Environmental, Natural Resources, & Energy Law Blog

Deciphering the ESA’s Enigmatic SPR Phrase

By Kristyn Judkins

Congress passed the Endangered Species Act of 1973¹ (“ESA” or “Act”) to conserve endangered and threatened species of fish, wildlife, and plants and their ecosystems.² These species merited conservation because of their “esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.”³ The ESA vests in the Secretary⁴ the authority to list by regulation any species that the Secretary determines is endangered or threatened because of certain statutory factors,⁵ and to designate critical habitat for such species.⁶ The ESA defines “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range.”⁷ Similarly, a “threatened species” is “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”⁸

Nearly fifty years after Congress enacted the ESA, the interpretation of the phrase “significant portion of its range” (“SPR”) and the meaning of “significant” in that phrase remain the subject of robust controversy in the context of listing determinations. The ESA does not define that phrase, which courts have described as “enigmatic” and “inherently ambiguous”; “puzzling” even.⁹ To no avail, the United States Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) (collectively, the “Services”)—the federal agencies tasked with administering the Act—have amassed a crazy-quilt of interpretations in an attempt to harmonize the SPR phrase with the Act’s language, legislative history, and Congress’ policy goals. The Services’ most recent “legally binding” interpretation of the phrase, which was set forth in a July 1, 2014 Final Policy (“2014 SPR Policy”),¹⁰ was an all-or-nothing approach. That is, a species may be listed—and the Act’s protections applied—throughout all of its range or not at all. Multiple federal district courts concluded that Not surprisingly, the 2014 SPR Policy was deemed an unreasonable construction of the Act and vacated the Policy.¹¹ This article surveys the Services’ shifting interpretation of the SPR phrase and proposes potential solutions to the interpretive puzzlean interpretation of the phrase that is legally defensible under Chevron.¹²

1. The Lizard Case and a “Newly Minted” Interpretation of the SPR Phrase.

Our adventure begins with the flat-tailed horned lizard (Phrynosoma mcallii) (“lizard”). This cunning species roams the flats and valleys of the western Sonoran Desert in California, Arizona, and Mexico.¹³ When pursued, the lizard has a bag of tricks to escape capture—its flattened pale-gray body camouflages expertly into the sand making it difficult to spot and its habit of darting off and then unexpectedly lying motionless to feign death leaves predators flummoxed.¹⁴ In 1993, the FWS proposed to list the lizard as a threatened species because of “documented and anticipated population declines associated with widespread habitat loss [on private land], fragmentation, and degradation” from human activities, including agricultural and urban development.¹⁵ In an unexpected about-face, the FWS withdrew the proposed rule in 1997.¹⁶

Environmental groups challenged the withdrawal in Defenders of Wildlife v. Norton.¹⁷ In that case, the Ninth Circuit attributed the Secretary’s about-face to a shift in focus from habitat loss on private land to public land.¹⁸ That is, the findings in the proposed rule supported listing the lizard on the basis of threats to its habitat on private land.¹⁹ Ultimately, however, the Secretary withdrew the proposed rule because, among other reasons, “[l]arge blocks of habitat with few anticipated impacts exist[ed] on public lands”²⁰ and implementation of a Conservation Agreement developed by the Bureau of Land Management (“BLM”), the FWS, and state and local agencies would further reduce threats to the lizard and its habitat.²¹ In essence, the Secretary concluded that ESA protection was unnecessary because the lizard’s public-land habitat was sufficient to support the species. In withdrawing the proposed rule, the Secretary did not separately consider whether the lizard nevertheless was worthy ofmerited listing because its private-land habitat, which was in jeopardy, constituted an SPR.

