Summary Judgement: Endangered Species Act - Like the Hotel California
Article by William Perry Pendley
The Eagles’ memorable hit, “Hotel California,” ends hauntingly, “You can check-out any time you like; but you can never leave.” Don Henley, who with Don Felder and Glenn Frey, share the writing credits, says “it’s basically a song about the dark underbelly of the American dream and about excess in America...,” but, given a new draft Obama Administration regulation, it could be about plants and animals listed pursuant to the Endangered Species Act (ESA). Once they get on, they never leave.
The 1973 ESA defines “species” as “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which (sic) interbreeds when mature.” Under the Act, an “endangered species” is one “in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” is one “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Amazingly, “a significant portion of its range” remained undefined for almost 35 years.
In 2007, the U.S. Department of the Interior Solicitor issued a legal memorandum that defined the term as “a substantive standard for determining whether a species [is covered by the ESA],” which permits the Secretary to list a species as subject to the Act’s protections only “in that portion of its range where it [meets the Act’s requirements.]” Based on the Solicitor’s Opinion, the U.S. Fish and Wildlife Service [FWS] concluded that several species met the Act’s requirements only in a significant portion of their range but not in all of their range; thus, the FWS delisted them where they were neither threatened nor endangered.
Not surprisingly, environmental groups quickly challenged those delisting decisions in Montana (wolves), Colorado (mice), and Arizona (prairie dogs). The Obama Administration provided a half-hearted defense of the former Solicitor’s Opinion in the Montana and Arizona cases, but, in the Colorado case, federal lawyers informed the district court that the FWS would revoke the 2007 Opinion and embark upon new rulemaking. Late last year, the FWS published its draft rules in the Federal Register; the agency will receive comments on the rules until next week and then issue final rules later this year.
The FWS concludes that, if a species is threatened or endangered anywhere in its range, it must be listed as threatened or endangered throughout the entirety of its range. The agency reaches this self-serving conclusion because it conflates two terms in the ESA: “a significant portion of its range” [SPR], and a “distinct population segment” [DPS]. Because the ESA provides authority for the FWS to delist a species that qualifies as a DPS, the FWS concludes that the DPS language would become redundant, which is impermissible when interpreting a statute, if a species could be delisted, effectively, by use of the SPR language.
Instead, it is the SPR language that the FWS renders of no effect contrary to the intent of Congress and the holdings of federal appellate courts. When Congress amended the 1969 Endangered Species Conservation Act in 1973, it specifically included the SPR phrase to require that the FWS first, identify a species covered by the Act, and second, determine where in its range it is threatened or endangered. The FWS calls this congressional mandate a mere “bookkeeping provision” it may ignore, which is rebutted further by the requirement that the FWS ascertain if a species meets the Act’s requirements in “all or a  portion” of its range.
This is no lawyer’s quibble. A FWS decision to list a species and impose its Draconian mandates over an entire region or the refusal of the agency to lift such rules where a species is thriving has devastating consequences. Just ask the farmers in California’s San Joaquin Valley (delta smelt), the ranchers and roughnecks in Wyoming’s Sublette County (sage grouse), or the communities in the Texas Panhandle (sand dunes lizard).
Mr. Pendley, a Wyoming attorney, is President and Chief Legal Officer of Mountain States Legal Foundation and a regular columnist in Loggers World.