Legal Analysis from UW Proposes Alternate Solution to Reforming Endangered Species Act

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Temple Stoellinger. UW Photo.

LARAMIE — A new research brief from the Haub School of Environment and Natural Resources at the University of Wyoming describes a legal analysis that explores the legislative history of the 1973 Endangered Species Act and proposes a solution that would give states greater authority to manage listed species without needing to reform the act itself.

Temple Stoellinger, Haub School assistant professor and co-director for the Center for Law and Energy Resources in the Rockies, wrote the paper, which was recently published in the University of California-Berkeley School of Law’s Ecology Law Quarterly.

Interested readers can find both digital and printable versions of the two-page brief, which summarizes the paper, as well as a link to the full 45-page article at www.uwyo.edu/haub/research.

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Call the Ruckelshaus Institute of Environment and Natural Resources at (307) 766-5080 or email ruckelshaus@uwyo.edu to request a hard copy of the brief.

When a species is listed as threatened or endangered under the Endangered Species Act, federal authorities take over management of the species.

However, according to Stoellinger’s analysis, this was not what Congress intended when it wrote and passed the act in 1973.

Sage grouse narrowly missed an endangered species listing in 2016, thanks to conservation leadership from several states. (Illustration by Ruckelshaus Institute Communications Fellow June Glasson)

Rather, a long-forgotten section of the act, section 6(g)(2), stipulated that states could enter agreements with the federal government outlining their conservation plans and maintain management authority over threatened and endangered species within their borders.

Over the decades following the act’s passage, however, regulations from the U.S. Fish and Wildlife Service and National Marine Fisheries Service narrowed the interpretation of section 6(g)(2), limiting state authority through time.

States have become increasingly frustrated by their diminishing role. Wyoming, for example, has struggled in recent decades with taking over management of Yellowstone National Park wolves as the species was delisted, only to lose that management authority the moment wolves were relisted.

Wyoming implemented an innovative conservation strategy for the greater sage grouse, only to wonder whether the plans would be dismissed should the species be listed in 2015. Stoellinger says it was not, and Wyoming currently retains authority over sage grouse in the state; however, the bird will be considered for listing again in 2020.

In response to these frustrations, several states have argued for repeal or reform of the Endangered Species Act. Gov. Matt Mead launched an ongoing initiative with the bipartisan Western Governors’ Association, in part, to promote the role of states in species conservation. Recently, U.S. Sen. John Barrasso proposed legislation to amend the Endangered Species Act to give states a greater role in listed species management.

In her paper, Stoellinger proposes that the U.S. Fish and Wildlife Service and the National Marine Fisheries Service revise regulations under section 6(g)(2) in order to convey more meaningful management of listed species to the states.

“Congress intended that states with approved conservation programs that entered into cooperative agreements with the services would oversee the protection of threatened and listed species within [their] boundaries,” she writes.

Her comprehensive and thought-provoking study argues that a return to that original intent would address many of the frustrations facing states today.

UW’s Haub School of Environment and Natural Resources is a hub for interdisciplinary research that improves understanding and resolution of complex environment and natural resource challenges in Wyoming and across the West.