Interior Solicitor Withdraws Controversial Interpretation of ESA Listing Language

On May 4, 2011, the Solicitor of the U.S. Department of Interior (“Interior”) withdrew a 2007 opinion setting forth Interior’s position on a key phrase in ESA listing decisions – “in danger of extinction throughout all or a significant portion of its range” – under ESA § 1532(6) (the “SPR phrase”). The Solicitor’s action responds to recent judicial opinions that rejected the U.S. Fish & Wildlife Service’s (“USFWS”) purported authority to list or protect a species under the ESA in only portions of its range. It will probably be some time before the USFWS issues new guidance on the appropriate interpretation of the phrase. The Solicitor’s withdrawal of its SPR Opinion could, however, be interpreted as an implicit endorsement, or at least recognition, that the USFWS cannot parse listing and delisting decisions at any categorical level lower than “distinct population segments” (“DPSs”). It may also influence pending litigation on the status of various species under the ESA, and has already been relied upon by plaintiffs challenging Congress’ April 2011 decision to delist gray wolves via budget rider.

Statutory Framework for ESA Listing Decisions

Under the ESA, the federal wildlife Services determine “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.[1] An “endangered species” is “any species which is in danger of extinction throughout all or a significant portion of its range … .”[2] A threatened species” is “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”[3]

The ESA defines the term “species” to include “any subspecies of fish or wildlife or plants, and any [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature.”[4] Under this definition, “a population of wildlife that does not constitute a taxonomic species may nevertheless qualify for listing as a DPS.”[5] The term “DPS” is neither defined in the ESA nor commonly used in scientific discourse. In fact, it has no accepted scientific meaning.[6] To fill this gap, the FWS and NMFS adopted a policy statement (the “DPS Policy“) “to guide their evaluation of whether a population group should be treated as a DPS.”[7] In 2007, the Ninth Circuit deferred to the Services’ interpretation as set forth in that policy, and the FWS’ application of that policy to a particular subspecies in Washington State.[8] See Ninth Circuit Defers to Services’ Interpretation of “Distinct Population Segments” Under the ESA, Marten Law News (Feb. 21, 2007).

If the Service determines that a species (including a DPS) is endangered or threatened, it is added to the published list of such species, and the species and, once designated, its critical habitat are then protected.[9] The same factors that are used to list a species are also used to determine if a previously listed species should be delisted.[10] 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.[11] “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.[12] 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.

Interior’s 2007 Opinion on the SPR Phrase

On March 16, 2007, the Solicitor issued Opinion M-37013 (addressing the meaning of the SPR phrase) – while the USFWS was (and still is) developing a policy on how to apply the SPR phrase in listing and delisting decisions. In M-37013, the Solicitor concluded, in relevant part, that:

1. The SPR phrase is a substantive standard for determining whether a species is an endangered species—whenever the Secretary concludes because of the statutory five-factor analysis that a species is “in danger of extinction throughout … a significant portion of its range,” it is to be listed and the protections of the ESA applied to the species in that portion of its range where it is specified as an “endangered species”;
2. the word “range” in the SPR phrase refers to the range in which a species currently exists, not to the historical range of the species where it once existed;
3. the Secretary has broad discretion in defining what portion of a range is “significant,” and may consider factors other than simply the size of the range portion in defining what is “significant”; and
4. the Secretary’s discretion in defining “significant” is not unlimited; he may not, for example, define “significant” to require that a species is endangered only if the threats faced by a species in a portion of its range are so severe as to threaten the viability of the species as a whole.[13]

Under this interpretation, species that might qualify for listing if the USFWS considered its entire historical range, often would not. This is due to the USFWS’ focus (between March 16, 2007 and May 4, 2011) on a species’ current range, where the species – viewed in isolation from its former, larger habitat – might be deemed healthy. Also, the USFWS could limit protections for already-listed species.[14] Thus, under the 2007 Solicitor opinion, the USFWS could ostensibly extend ESA protections to only portions of the range of a species or DPS, rather than its entire range.

