Draft ESA Listing Policy Suggests "Museum Piece" Approach to Species Conservation

by Dan Rohlf

December 13, 2011

A draft policy released for comment last week by the U.S. Fish and Wildlife Service and National Marine Fisheries Service took on the challenging question of defining the circumstances under which only a portion of an ailing species may be eligible for federal protection under the Endangered Species Act. Unfortunately, the Services’ proposal continued the agencies’ trend toward restrictively interpreting the ESA’s listing provisions. If finalized, the new policy will likely result in fewer protections for formerly widespread species, such as gray wolves, that now inhabit only a fraction of their former range.

The ESA defines “endangered species” as species in danger of extinction “throughout all or a significant portion of its range.” Litigation over the past decade raised a host of questions as to exactly what Congress meant by the latter phrase: Can the Services list a species as threatened or endangered in only a “significant portion” of its range even if the species is doing relatively well in other portions of its range? Does the “range” of a species mean its historic range or its current range? And just what is a “significant portion” of a species’ range?

Though such questions may seem rather arcane, they go to the heart of significant listing controversies under the ESA. Perhaps the highest profile dispute involves gray wolves, which last year became the first species delisted by Congressional fiat (though only in the Northern Rocky Mountains) in response to court decisions overturning FWS attempts to delist that population of the species. Wolves once roamed throughout much of North America, but were reduced to scattered remnant populations due to habitat loss and a persistent drive to exterminate them. They were listed as endangered in 1967 under a predecessor to the ESA. After reintroduction efforts in the 1990s established wolf populations in the Yellowstone ecosystem and central Idaho, FWS attempted to remove the Northern Rockies wolf population from the endangered roll even though the three populations in existence (including the northern Rockies in and around Glacier National Park in Montana) inhabited only a small fraction of the area over which wolves once roamed. But conservation advocates pointed out that wolves remained absent in a significant portion of their historic range, which they asserted meant that the species still fit into the ESA’s definition of endangered.

FWS, however, took another view of the law. Arguing that “range” in the definition of endangered species refers only to the area where a species is now present, the agency determined that the three wolf populations no longer needed the Act’s protections. However, FWS left wolves on the endangered list in Wyoming, where state officials had refused to adopt state law protections to protect the species after federal delisting. When a federal court found this action unlawful and invalidated the entire delisting decision, the stage was set for Congress to step in. Lawmakers’ delisting delighted ranchers, but of course brought scorn from environmentalists, whose court challenge to the constitutionality of the legislative delisting remains before the Ninth Circuit Court of Appeals.

The Services’ new draft policy proposes to officially sanction the notion that the term “range” within the statutory definition of endangered species refers only to a species’ current range. This would have the effect of essentially making irrelevant to listing decisions the extent to which a species’ range has shrunk from its historic occurrences. This interpretation of what it means for a species to be threatened or endangered essentially sanctions a “museum piece” approach to conserving biodiversity. Wolves provide a good example (ignoring for the moment that Congress removed the Northern Rockies population from the list as a matter of law). Despite the fact that wolves remain extirpated over the majority of their historic range, they would not qualify for listing so long as their existing populations have a probability of survival over time that FWS deems adequate to define as “recovered.” Under this narrow view of what it means to be endangered, it would be irrelevant under the ESA that wolves no longer roam throughout vast areas of the West. Research revealing the crucial role that wolves play in maintaining ecosystem function underlines the ecological cost of such a policy.

The ESA is often seen as the United States’ primary legal protection for biological diversity, with a strong mandate to recover species facing extinction. However, with their latest proposal for defining endangered species – and thus in effect defining recovery as well – the agencies that implement the statute have suggested that it is OK under the law if species no longer exist throughout much or even most of their former habitat. This brings to mind a thought from Aldo Leopold on the dangers of such a narrow approach to conserving species: "Relegating grizzlies to Alaska is about like relegating happiness to heaven; one may never get there.” 

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Daniel Rohlf is a Professor of Law and Of Counsel, Earthrise Law Center at the Lewis and Clark Law School.

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