The primary challenge of ambiguities and assumptions contained in the ESA is how they impact the implementation on the ground. The ESA’s main purpose is recovery of endangered and threatened species, yet neither recovery nor recovered is defined in the act (Wilhere 2016). Furthermore, the definitions of endangered and threatened contain the phrases in danger of extinction and likely to become an endangered species, respectively, which are vague phrases open to subjective interpretation (Wilhere 2016). There is ongoing controversy over the correct interpretation of significant portion of its range (SPOIR), a phrase in the ESA (Wilhere 2016). The ESA defines endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” (Wilhere 2016). The definition of threatened species also contains the SPOIR phrase (Wilhere 2016). The definitions of endangered and threatened are central to the ESA’s purpose because if a species meets either definition, then it may be listed and granted the ESA’s protection (Wilhere 2016). Hence, the interpretation of SPOIR has major implications for biodiversity conservation (Wilhere 2016). In addition to the clause-specific assumptions, the ESA reveals a broad assumption that the technical expertise, political will power, and administrative capacity of the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) can halt species endangerment (Czech and Krausman 2001). However, before a species receives ESA protection, it must be recognized via the listing procedure of Section 4, which assumes that the FWS and NMFS can identify species that are in danger of becoming extinct, determine the habitat required to allow for a species recovery, and protect both (Czech and Krausman 2001). Frankly, the two agencies cannot handle the amount of species in need of conservation coupled with a discrepancy in language that determines protocol. There may be numerous cases where species are practically doomed before FWS and NMFS notices or acts, or where they fail to designate sufficient critical habitat (Czech and Krausman 2001). That said, for many species, the result of ambiguities and assumptions will likely lead to extinction (Wilhere 2016).
Czech, Brian, and Paul R. Krausman. 2001. The Endangered Species Act: History, Conservation, Biology, and Public Policy. Baltimore: Johns Hopkins University Press.
Wilhere, G. F. 2016. The role of scientists in statutory interpretation of the U.S. Endangered Species Act. Conservation Biology, 31, No. 2, 252–260.
Comment by Fenton Kay:
Mary, you raise an interesting and important point. Another aspect of the issue may be “How do we deal with spurious calls for listing?” How would you go about fixing the wording problem that you mention, while also making sure that the species that need to be listed get listed?
Awesome question considering, for decades, the services have lacked the resources to immediately list all species that warrant protection (Rappaport 2013). It leads to a given species being in a regulatory limbo period in which it is considered a candidate for listing (Rappaport 2013). Candidate species are just as deserving of protection as any listed species, because, biologically, they have already met the test for listing. Unfortunately, the services lack a clear standard for when they will decline to list a candidate species (Rappaport 2013). So, I would go about fixing the wording problem I mentioned by using ICUN’s framework of the Red List Categories and creating a standard for candidate species. Specifically, if the services decline to list a candidate species, they must ensure the threats that supported its candidacy in the first place are curtailed and that population targets have been met (Rappaport 2013). The development of such a standard would help the services set expectations before political pressures start to arise (Rappaport 2013).
Clark, Jamie Rappaport. 2013. “The Endangered Species Act at 40: Opportunities for Improvements”. BioScience. 63(12): 924-925.
Comment by Fenton Kay:
Good point, Mary. One thing, though, there is no longer a formal category of “candidate species”. The wording now is, I believe “justified but precluded”. Precluded species have no official protection. Candidate species also had no “official” protection, but the FWS stated that they should be treated as though they were listed.
Thanks for the correction. It is good to know, considering wording matters a lot in the ESA.
Comment by Nora Frank:
While as our professor mentioned, “candidate species” no longer exists, I still agree with you and think some pre-listing term or designation is still valuable. What are your thoughts regarding state ESAs as that sort of place holder protection. While this is actually is use and funding is still received from the federal government, there could be some state issued and funded designation to at least act as a first line of defense or a better than nothing place holder. This would take the responsibility somewhat off the federal government throughout the duration of pre-processing a species, but it would still grant more protections than before. The federal regulations would then supercede regulations from the states if the species were to then go on and be federally listed.
Reply by Fenton Kay:
Nora, that’s a very good point. The fact is that some states have listed species that are still “precluded” by USFWS. In those cases, state-level protection does occur and, as I understand it, some species have subsequently moved onto the Federal list. California’s Endangered Species law is particularly strong and they have several species on their list (and protested)that are not on the ESA lists. New Mexico also has some species listed and protected that are not yet on the Federal lists. For NM, you can check out BISON-M, a database that lists the status of all of the state’s T&E species.