Size, biology, and culture

Abstract

"The goal of the Endangered Species Act of 1973 is to conserve and recover species. The first step in species conservation and recovery is listing of the species as threatened or endangered under section 4 of the Act, a task charged to the Fish and Wildlife Service. In order for a species to be listed, its status must be evaluated with reference to five enumerated factors in section 4 across “all or a significant portion of [the species’] range.” In this phrase, “range” and “significant” have ambiguous meanings. Due to these inherent ambiguities, the phrase has been the source of much litigation and listing headaches for the Fish and Wildlife Service. Recently, courts have become involved in deciphering the meaning of this phrase and its application to section 4 listing decisions. In Defenders of Wildlife v. Norton and Tucson Herpetological Society v. Salazar, the Ninth Circuit announced its recent interpretation of the phrase. According to the court, “range” means historic, not merely current, range, and the Fish and Wildlife Service must justify any determination that a species’ historic range is insignificant. The meaning of“significant,” in contrast, is ambiguous, and its interpretation is thus left to the Fish and Wildlife Service. However, the Ninth Circuit did suggest that a species’ chance of persistence is a good indicator of the significance of portions of the species’ range, and therefore whether the species should be listed in those portions of its range. This Note defends the Ninth Circuit’s opinion that “range” refers to a species’ historic range. It also argues that persistence is indeed a good indicator of significance, although it advocates the use of a more stringent conception of persistence than the Ninth Circuit suggested. It argues that any measurement of persistence intended to reflect the significance of portions of a species’ range under the Endangered Species Act must account for the three factors encompassed in the term “significant”: the size of the range, the biological importance of the range to the species, and the cultural importance of the species’ continued presence in that range." (p.1-2)