By Michelle Werts
How do you legally protect something when some of the legal language that is supposed to provide protection is unclear? This is a dilemma that’s been facing the Endangered Species Act in recent years.
As many people are aware, the Endangered Species Act of 1973 provides for the classification, or listing, and protection of endangered and threatened plant and animal species. Currently, 1,200 animal species and 797 plant species are listed. These species are afforded protection under the act from being hunted, captured, collected, etc. Also, under the act, most listed species have recovery plans designed to aid the species’ populations with the goal being that they will eventually be strong enough to be removed from the list. But how does one determine if a species is “endangered” or “threatened”?
For decades, the act has used the following definitions to determine just that:
- Endangered species: any species which is in danger of extinction throughout all or a significant portion of its range
- Threatened species: any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range
Significant portion of its range: Such a short phrase, but a hotly contested one. What qualifies as significant — is it determined by the size of the population in proportion to the rest of the range? Does it mean important, as in the species could not survive without the population in this range regardless of the geographical size? No one knows. Hence, the need for further definition.
After years of litigation around this tiny phrase, in 2007, the solicitor of the Department of the Interior gave a formal opinion on the definition of this phrase, and the U.S. Fish and Wildlife Service (FWS), who administers the Endangered Species Act, began using this definition in its listing determinations. Until, two courts rejected aspects of that formal opinion, and it was officially withdrawn in 2011.
So, we still don’t know what significant means. Hopefully, that will soon change. Last week, public comments were due on FWS’ and NOAA’s Draft Policy on Interpretation of the Phrase “Significant Portion of its Range” in the Endangered Species Act’s Definitions of “Endangered Species” and “Threatened Species.” Because the Endangered Species List contains many trees and many wildlife species that call our forests home, American Forests weighed in on the interpretation of this difficult phrase by submitting comments, which you can read on our Forests & Wildlife Public Policy page.
Now, FWS and NOAA will review all submitted comments and make changes to their draft policy. Hopefully, in the near future, everyone will know exactly what significant portion of its range means and can use that knowledge to ensure that all of our plants and animals that need protection are getting it.