WildEarth Guardians

Wednesday, May 4, 2011
Interior Withdraws Illegal Endangered Species Memo

Group Urges Obama Administration to Leave Flawed Bush Policies Behind
Contact: Nicole Rosmarino (505) 699-7404

Washington, DC—May 5. The top lawyer for the Department of the Interior announced today that she has withdrawn a controversial legal interpretation issued by her predecessor concerning a key component of the Endangered Species Act (ESA). The legal memo issued by the Bush Administration in 2007 limited which species could be listed as “threatened” or “endangered” under the act by reinterpreting the phrase “significant portion of [a species’] range.” Citing two recent court decisions rejecting that interpretation—including successful litigation by WildEarth Guardians—Interior Solicitor Hilary Tompkins withdrew the memo to facilitate issuance of new guidance on “significant portion of range.”

“We’re pleased that Interior has finally recognized that it needs to leave the bad decisions of the Bush administration behind,” stated Nicole Rosmarino of WildEarth Guardians. “Interior needs to shift course and provide a helping hand to species in need.”

The ESA defines an endangered species as one that is “in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). “Range” had historically been interpreted to include a species’ current and historic range, and the U.S. Fish and Wildlife Service considered how much a species range was reduced when determining whether it warrants protection under the ESA. The Department of Interior under George W. Bush chose to define the phrase in a way that narrowed which species are eligible for federal safeguards.

The Bush era opinion ignored 30 years of precedent by redefining “range” to include only currently occupied habitat. In addition, the memo withdrawn by Tompkins today granted the Secretary of the Interior considerable discretion in deciding what portion of current range is “significant.” These changes affected how the Service applied the ESA, and even caused the agency to deny protection to imperiled species in several cases.

WildEarth Guardians brought one of the two cases referenced in Solicitor Tompkins’ withdrawal memorandum as her rationale for abandoning the previous interpretation of “significant portion of range.” The litigation challenged the Service’s application of the Bush Administration’s construal of the phrase in 2008 in a listing decision for Gunnison’s prairie dog. The agency decided that the prairie dog only deserved protection in the mountainous portion of its range (comprising about 40 percent of its current range) and not low elevation meadows where it also occurs. In its decision for Guardians, a federal court in Arizona noted that the Service itself had documented a 98 percent decline throughout the entire range of the species, and the court pointed out that the Service could not invent new categories of listable entities not envisioned in the Endangered Species Act.

Tompkins’ withdrawal of the controversial Bush-era memo could have far-reaching consequences, particularly for species who have been denied listing but haven’t yet made it to the courtroom. An example is the white-sided jackrabbit, which numbers only about 60 animals in the U.S., but for which the Service denied protection, in part, based on the 2007 range memo. Guardians filed an extensive notice of intent to sue on this jackrabbit’s behalf just prior to Easter.