Contested Definitions of Endangered Species: The Controversy Regarding How to Interpret the Phrase "A Significant Portion of a Species' Range"
By Sherry A. Enzler and Jeremy T. Bruskotter
INTRODUCTION
How should the United States Government define endangered species? To which species should the Government extend protection? These questions have considerable implications for the continued conservation of threatened and endangered species as well as the ecosystems on which they depend. These questions are also at the heart of a controversy that is currently playing out in the federal courts, pitting the Secretary of the Interior (Secretary) and the Executive branch against a number of conservation organizations. The controversy is over how the Secretary should interpret the phrase “a significant portion of its range,” part of the legal definition of an “endangered species” in the Endangered Species Act. This issue came to a head in 1997, when the Secretary withdrew a proposed rule that would have listed the flat-tailed horned lizard for protection as a species threatened with extinction, despite an acknowledgement that it faced threats over large portions of its range. Conservation groups sued to protect the lizard, setting off an ongoing battle over what constitutes a “significant” portion of a species' range.
In March of 2007, the Solicitor for the Department of the Interior issued a memorandum describing how the Bush Administration intended to interpret the phrase “a significant portion of its range.” The Solicitor's memorandum argued in favor of deference to the Secretary's definition of “significant,” which the Secretary had defined to mean “important” and not necessarily “large.” The Solicitor also argued that the Secretary need only examine the current range of a species when making listing determinations. Under this interpretation, the Secretary is not obligated to consider areas in which a species was once present but has since died out - that is, its historic range.
This Article examines the ongoing controversy over the Secretary's interpretation of the phrase “a significant portion of its range” and the effects of litigation on that controversy. This Article includes a detailed review of the relevant case history and past actions of the Fish and Wildlife Service (FWS) that provide insight into how their interpretations of the phrase have changed over time. Finally, we discuss the implications of the different interpretations of this phrase for the continued conservation of large mammals. We begin with a closer look at the relevant statutory text within the Endangered Species Act.
How should the United States Government define endangered species? To which species should the Government extend protection? These questions have considerable implications for the continued conservation of threatened and endangered species as well as the ecosystems on which they depend. These questions are also at the heart of a controversy that is currently playing out in the federal courts, pitting the Secretary of the Interior (Secretary) and the Executive branch against a number of conservation organizations. The controversy is over how the Secretary should interpret the phrase “a significant portion of its range,” part of the legal definition of an “endangered species” in the Endangered Species Act. This issue came to a head in 1997, when the Secretary withdrew a proposed rule that would have listed the flat-tailed horned lizard for protection as a species threatened with extinction, despite an acknowledgement that it faced threats over large portions of its range. Conservation groups sued to protect the lizard, setting off an ongoing battle over what constitutes a “significant” portion of a species' range.
In March of 2007, the Solicitor for the Department of the Interior issued a memorandum describing how the Bush Administration intended to interpret the phrase “a significant portion of its range.” The Solicitor's memorandum argued in favor of deference to the Secretary's definition of “significant,” which the Secretary had defined to mean “important” and not necessarily “large.” The Solicitor also argued that the Secretary need only examine the current range of a species when making listing determinations. Under this interpretation, the Secretary is not obligated to consider areas in which a species was once present but has since died out - that is, its historic range.
This Article examines the ongoing controversy over the Secretary's interpretation of the phrase “a significant portion of its range” and the effects of litigation on that controversy. This Article includes a detailed review of the relevant case history and past actions of the Fish and Wildlife Service (FWS) that provide insight into how their interpretations of the phrase have changed over time. Finally, we discuss the implications of the different interpretations of this phrase for the continued conservation of large mammals. We begin with a closer look at the relevant statutory text within the Endangered Species Act.
