States Sue FWS Over ESA Habitat Changes

Published February 7, 2017

Eighteen states are suing the U.S. secretary of the interior, National Marine Fisheries Service, U.S. secretary of commerce, and U.S. Fish and Wildlife Service to overturn a rule greatly expanding the government’s “critical habitat” definition.

The final rule for “Listing Endangered and Threatened Species and Designating Critical Habitat” went into effect on March 14, 2016. The rule allows the federal government, when designating critical habitat for a species listed as endangered or threatened under the 1973 Endangered Species Act (ESA), “to designate areas as occupied critical habitat, containing the physical and biological features essential to conservation, even when those areas are neither occupied nor contain those features,” according to the lawsuit.

Led by Alabama Attorney General Luther Strange, Alaska, Arizona, Arkansas, Colorado, Kansas, Louisiana, Michigan, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Carolina, Texas, West Virginia, Wisconsin, and Wyoming joined Alabama on November 30, 2016 in challenging the critical habitat change.

‘Beyond Common Sense’

In a statement, Strange explained why the states sued.

“Washington[, DC] bureaucrats have gone beyond common sense by seeking to expand their control to private property adjoining the habitat of an endangered species solely on the basis that these areas might one day be home to a threatened species,” said Strange. “If this rule is unchallenged, there could be no limit to their regulatory reach, potentially setting the stage for the federal government to designate entire states or even multiple states as habitat for a particular species.”

John Eick, director of the American Legislative Exchange Council’s Energy, Environment, and Agriculture Task Force, says the rule should alarm anyone concerned about federal government overreach.

“The recently finalized rule allowing federal agencies to designate entire unoccupied states as ‘critical habitat’ for species is just the latest example in a long list of regulatory overreaches by the Obama administration,” Eick said. “Anybody who is concerned about the continued expansion and consolidation of federal power at the expense of the states should be alarmed by this development.

“With any luck, the states suing over this rule will prevail in court, and hopefully the incoming administration will work collaboratively with states to scale back these rule changes,” said Eick.

‘Breathtaking Expansion’ of Power

Brian Seasholes, a former research fellow at the Reason Foundation, says the new rule grants the federal government enormous new power.

“This represents a breathtaking expansion of the geographic and temporal reach of the ESA, because under [the finalized rule], any habitat possibly suitable for an endangered species at any point in the future may be designated as critical habitat, even if such habitat is currently unsuitable, unoccupied, and will not be rendered suitable or occupied without human intervention,” Seasholes said. “Subjecting more American landowners to the ESA’s counterproductive, penalty-based approach to conservation will only harm the very species that need helping hands.”

Michael McGrady ([email protected]writes from Colorado Springs, Colorado.