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Fighting Limits on Species Protections

In 2007 the Bush administration’s top lawyer, or solicitor, at the Department of the Interior issued a memorandum substantially redefining a key provision of the Endangered Species Act. The policy laid out in this memo would condemn many species to extinction — and for years, it allowed the U.S. Fish and Wildlife Service to deny or limit necessary species’ protections. The Center has led the call for the Obama administration to revoke this policy, as well as fighting for species it harmed.


The Obama administration now wants to reinterpret this provision of the Endangered Species Act so that new protection would be given only to those species at risk of going extinct in every single place where they live. That's a departure from what Congress clearly intended when it passed the Endangered Species Act, which was to protect a species simply because it is endangered in "a significant portion of its range."

Had this policy been in place 40 years ago, the bald eagle never would've been protected, because while it was on the path toward extinction in the lower 48 states, it was still common in Alaska. The Obama administration's proposed change would sharply limit the number of plants and animals given protection under the Endangered Species Act.

But conservation groups — including the Center — won’t have it. In separate letters in March 1012, 89 groups and 97 scientists expressed opposition to the policy. Conservation groups joining the Center’s opposition to the policy include the Endangered Species Coalition, Earthjustice and the Humane Society of the United States.


As the Endangered Species Act is written, listing is required not only when a species is at risk of worldwide extinction, but also when it’s at risk in any “significant portion of its range” — that is, its entire range, current and former. This important provision both allows for a species’ listing before it’s on the brink of extinction and ensures that a species can recover in more than a small portion of its range.

The Bush solicitor's 2007 memo, however, sharply limits the application of this provision by defining the “significant portion” of a species’ range as its current range only. This allows an imperiled animal or plant to be considered not at risk — and thus not deserving of federal protection — simply because it currently occupies its current range.

The solicitor’s memo also limits application of the Act by specifying that once a species has been found endangered in a significant portion of range, protection will be applied in only that portion of the range. This gives the U.S. Fish and Wildlife Service the authority to draw lines around the most endangered portions of species’ current ranges and only provide protection in these “significant” areas. Such action effectively limits species’ recovery and provides little incentive for recovering them throughout their historic ranges, which is often the majority of the range the species should occupy and sometimes all of it. If this policy had been in place when the gray wolf was listed in the lower 48 states in 1976, the wolf couldn’t have been protected in any areas where it wasn’t then found — most of the lower 48. Likewise, if the policy had been enacted after the California condor went extinct in the wild, the magnificent bird would have only been protected in zoos.

In 2008, the Bush administration proposed to formalize this limiting effect of the policy by changing the formatting of the federal endangered and threatened lists. The proposed “reformatting” rule would create a new column heading of “Where listed” that would essentially mandate protection for a species only in its current range. A column for a species’ entire historic range — the area in which a species should be protected — would be considered an “information-only column.”


Unfortunately, the 2007 policy wasn’t widely publicized, and many endangered species advocates didn’t even know it existed until, in December 2009, the Center published an article in the journal Conservation Biology laying bare the policies’ deleterious effects. In the same month, we led a group of 129 prominent conservation scientists in sending a letter to the Obama administration to rescind the policy before it could halt the recovery of any more plants or animals.

In 2011, the Center and nine allies reached a settlement with the Department of the Interior that would compel Interior to withdraw the controversial policy memo, barring it from use to justify not protecting imperiled species throughout their entire ranges.
If approved, the settlement should allow us to better fight for the best protection for a long list of species that have already been harmed by the policy, including the northern Rocky Mountains gray wolf, Colorado River cutthroat trout, Preble’s meadow jumping mouse, Gunnison’s prairie dog and southern rockhopper penguin.

Gray wolf by Tracy Brooks, USFWS