Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P17 ppt

FURTHER READINGS Covington, Robert, and Kurt Decker. 2002. Employment Law in a Nutshell. 2d ed. St. Paul, MN: West. 2002. Filipp, Mark R. and James Ottavio Castagnera. 2010. Employment Law Answer Book. 7th ed. Austin, Tex.: Aspen Publishers. Gregory, Raymond. 2001Age Discrimination in the American Workplace. Rutgers, NJ: Rutgers Univ. Press. Leslie, Douglas. 2008.Labor Law in a Nutshell. 5th Ed. Saint Paul, MN: Thomson West. Macnicol, John. 2006. Age Discrimination: An Historical and Contemporary Analysis. New York: Cambridge Univ. Press. Smith, Peggie R. 2009. Principles of Employment Law St. Paul, Minn.: West. CROSS REFERENCES Age Discrimination; Civil Rights; Disability Discr imination; E-Mail; Employment at Will; Gay and Lesbian Rights; Labor Law; Labor Union; Pension; Sex Discrimination; Sexual Harassment; Whistleblowing. EN BANC [Latin, French. In the bench.] Full bench. Refers to a session where the entire membership of the court will participate in the decision rather than the regular quorum. Inother countries, it is common for a court to have more members than are usually necessary to hear an appeal. In the United States, the Circuit Courts of Appeal usually sit in panels of judges but for important cases may expand the bench to a larger number, when the judges are said to be sitting en banc. Similarly, only one of the judges of the U.S. Tax Court will typica lly hear and decide on a tax controversy. However, when the Company Obligations to Work-at-Home Employees T B he purpose of the Occupational Safety and Health Act of 1970 (OSH Act), (29 U.S.C.A. §§ 651 et seq. ), is to “assure so far as possible every working man and woman in t he Nation safe and healthful working conditions ” (Section 2[b]). The OSH Act applies to a private employer who has any employees doing work in a workplace in the United States. It requires these employers to provide employment and a place of employme nt that are free from recognized, seri ous hazards, and to comply with Occupational Safety and Health Act (OSHA) standards and regulations (Sections 4 and 5 of the OSH Act). By regulation, OSHA does not cover individuals who, in their own residences, employ persons for the purpose of performing domestic household task s. OSHA has neve r conducted inspections of home offices, and such an inspection would, in fact, be contrary to OSHA policy. OSHA will not hold employers liable for employees’ home offices and does not expect employers to inspect the home offices o f their employees. If OSHA receives a complaint about a home office, the complainant will be advised of OSHA policy. If an emp loyee makes a specific request, OSHA may informally let employers know of complaints about home office conditions but will not follow-up with the employer or employee. OSHA will, however, conduct inspections of other home-based worksites, such as home manufacturing operations, when OSHA receives a complaint or referral that indicates that a violation of a safety or health standard exists that threatens physical harm or that an imminent danger exists, including reports of a work-related fatality. The scope of t he inspection in an employee’s home will be limited to the employee’sworkactivities. Employers are responsible in home worksites for hazards caused by materials, equipment, or work processes which the employer provides or requires to be used i n an employee’s home. FURTHER READINGS Bureau of National Affairs. 1975. Occupational Safety and Health Cases. Washington, D.C.: Bureau of National Affairs. Lave, Lester B. 1982. Quantitative Risk Assessment in Regula- tion. Washington, D.C.: Brookings Institute. Lofgren, Don J. 1989. Dangerous Premises: An Insider’s View of OSHA Enforcement. Ithaca, N.Y.: Cornell Univ. Press. CROSS REFERENCE Occupational Safety and Health Act of 1970. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EN BANC 149 issues involved are unusually novel or of wide impact, the case will be heard and decided by the full court sitting en banc. ENABLING CLAUSE The section of a constitution or statute that provides government officials with the power to put the constitution or statute into force and effect. Seven of the amendments to the U.S. Constitution contain clauses that give Congr ess the power to enforce their provisions by appropriate legislation. ENABLING STATUTE A law that gives new or extended authority or powers, generally to a public official or to a corporation. ENACT To establish by law; to perform or effect; to decree. Enact, sometimes used synonymously with adopt, is generally applied to legislative rather than executive action. ENCROACHMENT An illegal intrusion in a highway or navigable river, with or without obstruction. An encroach- ment upon a street or highway is a fixture, such as a wall or fence, which illegally intrudes into or invades the highway or encloses a portion of it, diminishing its width or area, but without closing it to public travel. In the law of easements, where the owner of an easement alters the dominant tenement so as to impose an additional restriction or burden on the servient tenement, he or she is said to commit an encroachment. ENCUMBER To burden property by way of a charge that must be removed before ownership is free and clear. Property subject to an encumbrance may have a lien or mortgage imposed upon it. ENCUMBRANCE A burden, obstruction, or impediment on property that lessens its value or makes it less marketable. An encumbrance (also spelled incumbrance) is any right or interest that exists in someone other