In a stark departure from historical practice, the Secretary offered in her briefs in Defenders of Wildlife a “newly minted”²² interpretation of the SPR phrase—the so-called “clarification interpretation.”²³ That is, a species is eligible for ESA protection 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.”²⁴ Under the clarification interpretation, a species is in danger of extinction in an SPR and eligible for listing only if it is in danger of extinction throughout all of its range.²⁵

If you’re scratching your head, you’re not alone; indeed, the Ninth Circuit didn’t bite. In the court’s view, the clarification interpretation rendered the SPR phrase surplusage and was contrary to the ESA’s purposes and legislative history. The court held that a species is in danger of extinction throughout an SPR “if there are major geographical areas in which [the species] is no longer viable but once was.”²⁶ BOf course, because the statute does not define the SPR phrase, the Secretary retains broad interpretive discretion. But the Secretary must exercise that discretion within the bounds of the statutory text and purpose; here, the Ninth Circuit required the Secretary was required to consider and explain why the lizard’s private-land habitat was not an SPR.²⁷

2. The Services’ Interpretive Flip-Flop.

   1. The 2007 SPR Opinion and the 2008 Draft Guidance.

In the wake of Defenders of Wildlife,²⁸ several district courts rejected the clarification interpretation.²⁹ After years of litigation, on March 16, 2007, the United States Department of the Interior (“DOI”) issued a Solicitor’s opinion (“2007 SPR Opinion”) to assist the FWS in developing a policy on how to apply the SPR phrase for purposes of listing determinations. The 2007 SPR Opinion expressly disavowed the clarification interpretation advanced by the Secretary in the Ninth Circuit.³⁰ Specifically, the 2007 SPR Opinion stated:

The SPR phrase is a substantive standard for determining whether a species is an endangered species—whenever the Secretary concludes because of the statutory five-factor analysis that a species is “in danger of extinction throughout … a significant portion of its range,” it is to be listed and the protections of the ESA applied to the species in that portion of its range where it is specified as an “endangered species[.]”^[31]

Echoing the Ninth Circuit, the 2007 SPR Opinion provided that the Secretary had broad—though not unlimited—discretion to determine the portion of the range that is “significant.” That is, in defining “significant,” the Secretary could consider factors other than the size of the pertinent range portion in relation to the species’ whole range, including factors that furthered the ESA’s purposes of conserving protected species, such as the biological importance of that range portion to the species’ survival and the values (i.e., esthetic, ecological, educational, historical, recreational, and scientific) that would be sacrificed if the species were to become extinct in either that portion or the whole range.³²

In 2008, the FWS issued draft guidance clarifying how it would interpret the SPR phrase and the definition of “significant” in light of the 2007 SPR Opinion and Congressional intent (“2008 Draft Guidance”).³³ In a nod to the ESA’s conservation purposes, the 2008 Draft Guidance stated that an SPR is “a portion of the range of the listed entity … that contributes meaningfully to the conservation of that entity,” and that the “significance of an SPR is based on its contribution to the conservation (resiliency, redundancy, and representation) of the listable entity being considered.”³⁴ The FWS imported the concepts of resiliency, redundancy, and representation from conservation biology as “indicators of the conservation value of portions of the range.”³⁵ While those concepts were not intended to be mutually exclusive, a “finding that a portion of the species’ range contributes substantially to any one” of the indicators suggested that such portion may be “significant” in the context of determining whether the species is endangered or threatened in an SPR.³⁶

The 2007 SPR Opinion and the 2008 Draft Guidance alleviated to some degree the issues inherent in the clarification interpretation of the SPR phrase and gave effect to the ESA’s definitions of listed species, as well as its purposes. But after two district courts effectively rejected the 2007 SPR Opinion’s interpretation of the SPR phrase,³⁷ DOI withdrew the opinion.³⁸ In Defenders of Wildlife v. Salazar,³⁹ which vacated a Final Rule delisting the northern Rocky Mountain gray wolf, the court held that the ESA did not allow the FWS to list “only part of a ‘species’ as endangered,” and that the ESA’s text and legislative history did not support the interpretation set forth in the 2007 SPR Opinion.⁴⁰ The FWS had listed the northern Rocky Mountain gray wolf distinct population segment (“DPS”) and determined that the wolf was in danger of extinction in Wyoming, i.e., an SPR of the DPS. The plaintiffs argued—and the court agreed—that once the FWS defined the species as the northern Rocky Mountain DPS, it was required to apply the ESA’s protections to the entire DPS, not just the portion of the DPS in Wyoming, because the Act’s definition of “species”⁴¹ “prohibit[ed] a legal taxonomy smaller tha[n] a DPS.”⁴²

