Congress determined that endangered species, being more imperiled than threatened species, should receive all of the protections enumerated in the ESA. See 16 U.S.C. § 1532(6); 16 U.S.C. § 1538(a) (detailing prohibited acts relating to “endangered species of fish or wildlife”). On the other hand, Congress determined, that when a species is listed as threatened, “the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species,” which might or might not include all of the protections given to endangered species under the ESA.

But nothing in the Act directs or allows the agency to restrict its scale of analysis to the DPS level before conducting a 4(a)(1) threats assessment for the species as a whole.6 And allowing the FWS to skip that step, as it did here, would gut the definition of an endangered or threatened species – one of the central provisions of the ESA – by eliminating the need to consider the species’ status across a “significant portion of its range.” 16 U.S.C. § 1532(6), (20). The same analysis applies when the agency considers delisting, as opposed to listing, a species.

But nothing in the Act directs or allows the agency to restrict its scale of analysis to the DPS level before conducting a 4(a)(1) threats assessment for the species as a whole.6 And allowing the FWS to skip that step, as it did here, would gut the definition of an endangered or threatened species – one of the central provisions of the ESA – by eliminating the need to consider the species’ status across a “significant portion of its range.” 16 U.S.C. § 1532(6), (20). The same analysis applies when the agency considers delisting, as opposed to listing, a species.

ARL117299-301 (LR). The Service performed this analysis as part of examining whether the polar bear qualified as an endangered species in any “significant portions of [the] range” within the purview of 16 U.S.C. § 1532(20). ARL117297- 301 (LR).

FWS has thereby determined that the Superior National Forest is “essential to the conservation” of wolves and lynx. 16 U.S.C. § 1532(5)(A). “A critical habitat designation provides protection for threatened and endangered species by triggering . . . Section 7 consultation,” in which FWS must insure that the proposed action is not likely to result in the destruction or adverse modification of the designated critical habitat.

Id. at 37,579; see also 16 U.S.C. § 1532(20) (definition of a “threatened species”). Notwithstanding the Service’s protestation that this change was made to “more clearly avoid the appearance of similarity to the ‘clarification’ approach” rejected by the Ninth Circuit, 79 Fed. Reg.

A DPS is a “distinct population segment.” 16 U.S.C. § 1532(6) (emphasis added). This is why the DPS Policy requires that the population making up a DPS be “discrete” (i.e. “markedly separate”) from other populations of the same taxon.

“The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” any listed species. 16 U.S.C. § 1532(19). The general prohibition against take notwithstanding, the ESA establishes specific statutory mechanisms by which a federal agency or private actor may obtain permission lawfully to take a species or its habitat.

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.” 16 U.S.C. § 1532(20). It is important to recognize that, while the definition of a “threatened” species is necessarily forward-looking (a species is threatened if it is likely to become endangered in the “foreseeable future”) so, too, is the definition of an “endangered species.”

4). -24- Third, the constant chaining of the elephants also “harasses” the animals within the meaning of the “take” prohibition, 16 U.S.C. § 1532(19), because it “significantly disrupt[s] [their] normal behavioral patterns,” including their need to walk, turn around, explore their surroundings, and socialize with other elephants. See 50 C.F.R. § 17.