than the owner of an estate and that restricts or impairs the transfer of the estate or lowers its value. This might include an easement, a lien, a mortgage, a mechanic’s lien, or accrued an d unpaid taxes. ENDANGERED SPECIES ACT The federal Endangered Species Act of 1973 (ESA) (16 U.S.C.A. §§ 1531 et seq.) was enacted to protect animal and plant species from extinction by preservi ng the ecosystems in which they survive and by providing programs for their conservation. The Endangered Species Act classifies species as either endangered or threatened. It defines an endangered species as one “in danger of extinction throughout all or a significant portion of its range” (§ 1532). A threatened species is one that is “likely to become an endangered species within the foreseeablefuturethroughoutallorasignifi- cant portion of its range” (§ 1532). A current detailed listing of endangered and threatened animal and plant species is provided in the CODE OF FEDERAL REGULATIONS (see 50 C.F.R. §§ 17.11–.12). As of September 2009, the code listed approximately 1,960 endangered and threatened species (up from 1,000 in 1996). Between 2003 and 2009, 1 3 species were removed from the list. The ESA is administered by two agencies: the National Marine Fisheries Service, which designates marine f ish and certain marine mammals, and the U.S. Fish and Wildlife Service, which has jurisdiction over all other wildlife. These agencies may list a species on their own initiative, or any interested person may submit a petition to have a species considered for listing. I n either case, the act requires that the decision to include a species must be based solely on the “best scientific and An example of an enabling clause is Clause 2 of the Nineteenth Amendment. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. ____________________Amendment XIX [1920] [1] The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. [2] Congress shall have power to enforce this article by appropriate legislation. Enabling Clause GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 150 ENABLING CLAUSE 84.027 Powers and duties. Subdivision 1. Powers and duties. The commissioner of natural resources shall be the administrative and executive head of the department. Subject to the provisions hereof and other applicable laws, the commissioner shall have the powers and duties herein prescribed. The enumeration of specific powers and duties herein shall not limit or exclude other powers or duties. Subd. 2. General. The commissioner shall have charge and control of all the public lands, parks, timber, waters, minerals, and wild animals of the state and of the use, sale, leasing, or other disposition thereof, and of all records pertaining to the performance of the commissioner's functions relating thereto. Subd. 3. Former powers and duties of commissioner of conservation. The commissioner shall have all the powers and duties prescribed for the commissioner of conservation by Laws 1931, chapter 186, all the powers and duties therein prescribed for the conservation commission except the power to appoint a commissioner, and all other powers and duties now prescribed by law for the commissioner of conservation, the conservation commission, the department of conservation, its divisions, or the director of any division. Subd. 4. Certain powers and duties of state auditor. The commissioner shall have all existing powers and duties now or heretofore vested in or imposed upon the state auditor in any capacity and not heretofore transferred to any other officer or agency with respect to the public lands, parks, timber, waters, and minerals of the state, and the records thereof; provided, that nothing herein shall divest the state auditor of any power or duty otherwise prescribed by law with respect to auditing, accounting, disbursement, or other disposition of funds pertaining to the matters herein specified, nor of any power or duty expressly vested in or imposed upon the state auditor by the following provisions of law: (1) The provisions of Mason's Minnesota Statutes 1927, section 76, so far as the same pertain to the crediting of payments on account of state lands, timber, or other products to the proper funds, or to the depositing and keeping of conveyances and abstracts of title; also all other provisions pertaining to the filing or keeping of deeds, grants, or conveyances to the state or abstracts or other evidence of title to state property; (2) All provisions pertaining to escheated property; (3) Mason's Minnesota Statutes 1927, sections 2220, 6442 to 6449, 6646, 6660, and 8223. Subd. 5. Descriptions of lands. The commissioner shall have all the powers and duties prescribed for the state auditor by Mason's Supplement 1940, sections 5620-1 to 5620-13, 6452-1 to 6452-13, and 4031-75 to 4031-88, with respect to the receipt, filing, keeping, and certification of reports, lists, and records of descriptions of lands, reserving to the state auditor all other powers and duties therein prescribed for the state auditor. The county auditor shall make and transmit to the state auditor all the certificates and reports therein required except certificates and reports of land descriptions, which shall be made and transmitted to the commissioner. Subd. 6. Land sales and conveyances. The commissioner shall have all the powers and duties prescribed for the state auditor by Mason's Supplement 1940, sections 5620-13 1/2 to 5620-13 1/2j, as amended, and 2139-27b to 2139-27k, as amended, with respect to the receipt, filing, and keeping of reports of sales of land and the execution of