Analysis: 2007 legal opinion is a threat to imperiled species

The Endangered Species Act Under Threat

A Bush Administration interpretation of “range” that restricts protections for imperiled species to their current range, precluding protections for historic range could weaken the Endangered Species Act (ESA).

Analysis: 2007 legal opinion is a threat to imperiled speciesScienceBlog

researchers say such an interpretation sets the stage for the creation of sporadically located “wilderness zoos” that would reduce protections for endangered species and the habitat on which they depend.

It is pretty universally understood that the Bush Administration was no proponent of the ESA and actively pushed radically minimalist interpretations of the Act administratively and in the courts.  If you think about it, an interpretation of the Endangered Species Act that only protects species where they currently reside would actually incentivize the removal of species from areas before they get listed, or at least could pull a lot of the wind out of efforts to conserve a species in an area before a listing potentially takes place.

As the article notes, what’s particularly troubling is that the Obama Administration has done nothing to reverse Bush’s legal memorandum. Obama’s Interior actually picked up where Bush left off, using the interpretation in its decision to delist wolves.

“The law says listing decisions should be determined by scientists,” Bruskotter said. “Implementing the 2007 legal interpretation, on the other hand, would further limit the number of species listed and the area in which they qualify for protections, ultimately diminishing the government’s ability to conserve threatened and endangered species.”







  1. Ralph Maughan Avatar

    We have covered this one way or another several times. Anyone concerned with endangered species must be aware of this Bush legal opinion and Obama’s failure, so far, to overturn it.

  2. mikepost Avatar

    Ralph, I don’t disagree but how to we protect (or incentivise) a land owner who makes positive habitat conservation improvements to their property only to find that an endangered species has moved in as a result and now his land use is impacted. I would think we want to encourage stewardship of the land without punishing every good deed.

  3. JB Avatar

    Mike: In reality, the kind of scenario you’ve describe is extremely rare. FWS has delayed/refused the designation of critical habitat in many instances and land use restrictions that affect private land owners are often avoided.

    Readers of this blog should be aware of what this opinion could potentially do to conservation of endangered species under the ESA: (1) Defining “range” to mean “current range” would mean (a) no national plan for wolf recovery, (b) no need to expand the boundaries of recovery zones/DPSs for species such as grizzlies, wolves, lynx, jaguar, etc., and (c) and petition to list bison outside of their current range (i.e. YNP/GTNP) would be doomed to failure.

    The opinion has negative implications for conservation of every imperiled species that once was widely distributed and has subsequently had their distribution reduced by human endeavors–and to be clear, that’s just about every species that gets regularly discussed on this blog (e.g. wolves, grizzlies, bison, jaguar, lynx, polar bear, etc.).

    P.S. Although the article(s) cited don’t say this explicitly, many people who I’ve spoken with view the Solicitor’s opinion on this matter as a way of modifying the ESA after the amendments proposed by Richard Pombo failed. To be explicit, Pombo’s attempts to gut the ESA were widely condemned by conservationists and so unpopular that they didn’t make it through Congress even at the height of Republican power. Since they couldn’t change the definition of “endangered species” via the legislative branch, the Solicitor issued an opinion that has the same effect. Essentially, the Bush Administration found a back door for amending the ESA without going through the legislature.

  4. Maska Avatar

    Somebody please correct me if I’m mistaken about this, but isn’t there something called a “safe harbor agreement” under which landowners agree to take certain steps to improve habitat for endangered or threatened critters on their private land in return for essentially being held harmless, if a few of the animals/plants are “taken” incidentally in the course of their regular activities on their property?

  5. JB Avatar

    Thanks, Maska. Here’s what FWS says about SHAs:

    “A Safe Harbor Agreement (SHA) is a voluntary agreement involving private or other non-Federal property owners whose actions contribute to the recovery of species listed as threatened or endangered under the Endangered Species Act (ESA). The agreement is between cooperating non-Federal property owners and the U.S. Fish and Wildlife Service (FWS) or the National Oceanic and Atmospheric Administration, which is responsible for most listed marine and anadromous fish species. In exchange for actions that contribute to the recovery of listed species on non-Federal lands, participating property owners receive formal assurances from the FWS that if they fulfill the conditions of the SHA, the FWS will not require any additional or different management activities by the participants without their consent. In addition, at the end of the agreement period, participants may return the enrolled property to the baseline conditions that existed at the beginning of the SHA.”

  6. jburnham Avatar

    JB, are you one of the co-authors of this study?

  7. JB Avatar

    “…are you one of the co-authors of this study?”

    Yes. Also, we’re currently working on additional analyses (focused on large carnivores) with the hopes of being able to make more specific recommendations. However–as you can imagine–finding people to fund legal research isn’t easy.

  8. jburnham Avatar

    JB – thanks. Good luck with the carnivore analyses!

  9. JB Avatar

    Thanks, jburnham!

  10. mikepost Avatar

    JB, what might the normal “conditions” in a SHA consist of?

  11. JB Avatar


    To be honest, SHAs are not my area of expertise, perhaps someone else can answer? It may help if you could clarify what you mean when you say “normal” conditions. I don’t see where I used this language in any of my posts?

  12. Brian Ertz Avatar

    i’m not sure about SHAs, but if they’re anything like CCAAs (Candidate Conservation Agreement with Assurances), which FWS is increasingly applying to candidate species (not yet listed) then they ask property owners to alter management to provide for conservation of a species or its habitat in exchange for permits to take should the species become listed.

    a condition might be that a rancher alter the duration the he graze his cattle or sheep, or that the stock be put on later or before a given date or timeframe to avoid conflict with a protected species. that a different mixture of seed be applied to private pasture that is said to better benefit a species, or that habitat alteration of other sorts be implemented.

  13. chris Avatar

    Speaking of endangered species, here’s some possible good news for the black-footed ferret:

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Brian Ertz