EPIC submits ESA Sec. 4D comments to increase tribal sovereignty in natural resources

EPIC recently submitted comments for the US Fish & Wildlife Service comment period for Section 4D of the Endangered Species Act.  We provided the following comments regarding amendments to Section 4(d) based on research conducted over the last six years on Endangered Species Act, other mitigation policies, and tribal opportunities for participation in compensatory mitigation. EPIC supports increasing tribes’ sovereignty over their natural resources while leveraging the role of government agencies as supportive partners.

We applaud the inclusion of federally recognized Tribes in §17.31(b)(1) and §17.71(b)(1) that will allow Tribes to take threatened wildlife or plants without a permit for the actions noted (aiding a sick, injured, or orphaned specimen; or disposing a dead specimen; etc). As previous EPIC research has noted, “By definition, tribes are sovereign nations with the right to self-govern within their own territories” (Black Bird and Male, 2022). This should extend to how a tribe is treated in the ESA, and we support the Services’ effort to do so. Additionally, this is a great example of ‘cutting green tape’ for Tribal management of natural resources. Further, the report notes “a major cause of low tribal participation…is the absence of federal mitigation policies that appropriately consider tribes’ status as sovereign nations and various special circumstances derived from that status that need to be addressed.”

We also think the two additional exceptions under consideration for §17.31(b) and §17.71(b) are a good effort to extend exceptions to prohibitions for Tribes for take associated with conservation-related activities, but we think the requirement to have a Service-approved cooperative agreement is an inappropriate stipulation. First, the stipulation erodes tribal sovereignty by placing a Federal agency’s approval over tribal self-governance. Second, the stipulation is not ‘cutting green tape’ for tribes - it is merely trading out one requirement (obtaining a take permit with FWS permission) with another (obtaining a cooperative agreement with FWS permission). We should be making it easier for tribes to undertake conservation activities, not harder.  For these reasons, we strongly urge the FWS to remove the following text from the proposed changes to §17.31(b) and §17.71(b): “in accordance with an approved cooperative agreement with the Service that covers the threatened species of wildlife.”

We also believe that the following statement proposed for § 17.61(c)(1) is near-incomprehensible for any non-lawyer and we hope the Services would edit the text with more direct language: 

“...may, when acting in the course of official duties, remove and reduce to possession from areas under Federal jurisdiction those species.”

EPIC has a vested interest in better, faster, more equitable and scaled environmental restoration and conservation. EPIC appreciates the opportunity to provide comments that we believe will strengthen endangered species policy and equitable participation by tribes.