Similarly, in WildEarth Guardians v. Salazar,⁴³ the court vacated and remanded the Secretary’s finding that the montane Gunnison’s prairie dog warranted listing.⁴⁴ The montane Gunnison’s prairie dog was not itself a “species” as that term is defined in the ESA, and the Secretary had determined that it could not be designated as a subspecies or DPS.⁴⁵ In the court’s view, by finding that the montane Gunnison’s prairie dog—i.e., a portion of the Gunnison’s prairie dog species—was the listable speciesentity, the Secretary’s interpretation impermissibly added into the Act’s definition of “endangered species” the phrase “a portion of a species.”⁴⁶ Here, too, the court’s primary focus was on the definition of “species,” but the court did not explicitly reject the 2007 SPR Opinion’s interpretation of the SPR phrase. The outcome can perhaps be chalked up to bad strategy on the government’s part. Had the Secretary defined the species as the Gunnison’s prairie dog and then specified that it was in danger of extinction throughout the montane portion of its range (i.e., an SPR), the court likely would have reached a different conclusion. The court said as much—“the listing provision specifically contemplate[d] an endangered species which is only endangered over a portion of its range.”⁴⁷ But we don’t have a time machine, so onward we go.

In their next attempt, the Services issued a draft policy in 2011⁴⁸ interpreting the SPR phrase; in 2014, the Services finalized the policy with few substantive changes.⁴⁹ The 2014 SPR Policy defines “significant” as that term is used in the SPR phrase as follows:

A portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion’s contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range.^[50]

That sure sounds a lot like the litigating position that the Secretary advanced to justify withdrawing the proposed rule to list the lizard and that the Ninth Circuit rejected in Defenders of Wildlife,⁵¹ doesn’t it? The preamble to the 2014 SPR Policy provides that an SPR analysis is appropriate only if the Services first find that a species is not endangered or threatened throughout all of its range. In other words, if the species is endangered or threatened throughout all of its range, then “no portions of its range can qualify as ‘significant.’”⁵² Paradoxically, however, even if the Services conclude that a species is endangered or threatened throughout an SPR, “the entire species is listed as endangered or threatened, respectively, and the Act’s protections apply to all individuals of the species wherever found.”⁵³ The preamble suggests that this interpretation is appropriate because it avoids the confusion that results from “allowing a species to qualify as both threatened throughout its range and endangered throughout an SPR” and facilitates a more efficient use of the Services’ limited resources.⁵⁴

According to the Services, the 2014 SPR Policy gives the words on either side of the “or” in the statutory definitions—i.e., “all,” “a significant portion of its range”—operational effect.⁵⁵ That is, the Services will list as endangered or threatened the entire species if it is in danger of extinction or likely to become so throughout all of its range or, alternatively, if it is in danger of extinction throughout an SPR. Sure, “a portion can only be significant if the species is not currently endangered or threatened throughout all of its range,”⁵⁶ but, as a practical matter, this is a distinction without a difference because any significance determination still results in listing the entire species everywhere, rather than only in the SPR.⁵⁷ For the same reasons offered bythat the Ninth Circuit offered in Defenders of Wildlife,⁵⁸ the Services’ interpretation in the 2014 SPR Policy is unworkable. And courts that have considered the issue agree. In Desert Survivors v. U.S. Department of Interior,⁵⁹ a California district court vacated nationwide the SPR Policy’s definition of “significant.”⁶⁰ An Arizona district court went further and vacated the Final SPR Policy in its entirety, holding that the policy “impermissibly clashe[d] with the rule against surplusage and frustrate[d] the purposes of the ESA;”; as such, the policy was “not a permissible administrative construction of the ESA’s SPR language.”⁶¹

