Northwestern University School of Law Northwestern University School of Law Scholarly Commons Faculty Working Papers 2009 Reforming Section 10 and the Habitat Conservation Plan Program David A. Dana Northwestern University School of Law,
[email protected] Repository Citation Dana, David A., "Reforming Section 10 and the Habitat Conservation Plan Program" (2009). Faculty Working Papers. Paper 193. http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/193 This Working Paper is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Working Papers by an authorized administrator of Northwestern University School of Law Scholarly Commons. DRAFT Reforming Section 10 and the Habitat Conservation Program David A. Dana Northwestern University One of the central dilemmas of the Endangered Species Act is how to foster species conservation and recovery on private land. Much of the habitat thought to be occupied by endangered species is on private land. According to some estimates, more than two thirds of listed endangered species can be found on private land.1 And even in areas where there is substantial federal land that contains critical habitat, the federal land often is part of a patchwork of federal, state, local and purely private holdings. (Importantly, the Act treats state and locally-owned land as private land.) In such cases, any comprehensive recovery plan would need to extend to private land. In theory, the Endangered Species Act powerfully addresses the risks posed to endangered species by private development and other economic activity on private land. Section Nine of the Act prohibits the "taking" of endangered species on private land, and broadly defines "take."2 The Fish and Wildlife Service's regulation implementing Section 9 clearly encompass private development activity that kills or prevents the reproduction of protected species members,3 and the United States Supreme Court upheld 4 that regulation in Sweet Home v.