January 13, 2010

Environmentalists demand incorrect and expansive interpretation of Endangered Species Act

By Environmentalists demand incorrect and expansive interpretation of Endangered Species Act

Author: Daniel Himebaugh

The New York Times recently reported that more than 100 environmentalists sent a letter to Interior Secretary Ken Salazar asking him to rescind a 2007 Interior Solicitor's memorandum which interprets a key provision of the Endangered Species Act.  This move by environmentalists could have a significant impact on ESA litigation if the Secretary grants their request.

The challenged memorandum clarifies what the ESA means by the phrase "significant portion of [a species'] range."  That phrase, which is essential to defining whether a species is "threatened" or "endangered" (and therefore whether the species is entitled to the legal protections of the ESA), has been a centerpiece of ESA litigation for a decade.  The stickiest legal question in those cases has been whether the word "range" encompasses a species' current range only, or also includes a species' historical range (where the species once lived but is no longer found).

For example, in 2001 the Ninth Circuit issued a perplexing ruling in Defenders of Wildlife v. Norton holding that the U.S. Fish and Wildlife Service must consider whether a species' historical range is a significant portion of the species' range when determining whether the species is threatened or endangered.  In other words, the court required the Service to analyze the viability of a species where the species no longer exists.  Not only is this logically impossible, and therefore impracticable, the legal consequences could be dramatic.  As the district court for the district of New Mexico highlighted in a 2005 ruling rejecting the reasoning of Defenders, one troublesome implication of equating range and lost range is that almost every non-domestic species in North America could be listed as threatened or endangered for no other reason than that the species no longer occupy as vast a range as they once did.

In 2007, as a result of the Defenders ruling and subsequent district court cases applying the Defenders rule, the Secretary requested the Interior Solicitor to determine whether the ESA really requires the Service to list species merely because their range is smaller than it used to be.  The memo concluded that the ESA focuses first and foremost on whether a species is really in danger of becoming extinct, not merely whether its range has shrunk over time.  It is this conclusion that the environmentalists want the Secretary to overturn in their letter, arguing that: "The memorandum sharply limits the scope of the ESA by limiting the analysis of whether species are endangered to current range . . . .  It is of critical importance that the [ESA] is implemented in a manner that recover[s] species and the ecosystems upon which they depend in as much of their historical range as possible."

In addition to the letter, the environmentalists filed a lawsuit in the district court for the District of Columbia seeking to have the Solicitor's memorandum invalidated.  If the court overturns the memo, the Service could be tasked with evaluating the viability of a species in areas where the species does not exist, contrary to a plain and logical reading of the ESA.  Expanding the ESA in this way could also bring severe consequences for property owners, who face the prospect of being brought under ESA regulation in places where potentially threatened species do not currently live.  The Service and the court should reject the environmentalists' incorrect interpretation of the ESA, and focus on the text of the law, which counts habitat loss as only one factor among many that must be considered before a species can be listed as threatened or endangered.

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