looking at information provided in the petition, but they also have to look at all other available science, the best available science.

[00:24:23] And so that's really where this broader scientific analysis.

[00:24:28] Andony Melathopoulos: Okay. Cause I imagine it's a tricky thing, there's not a perfect, way of assessing the viability of a plant or an animal species at that is in itself. Comes with a lot of inherent uncertainty in terms of the prediction. And so I guess, what are the steps that are taken to evaluate this data around a listing decision and how does it I imagine there's a lot of pressure on the agency to get it right.

[00:24:51] To really this is actually a, so what, how does that process of evaluation take place? So they must have to, like you say, they have to gather science. That's been done, I guess they have to they have to become like, Investigators of all the science of the species.

[00:25:04] Merissa Moeller: I think that's right there is, the service leads this process and they have to look at all best available science.

[00:25:11] And so they are working based on inherently uncertain data because there's no obligation to go, run every single piece of scientific information down to ground and they do have to make policy judgment calls. And so this is often an iterative process. They are working with outside scientists.

[00:25:29] They're looking at all the published literature. Sometimes they are collecting more data and they're also working with other stakeholders who may ultimately be affected by a listing. But you're right. Ultimately, A policy judgment call. I will say, though, at the same time, there are legal sideboards on any decision that the service makes.

[00:25:48] And the service can't make decisions that are arbitrary and capricious or not based on substantial evidence, which is the legal term, basically for evidence that a reasonable person would rely on. And so when the service makes these policies decisions, ultimately they're probably going to be reviewed by a court and a court is then going to be evaluating whether the service had enough evidence to reasonably support its policy decision.

[00:26:14] And importantly, whether the service did a good enough job explaining its decision.

[00:26:19] Andony Melathopoulos: Okay, what are the timelines with this? So we've got a couple of steps. If I understood you correctly, it starts off with this petition. It gets. Looked at, and then it gets worked up into this kind of accumulation of the best science with a Steed species status assessment.

[00:26:34] And at that point, it then goes to this kind of rulemaking to figure out what this is going to look like. W what are the timelines associated with this whole PR? And then I guess, there's public comment and then it gets turned into law. And this is the law of the land. How does, how long does this all take?

[00:26:50] And what's the PR, are there any kind of set timelines in the.

[00:26:54] Merissa Moeller: There are set timelines, but it can also take an extremely long time. These timelines mostly come into play when the services are responding to a formal petition, as you said, and at that initial step where the services doing an initial evaluation of the petition, they have 90 days to make a finding as to whether they're substantial information indicating that the petition to action may be warranted.

[00:27:14] If they, if the petition does clear that hurdle within one year of receiving the petition, the service must make its determination. That listing is either not warranted, or warranted, but precluded. And then the service has to revisit its decision every 12 months after that. So it can be an ongoing process of evaluating a candidate species over a long period of time.

[00:27:37] If the service does publish a proposed rule to list there'll typically be a 60 day comment period. It could be longer and. After the service publishes a final listing role, there are legal deadlines to challenge the services, listing decision in federal court. And so we'll often see the, limit litigation is often a result of listing decisions and those can drop drag on for years.

[00:28:01] Andony Melathopoulos: Okay. All right. So it can take a long time and I guess maybe that's the other incentive to do the, doing this right. And doing your consultation upfront is that if you run into all sorts of obstacles, the species may. A decision on what to do about it sits in limbo for a long time.

[00:28:17] Merissa Moeller: Yes.

[00:28:17] And then I guess I will say even if the service does everything right, they are still probably going to have to make it through legal challenges. And so yes, just regard the best case scenario. There's a lot of time and a lot of.

[00:28:29] Andony Melathopoulos: I guess that brings me to my final question. I've heard a lot of discussion, whenever I'm in the hallways talking to either conservationists or people from industry that ESA needs an overhaul.

[00:28:38] From not your own opinion, but if you here, which you're welcome to, but I imagine you've heard the arguments. So what are the, if you could briefly sketch out what are the arguments for people who want to see it changed as well as arguments for actually this took a long time to come into place. It was bi-partisan, it's solid people who say it shouldn't change.

