On June 27, the two federal agencies that list endangered species—the U.S. Fish and Wildlife Service and National Marine Fisheries Services—published a 140-page policy document about the five-word phrase "significant portion of its range." It purports to be the final word in a long battle over that phrase, a fight that has kept lawyers on both sides gainfully employed while giving conservationists migraines. It has the potential to upend U.S. policy on endangered and threatened species, leaving dozens of species unprotected by law in broad swaths of their historic ranges.
And hardly anyone noticed that it happened.
Hardly anyone, that is, outside of conservation biologists, wildlife managers and lawyers. Conservationists have long insisted that the phrase is clear on its face: A species that's in jeopardy in a significant portion of its range—the flat-tailed horned lizard, for instance, in the Sonoran Desert—warrants protection simply on that basis. The inhabitants of that significant portion don't have to be crucial to the global survival of the species; it's enough that they're disappearing from a place where they typically thrived.
Developers and industry representatives, on the other hand, argue the opposite: If you wipe out all the flat-tailed horned lizards in Arizona, but that same lizard nevertheless persists quite heartily in, say, Mexico, then the species should not be listed.
To conservationists' dismay, the Obama administration has now opted for the latter argument. That's no surprise: "We've been operating (with that interpretation) on a case-by-case basis for more than a decade," says U.S. Fish and Wildlife spokesman Gavin Shire. "Now we have formalized our criteria in an official definition."
And while the announcement flew under the general public's radar, to conservationists it signals a major shift from the law's manifest intent.
"It's fundamentally at odds with what the Endangered Species Act was written for," says Noah Greenwald, endangered species director for the Center for Biological Diversity, in Portland, Oregon. "The law wasn't designed to make sure some specimen of a species in some postage-stamp area was preserved. It was designed to retain species in ecosystems that depend on them."
The agency's interpretation appears to be the same one struck down by the 9th Circuit Court of Appeals in 2001, in a battle over the aforementioned flat-tailed horned lizard. The lizard had been squeezed out of most of its range in the Sonoran Desert of California and Arizona; it hung on in a few isolated patches and refuges. But U.S. Fish and Wildlife declined to list it as endangered, so the nonprofit Defenders of Wildlife sued. The court didn't totally side with Defenders, which had argued that the projected amount of lost habitat (over 80 percent) compelled the lizard's listing. But neither did it buy then-Interior Secretary Gale Norton's argument that "a species is in danger of extinction in 'a significant portion of its range' only if it is in danger of extinction everywhere." For that to be true, the court said, "significant portion" and "all" would have to mean the same thing. And, of course, they don't.
Shire explains (and the policy document verifies) a key difference between Norton's argument and the current policy. Under Norton, a species that meets the listing criteria—meaning that its loss in a portion of its range puts the entire global population at risk—nonetheless merits protection only where it's already in trouble. Under the current policy, such a species will be defended wherever it roams or grows. But Michael Paul Nelson, a professor and environmental ethicist at Oregon State University, says that's missing the point: Congress included "significant portion of its range" in the 1973 act, he says, so that wildlife managers could get ahead of crises and act before an entire species teetered on the brink of extinction. Two earlier laws, the Endangered Species Preservation Act of 1966 and the Endangered Species Conservation Act of 1969, "were deemed inadequate," he says, "in part because they only called for intervention when species were at risk of global extinction." At that point, it was often too late.
U.S. Fish and Wildlife Director Dan Ashe has pitched the policy clarification as a resource-saving move. "We're looking at our very limited budgets and limited abilities and asking, 'Where can that money be put to best use?'" Shire explains, adding that species—at least vertebrates—at risk in a limited area can also be listed under the "distinct population segment" amendment to the act in 1978.
But that's an imperfect category, too: Until recently, the Canada lynx in the U.S. was considered "distinct" and protected in just 14 states; if a cat crossed the wrong state boundary, it lost its threatened status. (As of Oct. 14, the animal will be protected "where found.") The northern Sonoran Desert population of the cactus ferruginous pygmy-owl, a tiny raptor that inhabits Southwestern desert scrub and mesquite woodlands, was listed as an endangered distinct population segment in 1997—until developers sued and won on the grounds that the bird was doing fine in Mexico.
Noah Greenwald agrees that the pygmy-owl in the northern Sonoran Desert did not qualify as "distinct" from its brethren across the border. But the Center for Biological Diversity insisted that the bird was nonetheless imperiled in a "significant portion of its range." Some agency scientists agreed, but in the end Fish and Wildlife said no. "They said even if (the pygmy-owl) were lost in the Sonoran Desert, the species as a whole would be OK," Greenwald says, an interpretation based more on politics than science.
"The policy itself is a political decision to try and limit the scope of the ESA," Greenwald says. "The pygmy-owl exemplifies that." The organization will likely sue on its behalf.
Nelson, meanwhile, wants the public to realize how far one of the country's landmark environmental laws has strayed from its 1973 intent. The Obama administration, Nelson says, has narrowed "significant" to mean "only preventing the complete extinction of a species, no more." He adds, "I would guess that the citizens of the United States might have a very different answer."