Interior Department Loses Again; Its Approach Is Called Too Narrow
The Ninth U.S. Circuit Court of Appeals has rejected federal arguments for dropping a desert lizard from consideration for Endangered Species Act protection. In its ruling, the unanimous three-judge panel encourages a broader, more flexible reading of the act than the Clinton administration had offered.
The case turned on the interpretation of the phrase "in danger of extinction throughout ... a significant portion of its range." Such animals and plants are to receive ESA protection. The court rejected both the secretary of the Interior's interpretation, and that of environmental groups who brought the lawsuit.
"We conclude, consistently with the secretary's historical practice, that a species can be extinct 'throughout ... a significant portion of its range' if there are major geographical areas in which it is no longer viable but once was," Judge Marsha Berzon wrote for the court. The secretary has a "wide degree of discretion" but must at least explain her conclusions.
The critter in question is the flat-tailed horned lizard, whose habitat includes parts of eastern San Diego and Imperial counties, southwestern Arizona and northwestern Mexico. Creation of the Salton Sea, farming of desert land and urban development around El Centro and Yuma, Arizona, have eliminated about one-third of the lizard's historic range.
The Interior secretary began reviewing the lizard's status in 1982 but had made no decision as of April 1995, when Congress withdrew much of the Interior Department's ESA funding. This virtual moratorium on ESA listings remained in effect until April 1996, when then-president Clinton restarted the listing process. Still, Interior Secretary Bruce Babbitt refused to make a decision on the flat-tailed horned lizard. In May 1997, a federal district court in Arizona ordered Babbitt to issue a decision within 60 days.
In July 1997, Babbitt withdrew an earlier proposal to list the lizard as threatened. He found that data did not conclusively show significant population declines, that some threats to habitat had diminished, and that a new conservation agreement among federal, California and Arizona agencies would aid the lizard.
Defenders of Wildlife and other environmental groups sued Babbitt in 1998. Southern California District Court Judge Thomas Whelan ruled for the administration. Environmentalists appealed to the Ninth Circuit, where they found a more receptive audience. The appellate court ruled that Babbitt relied on an improper standard to make his decision, and "failed to consider important factors relevant to the listing process."
The Interior Department argued that although the lizard faced threats on private property, adequate habitat existed on public land to ensure the species' viability. The agency further pointed to a new conservation agreement among federal, California and Arizona agencies that added protections to lizard's public land habitat. Conversely, environmentalists argued that if private land constituted a significant portion of the lizard's range, and its survival on that land were threatened, the agency must designate the lizard for ESA protection.
The court held that the agency's approach meant that a species would qualify for protection only if it were in danger of extinction everywhere. However, the ESA separately addresses species that are in danger of extinction in all their historic range. "[T]he secretary's interpretation of 'a significant portion of its range' has the effect of rendering the phrase superfluous. Such a redundant reading of a significant statutory phrase is unacceptable," Berzon wrote.
Environmentalists pointed to evidence that the lizard is projected to lose 82% of its habitat, and species that have lost smaller amounts of habitat have received federal protection. But the court held that no predetermined percentage of habitat loss qualifies a species for ESA listing.
Instead, the court delved into the legislative history, comparing the ESA with two earlier conservation laws. The phrase "extinction throughout ... a significant portion of its range" appeared for the first time in the Endangered Species Act, and not in earlier laws. Congress added this new language to encourage cooperation between federal and state agencies and to allow the Secretary more flexibility, Berzon wrote. She pointed to congressional examination of the American alligator. The animal's historic range stretched from the Mississippi Delta in Louisiana to the Florida Everglades. By 1973, the alligator had become very rare in portions of Florida, yet it was overabundant in Louisiana. The ESA was intended to allow the Interior Department to protect the alligator where it was threatened with extinction, while not extending regulations to areas where the animal thrived.
Babbitt should have used this approach when dealing with the flat-tailed horned lizard, the court said. "First, the habitat on private land may constitute 'a significant portion of its range' demanding enhanced protections not required on public lands; alternatively, the inverse may be true. Second, and perhaps more persuasively given this interpretation of the statute, the lizard may face unique threats in either California or Arizona, or in major subportions of either state," Berzon wrote.
Babbitt also failed to account for problems with the conservation agreement and how the agreement would mitigate threats to the lizard, the court held.
Defenders of Wildlife, v. Norton, Nos. 99-56362, 00-55496, 01 C.D.O.S. 6429, 2001 DJDAR 7927. Filed July 31, 2001.
For Defenders: Neil Levine, Earthlaw, (303) 871-6034.
For Norton: Robert Oakley and Andrew Mergen, Department of Justice, (202) 514-2000.