Habitat Conservation Plans Under Section 10 of the Endangered Species Act: The Alabama Beach Mouse and the Unfulfilled Mandate of Species Recovery

Abstract

Habitat Conservation Plans (HCPs) developed under Section 10 of the Endangered Species Act (ESA) have been heavily promoted as a solution to the problem of balancing preservation of biodiversity with the rights of landowners. This Comment takes issue with the current policies employed by the U.S. Fish and Wildlife Service (FWS) in approving HCPs in order to grant incidental lake permits to "take" endangered species in their native habitats. In the context of litigation over FWS's issuance of two recent permits to take the imperiled Alabama Beach Mouse, the Comment argues that FWS has construed narrowly the conservation mandate of the ESA so as to sanction use of a "survival standard," as opposed to a "recovery standard." Use of a recovery standard is the more reasonable interpretation of section 10, based on the purpose, text, and legislative history of the amendment to the ESA. The Alabama Beach Mouse has paid the ultimate price for FWS's reliance on the lesser standard.