SCB Policy Blog

On June 18, the Society for Conservation Biology and the American Society of Mammalogists (ASM) submitted formal comments (available here) to the National Marine Fisheries Service (NMFS) regarding the agency’s proposal to remove the Eastern Distinct Population Segment of Steller Sea Lion from the list of threatened and endangered species.

Steller sea lions (Eumetopias jubatus) were protected under the Endangered Species Act as a threatened species in 1990 based primarily on population declines that resulted from unsustainable fisheries management. In 1994, NMFS divided the Steller sea lion into two Distinct Population Segments (DPS). The Western DPS of Steller sea lion was uplisted to endangered status, while the Eastern DPS remained threatened. While the data indicate that conservation actions have helped the Eastern DPS meet its recovery targets for delisting in eastern Alaska, British Columbia, and possibly Washington and Oregon, the data do not demonstrate that recovery targets have been met in California. Steller sea lions were extirpated from the Channel Islands in the 1980s and remain well below their historic population levels. Today, Steller sea lion populations in California are only one-third their populations levels from the first half of the 20th century. For this reason, SCB and ASM believe that it is premature to delist the Eastern DPS at this point.

The Endangered Species Act (ESA) provides the National Marine Fisheries Service with the ability to protect a species that is threatened or endangered in “a significant portion of its range” as well as those species that are threatened or endangered throughout their entire range. The offshore waters of the California Current represent an ecological region that is distinct from those ecological regions farther north. Accordingly, SCB and ASM are urging the NMFS to protect the California portion of the Steller sea lion’s range under the ESA. SCB is particularly concerned that NMFS is discounting the value of the California population based on a draft joint policy with the Fish and Wildlife Service which would re-interpret the phrase “significant portion of its range” in the ESA to mean something far less than the best available science, the plain language of the Act, and the purposes of the Act would indicate. SCB provided extensive comments on this draft policy earlier in 2012 because the Services draft joint policy risked stripping the term “significant portion of its range” of any independent meaning or conservation value. Although the draft policy has not been finalized, NMFS appears to rely on this policy in denying the Steller sea lion continued protection in California.

On June 12, 2012, the Society for Conservation Biology, on behalf of its North America and Marine Sections submitted a formal petition (link) to the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) requesting that these agencies restore the global geographic scope of the Endangered Species Act’s consultation requirement.

Under Section 7 of the Endangered Species Act (ESA), all agencies must consult with FWS and NOAA on actions that might jeopardize the existence of threatened and endangered species. Shortly after the ESA was passed, the FWS and NOAA established regulations that made clear that all federal agencies would consult on their actions whether they occurred within the United States or overseas. In 1986, the Reagan administration weakened those regulations by eliminating the requirement that Federal agencies consult on actions that they might take that could affect species that the U.S. lists as endangered or threatened which occur in foreign nations. The 1986 changes were found to be invalid by the Eighth Circuit Court of Appeals, but in a momentous decision, which occurred 20 years ago to this day, a divided Supreme Court preserved the 1986 regulations on a procedural technicality. On the 20th anniversary of this Supreme Court decision, SCB is beginning the formal process to reform and strengthen the ESA’s implementing regulations by submitting its petition today.

The Administrative Procedure Act (APA) gives each citizen and organization the right to petition any agency of the Federal government “for the issuance, amendment, or repeal of a rule.” The APA further requires the petitioned agency to fully consider the merits of a petition and respond within a reasonable period of time. Accordingly SCB is invoking this right to compel the FWS and NOAA to consider whether the regulations that implement the ESA require reform. Given the continued extinction crisis both within the United State and around the world, SCB believes that these changes are warranted.

This petition represents the beginning of a second phase in a broader effort by SCB to reform, strengthen, and modernize the regulations that implement the ESA. While the ESA remains one of the most comprehensive laws ever passed to prevent extinction, the regulations that implement the ESA have mostly stood unchanged since 1986, a year before the founding of the Society for Conservation Biology. Many of the advances in knowledge from the field of Conservation Biology and its related disciplines have yet to be incorporated by the FWS and NOAA in the agencies’ implementation of the ESA. In late 2008, SCB briefed the Obama Transition team on a set of recommendations for improving the implementation of several U.S. laws including the ESA. Since then we have worked with the FWS, NOAA, and other agencies as they have addressed some, but not all, of the reforms we suggested in 2008. In order to expedite the process of implementing these proposed reforms, we are providing scientific and technical drafting advice through this formal petition. In the months to come, SCB plans to file additional petitions asking the FWS and NOAA to revise and strengthen other aspects of the ESA’s implementation regulations.