Species
Protections Should Be Based On Current,
Not Historic Range,Memo Says
March 22,
2007 Dept. of the Interior |
The
Meaning of "In Danger of Extinction Throughout
Allor a Significant Portion of its Range,
by Dept of Interior 3/16/07
The
Interior Department's Office of the Solicitor
has issued a new legal guidance that says
Endangered Species Act protections should be
applied to areas where plants and animals
currently exist, as opposed to their "historic
range"--a view that has aroused concern among
conservationists.
Posted March 17 on the department's Web site,
the legal memorandum examines a provision of
the 1973 law that defines endangered species
as "any species which is in danger of
extinction throughout all or a significant
portion of its range." The Fish and Wildlife
Service is developing a policy on how to apply
the phrase "significant portion of its range"
when making decisions whether to list a
species as endangered.
"The word 'range' in the SPR [significant
portion of its range] phrase refers to the
range in which a species currently exists, not
the historic range of the species where it
once existed," Interior Solicitor David
Bernhardt wrote.
Bernhardt said scientific data about the
historic range of species may be useful, but
the data should not be a central factor when
making listing determinations. The fact that a
species no longer exists in portions of its
historic range does not necessarily mean that
it is in danger of extinction, according to
the memo.
NWF Sees Move to Narrow Circle
John Kostyack, an attorney with the National
Wildlife Federation, said the legal memo
"allows the Bush administration to draw a
very narrow circle around a species and
provide limited protections."
"If a species has been reduced to a single
population in a mere 1 percent of its
historic range, the administration will
focus solely on whether the remaining
population warrants protection and not
consider restoration opportunities in the
species' former habitat," he told BNA March
20.
He said restoration of the gray wolf to the
Northern Rockies and New Mexico would never
have happened under the new policy because
the species only occupied Minnesota at the
time it was listed in 1973.
Environmental groups have frequently gone to
court to force the Fish and Wildlife Service
to list species. Listing of a species
triggers a number of regulatory actions
under the Endangered Species Act, such as
development of recovery plans and
prohibitions against "takings," which can
limit housing developments and logging,
mining, and water projects.
'Broad Discretion' in Defining
'Significant.'
Since 2000, lawyers for the Interior
Department have argued that a species could
be listed based on a portion of its range
only if the conditions in that portion of
the range threatened the viability of the
species as a whole. The memo was drafted in
response to the fact the most courts have
rejected that interpretation of the ESA.
The March 17 memo says that if a species is
in danger of extinction throughout a
significant portion of its range, it should
be listed under the ESA. It also says the
secretary of Interior has "broad discretion
in defining what portion of a range is
significant," and may consider factors other
than the size of the range.
Environmental groups said the legal memo
amounts to policy changes that should have
been developed in an open forum that
included public comment and input from the
scientific community. An Interior Department
official said the public would have an
opportunity to comment on the new guidance
as the Fish and Wildlife Service applies it
during the proposed listing or delisting of
individual species.