conveyances, reserving to the state auditor all other powers and duties therein prescribed for the state auditor. The county auditors shall make and transmit to the commissioner all the certificates and reports therein required to be made to the state auditor with respect to such sales and conveyances. The county treasurers shall make all reports of collections thereunder in duplicate and shall transmit a copy of each report to the commissioner of finance and the commissioner. Subd. 7. Limitation of powers. Except as otherwise expressly provided, nothing herein shall confer on the commissioner any authority over any property of the state devoted pursuant to law to any specific purpose under any officer or agency of the state other than the commissioner or the department of natural resources or its divisions. Subd. 8 Selection of lands for certain purposes. The commissioner of natural resources may select from any available lands owned by the United States in this state such lands as the commissioner deems suitable in lieu of any deficiencies which may have occurred in grants of school lands or other lands heretofore made to the state under any act of Congress, and may, with the approval of the executive council, accept on behalf of the state any grants or patents of lands so selected issued by the United States to the state. This subdivision shall not be deemed to amend, supersede, or repeal any existing law, but shall be supplementary thereto. Subd. 9. Condemnation with landowner's consent. If authorized by law to acquire any interest in real estate, the commissioner of natural resources may acquire by condemnation with the written consent of the landowner, that real estate which the commissioner deems to be in the best interests of the state. This subdivision shall apply only in those situations where condemnation is not otherwise authorized for the acquisition. Subd. 10. Sale of surplus lands to local governments for recreational or natural resources purposes. (a) The commissioner, with the approval of the state executive council, may sell the class of land or interest in land under paragraph (b) to a county, home rule charter or statutory city, town, or other governmental subdivision of the state for public use, including recreational or natural resource purposes. (b) The commissioner may sell the class of land or interest in land that has been acquired by gift, purchase, or eminent domain and the commissioner has declared surplus. The commissioner shall declare land surplus in writing and state the reasons why the land or interest in land is no longer needed. (c) The commissioner shall appraise the land or interest in land before the land or interest in land is sold, and may sell the land or interest in land for less than the appraised value if the commissioner determines, in writing, that it is in the public interest. Minnesota Enabling Statutes [continued] A sample enabling statute. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENABLING STATUTE 151 A sample enabling statute (continued). Minnesota Statutes (d) The commissioner shall convey the state’s interest in the name of the state by quitclaim deed in a form approved by the attorney general. The deed must reserve to the state minerals and mineral rights in the manner provided in sections 93.01 and 93.02, and provide that the land or interest in land reverts to the state if the governmental subdivision acquiring the land or interest in land: (1) fails to provide the public use intended on the property; (2) allows a public use other than the public use agreed to by the commissioner at the time of conveyance without the written approval of the commissioner; or (3) abandons the public use of the property. Subd. 11. Federal conservation grants. The commissioner of natural resources shall receive and administer grants under the land and water conservation grant program authorized by Congress in the Land and Water Conservation Fund Act of 1965, as amended. Subd. 12. Property disposal; gift acknowledgment; advertising sales. (a) The commissioner may give away to members of the public items with a value of less than $50 that are intended to promote conservation of natural resources or create awareness of the state and its resources or natural resource management programs. The total value of items given to the public under this paragraph may not exceed $25,000 per year. (b) The commissioner may recognize the contribution of money or in-kind services on plaques, signs, publications, audio-visual materials, and media advertisements by allowing the organization’s contribution to be acknowledged in print of readable size. (c) The commissioner may accept paid advertising for departmental publications. Advertising revenues received are appropriated to the commissioner to be used to defray costs of publications, media productions, or other informational materials. The commissioner may not accept paid advertising from any elected official or candidate for elective office. Subd. 13. Game and fish rules. (a) The commissioner of natural resources may adopt rules under sections 97A.0451 to 97A.0459 and this subdivision that are authorized under: (1) chapters 97A, 97B, and 97C to set open seasons and areas, to close seasons and areas, to select hunters for areas, to provide for tagging and registration of game and fish, to prohibit or allow taking of wild animals to protect a species, to prevent or control wildlife disease, and to prohibit or allow importation, transportation, or possession of a wild animal; (2) sections 84.093, 84.15, and 84.152 to set seasons for