The Trump Administration recently announced a proposal to merge the operations of the Department of Commerce’s National Marine Fisheries Service (NMFS) into the Department of Interior’s U.S. Fish and Wildlife Service (FWS). Historically, NMFS has been charged with administration of the Marine Mammal Protection Act (MMPA), focusing primarily upon marine mammals, while FWS has administered the Endangered Species Act (ESA) primarily with respect to species located upon land or inland fisheries. The reorganization initiative is part of a larger plan entitled Delivering Government Solutions in the 21st Century: Reform Plan and Reorganization Recommendation, containing proposals affecting several federal agencies.
The jurisdictional divide between NMFS and FWS has generally been determined by habitat type rather than statutory regime. Thus, NMFS has interpreted and applied the ESA as it concerns marine mammals, which creates the potential for overlapping responsibility and outcomes between NMFS and FWS regarding the ESA. The reorganization proposal was justified on the ground that the split jurisdiction between the two agencies has created “a confusing permitting landscape for project proponents.” Id. at 37. The merged entity, according to proponents, would result in “simplifying the administration of the ESA and MMPA, and coordinating fish and wildlife science and related management capacity in one bureau within DOI.” Id.
One recent notable example of the overlap between NMFS and FWS with respect to the ESA arose in litigation concerning the captive orca (killer whale) “Lolita.” People for the Ethical Treatment of Animals v. Miami Seaquarium, 879 F.3d 1142 (11th Cir. 2018) (per curiam). Lolita is the only member of the endangered Southern Resident Killer Whale population in captivity. Plaintiffs in that case asserted that the conditions in which Lolita was being maintained at the Miami Seaquarium constituted “harm” and/or “harassment” and, therefore, a “take” in violation of the ESA. In rejecting the plaintiffs’ claims, the Eleventh Circuit held that “[u]nder the ESA, ‘harm’ or ‘harass[ment]’ is only actionable if it poses a threat of serious harm.” Id. at 1150. In reaching this result, the court relied, not only on the language of the statute itself, but also on regulatory interpretations of the terms “harm” and “harass” by both NMFS and FWS. Id. at 1149 (citing 50 C.F.R. § 222.102 (NMFS definition of “harm);” 50 C.F.R. §17.3 (FWS definition of “harass”)). The court gave judicial deference to both definitions. Id.
Any such consolidation of the two agencies would require congressional approval.