ELR Citation: ELR 20272
No(s). 09-00574 (D. Ariz. Sep 30, 2010)

A district court remanded FWS' finding that listing the Gunnison's prairie dog under the ESA was warranted within the "montane portion" of its range in central and south-central Colorado and north-central New Mexico but not warranted within the remaining "prairie portion" of its range. The FWS cannot determine that anything other than a species, as defined by the ESA, is an endangered or threatened species. The ESA permits the FWS to treat subspecies and distinct population segments of a species differently by designating them as separate species. And while there may be ways to treat prairie dogs in the prairie differently than prairie dogs in the mountains under the statute, altering Congress' definition of endangered and threatened species is not one of them. Because there is no species called the montane Gunnison's prairie dog, FWS' finding runs counter to the plain language of the ESA, and the FWS' finding was set aside and remanded.