harvesting wild ginseng roots and wild rice and to restrict or prohibit harvesting in designated areas; and (3) section 84D.12 to designate prohibited invasive species, regulated invasive species, unregulated nonnative species, and infested waters. (b) If conditions exist that do not allow the commissioner to comply with sections 97A.0451 to 97A.0459, the commissioner may adopt a rule under this subdivision by submitting the rule to the attorney general for review under section 97A.0455, publishing a notice in the State Register and filing the rule with the secretary of state and the legislative coordinating commission, and complying with section 97A.0459, and including a statement of the emergency conditions and a copy of the rule in the notice. The notice may be published after it is received from the attorney general or five business days after it is submitted to the attorney general, whichever is earlier. (c) Rules adopted under paragraph (b) are effective upon publishing in the State Register and may be effective up to seven days before publishing and filing under paragraph (b), if: (1) the commissioner of natural resources determines that an emergency exists; (2) the attorney general approves the rule; and (3) for a rule that affects more than three counties the commissioner publishes the rule once in a legal newspaper published in Minneapolis, St. Paul, and Duluth, or for a rule that affects three or fewer counties the commissioner publishes the rule once in a legal newspaper in each of the affected counties. (d) Except as provided in paragraph (e), a rule published under paragraph (c), clause (3), may not be effective earlier than seven days after publication. (e) A rule published under paragraph (c), clause (3), may be effective the day the rule is published if the commissioner gives notice and holds a public hearing on the rule within 15 days before publication. (f) The commissioner shall attempt to notify persons or groups of persons affected by rules adopted under paragraphs (b) and (c) by public announcements, posting, and other appropriate means as determined by the commissioner. (g) Notwithstanding section 97A.0458, a rule adopted under this subdivision is effective for the period stated in the notice but not longer than 18 months after the rule is adopted. Subd. 13a. Game and fish expedited permanent rules. In addition to the authority granted in subdivision 13, the commissioner of natural resources may adopt rules under section 14.389 that are authorized under: (1) chapters 97A, 97B, and 97C to describe zone or permit area boundaries, to designate fish spawning beds or fish preserves, to select hunters or anglers for areas, to provide for registration of game or fish, to prevent or control wildlife disease, or to correct errors or omissions in rules that do not have a substantive effect on the intent or application of the original rule; or (2) section 84D.12 to designate prohibited invasive species, regulated invasive species, and unregulated nonnative species. [continued] GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 152 ENABLING STATUTE Minnesota Statutes Subd. 14. Mission; efficiency. It is part of the department’s mission that within the department’s resources the commissioner shall endeavor to: (1) prevent the waste or unnecessary spending of public money; (2) use innovative fiscal and human resource practices to manage the state’s resources and operate the department as efficiently as possible; (3) coordinate the department’s activities wherever appropriate with the activities of other governmental agencies; (4) use technology where appropriate to increase agency productivity, improve customer service, increase public access to information about government, and increase public participation in the business of government; (5) utilize constructive and cooperative labor-management practices to the extent otherwise required by chapters 43A and 179A; (6) report to the legislature on the performance of agency operations and the accomplishment of agency goals in the agency’s biennial budget according to section 16A.10, subdivision 1; and (7) recommend to the legislature appropriate changes in law necessary to carry out the mission and improve the performance of the department. Subd. 15. Electronic transactions. (a) The commissioner may receive an application for, sell, and issue any license, stamp, permit, registration, or transfer under the jurisdiction of the commissioner by electronic means, including by telephone. Notwithstanding section 97A.472, electronic and telephone transactions may be made outside of the state. The commissioner may: (1) provide for the electronic transfer of funds generated by electronic transactions, including by telephone; (2) assign a license identification number to an applicant who purchases a hunting or fishing license or recreational vehicle registration by electronic means, to serve as temporary authorization to engage in the activity requiring a license or registration until the license is received or expires; (3) charge and permit agents to charge a fee of individuals who make electronic transactions and transactions by telephone or Internet, including issuing fees and an additional transaction fee not to exceed $3.50; (4) charge and permit agents to charge a convenience fee not to exceed 3% of the cost of the license to individuals who use electronic bank cards for payment. An electronic licensing system agent charging a fee of individuals making an electronic bank card transaction in person must post a sign informing individuals of the fee. The sign