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Group Will Sue to Block 'Evisceration' of Endangered Species Act

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A new policy would make it nearly impossible to add new species to the Endangered list until it might be too late for them. | Photo: Jane Waterbury/Flickr/Creative Commons License

A seemingly arcane shift in policy on the part of two federal agencies about enforcement of the Endangered Species Act (ESA) has wildlife advocates ready to head to court, saying that the Obama administration is "eviscerating" protection for endangered and threatened species by making the change.

The shift in policy, to be formally announced July 1 by the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration's Fisheries office (NOAA Fisheries), centers on the degree to which a potentially protected species is declining in different parts of its range. Under current ESA policy, based on the language in the law itself, a species qualifies for protection as endangered or Threatened when it is "in danger of extinction in all or a significant portion of its range."

That "significant portion" language has historically allowed the agencies to protect species that are in peril in some of their range, but less threatened elsewhere. Under the new policy, the population in that "significant portion" of the range would have to be absolutely crucial to the survival of the species. That interpretation would mean neither USFWS nor NOAA Fisheries would protect species under ESA until they're in serious trouble wherever they exist. That would be a blow to wildlife protection efforts, according to the Center for Biological Diversity (CBD), which announced today it will be filing suit to block the new policy.

"The policy finalized today eviscerates the key requirement that species need not be at risk of extinction everywhere before they can be protected," said Brett Hartl, CBD's endangered species policy director. "The policy absolutely undermines the spirit of the Endangered Species Act and will allow massive decline of our native wildlife along with the destruction of wildlife habitat."

Under the new policy, the agencies would also disregard the historic range of a species in determining whether that species deserves protection under ESA. The justification USFWS and NOAA Fisheries offer for this change is a marvel of sophistry:

As defined in the Act, a species is endangered only if it "is in danger of extinction" throughout all or a significant portion of its range. The phrase "is in danger" denotes a present-tense condition of being at risk of a current or future undesired event. Hence, to say a species "is in danger" in an area where it no longer exists -- i.e., in its historical range where it has been extirpated -- is inconsistent with common usage. Thus, "range" must mean "current range," not "historical range."

What's this mean? Imagine if the American bison had been completely wiped out in the wild, instead of just almost completely wiped out, and that the only remaining members of the species left were the ones taking it easy on Catalina Island. Under this new policy, if the bison were at no risk of extinction on Catalina, USFWS wouldn't protect them under ESA despite the loss of more than 99 percent of the species' range and population.

"The Fish and Wildlife Service has long been criticized for only protecting species on the very brink of extinction, which makes recovery a difficult uphill slog," said the CBD. "This policy would actually codify that approach, essentially saying: Let's only protect these creatures when they're in as desperate a state as possible."

CBD contends that a number of courts, including the 9th Circuit, have already ruled the new policy illegal.

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