An Endangered Theory: Vicarious Liability Under the Endangered Species Act

Who exactly can be held responsible for “taking” a member of a species protected by the Endangered Species Act (ESA)? Since the ESA’s enactment, this simple question, when brought before courts, invariably yields complex answers. Can a reckless boater be held liable for taking an endangered Hawaiian monk seal, assuming the boater knows that species is endemic to the area? Perhaps, yes. Does this conclusion differ regarding the entity responsible for providing that person with a boating license in the first place? As the degree of causation and connection to the “take” becomes more remote, the lines of liability become blurred. This concept is solidified by a series of cases exploring issues similar to the questions posed above. The theory of ESA vicarious liability has expanded and contracted over time. Recently, its use has dwindled and its efficacy has come into question. To determine whether this fringe source of liability will have any place in the future of ESA jurisprudence, lessons must be learned from the past. This Comment will attempt to draw out distinct themes from the small litany of cases on ESA vicarious liability. Further, those themes will be applied to other statutory regimes that operate to protect valued species, namely the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. In the end, some clarity will be shed on whether ESA vicarious liability has retained its viability or whether, all told, it is nearing its own extinction.