March 29, 2012

A very litigious pygmy owl

By Damien M. Schiff Senior Attorney
Photo courtesy of Sky Jacobs

Last week, the Center for Biological Diversity (CBD) announced that it has provided notice to the United States Fish and Wildlife Service of its intent to sue the agency over its decision not to list the cactus ferruginous pygmy owl as an endangered species.  The threatened lawsuit is just the latest in a long series of cases over the owl, stretching back more than a decade.  One contention in particular caught my eye in CBD’s press release—namely, the group’s desire to challenge the Service’s new draft policy interpreting the Endangered Species Act’s authorization for the listing of a species that is endangered or threatened only “in a significant portion of its range.”

Apparently, CBD contends that the draft policy runs afoul of previous judicial decisions that have held that the SPR power (as it is often called) must have independent significance, such that the only way a species can be endangered or threatened in a significant portion of its range is if the threats in that portion of its range are so significant as to equate to a rangewide threat.

Based on its press release, CBD presumably will rely on these decisions to argue that the new draft policy makes just that error, i.e., conflating “significant portion of its range” with a species’s entire range.

The agency’s denial of protection for the pygmy owl is based on a proposed policy that sets a very high bar for when species that are endangered in portions of their range can receive protection. The Endangered Species Act defines an endangered species as any “in danger of extinction in all or a significant of portion of its range,” meaning that a species need not be at risk everywhere it occurs to qualify for protection. Under the proposed policy, species that are endangered in portions of their range like the pygmy owl only qualify for protection if loss of that portion threatens the survival of the species as a whole. This is a much higher threshold than has been used before.

The trouble with CBD’s argument is that it has no application to the Service’s pygmy owl decision.  The Service did not decide that the owl shouldn’t be listed because the threats to the owl’s Sonoran desert range are tantamount to a rangewide threat.  Rather, the Service concluded that the extinction of the owl’s Sonoran desert range would not pose a threat to the owl rangewide.  See 12-Month Finding on a Petition To List the Cactus Ferruginous Pygmy-Owl as Threatened or Endangered With Critical Habitat, 76 Fed. Reg. 61,856, 61,891-61,893 (Oct. 6, 2011).  Note that this is a very different conclusion from what CBD imputes to the Service.  In the former instance, the owl would merit listing pursuant to the SPR power even where the owl is doing just fine in other portions of its range.  In contrast, according to CBD’s imputation, the owl could only be listed if the current threats to a portion of the owl’s range necessarily meant that the entire range was then in danger.

I suspect that CBD’s beef with the draft SPR policy is that it still ties the SPR determination to the species’s status rangewide.  Presumably, CBD would prefer an interpretation that allows portions of a species’s range to be considered significant even if elimination of that range would not affect the species’s rangewide viability.  That interpretation would be consistent with CBD’s and other environmental groups’ penchant for wanting to divide up the ranges of otherwise healthy species into small enough segments so that the species within those very small segments will be threatened enough to merit listing.  That is an approach that PLF strongly opposes.  The pygmy owl may yet prove to be the species over which this important issue of statutory interpretation is fought.

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