CHAPTER 1 A COMMON-SENSE INTERPRETATION OF THE PHRASE “THROUGHOUT ALL OR A SIGNIFICANT PORTION OF ITS RANGE”
| Jurisdiction | United States |
A COMMON-SENSE INTERPRETATION OF THE PHRASE "THROUGHOUT ALL OR A SIGNIFICANT PORTION OF ITS RANGE"
Fennemore Craig P.C.
Phoenix, Arizona
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Synopsis
I. Introduction
II. General Background
A. The Listing Framework
B. The Legislative History
III. Early Cases Addressing the SPR Phrase
A. Defenders of Wildlife v. Norton (9th Cir. 2001)
B. Center for Biological Diversity v. Norton (D.N.M. 2005)
C. Other Early Cases Addressing the SPR Phrase
IV. The Interior Department Solicitor's 2007 M-Opinion
A. The M-Opinion's Interpretation of the SPR Phrase
B. Challenges to the 2007 SPR M-Opinion
V. Adoption of the 2014 SPR Policy
A. The 2011 Draft SPR Policy
B. The 2014 Final SPR Policy
VI. Challenges to the SPR Policy's Interpretation of "Significant"
A. Center for Biological Diversity v. Jewell (D. Ariz. 2017)
B. Desert Survivors v. U.S. Dep't of the Interior (N.D. Cal. 2018)
VII. Other Recent Decisions Concerning the SPR Policy
A. Challenges to the Interpretation of "Range"
B. Challenge to the Services' Two-Step Listing Process
VIII. Conclusion: A Common-Sense Approach to Interpreting the SPR Phrase
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I. Introduction1
The Endangered Species Act (ESA) authorizes the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, Services) to designate species of fish, wildlife, and plants for protection if the species is determined to be either an "endangered species" or a "threatened species."2 To constitute an "endangered species," the species must be "in danger of extinction throughout all or a significant portion of its range."3 To constitute a "threatened species," the species must be "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."4 Because both definitions include the phrase "throughout all or a significant portion of its range" (SPR Phrase), its meaning is important to the administration and enforcement of the ESA.
The meaning of the SPR Phrase seems fairly clear on its face: a species is considered endangered under the ESA if it is threatened with extinction throughout all of its range or within enough of its range that the species' continued survival is threatened. And that is how the Services initially interpreted the phrase in making listing determinations. But in a decision issued in 2001, the U.S. Court of Appeals for the Ninth Circuit described the SPR Phrase as "inherently ambiguous," and held that the Services' interpretation failed to give the phrase independent meaning.5 Unfortunately, this decision did little to clarify how the SPR Phrase should be interpreted, and subsequent attempts to address this issue have generated complexity and confusion, as discussed below.
Even if the Ninth Circuit's characterization of the SPR Phrase were accurate, under the Chevron doctrine, an agency interpretation of an ambiguous statutory phrase should be upheld as long as it is reasonable, even if the agency's interpretation differs from what a court believes is the best statutory interpretation.6 Therefore, the Services' subsequent adoption
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of a definitive policy interpreting the SPR Phrase following notice-and-comment rulemaking proceedings should have resolved the issue.7
But two district courts held that the Services' interpretation of the SPR Phrase in the SPR Policy is an impermissible construction of the statutory language because it failed to give independent meaning to each of the words in the phrase, following Defenders of Wildlife.8 The Desert Survivors court went on to vacate the Services' definition of "significant" on a nationwide basis, effectively gutting the policy.9
In reality, the Services' earlier and apparently long-standing interpretation of the phrase "throughout all or a significant portion of its range" makes the most sense. In Defenders of Wildlife, the FWS explained that a species is eligible for listing if it "faces threats in enough key portions of its range that the entire species is in danger of extinction, or will be within the foreseeable future."10 In other words, even if a species is common in some areas, the species may be protected if it is faced with extinction throughout enough of its range that the species' viability is threatened. The species does not have to be endangered (or threatened) everywhere to be listed. As discussed below, the Ninth Circuit's rejection of that interpretation—while asserting that the SPR Phrase is ambiguous—was misguided.
This paper initially discusses the relevant statutory framework under the ESA and the legislative history concerning the Act's definitions of "endangered species" and "threatened species," which were enacted in 1973 as part of the original version of the ESA. The paper then addresses the Ninth Circuit's decision in Defenders of Wildlife, which is the principal obstacle to the adoption of a straightforward and common-sense interpretation of the SPR Phrase. Next, it summarizes prior interpretations of the SPR Phrase, and discusses the 2014 SPR Policy and the courts' rulings setting aside portions of that policy.
The paper concludes by proposing a simpler approach that considers the meaning of the entire phrase "throughout all or a significant portion of its range." Such an approach treats the terms "all" and "significant portion" as complementary rather than as disjunctive, and allows the SPR Phrase to be interpreted in accordance with its plain meaning. This interpretation
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correctly focuses on the biological status of the species, allowing it to be listed when its continued existence is at risk, even if it remains common in portions of its range.
II. General Background
A. The Listing Framework
The ESA permits the Service (the FWS or the NMFS11 ) to list a group of fish, wildlife, or plants if that biological group meets the definition of "species" in the ESA (i.e., it is a species, subspecies, or distinct population segment (DPS)), and only if that species unit meets the definition of either an "endangered species" or a "threatened species" in the ESA.12 To constitute an "endangered species," the species unit must be "in danger of extinction throughout all or a significant portion of its range."13 To constitute a "threatened species," the species unit must be "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."14 Thus, both definitions contain the phrase "throughout all or a significant portion of its range."
In 1973, when the ESA was enacted, the classifications entitled to the statute's protections included species, subspecies, and "any other group of fish or wildlife of the same species or smaller taxa in common spatial arrangement that interbreed when mature."15 In 1978, Congress attempted to clarify the definition of "species" by eliminating the reference to groups of animals "in common spatial arrangement" and substituting "distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature."16
In 1996, the Services adopted a policy establishing the requirements for recognizing a population of fish or wildlife as a DPS.17 Under the DPS Policy, a population may be listed only if the population is, first, "discrete" (i.e., separated from other populations of the same species) and, second, "significant" (i.e., important to the welfare of the species as a whole).18 In
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Northwest Ecosystem, the Ninth Circuit held that the DPS Policy is a reasonable interpretation of the phrase "distinct population segment" and entitled to deference under the Chevron doctrine.19
The process for determining whether a particular "species" should be listed as endangered or threatened is set forth in section 4 of the ESA.20 The Service is required to determine whether a species is endangered or threatened because of any of the following five factors:
(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence. 21
In addition, section 4 requires that listing decisions be made "solely on the basis of the best scientific and commercial data available to [the Service] after conducting a review of the status of the species."22 The Service also must consult with affected states, and take into account efforts being made to protect the species.23
The listing process may be initiated by the Service on its own initiative or, as is often the case, by a petition filed by an interested person.24 Where such a petition is filed, the Service must make a finding on whether the petition presents substantial scientific or commercial information indicating that the petition may be warranted within 90 days after receiving the petition to the "maximum extent practicable."25 If the Service determines the petition may be warranted, the agency must conduct a status review of the species and, within one year, issue a 12-month finding explaining whether the petition is warranted, is not warranted, or is warranted but precluded by other pending proposals.26 A finding that listing is not warranted is subject to judicial review.27
If the Service finds that listing is warranted, the agency must publish in the Federal Register a proposed regulation listing the species as endangered or threatened, and invite comment on such proposal.28 The Service must either publish in the Federal Register a final regulation listing
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the species as endangered or threatened, or withdraw the proposed listing, within one year of...
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