must be near the point of payment, clearly visible, include the amount of the fee, and state: “License agents are allowed by state law to charge a fee not to exceed 3% of the cost of state licenses to persons who use electronic bank cards for payment. The fee is not required by state law”; (5) establish, by written order, an electronic licensing system commission to be paid by revenues generated from all sales made through the electronic licensing system. The commissioner shall establish the commission in a manner that neither significantly overrecovers nor underrecovers costs involved in providing the electronic licensing system; and (6) adopt rules to administer the provisions of this subdivision. (b) The fees established under paragraph (a), clauses (3) and (4), and the commission established under paragraph (a), clause (5), are not subject to the rulemaking procedures of chapter 14 and section 14.386 does not apply. (c) Money received from fees and commissions collected under this subdivision, including interest earned, is annually appropriated from the game and fish fund and the natural resources fund to the commissioner for the cost of electronic licensing. Subd. 16. Commissioner to administer grants programs. Unless otherwise specified by law, the commissioner may establish the procedures and criteria for selection of projects funded through authorized grants and research programs. Procedures and criteria for selection are not subject to the rulemaking provisions of chapter 14 and section 14.386 does not apply. Subd. 17. Background checks for volunteer instructors. (a) The commissioner may conduct background checks for volunteer instructor applicants for department safety training and education programs, including the programs established under sections 84.791 (youth off-highway motorcycle safety education and training), 84.86 and 84.862 (youth and adult snowmobile safety training), 84.925 (youth all-terrain vehicle safety education and training), 97B.015 (youth firearms safety training), and 97B.025 (hunter and trapper education and training). (b) The commissioner shall perform the background check by retrieving criminal history data maintained in the criminal justice information system (CJIS) and other data sources. (c) The commissioner shall develop a standardized form to be used for requesting a background check, which must include: (1) a notification to the applicant that the commissioner will conduct a background check under this section; (2) a notification to the applicant of the applicant’s rights under paragraph (d); and (3) a signed consent by the applicant to conduct the background check expiring one year from the date of signature. (d) The volunteer instructor applicant who is the subject of a background check has the right to: (1) be informed that the commissioner will request a background check on the applicant; (2) be informed by the commissioner of the results of the background check and obtain a copy of the background check; (3) obtain any record that forms the basis for the background check and report; (4) challenge the accuracy and completeness of the information contained in the report or a record; and (5) be informed by the commissioner if the applicant is rejected because of the result of the background check. [continued] A sample enabling statute (continued). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENABLING STATUTE 153 A sample enabling statute (continued). ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. © Copyright 2008 by the Office of the Revisor of Statutes, State of Minnesota. Subd. 18. Permanent school fund authority; reporting. The commissioner of natural resources has the authority and responsibility for the administration of school trust lands under sections 92.121 and 127A.31. The commissioner shall biannually report to the Permanent School Fund Advisory Committee and the legislature on the management of the school trust lands that shows how the commissioner has and will continue to achieve the following goals: (1) manage the school trust lands efficiently; (2) reduce the management expenditures of school trust lands and maximize the revenues deposited in the permanent school trust fund; (3) manage the sale, exchange, and commercial leasing of school trust lands to maximize the revenues deposited in the permanent school trust fund and retain the value from the long-term appreciation of the school trust lands; and (4) manage the school trust lands to maximize the long-term economic return for the permanent school trust fund while maintaining sound natural resource conservation and management principles. HIST: 1943 c 60 s 2; 1953 c 382 s 1; 1969 c 1129 art 10 s 2; 1976 c 96 s 1; 1986 c 444; 1988 c 628 s 1; 1993 c 172 s 32; 1994 c 509 s 1; 1995 c 233 art 2 s 39; 1995 c 248 art 11 s 6; 1996 c 385 art 2 s 1; 1997 c 7 art 1 s 20; 1997 c 216 s 58; 1998 c 366 s 53; 1999 c 92 s 1; 1999 c 231 s 83; 2003 c 128 art 1 s 12; 2004 c 221 s 2; 2004 c 243 s 3; 2004 c 255 s 3; 2005 c 146 s 2,3; 1Sp2005 c 1 art 2 s 13,14; 2007 c 57 art 1 s 20; 2008 c 357 s 2; 2008 c 368 art 2 s 4 Minnesota Statutes GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 154 ENABLING STATUTE commercial data available,” following a review of the status of the species that takes into account any conservation efforts being made to protect the species (§ 1533 [b][1][A] ). If an emergency poses a significant risk to the well-being of a species of fish, wildlife, or plant, the secretary of the interior may bypass standard listing procedures and issue regula- tions that take effect immediately upon