3. Towards a Meaningful and Defensible Interpretation of the SPR Phrase.

Inquiring minds want to know: Where do the Services go from here? A brief recap. The ESA does not define the SPR phrase, and most courts that have considered the issue have concluded that the phrase is ambiguous⁶² at Step One of Chevron.⁶³ Because Congress left a gap for the Services to fill, at Step Two,⁶⁴ the Services’ interpretation is entitled to deference provided it is “reasonable.”⁶⁵ While the standard of review is highly deferential,⁶⁶ courts are “‘reluctan[t] to treat statutory terms as surplusage’ in any setting,”⁶⁷ and generally do not defer to agency interpretations that “frustrate the policy Congress sought to implement” with the pertinent statute.⁶⁸ As explained above, courts have rejected the interpretations in the 2014 SPR Policy and the 2007 SPR Opinionfailed as unreasonable on these bases.

One lesson that the history of SPR interpretations teaches is that there may not be a fully satisfactory way to harmonize the SPR phrase with the ESA’s definitions of “endangered and threatened species” and other related provisions, its legislative history, and Congressional intent.⁶⁹ The SPR phrase originated in proposed legislation that DOI drafted and introduced in the House in 1972.⁷⁰ The DOI bill included the SPR phrase in one sentence that amalgamated several of the current Act’s concepts,⁷¹ but did not separately define “species”:

A species or subspecies of fish or wildlife shall be regarded as an endangered species whenever, in his discretion, the Secretary determines, based on the best scientific and commercial data available to him and after consultation … that the continued existence of such species or subspecies of fish or wildlife is, in the judgment of the Secretary, either presently threatened with extinction or will likely within the foreseeable future become threatened with extinction, throughout all or a significant portion of its range, due to any of [five factors].^[72]

DOI’s environmental impact statement on the bill suggested that it intended the SPR phrase to provide to the Secretary a separate basis for listing.⁷³ Specifically, DOI stated that the SPR phrase “allows the Secretary to use discretion in listing a distinct population which may be a subspecies, race, form, or a unique or disjunct segment of a species without regard to whether it is a recognized subspecies or not.”⁷⁴

In the bill that became the ESA, Congress repurposed the DOI bill’s language, much of which now appears in different sections of the Act. Significantly, Congress added a definition of “species” that effectively served the SPR concept’s function—“any subspecies of fish or wildlife or plants and any other group of fish or wildlife of the same species or smaller taxa in common spatial arrangement that interbreed when mature.”⁷⁵ Rather than remove the SPR phrase, however, Congress moved it to the definitions of “endangered species” and “threatened species”—and didn’t tell us why. Perhaps Congress did not fully appreciate the interpretive hurdle that the new “species” definition created vis-à-vis the preexisting SPR phrase and, by extension, the anomalous policy outcomes that would emerge .⁷⁶ There are at least two solutions that could improve the landscape.

1. Another Statutory Amendment.

Congress could amend the Act’s definition of “species”⁷⁷ to include an SPR as a listable entity. Of the interpretations on offer, the 2007 SPR Opinion, as clarified by the 2008 Draft Guidance, is a good place to start.

