August 14, 2014

Taxonomy and the rule of eight

By Damien M. Schiff Senior Attorney

Earlier this year, the Foundation filed a petition on behalf of property rights and building industry groups to challenge the continued listing of the coastal California gnatcatcher under the Endangered Species Act.  The nub of the petition is that new scientific studies—including a mitochondrial DNA and nuclear DNA analysis by Dr. Robert Zink of the University of Minnesota—definitively demonstrate that the gnatcatcher does not constitute its own subspecies but rather is the same bird as its plentiful gnatcatcher cousins in Baja California.

The petition garnered some criticism from the scientific community, with one bird expert stating that the latest nuclear DNA study, in addressing only eight genetic markers of the gnatcatcher, was based on an inadequate data set.

Yet the Service appears to agree with the Foundation that, at least in some circumstances, Dr. Zink’s approach is sufficient.  For example, this week the Service published a determination not to list the Warton’s Cave Meshweaver—an eyeless spider—because the arachnid was not a separate species or subspecies; and, the data the agency relied on included a nuclear DNA study based on eight genetic markers.  So, at least for spiders (and we hope for gnatcatchers), eight is enough.

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Center for Environmental Science, Accuracy & Reliability, et al. v. U.S. Department of Interior, et al.

The federal government has expanded its reach using the Endangered Species Act to cover spurious “subspecies.” The ESA does not define “subspecies” and the Fish and Wildlife Service has offered no definition of its own. Instead, it simply announces when it has determined a “subspecies” to exist and, relying on the subspecies’ smaller numbers relative to the entire species, imposes onerous regulations. The California gnatcatcher was listed as a threatened subspecies, but a 2013 study shows that, at a DNA level, the songbird is not meaningfully distinct from millions of gnatcatchers dwelling in Baja California. PLF represents a coalition of property owners, developers, and scientists in a challenge to the continued listing of this thriving species.

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