Species Protections Should Be Based On Current, Not Historic Range, Memo Says

Department of the Interior

March 2007

The Interior Department ' s Office of the Solicitor has issued a new legal guidance that says Endangered Species Act protections should be applied to areas where plants and animals currently exist, as opposed to their "historic range"--a view that has aroused concern among conservationists.

Posted March 17 on the department ' s Web site, the legal memorandum examines a provision of the 1973 law that defines endangered species as "any species which is in danger of extinction throughout all or a significant portion of its range." The Fish and Wildlife Service is developing a policy on how to apply the phrase "significant portion of its range" when making decisions whether to list a species as endangered.

"The word ' range ' in the SPR [significant portion of its range] phrase refers to the range in which a species currently exists, not the historic range of the species where it once existed," Interior Solicitor David Bernhardt wrote.

Bernhardt said scientific data about the historic range of species may be useful, but the data should not be a central factor when making listing determinations. The fact that a species no longer exists in portions of its historic range does not necessarily mean that it is in danger of extinction, according to the memo.

NWF Sees Move to Narrow Circle

John Kostyack, an attorney with the National Wildlife Federation, said the legal memo "allows the Bush administration to draw a very narrow circle around a species and provide limited protections."

"If a species has been reduced to a single population in a mere 1 percent of its historic range, the administration will focus solely on whether the remaining population warrants protection and not consider restoration opportunities in the species ' former habitat," he told BNA March 20.

He said restoration of the gray wolf to the Northern Rockies and New Mexico would never have happened under the new policy because the species only occupied Minnesota at the time it was listed in 1973.

Environmental groups have frequently gone to court to force the Fish and Wildlife Service to list species. Listing of a species triggers a number of regulatory actions under the Endangered Species Act, such as development of recovery plans and prohibitions against "takings," which can limit housing developments and logging, mining, and water projects.

' Broad Discretion ' in Defining ' Significant. '

Since 2000, lawyers for the Interior Department have argued that a species could be listed based on a portion of its range only if the conditions in that portion of the range threatened the viability of the species as a whole. The memo was drafted in response to the fact the most courts have rejected that interpretation of the ESA.

The March 17 memo says that if a species is in danger of extinction throughout a significant portion of its range, it should be listed under the ESA. It also says the secretary of Interior has "broad discretion in defining what portion of a range is significant," and may consider factors other than the size of the range.

Environmental groups said the legal memo amounts to policy changes that should have been developed in an open forum that included public comment and input from the scientific community. An Interior Department official said the public would have an opportunity to comment on the new guidance as the Fish and Wildlife Service applies it during the proposed listing or delisting of individual species.