PORTLAND, Ore.— Two courts this week shot down a 2007 policy issued by the Bush administration that argued that protections for species under the Endangered Species Act could be limited to portions of their range, and that in deciding whether species are endangered, the U.S. Fish and Wildlife Service could ignore loss of historic range. The decisions apply to the Gunnison’s and Utah prairie dogs and follow another recent decision invalidating removal of protection for northern Rocky Mountains gray wolves based on similar reasoning.
“With these decisions, the Bush-era policy is a dead letter and ought to be immediately rescinded by the Obama administration,” said Noah Greenwald, endangered species director with the Center for Biological Diversity. “By severely undermining protections for endangered species like the gray wolf, Gunnison’s prairie dog and others, this policy is clearly contrary to the letter and spirit of the Endangered Species Act ”
Under the Endangered Species Act, an endangered species is defined as any species “in danger of extinction in all or a significant portion of its range.” The phrase “significant portion of range” is important, because it means that species need not be at risk of extinction globally to receive protection, but rather can receive protection if they are at risk in significant portions of their range. The Bush-era policy, which was issued by the solicitor of the Department of the Interior, specified that when determining whether a species is endangered in a significant portion of its range, the U.S. Fish and Wildlife Service should only consider current and not historic range. It also asserted that when a species is found to be endangered in a portion of its range, protection should only be applied in that particular area.
In addition to using the policy to limit protections to the wolf and prairie dogs, the U.S. Fish and Wildlife Service has used it in the same way for several other species, including the Preble’s meadow jumping mouse, Colorado River cutthroat trout and southern rockhopper penguin. The resulting wrongful decisions on these species are all being legally challenged and will need to be reconsidered. The Center had also criticized the policy for wrongfully limiting protection for species in a study published in the international journal Conservation Biology.
“This Bush-era policy improperly limited protections for some of the nation’s most iconic wildlife,” said Greenwald. “This policy allows the Fish and Wildlife Service to deny protection to species even if they disappeared from most of their historic range, and to limit protection for species only in places where they’re most in danger.”
The cases over the prairie dogs were brought by WildEarth Guardians. The case over the wolf in the northern Rocky Mountains was brought by multiple plaintiffs, including the Center.