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New guidance minimizes species' historic range in listing decisions
BY ALLISON WINTER, GREENWIRE, 03/19/07
The Bush administration is promoting a new interpretation of the Endangered Species Act that would allow agencies to protect plants and animals where they exist today rather than throughout their historic range.
Interior Solicitor David Bernhardt outlined the interpretation in a memorandum Friday that says the Fish and Wildlife Service should only apply ESA protections only where a species is directly in danger.
Bernhardt said in an interview the opinion "essentially embraces" the approach the FWS took in its proposed wolf delisting in February, which would have removed listing of Great Lakes, Montana and Idaho wolves, but kept Wyoming wolves on the list.
Interior posted the opinion — a formal document that becomes agency policy — on its Web site without any announcement. The memorandum does not alter the underlying ESA or agency regulations, but agency lawyers can use it in court to bolster their FWS positions.
The legal guidance could give the agency more latitude for actions such as delisting the gray wolf nationwide. FWS tried a nationwide delisting, based on healthy wolf populations in the Great Lakes and Northern Rockies, but a federal judge sent that decision back to the agency in 2003.
Environmentalists said the position would make it easier for FWS to avoid protecting species and restoring their historic range.
The memo gets at the heart of the definition of an endangered species. ESA requires protection of any species in "danger of extinction throughout all or a portion of its range."
Bernhardt said, "A number of courts have found the service's longstanding interpretation has the effect of rendering the phrase ... superfluous. The service wanted to reassess and wanted us to take a hard look at it."
Environmentalists have petitioned the government to protect species like the gray wolf, Canada lynx and green sturgeon in areas where their numbers are low or their habitat is dwindling, even if the animal is healthy elsewhere.
Since 2000, Interior lawyers have argued against many of those listings in court, losing eight of 10 cases, Bernhardt said. FWS has said it would only list a species based on part of its range if that decline threatens the continued survival of the species everywhere.
By dealing with the issue in a memo, rather than a new regulation, Interior avoided public notice and comments. The administration will likely use the guidance the next time it deals with a related species lawsuit in court, but environmentalists said that does not mean the argument will hold up.
"Now at least they have some paper to point at, but it is questionable whether the paper will hold up," said John Kostyack of the National Wildlife Federation.
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