By Heather Hansen, Red Lodge Clearing House
The proposed draft rule
by the U.S. Fish and Wildlife Service (USFWS) and the National Oceanic
and Atmospheric Administration’s National Marine Fisheries Service
(NOAA)—the two federal agencies responsible for administering the ESA—is
intended to clarify which species, or segments of species, are eligible
There’s no question we need a tighter interpretation of the ESA. A Bush-era legal opinion, “The Meaning of ‘In Danger of Extinction Throughout All or a Significant Portion of Its Range,” which had been in place since 2007, allowed some endangered species to be classified under the ESA differently in neighboring states. For example, the policy led to the delisting of the gray wolf in some Western states while not in other adacent ones; a move considered short-sighted by some. But the legal opinion is no longer operative, having been rejected by two federal courts.
The proposed new policy would adopt the concept that a plant or animal could be listed if it’s considered threatened or endangered in a “significant portion of its range,” even if the threat crosses state lines and even if it does not encompass the species’ entire range. A portion of the range would be considered “significant” if the viability of the species relies on it surviving in that particular area.
The “range” itself would be considered the general geographical area where the species is found while its status is being determined, including areas only used during a part of the species’ life cycle. The “range” does not include areas where the species has been found historically but no longer dwells.
The agencies proposing the new rule say that it will provide some much-needed uniformity to how the ESA is applied, and that it will actually allow the agencies to legally, proactively protect a species even if it is not endangered throughout its entire range. “This proposed interpretation will provide consistency and clarity for the services and our partners, while making more effective use of our resources and improving our ability to protect and recover species before they are on the brink of extinction,” said USFWS Director Dan Ashe.
Industry opponents—including home-building and energy groups—fear the agencies will succeed in expanding ESA protection, and restricting growth, with the change.
Conservations groups also object to the proposed policy but because they believe it will effectively legalize a defeatist approach to protecting our most sensitive species. They say that the proposed policy would allow the agencies to ignore areas not considered biologically important, even if those areas were part of the species’ historic range. This narrow view could hasten the demise of some species and force the agencies to enlist ESA protection only when the species is at extinction’s door. One example of this “shifting baseline,” as it’s been critically dubbed by some scientists, is the American plains bison. While the animal once populated much of the West, it now subsists as “wild” in only a handful of areas, but still does not warrant ESA protection.
Another potential problem with the definition is that seems to directly contradict the “basis for determinations” in Section 4 of the ESA statute, which requires that states’ efforts to protect a species are taken into account when determining whether or not that species should be listed.
For example, if the (fictional) wild purple-headed donkey—which lives throughout the West—were being considered for ESA protection, the statute requires the agencies to consider the efforts of each state to protect it when deciding whether to list a species. It follows that if Colorado has worked hard to protect the donkey’s habitat and food supply, or has limited its predators, they should be rewarded by not having an ESA designation (which has all kinds of regulatory implications) pinned to the donkey’s arse, even if a designation is approved for other states with less protective policies. So, for example, if the purple-headed donkey’s status is found to be threatened or endangered in both Wyoming and Colorado, but only Colorado has taken steps to protect the species, the donkey would receive protection over its entire range, including Colorado.
If the agencies are hoping that by defining “significant portion of its range” the amount of fighting and suing that goes on over endangered species will decline, they need to reconcile this point first, or the policy will be easily challenged.
Essays in the Range blog are not written by High Country News. The authors are solely responsible for the content.
Heather Hansen is an environmental journalist working with the Red Lodge Clearinghouse /Natural Resources Law Center at CU Boulder, to help raise awareness of natural resource issues.
Mosaic image courtesy US Fish and Wildlife Service
Bison image courtesy NASA