publi- cation in the FEDERAL REGISTER. Emergency regulations remain in force for 240 days. To issue an emergency regulation, the secretary must publish detailed reasons why the regula- tion is necessary and notify the appropriate state agency in each state where the species is found (§ 1533 [b][7]). Critical Habitat The ESA requires that at the same time the decision is made to list a species, the secretary of the interior must develop a recovery plan for the species and, with certain exceptions, designate the critical habitat of the species. Critical habitat consists of “the specific areas within the geo- graphical area occupied by the species, at the time it is listed … on which are found those physical or biological features [I] essential to the conservation of the species and [II] which may require special management considerations or protection.” Crit- ical habitat must be designated on the basis of the best scientific data available and after taking into consideration the economic impact of the designation. An area may be excluded from designation if the benefits of the exclusion outweigh the benefits of the designation, unless the failure to designate will result in the extinction of the species (§ 1533 [b][2]). The issue of the economic impact of designating critical habitat was addressed in Bennett v. Plenert (63 F.3d 915 [9th Cir. 1995]). In Plenert, Oregon ranchers and irrigation districts sued regulators under the ESA over a proposal to change water flow at reservoirs in Oregon and California in order to protect the habitat of two endangered species of fish, the Lost River sucker and the shortnose sucker. They claimed that the proposal did not take economic impact into consideration before designating critical habitat. The district court dismissed the suit. The U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal, holding that because the ranch ers and irrigation districts had no interest in preserving the fish under the ESA, they were not within the “zone of interest” protected by the act. As a result, said the court, they lacked standing (a legally protectable interest) to bring a citizen suit. During the 1990s, there was an attempt to reintroduce gray wolves into Yellowstone National Park and central Idaho with the goal of removing the wolves from the endangered species list by 2002. AP IMAGES Endangered and Threatened Wildlife and Plant Species, 2009 Mammals Birds Reptiles Amphibians Fishes Snails Clams Crustaceans Insects Arachnids Plants Endangered Species Total 3252547922852564195112601 U.S. only 70 75 13 14 74 24 62 19 47 12 600 Foreign only 255 179 66 8 11 1 2 — 4 — 1 Threatened Species T U F otal 33 21 40 12 66 11 8 3 10 — 148 .S. only 13 15 24 11 65 11 8 3 10 — 146 oreign only 20 6 16 1 1 — — — — — 2 SOURCE: U.S. Fish and Wildlife Service, Environmental Conservation Online S y stem, Summary of Listed Species, Ma y 2009. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ENDANGERED SPECIES ACT 155 Taking Once a fish or wildlife species is listed as endangered or threatened under the ESA, the act prohibits anyone from taking the species; plants are protected under separate provisions of the act. To “take” a species means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” (§ 1532 [19]). The federal courts have disagreed about the term harm in the ESA definition of taking which includes the detrimental modification of a species’ habitat. For example, the U.S. COURTS OF APPEALS for the Fifth and Ninth Circuits had interpreted the taking prohibition to include habitat modification (Palila v. Hawaii Depart- ment of Land & Natural Resources, 639 F.2d 495 [9th Cir. 1981]; Sierra Club v. Yeutter, 926 F.2d 429 [5th Cir. 1991]). But the U.S. Court of Appeals for the District of Columbia Circuit, in Sweet Home Chapter of Communities for a Great Oregon v. Babbitt (17 F.3d 1463 [1994]), invali- dated regulations that included habitat modifica- tion within the definition of taking. On appeal of the Sweet Home decision, the U.S. Supreme Court resolved this split, holding that habitat destruc- tion that “actually kills or injures” an endangered or threatened species constitutes a violation of the ESA (Sweet Home, 515 U.S. 687, 115 S. Ct. 2407, 132 L. Ed. 2d 597). In 1999, the ESA published its final rule defining the term harm in the Federal Register (64 FR 607277). Violations of the ESA can result in criminal penalties of up to one year in prison and $50,000 in fines. Civil penalties of up to $25,000 for each violation may also be imposed. Private citizens may bring actions against other indivi- duals or government entities for violations of the ESA. The ESA allows certain exceptions to prohibited activities . For example, the secre- tary of the interior may issue a permit for a taking of a listed species that is “incidental” to an otherwise lawful activity. The applicant must prepare a conservation plan specifying the probable impact of the taking and the steps the applicant will take to minimize the impact. In the early 1990s, the DEPARTMENT OF THE INTERIOR relied on this exception when it began negotiating voluntary habitat conservation agreements with timber companies in the Pacific Northwest. Under these agreements, the landowners can SET ASIDE habitat for endangered or threatened s pecies and, in return, avoid prosecution for the incidental taking of a species by ACCIDENTAL KILLING or other harm. By 1995 the agency had begun negotiating more than 40 such plans, covering 5.4 million acres, in Washington and Oregon. For example, Murray Pacific Corporation, a timber company in