The monarch butterfly (Monarch) is a migratory species that can be found throughout its usual
migratory route across the United States, southern Canada, and Mexico in places where milkweeds
are available for overwintering and breeding purpose. However, the Monarch population in the US
has declined by 80-90% due to many reasons including: deforestation, logging activities, extreme
weather events, agricultural expansion and pesticide use. The US Geological Survey indicates that
its population east of the Rocky Mountains will decline to such a low level that it will likely
face extinction. Also, it is estimated that between 11 to 57 percent of the Monarch migration
will collapse in the next 20 years. Therefore, due to the growing concern of its diminishing
population, the US Fish and Wildlife Service (FWS) is currently engaged in the deliberation process
to determine whether or not to take regulatory actions under the Endangered Species Act of
1973 (ESA) to protect the Monarch. Since most of the migrating paths of Monarch east of Rocky
Mountains are located in the mid-western corn belt, private landowners across those regions are
expected to be impacted if the Monarch is in the “threatened species” list or critical habitat is
designated within their lands under the ESA.
The Monarch is not currently listed as either an endangered or threatened species under ESA.
Nevertheless, in June 2014, a group of environmental NGOs including The Center of Biological
Diversity, The Center for Food Safety, and The Xerces Society, as well as a Monarch expert has
commenced the formal petition process to the Secretary of Interior through FWS to list the Monarch
as a “threatened” species under ESA. The FWS responded in December 2014 by its initial finding
confirming that the petition contains sufficient information to warrant a “status review”. In 2016,
the same group filed a lawsuit to force FWS to set a legal deadline for a decision on the petition,
and thereafter an agreement has been made by the group and FWS. Under the agreement, the FWS
will have to make its final decision regarding the petition by June 30, 2019.
Therefore, by June 2019, the FWS will develop a status review of Monarch by using the Species
Status Assessment (SSA) framework, which provides the best available scientific information for
comparison to policy standards to guide ESA future decisions. The SSA will serve as the single
document for the monarch’s biological information needed for all ESA future actions such as:
listing, consultations, grant allocations, and permitting, The FWS determinations followed by the
completion of SSA will be either: 1) listing is warranted, 2) listing is not warranted, or
3) listing is warranted but precluded by a species of higher priority. The SSA does not directly
result in any regulatory decision, but it will certainly guide FWS for the final rule concerning
the listing of the Monarch as a “threatened species” 12 months after it published the post-SSA
proposed rule.
Under ESA, an animal or plant species can receive either “endangered” or “threatened” status
of protection. The former is defined as the species is “in danger of extinction throughout all or
a significant portion of its range”, whereas the latter is the one that “is likely to become
endangered in the foreseeable future throughout all or a significant portion of its range”.
The petition in question here seeks to list the Monarch as a “threatened species”.
For “threatened species”, ESA Section 4(d) offers a special rule that can change some or all of
the Section 9 protections, which is automatically applied to “endangered species”. Section 4(d)
aims to provide an alternative option to Section 9 protection by allowing FWS regulatory
flexibility to customize prohibited activities concerning the “threatened species”. Therefore, in
most circumstances under 4(d) rules, incidental taking and existing agricultural and commercial
activities may be allowed.
Critical habitat under ESA means that the specific areas, occupied by the species when listed,
contains important features that are essential to conserve the “endangered” or “threatened”
species. The critical habitat may also be extended to an unoccupied area that is essential to
conservation. However, some areas can be excluded from designation based on economic impact,
national security concerns, or other important impacts. Notably, there is pending Supreme Court
litigation that may affect FWS’ authority in terms of designating unoccupied area on private land
as critical habitat, as well as the determination of excluded areas.
In terms of the timing, the critical habitat designation can be made concurrently with the listing
or be decided up to one year after the date of listing.
Generally, once private land becomes a critical habitat, it will not necessarily affect the
landowner’s right to develop unless a federal permit is involved, licensing, funding (“federal
nexus”), destruction, or adverse modification of the critical habitat. However, there are several
practical effects upon a landowner’s right.
Current options for private landowners prior to or after designation of critical habitat to reduce
the impacts on their property rights (most of the options are subject to FWS or relevant
agencies’ discretion).
The Monarch’s migrating paths and potential critical habitats are mostly located along the corn
belt. According to the petition at issue, one of the major reasons for listing the Monarch is that
the application of pesticides in growing corn and soybean has contributed significantly to the
disappearing of milkweed which is necessary for the survival of the Monarch. It can be expected
that if the Monarch is listed as a “threatened species” and critical habitat is designated, there
will be a huge impact on private landowners located within the areas. Moreover, one possible
outcome of SSA in addition to “listing not warranted” is “warranted but precluded,” by which the
Monarch will be put into the “candidate list”. Under this scenario, the affected private landowners
still have to prepare a preemptive strategy and engage in necessary conversation with relevant
agencies because practically, it will not be less burdensome for the landowners facing the
uncertainty of FWS’ future actions or activities with “federal nexus”.
The pending Supreme Court case Weyerhaeuser Company v. United States Fish and Wildlife Service
is worth paying close attention to since the main issue there is concerning the FWS’ authority to
designate unoccupied habitat on privately owned lands and whether FWS’ economic impact
analysis during decision making process of habitat designation is subject to judicial review.
The result of the Wayerhaeuser will result in either strengthening FWS’ current position or
substantially altering FWS’ authority toward designating unoccupied habitat on private lands.
Either way will have practical and immediate impacts on the private lands that will possibly be
designated as critical habitat.
The first critical time point will be around June 2019 by which the Monarch SSA will be published.
If the listing of Monarch as a “threatened species” is warranted, there will be a 60-day comment
period after the “published proposed rule”. Potential hearings will also be held before the final
rule is published. Preemptive strategies and a response plan should be considered in advance
once the SSA determines the Monarch as either “threatened” or “threatened but precluded.”