Under section 4(a)(1) of the ESA, the Secretary must “determine whether any species is an endangered species or a threatened species” because of any of five statutory factors.⁷⁸ Section 4(c)(1) of the ESA requires the Secretary to publish in the Federal Register a list of all endangered or threatened species, and to “specify with respect to each such species over what portion of its range it is endangered or threatened.”⁷⁹ As an initial matter, the Secretary must defines the listable entity, i.e., the species, which under the amended definition would includes “any subspecies of fish or wildlife or plants, and any [DPS ] of any species of vertebrate fish or wildlife which interbreeds when mature,.”⁸⁰ and any SPR of any subspecies or DPS. For the avoidance of doubt, an SPR is not a listable entity.⁸¹ Having defined the species, the Secretary next determines whether the species is endangered or threatened because of any of the five statutory factors in section 4(a)(1).⁸² The Secretary determines the appropriate listing status is determined by reference to the Act’s definitions of endangered and threatened species.⁸³ To give full effect to the Act’s mandate, which requires the Secretary to list a species if it is endangered or threatened “throughout all or a significant portion of its range,” the SPR phrase must beis treated as a substantive standard that provides a separate basis for listing.⁸⁴ That is, a species may qualify for listing if it is endangered or threatened (i) throughout all of its range, or (ii) throughout an SPR. In either case, the species is the listable entity for purposes of section 4, and the Secretary must specify over what portion of the range the species is endangered or threatened. The natural consequence of this structure is that the Act’s protections apply (i) to all members of the entire species over all of its range where the species is found to be threatened or endangered throughout all of its range, or (ii) alternatively, only to members of the species that inhabit the pertinent SPRs where the species faces danger of extinction, as the case may be. Statements in the legislative history support this interpretation.⁸⁵ The amended definition avoids the concern that applying the Act’s protections only in an SPR violates section 4(a)(1) by effectively allowing the Secretary to determine that something less than an entire species is endangered or threatened. The amended definition also aligns with the language in section 4(c)(1), which requires the Secretary to specify over what portion of its range the species is endangered or threatened.

In addition, The amended definitionthis interpretation also affords a greater level of protection to species in the context of section 7 consultations. Under section 7 of the ESA, action agencies must consult with the Services to “insure that any action authorized, funded, or carried out … is not likely to jeopardize the continued existence” of any listed species or “the destruction or adverse modification” of its habitat.⁸⁶ Interpreting the SPR phrase as a substantive standard allows the Services to consider—with respect to those species to which the Act’s protections apply only in an SPR—whether the action agency’s proposed action will jeopardize members of the species in that SPR, rather than the species as a whole. Stated differently, the inquiry is, “Does the proposed action appreciably reduce the likelihood of survival and recovery of the species within the SPR where the prohibitions of the Act apply?”⁸⁷ This is the only way to effectively protect the species. For if the entire species can only be listed only throughout all of its range, as under the clarification interpretation and the 2014 SPR Policy, it becomes increasingly difficult for the Services to conclude that any isolated agency action standing alone rises to the level of jeopardizing the continued existence of the species, even if the action’s effects are concentrated in an otherwise critical portion of the range.

2. Pivot Administrative Practice in Section 7 Consultations.

In the alternative, the Services could move away from the species-wide lens in the section 7 jeopardy analysis. That is, even if the entire species is listed and even if the Act’s protections apply to all members of the species wherever found, the Services could consider the SPR concept when they assess whether a proposed agency action jeopardizes the species or results in destruction or adverse modification of critical habitat. For any species that the Secretary determined was in danger of extinction throughout an SPR, the Services could recommend against agency action that would disproportionately affect the conservation of the SPR’s members and their habitat or otherwise require aggressive mitigation measures. In essence, the Services would import into the jeopardy analysis a no-net-loss standard to ensure healthy population levels and habitat.⁸⁸ With the species listed everywhere, the Services can give the species the best possible chance of recovery by establishing experimental populations outside of the SPR or designating additional critical habitat.⁸⁹

Of the two solutions, amending the “species” definition in the statute is more elegant because it gives the Secretary “a scalpel rather than a broad sword,” i.e., the flexibility to protect an endangered or threatened species in only a portion of its range.⁹⁰ Listing in an SPR harmonizes with section 4 and furthers the Act’s conservation purposes by ensuring that an agency action’s effects in an SPR are adequately considered in the jeopardy analysis under section 7. The amended definition would also focus precious conservation resources on the most imperiled species’ members and habitat and thereby avoid sacrificing the values that Congress sought to preserve through the ESA.⁹¹ The trouble is that Congress likely does not have an appetite to step into the fray. And perhaps it’s best for this Congress in particular to stay out of the ESA, lest it erode existing protections for our Nation’s species.