Tacoma, Washington, negotiated an agreement to set aside 10 percent of its 54,000-acre tree farm and provide buffers to protect spotted owls, salmon, and other species. Plum Creek Timber Company, the second largest private landowner in the Northwest, developed a far-reaching plan to set aside up to 170,000 acres of habitat that was expected to help protect an estimated 284 species of wildlife, including grizzly bears, gray wolves,moles,fishers,andseveraldifferent kinds of frogs, fish, and birds. Experimental Populations In 1982 the ESA was amended to allow the reintroduction of experimental populations of threatened or endangered species into their historic ranges without requiring compliance with many of the act’s restrictions (§ 1539 [j]). Currently designated experimental populations are listed in the Code of Federal Regulations (see 50 C.F.R. §§ 17.81-82). As of September 2009, 59 species were designated as ex peri- mental populations, including the red wolf and the gray wolf. The experimental population designation relaxed existing ESA regulations by allowing reintroduced species to be man- aged or controlled; for example, ranchers c ould kill reintroduced wolves that threatened live- stock. In the 1990s the federal government began a program to restore an experimental popula- tion of gray wolves to Yellowstone National Park and central Idaho. The program projected the transfer of 90 to 150 Canadian gray wolves into Yellowston e National Park and central Idaho over three to five years. In early 1995, 29 gray wolves from Canada were released into Wyoming and Idaho. The release of the experimental population of gray wolves was controversial and created conflict and lawsuits between environmentalists and livestock ran- chers. The goal of the wolf recovery program GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 156 ENDANGERED SPECIES ACT was to remove wolves from the endangered species list by 2002, which did not happen. In March 2009, the Department of the Interior removed gray wolves from the list of threat- ened and endangered species in the western Great Lakes and the northern Rocky Mountain states of Idaho and Montana and parts of Washington, Oregon, and Utah. As of 2009, wolves remained a protected species in Wyoming. Proposed Reform In June 1978 the Supreme Court ruled that provisions of the federal Endangered Species Act prohibited the TENNESSEE VALLEY AUTHORITY from completing the controversial Tellico Dam. The 6–3 decision was a victory for the snail darter, the tiny endangered fish whose spawning area in the Little Tennessee River would be ruined by the impoundment of a lake (Tennessee Valley Authority v. Hill, 437 U .S. 153, 98 S. Ct. 2279, 57 L. Ed. 2d. 117, 11 ERC 1705, 8 Envtl. L. Rep. 20,513 [1978][NO. 76-1701]). In 1995 Congress, intent on rewriting the ESA to loosen restrictions on private landowners, imposed a moratorium on all new-species listings and critical habitat designations. The moratori- um, passed as a rider to the Emergency Supplemental Appropriations and Rescissions for the DEPARTMENT OF DEFENSE to Preserve and Enhance Military Readiness Act of 1995 (Pub. L. No. 104-6, 109 Stat. 73), prohibited Secretary of the Interior Bruce Babbitt from spending funds to identify and list any additional endangered or threatened species. The 1995 freeze created a backlog of nearly 250 plants and animals awaiting decision on protected status under the ESA. In 1996, as part of an agreement on federal spending for the current fiscal year, Congress agreed to waive the moratorium, and the Clinton administration began resolving the backlog, focusing first on those species facing immediate extinction, then on species that biologists determined would be most likely to recover if given full protection under the law. Sometime later in 2000, the National Marine Fisheries Service and the U.S. Fish and Wildlife Service jointly published their final policy, effective October 20, 2000, for the controlled propagation of listed species, pursuant to organized and approved recovery plans, or as necessary to prevent extinction of a species. A s of 2006, approximately 1,084 distinct approved recovery plans were listed, some of which covered more than one species. FURTHER READINGS Cheever, Federico. 1996. “The Road to Recovery: A New Way of Thinking about the Endangered Species Act.” Ecology Law Quarterly 23. Craig, Barbara. “The Federal Endangered Species Act.” 1995. Advocate (Idaho) 38 (October). Department of the Interior, U.S. Fish & Wildlife Service. 2003. “Delisted Species Report.” Available online at ecos.fws.gov/servlet/TESSWebpageDelisted (accessed September 18, 2009). “Endangered Species Act—Judicial Deference to Agency Decision.” 1995. Harvard Law Review 109. Moore, Robert C. 1995. “The Pack Is Back: The Political, Social, and Ecological Effects of the Reintroduction of the Gray Wolf to Yellowstone National Park and Central Idaho.” Cooley Law Review 12. Wolok, Mimi S. 1996. “Experimenting with Experi- mental Populations.” Environmental Law Reporter 26 (January). CROSS REFE RENCES Environmental Law; Environmental Protection Agency. ENDORSE To sign a paper or document, thereby making it possible for the rights represented therein to pass to another individual. Also spelled indorse. ENDORSEMENT A signature on a commercial paper or document. An endorsement on a NEGOTIABLE INSTRU- MENT , such as a check or a PROMISSORY NOTE, has the effect of transferring all the rights repre- sented by the instrument to another individual. The ordinary manner in which an individual endorses a check is by placing his or her signature on the back of it, but it is valid even if the signature is placed somewhere else, such as on a separate paper, known as an allonge, which provides a space for a signature. The term endorsement is also spelled in- dorsement. For examples of different types of endorsements, see indorsement. ENDOWMENT A transfer, generally as a gift, of money or property to an institution for a particular purpose. