All or Nothing at All – U.S. Fish & Wildlife Service Must Base ESA Listing Decisions on the Status of the Entire Species

Federal district courts have recently overturned two U.S. Fish & Wildlife Service decisions that attempted to set a different listing status under the Endangered Species Act (“ESA”) for portions of a single species that had not been identified as “distinct population segments” under the Act. The district courts overturned the Service’s decision not to list the Gunnison’s prairie dog, and its attempt to delist the gray wolf in Idaho and Montana, but not in Wyoming. In both cases, the court rejected the Service’s contention that the ESA allows partial listing or partial protection of a “species” as defined by the statute. Both courts reprimanded the Service for assessing the status of a species by subdividing it based on geography, not on biology or genetics, and rejected identical arguments by the Service as to how to interpret what the courts saw as the “plain language” of the ESA. In the gray wolf decision, the U.S. District Court for Montana observed that the Service’s position that it could protect some but not all of a species “is novel but creative in light of the agency’s historical view that it could not do what it now claims it can.”[1]

Statutory Framework

Under the ESA, the Service[2] determines “whether any species is an endangered species or a threatened species because of” the present or threatened destruction of its habitat or range, overutilization, disease, predation, inadequate regulation, or other natural or manmade factors.[3] At issue in the two cases was the meaning of the term “endangered species,” defined in the ESA as “any species which is in danger of extinction throughout all or a significant portion of its range.”[4] “Threatened species” “means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”[5] The ESA defines the term “species” as including “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”[6]

If the Service determines that a species is endangered or threatened, it is added to the published list of such species, and the species and its critical habitat are then protected.[7] The same factors that are used to list a species are also used to determine if a previously listed species should be delisted.[8] Any one of the factors is sufficient to support a listing determination if the factor causes the species to be in danger of extinction or likely to become an endangered species in the foreseeable future throughout all or a significant portion of its range. Listing and delisting decisions must be made “solely on the basis of the best scientific and commercial data available,” and without reference to possible economic, recreational or other impacts of such a determination.[9] “A species may be delisted only if [the best scientific and commercial data available] substantiate that it is neither endangered nor threatened,” because it is extinct, recovered, or the original data for classification was in error.[10] A species reaches “recovery” when there is improvement in the status of listed species to the point at which listing is no longer appropriate under the criteria set out in the statute.

The Decisions

Gunnison’s Prairie Dogs

The Gunnison’s prairie dog (Cynomys gunnisoni) is a ground squirrel which lives in the Four Corners region of Arizona, Colorado, New Mexico and Utah. Three-quarters of the population is located in Arizona and New Mexico. Gunnison prairie dogs are found in high desert, grasslands, meadows, hillsides, and valleys, and at altitudes ranging from 6,000 to 10,000 feet. The Service considers them to be “a keystone species of the sagebrush ecosystem. They create habitat, provide food, and help keep the soil and plant communities healthy. For example, their abandoned burrows are used by burrowing owls, weasels, snakes, badgers, and even foxes. The prairie dog is an important food source for coyote, weasels, foxes, hawks, eagles, and the endangered black footed ferret.”[11]

In 2004, a predecessor organization of WildEarth Guardians petitioned the Service to list the Gunnison’s prairie dog as a threatened or endangered species. In 2008, the Service found that listing the Gunnison’s prairie dog was warranted within the “montane portion” of its range in central and south-central Colorado and north-central New Mexico and not warranted within the remaining “prairie portion” of its range, even though the Service also found that the Gunnison’s prairie dog was a single species and that “montane prairie dogs” could not be considered a “subspecies” or a “distinct population segment.” The Service estimated that due to disease, the occupied habitat of the Gunnison’s prairie dog declined from 24,000,000 acres in 1916 to 500,000 or fewer acres in 2008. However, disease was not a significant threat throughout the range of Gunnison’s prairie dogs, but only in the montane portion of its range because of climate, geography, and population structure. The Service also found that the montane portion of the Gunnison’s prairie dog’s range was a “significant portion of its range” based on its size and the importance of geographic and genetic diversity to the species’ persistence. The Service then concluded that “the Gunnison’s prairie dog does not warrant listing throughout its entire range, but that populations within the montane portion of its range are significant to the continued existence of the species and warrants listing in that portion only.”[12] However, the Service did not list the montane Gunnison’s prairie dog because listing was precluded by higher priority actions.

WildEarth Guardians sued, alleging that the Service impermissibly determined that something other than a “species” was an endangered or threatened species which warranted listing while impermissibly declining to list the entire species, and arguing that the Service arbitrarily divided the Gunnison’s prairie dog into montane and prairie portions. The U.S. District Court for Arizona agreed, rejecting the Service’s argument that an endangered species “can be the entire species if in danger of extinction throughout all of its range, or a portion of a species, where it is in danger of extinction in just a significant part of its range.”[13] The court concluded that there was nothing ambiguous about the ESA’s definition of “species”:

 The defendant cannot determine that anything other than a species, as defined by the ESA, is an endangered or threatened species. Because the montane Gunnison’s prairie dog cannot warrant listing in accordance with the plain language of the ESA unless there is a species called the montane Gunnison’s prairie dog, we set aside the defendant’s Gunnison’s prairie dog finding and remand the matter to the agency for further action consistent with this Order.[14]

The court agreed that the ESA gives the Service the flexibility to provide different levels of protection to the same species, but that it must do so by treating subspecies and distinct population segments of a species differently by designating them as separate species. “While there may be ways to treat prairie dogs in the prairie differently than prairie dogs in the mountains under the statute, altering Congress’s definition of endangered and threatened species is not one of them.”[15]

Gray Wolves

The gray wolf (Canis lupis) is the largest wild member of the dog family.[16] Wolves generally live in packs of 2 to 12 animals that occupy territories from 200 to 500 square miles. Hunting and a government-sponsored eradication program resulted in the extirpation of wolves from most of their range in the lower 48 states. Wolves were exterminated in Montana, Idaho, and Wyoming by the 1930s.[17]

In 1974, the northern Rocky Mountain gray wolf was listed as endangered under the ESA.[18] In 1987, the Service developed a wolf recovery plan that established a recovery goal of at least 10 breeding pairs and 100 wolves for three consecutive years in each of three core recovery areas: northwestern Montana, central Idaho, and the greater Yellowstone area. In 1995 and 1996, the Service released wolves captured in southwestern Canada into central Idaho and into the greater Yellowstone area.