[00:29:01] It should remain the same. What kind of arguments do you encounter when you're out in the world?

[00:29:06] Merissa Moeller: Yeah. I think first it's important to recognize that industry versus conservation is not necessarily an accurate dichotomy. I think this is something that you run into with the work that you do.

[00:29:18] A lot of what I do is helping, industry the industry side of that framework, which isn't just, big, bad corporations. It can also be state and local governments. But a lot of what I do is helping those folks comply with the endangered species act and it's so that they can carry on their operations for the benefit of our communities.

[00:29:35] And I find that for the most part, people acknowledge the value of conserving species and there can be a lot of nuance from the perspective of the conservation community. I think the major theme I hear is that the world is experiencing an unprecedented mass extinction. And there's a lot of concern about climate change and its impacts on species.

[00:29:53] And as you said, the endangered species act is an incredibly robust law and it's been around a long time. And I think there's a lot of interest in keeping it and in potentially strengthening and strengthening it even further. Another concern I hear from that community is that the ESA implementation can be very political.

[00:30:10] That's a concern I hear from other folks as well. So there's often concerned about who's in charge and who's directing federal agencies because that will drive what listing decisions get made and other decisions about how to interpret and implement the law from the perspective of regulated communities, some of the major themes I hear there are three that I can think of.

[00:30:33] So the first is a cost benefit analysis. The ESA does not explicitly allow for the consideration of economic impacts in listing decisions or in its implementation in many respects. And because it's such a broad law and so such landmark legislation, it can be extremely expensive for regulated entities and it can also be extremely expensive for government agencies that have to implement it.

[00:30:58] And so I hear a lot of questions about whether the ESA is effective, how effective it's been in achieving at schools. And then weighing those against the major costs of implementing it, then complying with it.

[00:31:10] Andony Melathopoulos: Yeah. I imagine the way you would evaluate ESA and it's the effect that, the ability for species to recover that you actually, through this process.

[00:31:19] You species come off they're endangered or threatened. They've recovered. And the second thing is that, people are able to do their business at the same time. That would be the ideal outcome of of a listing is you see the species actually recover. It's not always not going downhill all the time.

[00:31:37] It's it came back it's we did our job.

[00:31:38] Merissa Moeller: And that is the goal of the act. And one of the concerns people sometimes have is that's often not the reality. There are many species that are on the act and haven't come off. It's much more like common for a species to get listed than to get delisted.

[00:31:53] Another concern I hear another theme I hear is around process. So the ESA loves process and. A lot of it feels redundant. As one example I talked about the incidental take permit avenue under section 10. Shockingly enough to get such a permit. The service also has to go through section seven, which seems to be a parallel requirement of the act.

[00:32:18] And the service has to go through a number of other reviews under other environments, other environmental laws. And this is the same process. Anytime you've got to get a federal permit, you've got. Section seven of the ESA, and then you've gotten me back and then you've got the national historic preservation act and a bunch of other environmental root reviews.

[00:32:37] So complying with ESA can be extremely time-consuming. It can be extremely expensive and these can be real challenges. If you are on the side of meeting of her. And then the last thing I hear is around litigation. So as we talked about the citizens who provision is a major innovation in environmental laws of this era and it's an important one.

[00:32:57] It also means that litigation. Ends up driving policy priorities often, and litigation can be very expensive and time consuming. So that's one concern, but I also think that there's some legitimate concerns about whether litigation is the best way to manage natural resources in every situation. And there are competing views on that, but I think there's no disputing that litigation is expensive and time.

[00:33:19] Andony Melathopoulos: Thanks so much for this. I feel way more educated. I know this is complicated, but this is a good primer for me and our listeners on endangered species act. Let's take a quick break. We have this little segment that we do where we ask our guests some questions. We're always we've never had a lawyer, an environmental lawyer, so I'm excited to see what an environmental lawyer answers.

[00:33:38] So we'll be back in. Okay. We're back. So book recommendation or listen to.

[00:33:45] Merissa Moeller: All right. I have to, and neither of them as an environmental lawyer related book. So my first is a shameless plug a little bit. So my partner, Kyle Lasker reds has an award-winning book out called orders of exclusion. I refer to this as the mean girls theory of international relations, and it's basically a theory of how global powers organize themselves to respond to rising threats.

