Published December 09, 2011
WASHINGTON – The Obama administration proposed a new rule Friday that would end a practice in which some endangered species were classified differently in neighboring states.
The new policy would clarify that a plant or animal could be listed as threatened or endangered if threats occur in a "significant portion of its range," even if the threat crosses state lines and does not apply in the species' entire range.
The draft rule would replace a Bush-era policy that allowed animals such as the gray wolf and Preble's meadow jumping mouse to be classified differently in neighboring states. The 2007 policy was withdrawn last spring after two federal courts rejected it.
In the case of gray wolves, the government in 2009 sought to lift protections for the predators in Idaho and Montana but leave them in place in Wyoming, where a state law allowed the predators to be shot on sight in most of the state. That policy was considered too harsh to ensure the species' long-term survival.
U.S. District Judge Donald Molloy later reinstated protections across the region, saying the agency could not declare wolves recovered in two states when part of the same population remained imperiled in Wyoming.
Congress intervened in the dispute this spring to again remove protections in Idaho and Montana. The federal government has since offered a new proposal, still pending, to take the wolves off the endangered list in Wyoming.
Molloy, in rejecting the Bush rule, said it was "at its heart a political solution that does not comply with the ESA," referring to the Endangered Species Act.
The split-state rule might have been "a pragmatic solution to a difficult biological issue," Molly wrote in August 2010, but "it is not a legal one."
The new rule would help clarify which species are eligible for protection under the Endangered Species Act and allow officials to act sooner to conserve declining species, said Fish and Wildlife Service Director Dan Ashe. The rule applies to the Fish and Wildlife Service and National Oceanic and Atmospheric Administration Fisheries, which administer the endangered species law.
"This proposed interpretation will provide consistency and clarity for the services and our partners, while making more effective use of our resources and improving our ability to protect and recover species before they are on the brink of extinction," Ashe said.
Noah Greenwald, with the Center for Biological Diversity, an environmental group that has frequently clashed with the government over species listings, called the new proposal a "recipe for extinction," noting that it retains parts of the Bush-era policy that block protections for some species that have lost large parts of their historic range.
One such species is the plains bison, which has seen its population dwindle drastically since the country was settled but remains viable in a handful of areas, including Yellowstone National Park. The Fish and Wildlife Service has rejected proposals to require protections for those approximately 20,000 wild bison.
"We have no memory of the past, so all of a sudden a species is doing fine. It's lost 99 percent of its range like the bison, but we just put on the blinders to all that," Greenwald said.
But Vanderbilt University Law School professor J.B. Ruhl said the agency's approach was necessary to give a legal definition to the biological question of what it means to be endangered. A broader historical approach could make the Endangered Species Act unworkable by adding new species or retaining protections even if they were not at risk of extinction, Ruhl said.
Ruhl said he did not see any political motivation for dropping the Bush-era policy that allowed animals to be classified along state boundaries. Rather, he said the move was compelled by court rulings that had rejected the Bush policy, leading to its withdrawal by federal officials in May.
Classifying the same animal differently in neighboring states "never struck me as something you could get out of a reasonable interpretation" of the Endangered Species Act, Ruhl said.
An expert on the Endangered Species Act from the University of Idaho said the proposal probably faces legal challenges from both conservationists and industry groups, such as homebuilders' associations opposed to expanding protections for threatened plants or animals.
"They are affording more protection than they arguably would have to," said Dale Goble, a professor at the University of Idaho's College of Law. "That's going to be the lightning rod for the regulated industry."
Goble said the policy change was needed to fill in gaps left by Congress when it approved the Endangered Species Act almost 40 years ago. Those gaps have left the law open to different interpretations that vary according to political landscape of the day, he said.
Brown reported from Billings, Mont.
Matthew Daly can be followed at http://twitter.copm/MatthewDalyWDC