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Interior Withdraws Illegal Endangered Species Memo

May 4, 2011
Nicole Rosmarino (505) 699-7404
In This Release

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 The top lawyer for the Department of theInterior announced today that she has withdrawn a controversial legalinterpretation issued by her predecessor concerning a key component of theEndangered Species Act (ESA). The legal memo issued by the Bush Administrationin 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 thatinterpretation—including successful litigation by WildEarth Guardians—InteriorSolicitor Hilary Tompkins withdrew the memo to facilitate issuance of newguidance on “significant portion of range.”

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

TheESA defines an endangered species as one that is “in danger of extinctionthroughout 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. Fishand Wildlife Service considered how much a species range was reduced whendetermining whether it warrants protection under the ESA. The Department ofInterior under George W. Bush chose to define the phrase in a way that narrowedwhich species are eligible for federal safeguards.

The Bush era opinion ignored 30years of precedent by redefining “range” to include only currently occupiedhabitat. In addition, the memo withdrawn by Tompkins todaygranted the Secretary of the Interior considerable discretion in deciding whatportion of current range is “significant.” These changes affected how theService applied the ESA, and even caused the agency to deny protection toimperiled species in several cases.

WildEarthGuardians brought one of the two cases referenced in Solicitor Tompkins’withdrawal memorandum as her rationale for abandoning the previousinterpretation of “significant portion of range.” The litigation challenged theService’s application of the Bush Administration’s construal of the phrase in2008 in a listing decision for Gunnison’s prairie dog. The agency decided thatthe prairie dog only deservedprotection in the mountainous portion of its range (comprising about 40 percentof its current range) and not low elevation meadows where it also occurs. Inits decision for Guardians, a federal court in Arizona noted that the Serviceitself had documented a 98 percent decline throughout the entire range of thespecies, and the court pointed out that the Service could not invent new categoriesof listable entities not envisioned in the Endangered Species Act.

Tompkins’withdrawal of the controversial Bush-era memo could have far-reachingconsequences, particularly for species who have been denied listing but haven’tyet made it to the courtroom. An example is the white-sided jackrabbit, whichnumbers only about 60 animals in the U.S., but for which the Service deniedprotection, in part, based on the 2007 range memo. Guardians filed an extensivenotice of intent to sue on this jackrabbit’s behalf just prior to Easter.

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“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.”