The administrative solution is also problematic. It fails to give effect to the SPR phrase in the Act’s definitions of endangered and threatened species as part of the listing determination, and thus does not address the surplusage concerns that many courts have raised. Further, the Services already have taken the position that “[n]othing in the ESA requires that the Service[s] apply … a no net loss standard,”⁹² which suggests that the Services are unwilling to use such a standard as a guidepost in jeopardy determinations.

3. The Meaning of “Significant” in the SPR Phrase.

Even if Congress amended the definition of “species” to authorize listing in an SPR,

This interpretation, however, still leaves open the question of what portion of a species’ range is “significant.” remains open. A one-size-fits-all definition will not do.⁹³ Because of the varied facts and circumstances at play in any given listing decision, significance ought to be determined on a case-by-case, species-specific basis.⁹⁴ Rather than attempt to pen yet another definition, the Services’ could promulgate regulations or other guidance with a non-exclusive list of factors that the Secretary may consider, as appropriate in the context of any particular listing determination. What might this look like?

One dictionary definition of “significant” from around the time the ESA was enacted defined the term as “having or likely to have influence or effect” or “deserving of consideration.”⁹⁵ Under this definition, the size of the range portion is not the only germane factor. Nor should it be because it is conceivable that a species could remain healthy despite the loss of a sizeable portion of its range if, for instance, such portion was not vital to its survival. The 2008 Draft Guidance offered several other factors aimed at determining the conservation value of a range portion, including the portion’s contribution to a species’ representation, resiliency, and redundancy, as indicators of significance.⁹⁶ The guidance prescribed a list of questions vis-à-visregarding each factor and stated that the Services should prepare a “narrative justification” explaining the portion’s contribution to each of the factors.⁹⁷ The Services are unlikely to resurrect that guidance as the Trump Administration’s policy agenda disfavors highly detailed, structured, and complex processes in agency decisionmaking.⁹⁸

Another potential avenue is for the Services to import and modify the definition of “significantly” in the regulations implementing the National Environmental Policy Act (“NEPA”).⁹⁹ Those regulations determine significance by reference to context and intensity.¹⁰⁰ “Context” means that significance “must be analyzed in several contexts”—macro and micro—and varies case-by-case.¹⁰¹ As applicable to determining what portion of a species’ range is “significant” under the ESA, the Services could consider, among other things, : (i) the size of the species’ range as a whole, taking into account portions of the species’ habitat that have been lost historically, relative to the pertinent range portion, ; (ii) whether the range portion is a key breeding ground for the species, ; and (iii) the biological significance of the range portion. That is, context is tethered to whether the range portion contributes to species conservation generally. “Intensity,” on the other hand, “refers to the severity of the impact” on the species in the range portion.¹⁰² Here, the Services could consider, among other things, the degree to which disturbances or effects within the range portion affect species’ genetic, physiological, and behavioral diversity, geographical distribution, and total population. The goal of this exercise is to allow the Services to exercise their discretion in a species-specific fashion, ensuring that the ESA’s protections actually achieve its conservation goals in any given case.

4. Conclusion.

Until and unless Congress amends the ESA, this is the field on which we play—one without a binding agency interpretation of the SPR phrase, or a definition of “significant” as that term is used in the phrase, and where the Services retain broad discretion reviewable under the highly deferential arbitrary-and-capricious standard.¹⁰³ Even those Justices who are skeptical of affording deference to agency interpretations recognize that when Congress utilizes in a statute broad, ambiguous terms—like “significant”—it intends to afford the agency “broad policy discretion” and courts must yield to interpretations that align with “the options allowed by the text of the rule.”¹⁰⁴ What’s most important, then, is that the Services articulate in the administrative record a reasoned explanation for their listing determinations and articulate a “rational connection between the facts found and the choices made” with respect to the pertinent species.¹⁰⁵ The Services have a rich history from which to draw for in this interpretive exercise. No interpretation will be perfect; let’s just hope the Services pick a defensible one that provides the protections that Congress intended and furthers the esthetic, ecological, educational, historical, recreational, and scientific values of a biodiverse planet.

 

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