November 12, 2014

Federal Court holds the line on species listings

By M. Reed Hopper Senior Attorney

For years, environmental activists have sought to expand the scope of the Endangered Species Act by distorting the standards for listing wildlife populations as threatened or endangered. PLF has consistently opposed illegal expansion of the ESA.  The bald eagle is a case in point.

The bald eagle was listed as a protected species in the lower 48 States under the Endangered Species Act in 1978. Fortunately, by 1999, the eagle had sufficiently recovered for U.S. Fish and Wildlife Service biologists to recommend the delisting of the American icon. However, the eagle languished on the protected list for years without any action by the Service. Strict regulatory restrictions on land use continued although the Service had determined the eagle no longer qualified as a threatened species under the ESA and would continue to be protected by the Bald Eagle Protection Act and the Migratory Bird Treaty Act, even after delisting. When bald eagle populations had improved from approximately 500 to 10,000, Pacific Legal Foundation filed suit in federal court to have the eagle declared recovered. In response to a court order, the Service took the eagle off the list of threatened or endangered species in 2007.

After the delisting, the Center for Biological Diversity and Maricopa Audubon Society petitioned to list the Sonoran Desert population of the bald eagle as a threatened or endangered Distinct Population Segment (or DPS). The DPS policy requires the agency to determine (1) if the population is distinct; (2) if the population is significant; and (3), if the population is both distinct and significant, whether the population is threatened or endangered.

Early in 2010, the Service determined the Sonoran Desert population did not meet the standard for a DPS and would not be listed. CBD and Audubon sued in Arizona District Court arguing that the population should be listed because it is “unique.” We filed an amicus brief arguing that uniqueness is not the test for Distinct Population Segments and adopting such a test could justify the listing of virtually any separately identifiable population because such a population is unique by definition.

The Court held the DPS determination was flawed because it did not consider the latest information. On remand, the agency considered all relevant information and came to the same conclusion as before; the Sonoran Desert population of bald eagles is not a DPS warranting listing under the ESA because the small population was not significant (i.e. critical) to the bald eagle population as a whole.  CBD and Audubon reprised their challenge to the agency decision, but recently the court held the line and rejected plaintiffs’ argument that the Sonoran Desert population was significant because it was unique.  The court agreed with PLF that the ESA should not be expanded to cover every discrete population of any species.

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