Recent Litigation Calling Interior’s Interpretation Into Doubt

In 2010, two federal district courts called the USFWS’ SPR policy into doubt by overturning two of the Service’s listing decisions. The courts found that the USFWS had effectively attempted to set a different listing status for portions of single species that had not been identified as DPSs, and overturned the Service’s decisions not to list the Gunnison’s prairie dog and to delist the gray wolf in Idaho and Montana. In both cases, the courts 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 rather than biology or genetics, and rejected identical arguments by the Service on 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.”[15] In the prairie dog decision, the U.S. District Court for Arizona wrote: “[The Secretary of Interior] contends that the ESA gives him the flexibility to provide different levels of protection to the same species. We agree. The ESA permits the defendant to treat subspecies and [DPSs] 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.”[16] For more on these decisions, see All or Nothing at All – U.S. Fish & Wildlife Service Must Base ESA Listing Decisions on the Status of the Entire Species, Marten Law Newsletter (Nov. 29, 2010).

Both cases have been appealed to the Ninth Circuit.

Interior’s Withdrawal of the SPR Policy and What it Might Mean in Specific Cases

In light of the adverse decisions by the U.S. District Court of Montana and Arizona in the prairie dog and gray wolf cases, the USFWS decided to reconsider its interpretation of the SPR phrase, and Interior withdrew its Opinion M-37013.[17] The USFWS intends to develop guidance on how to apply the SPR phrase in listing and delisting decisions. In the meantime, Opinion M-37013 and cases addressing the interpretation of the SPR policy set forth therein are directly implicated in several pending lawsuits, including one in the District of Colorado and at least two in the U.S. District Court for District of Columbia.[18]

Polar Bear Litigation

While it is DOJ’s position that the Defenders decision on application of the SPR phrase to gray wolves is not relevant to the consolidated polar bear ESA cases pending before the U.S. District Court for the District of Columbia, DOJ concedes that, “if Defenders was correctly decided, it could serve as persuasive authority to reject several … arguments” made by Safari Club and related organizations in the polar bear litigation. Those organizations argue that the USFWS should not have listed the polar bear in certain portion of its range, and cited Opinion M-37013 for the assertion that the USFWS has “authority not to list the polar bears in portions of its range even if it does list the bear in other portions of its range.”[19] Because the Solicitor has now withdrawn M-37013, DOJ asserts that M-37013 “can provide no support for [Safari Club’s] arguments” in the polar bear litigation.[20]

Northern Rockies Gray Wolves

The potential effects of Interior’s withdrawal of Opinion M-37013 on the gray wolf listing decisions are more complicated. In the Defenders litigation, the U.S. District Court for the District of Montana had vacated the USFWS’ decision to delist the gray wolf.[21] The Service’s decision on remand and the appellate lawsuit remain pending. However, in April 2011, Congress passed H.R. 1473, the Department of Defense and Full-Year Continuing Appropriations Act of 2011. The Act contained a rider that ordered the USFWS to re-issue its (recently judicially-vacated) rule that identified and delisted the DPS of the gray wolf in the Northern Rocky Mountains of the United States, except in Wyoming.[22] See EPA, Interior, Commerce Programs Among Those Cut in Budget Compromise, Marten Law Newsletter (April 14, 2011).

The day after its issuance, environmental advocacy groups cited M-37013 in a complaint filed in Judge Donald Molloy’s court in Montana federal district court. Judge Molloy decided the Defenders case, which vacated the final rule that Congress – at the behest of Senators Jon Tester and Max Baucus (D-MT) and others – ordered the USFWS to re-issue through the FY2011 budget rider. In Alliance for the Wild Rockies v. Salazar, No. 11-00070, Complaint (D. Mont. filed May 5, 2011), plaintiffs argue that the budget rider, “as a legislative enactment designed to affect the outcome of a particular pending case [(Defenders)], without amending the underlying statute involved [(the ESA)],” violates the constitutional separation of powers doctrine. Given the novel nature of the budget rider (the only delisting of a species under the ESA via an appropriations act); the political, legal and social controversies surrounding the gray wolf delisting; and the fact that the budget rider may actually raise significant constitutional issues in the context of environmental regulation, the Alliance case is worth watching as it makes its way through the courts.

For more information, contact Jessica K. Ferrell or any member of our Natural Resources practice group.