The northern Rocky Mountain wolf population met the Service's recovery goal of 300 wolves and 30 breeding pairs for the first time in 2000. By the end of 2007, the northern Rocky Mountain wolf population had achieved this numerical recovery goal for eight consecutive years. On February 8, 2007, the Service proposed to identify the northern Rocky Mountain gray wolf distinct population segment (“DPS”) and to delist the DPS. The Service issued a final rule (“the 2008 Rule”) doing so on February 27, 2008. The DPS encompassed wolves in all of Montana, Idaho, and Wyoming, as well as parts of eastern Washington, eastern Oregon, and northern Utah.[19] The U.S. District Court for Montana enjoined implementation of the 2008 Rule, finding that the Service acted arbitrarily in delisting the northern Rocky Mountain DPS without evidence of genetic exchange between subpopulations.[20] The court subsequently vacated the 2008 Rule at the Service’s request.

In 2009 the Service issued a final rule to identify the northern Rocky Mountain gray wolf DPA – and to delist it (“the Final Rule”). The Service found that the DPS continues to have numbers well above the minimum population recovery goal and genetic exchange is not an issue between the three recovery areas of the DPS. The controversy arose out of the Service’s finding that Montana and Idaho, but not Wyoming, had laws, plans and regulations that would ensure the populations’ continued recovery. The Service concluded that “(1) the [northern Rocky Mountain] DPS is not threatened or endangered throughout ‘all’ of its range (i.e. not threatened or endangered throughout all of the DPS); and (2) the Wyoming portion of the range represents a significant portion of range where the species remains in danger of extinction because of inadequate regulatory mechanisms.”[21] Accordingly, the Service delisted the northern Rocky Mountain DPS “except for Wyoming.”[22]

Defenders of Wildlife, Greater Yellowstone Coalition and other groups then challenged the Final Rule, arguing that “the Service violated the ESA by determining the DPS is ‘in danger of extinction throughout ... a significant portion of its range’-and thus an endangered species-but then only applied the Act's protections to one geographical area of the DPS.”[23] Upon cross motions for summary judgment, the U.S. District Court for Montana vacated the Final Rule and rejected the Service’s arguments that it could regulate the gray wolf DPS in some states but not others, concluding that “the Service is misconstruing the plain terms of the ESA and disregarding the intent of Congress … The agency has no authority to add a new categorical taxonomy to the statute” [24] or to make management distinctions below the level of a DPS.

As in the prairie dog case, the Service argued that the phrase “significant portion of its range” can be read to qualify the term “species” in the ESA’s definition of endangered species so that an endangered species is “any [member of the] species which is in danger of extinction throughout all or a significant portion of its range.”[25] In the case of the gray wolf, only those wolves in Wyoming (which the Service admitted was a significant portion of its range) would be the endangered species. The Montana court rejected this interpretation for two reasons:

First, the phrase ‘significant portion of its range’ does not qualify where a species is endangered, but rather it qualifies when it is endangered. The definition speaks of any DPS ‘which’ is in danger. Nothing in the term ‘endangered species’ suggests the DPS is only endangered where it is in danger throughout a significant portion but not all of its range. Second, even if the definition of endangered species could be read so that ‘significant portion of its range’ controlled where a species was endangered, the argument still fails because it requires the term ‘species’ to have two different meanings within the definition itself. An ‘endangered species,’ is ‘any species’ that is in danger ‘throughout a significant portion of its range.’ [26]

The court reasoned that the ESA requires the agency to “determine whether any species is an endangered species or threatened species” and the words used in the ESA make clear that “species” excludes distinctions below that of a DPS.[27] The court recognized that the Service was searching for a practical solution to the problem of varying degrees of protection for wolves in different political jurisdictions, but found that the proposed “fix” was not allowed by the statute:

The record in this case implies that the Service tried to find a pragmatic solution to the legal problem raised by the inadequacy of Wyoming's regulatory mechanisms, and Wyoming's choices about meaningful participation in a collective delisting agreement like that engaged in by Montana and Idaho. Even if the Service's solution is pragmatic, or even practical, it is at its heart a political solution that does not comply with the ESA. The northern Rocky Mountain DPS must be listed, or delisted, as a distinct population and protected accordingly.[28]

Conclusion

The prairie dog decision drew praise from conservation groups and criticism from private property and ranching groups who feared that listing of the Gunnison’s prairie dog across its entire range could tie up land and prevent grazing.[29] The gray wolf decision is the latest twist in the long-running dispute over how to manage the species in the Rocky Mountains. A few weeks after the decision, Representative Chet Edwards (D-Texas) introduced a bill which would amend the ESA to prohibit treatment of the gray wolf as an endangered or threatened species. While such an amendment might end disputes over the gray wolf, it would not address the larger issue of whether a species can be divided below the level of a DPS based on state boundaries or other geographic criterion. Given the current state of the case law, Congressional action would be necessary to allow such subdivision of a biological species to occur in the context of the ESA.

For more information, contact Linda Larson or any other member of Marten Law’s Natural Resources practice group.