safeharboragreementsundertheendangered.docVIP

SAFE HARBOR AGREEMENTS UNDER THE ENDANGERED SPECIES ACT: ARE THEY RIGHT FOR HAWAI`I? Darcy Kishida ? Darcy Kishida 2001 “I would feel more optimistic about a bright future for man if he spent less time proving that he can outwit Nature and more time tasting her sweetness and respecting her seniority.” - E. B. White? “Compromise used to mean that half a loaf was better than no bread. Among modern statesmen it really seems to mean that half a loaf is better than a whole loaf.” - G. K. Chesterton, What’s Wrong with the World Introduction The Endangered Species Act (“ESA”) has been called “the pit bull of environmental laws.” The analogy is an apt one for environmentalists, many of whom consider the ESA the “crown jewel” of environmental protection because of its often uncompromising restrictions on private land development. In addition to offering protection to endangered species on private land, the ESA forbids government agencies from significantly harming both the species itself and its critical habitat. Though some environmentalists contend it does not go far enough, the ESA has, at the very least, staved off extinction for the majority of its listed species. In fact, the ESA has been so successful that four species’ populations have been deemed healthy enough to be delisted. Like the jaws of the infamous pit bull, however, the ESA can sometimes act as a vice grip, completely prohibiting landowners from developing their property. Spotted Owls, Kangaroo Rats, and Red-Cockaded Woodpeckers have all been blamed for causing economic hardship in areas ranging from the Pacific Northwest to the Eastern Seaboard. This has brought fierce criticism from private landowners who complain that it is unfair to subject them to liability for harming a listed species while engaging in activity that is otherwise legal. In an attempt to assuage disgruntled landowners, Congress amended the ESA in 1982 to be more flexible. Landowners can now be granted a conditi