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENDOWMENT 157 The bestowal of money as a permanent fund, the income of which is to be used for the benefit of a charity, college, or other institution. A classic example of an endowment is money collected in a fund by a college. The college invests the endowment so that a regular amount of income is earned for the school. Typically, the monies for the endowment are derived from donations by alumni of the college. Often, an endowment is designed to support a particular activity, such as the construction of a new wing by a hospital. Each donor sets up an endowment fund sufficiently large to earn income to pay the expenses of one room or a different part of the wing, such as a library. The Uniform Management of Institutional Funds Act (7A U.L.A. 233 [West Supp. 1992]), which was first created in 1972 and has since been adopted as law in many states, regulates spending and investment decisions related to such endowments. The term endowment is also used to describe the act of putting aside the amount of property that a wife is lawfully due to inherit from her spouse. At COMMON LAW, a woman was “endowed at the church door,” upon marriage, when she acquired her dower right—the right to use one-third of her husband’s land upon his death for the remainder of her life. ENEMY COMBATANT Captured fighter in a war who is not entitled to prisoner-of-war status because he or she does not meet the definition of a lawful combatant as established by the Geneva Convention; a sabo- teur. The war against TERRORISM that began during the Bush administration after the September 11, 2001 , attacks led to the invasion of Afghanistan, the toppling of the Taliban regime, and the aggressive dismantling of al- Qaeda terrorist strongholds within that coun- try. Although many Taliban soldiers were released after the conclusion of the conflict, the United States took into custody more than 500 individuals that the Bush administration labele d enemy combatants, leading to several important Supreme Court rulings on what legal rights these individuals had to challenge their incarceration. This designation, which is also referred to as unlawful combatants, gives detainees fewer rights than those conferred on prisoners of war by the Third Geneva Conven- tion (1949). According to the articles of the convention, lawful combatants mu st be part of an organized command structure; w ear openly visible emblems to identify themselves as non-civilians; carry arms out in the open; and respect the RULES OF WAR, which would include not taking hostages. President GEORGE W. BUSH and his administration maintained that the 500 detainees did not meet these criteria. Therefore, they could be tried for crimes by military tribunals; moreover, the individuals could be held incom- municado for as long as the war lasted, with no access to the U.S. legal system. The confinement of these prisoners at Camp X-Ray at the U.S. naval base in Guantanamo Bay, Cuba, raised questions about the U.S. government’s inter- pretation of enemy combatant status. During the last months of 2001, the United States took into custody suspected al-Qaeda terrorists. These detainees included Afghan nationals, Pakistanis, Saudis, Yemenis, and others from different parts of the world. Members of the U.S. military screened and interrogated detainees to identify persons who might be prosecuted or detained or who might have useful information about the terrorist network. In January 2002, 482 of these detainees were flown to Cuba, where they were incarcer- ated at Camp X-Ray. The conditions were at best spartan, which drew criticism from human rights organizations. Over time the United States upgraded the facilities and by early 2003, a small number of detainees had been returned to their country of origin, having satisfied U.S. officials that they had no terrorist ties. By April 2009, 241 detainees remained at the facility. President BARACK OBAMA announced in January 2009 that he would close the prison within a year and relocate the detainees. The Supreme Court and the Congress became involved in the determining the legal rights of detainees. In Rasul v. Bush, 542 U.S. 466, 124 S. Ct. 2686, 159 L. Ed. 2d 548 (2004), the Court ruled that the federal habeas statute applied to non-citizen detainees. Congress responded with the Detainee Treatment Act of 2005, stripping the federal courts of jurisdiction over HABEAS CORPUS petitions filed by the Guantanamo detainees. The Supreme Court, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 158 ENEMY COMBATANT . 20 04 c 221 s 2; 20 04 c 243 s 3; 20 04 c 255 s 3; 2005 c 146 s 2,3; 1Sp2005 c 1 art 2 s 13, 14; 2007 c 57 art 1 s 20; 2008 c 357 s 2; 2008 c 368 art 2 s 4 Minnesota Statutes GALE ENCYCLOPEDIA OF AMERICAN. 3252 547 9228525 641 95112601 U.S. only 70 75 13 14 74 24 62 19 47 12 600 Foreign only 255 179 66 8 11 1 2 — 4 — 1 Threatened Species T U F otal 33 21 40 12 66 11 8 3 10 — 148 .S. only 13 15 24 11. PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. © Copyright 2008 by the Office of the Revisor of Statutes, State of Minnesota. Subd. 18. Permanent school fund authority; reporting. The commissioner of