[00:34:07] So that is timely.

[00:34:10] Andony Melathopoulos: We're recording this the day after, after the invasion in Ukraine. So this is, yeah.

[00:34:16] Merissa Moeller: Yeah. I hadn't even thought of that. That would have been my recommendation regardless, but for something a little lighter, I really enjoyed cork dork by Bianca Bhaskar. And that is about the science and culture of modern wine.

[00:34:28] Really loved it.

[00:34:32] Andony Melathopoulos: Okay. We'll, we will, I will get the titles. There'll be in the show. Notes is I imagine wine is this huge? We don't, we haven't had, I don't think a wine person on this show, although there's all sorts of bee and wine stuff going on

[00:34:45] Merissa Moeller: to

[00:34:48] Andony Melathopoulos: recommendations. How about your go-to?

[00:34:50] Merissa Moeller: My go-to tool for working with bees is you and Tony, because I think your passion for pollinators is infectious. I really enjoy getting some B coloring books, which I've shared with my extended family. And I also think you're a great communicator. You're not, I think you're genuinely interested in other people and learning about them and sharing information.

[00:35:11] So it has been a real delight to get to know you for a real Oregon.

[00:35:15] Andony Melathopoulos: Ah, thank you all that. That's awesome. Thank you so much. That's really humbling. I don't know what to say. But that brings us to the last thing. So if I am your go-to person on bees and pollinators, has anything popped into your mind is you just, whenever you see this critter go by, you're just so excited to see it.

[00:35:35] Merissa Moeller: My pick is a hummingbird

[00:35:37] Andony Melathopoulos: and they're all around right

[00:35:38] Merissa Moeller: now. I know, and I have a window next to my desk and I can see them when they fly by, which is always a nice, bright spot of my day, even when it's snowing and cold.

[00:35:47] Andony Melathopoulos: I know I have the same thing. I'm looking out my window and I've got a quince there and they're always covered with hummingbirds.

[00:35:52] So this time of year, I usually do the podcast from here at home. I've got a little home studio here. And so there's at this time of year, there's always a hummingbird kind of a listening on the podcast is we're recording. So it's just a perfect choice. Anyways. I really want to thank you again on behalf of all our listeners for navigating us through the very complicated waters of the endangered species act.

[00:36:13] I know you really busy person, and we really appreciate you taking the time to be with us today.

[00:36:18] Merissa Moeller: Thanks so much for having me. Okay. Have a great rest of your day.

The federal Endangered Species Act is almost 50 years old and it has been a key mechanism for assisting the recovery of many insect pollinators and plant species they depend on. In this episode we get a crash course on how the Act works.

Merissa Moeller is an Environmental, Natural Resources and Land Use Attorney at Stoel Rives LLP Attorneys. She helps natural resources clients comply with environmental laws so they can run their businesses and build healthy communities. Her work includes strategic counseling, regulatory compliance, and permitting work on behalf of private and public clients, including water utilities, solar and other renewable energy developers, agribusiness, the timber industry, and other natural resource users. She also represents clients in state and federal disputes over water, endangered species, and other natural resources, including by securing and defending permits before the Land Use Board of Appeals and Oregon’s appellate courts.

She discovered her passion for her work while growing up in a family of water scientists in the high desert of southern Idaho. She approaches regulatory roadblocks from all sides, using her diverse experience working for businesses and local governments, state natural resources agencies, an interstate land use planning commission, and the courts.

With that perspective, she strives to ground academic legal problems in the real world, to deliver practical solutions for clients. She seeks solutions that create more winners, benefiting real people and real places.

Links Mentioned:

The Endangered Species Act (1973)

Book Recommendations:

Lascurettes, K.M., 2020. Orders of Exclusion: Great Powers and the Strategic Sources of Foundational Rules in International Relations. Oxford University Press.

Bosker, B., 2017. Cork Dork: A Wine-fueled Adventure Among the Obsessive Sommeliers, Big Bottle Hunters, and Rogue Scientists who Taught Me to Live for Taste. Penguin.

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