In recent decades, the U.S. Fish and Wildlife Service has spent countless time, money, and effort over a creature known as the southern Selkirk Mountain caribou. The Selkirk caribou was listed as an endangered species in 1984, and its habitat includes portions of Idaho, Washington, and southern British Columbia. The Selkirk caribou is not a species per se but is instead a population of the overall caribou species (Rangifer tarandus) that is found throughout North America.
Caribou image courtesy USFWS
Recovery efforts for the Selkirk caribou have been less than successful. Attempts in the 1990’s to augment the population through the introduction of other caribou from Canada backfired–the augmentation did not improve the long-term outlook for the Selkirk caribou, while transported caribou are believed to have been lost to mountain lion predation. In 1997, the U.S. Fish and Wildlife Service radio-collared 10 members of the Selkirk population for tracking and scientific purposes, but several of these members died within a year of being radio-collared.
Undaunted by these mishaps, the U.S. Fish and Wildlife Service continues to doggedly pursue illusive Selkirk caribou recovery efforts, no matter the cost. In the last decade, and under litigation pressure from environmental groups, the Service acquiesced to court-ordered injunctions of snowmobiling activities in Idaho. The supposed goal of these injunctions was to give the Selkirk caribou room to live and thrive in forests where snowmobile trails are found. Yet the link between the dire circumstances faced by the Selkirk caribou and snowmobiling activities has always been tenuous, and in fact the caribou’s population level has seen little improvement since the injunctions have gone into place. Meanwhile, local communities and businesses have suffered unnecessarily due to the loss of snowmobile-related income and revenue. Local resort owners reported losses of up to 70% of their revenue following caribou-related trail closures, and the situation for recreational enthusiasts will likely worsen if the Service November 2011 proposal to designate 375,000 acres of critical habitat for the Selkirk caribou in Idaho and Washington becomes final.
As is often the case with federal agencies, however, the U.S. Fish and Wildlife Service has operated throughout these developments under the assumption of regulatory authority, neglecting to consider whether the law and science justify the failed recovery efforts for the Selkirk caribou. But as a petition filed today by Pacific Legal Foundation makes clear, the listing of the Selkirk caribou population under the ESA is illegal and contradicts the Service’s own taxonomic data.
The issue presented by PLF’s petition is complex but important. Under the ESA, the U.S. Fish and Wildlife Service may list as endangered or threatened any “species,” which is defined under Section 3 of the statute to “include any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” The definition of “species” admittedly gives the Service broad authority to evaluate the conservation status of hundreds of species, subspecies, and distinct population segments throughout the country.
This authority is not unlimited, however. Notably, Congress did not give the Service the authority to list individual animals as endangered or threatened, or to list populations of species that are so small and insignificant that there is no meaningful relationship between the population and the species of which it is part. If the Service possessed such authority, it could list as endangered the squirrel that lives in your backyard–even though the overall squirrel population may be healthy. The feds might be interested in protecting your backyard squirrel given your plans to build a tree house or pool. Of course, this would be an absurd assertion of federal authority, and Congress made sure this type of overreach would not happen by providing a narrow definition of “species.”
Indeed, as courts have recognized, “[l]isting distinctions below that of subspecies or a [distinct population segment] of a species are not allowed under the ESA.” See Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154, 1162 (D. Or. 2001). Yet the problem with the U.S. Fish and Wildlife Service’s listing of the Selkirk caribou population is that it is based on such an unauthorized taxonomic distinction–the Service impermissibly examined the Selkirk caribou’s conservation status in relationship to the mountain caribou “ecotype” located in British Columbia, as opposed to the population’s relationship to the overall caribou (Rangifer tarandus) species of which it is part. But if this sort of taxonomic trick is allowed to stand under the ESA, then nothing prevents the Service from listing a backyard population of an otherwise healthy species.
This is the regulatory reality faced by PLF’s clients, Bonner County, Idaho, and the Idaho State Snowmobile Association. Bonner County, ISSA, and their residents and members have witnessed the loss of cherished recreational opportunities due to the misplaced listing of the Selkirk caribou population under the ESA. They know that things will only get worse if and when the Service’s recent critical habitat proposal becomes final.
Fortunately, the U.S. Fish and Wildlife Service has time to do the right thing and delist the Selkirk caribou population. For the sake of PLF’s clients, the law, and taxonomic common sense, let’s hope the Service recognizes its listing of the Selkirk caribou population under the ESA is not warranted.