Late last month, Judge Emmet Sullivan of the Federal District Court for the District of Columbia, remanded to the Fish and Wildlife Service its decision to list the northern long-eared bat as threatened. The decision is lengthy and complicated, but its crux is not.
As Judge Sullivan noted, under the ESA, a species is “endangered” if it “is in danger of extinction throughout all or a significant portion of its range.” A species is “threatened” if it “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The protection due to endangered species is significantly more stringent. For endangered species, takings are prohibited. For threatened species, the Secretary of the Interior is merely required to “issue such regulation as he deems necessary and advisable….”
Last bit of preface – the phrase “significant portion of its range” matters, because the Secretary can make a finding that a species is endangered or threatened throughout just a portion of its range and take steps to conserve a species in that portion of its range.
With respect to the long-eared bat, the Fish and Wildlife Service found that the bat was threatened throughout its range. As a result, it determined that it did not need to assess if the bat was endangered throughout some portion of its range.
Can I just stop here? The logical flaw in the FWS argument is big enough to drive an endangered whale through – or something like that. If a species is endangered in a portion of its range (and there is certainly evidence to that effect for the long-eared bat), then it may need the protections given to endangered species in that portion of its range, even if it is also given the lesser protections due to threatened species throughout its range.
I would not have needed 65 pages to make that point, but that’s probably one good reason why I’m not a federal judge.