Will “Fly-Over Country” Have a Voice to Protect Private Property Rights Under the Endangered Species Act?

in Karen Budd Falen/Column

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By Karen Budd Falen, guest columnist
Karen Budd-Falen is an attorney in Cheyenne, Wyoming and former Deputy Solicitor for Wildlife and Parks at the Department of Interior.

The proceedings in a distant courthouse in Hawaii might not normally be the central focus of  most private property owners, but recent actions at one can only be viewed as the beginning of  an effort to crush the voices of rural America, state and local governments and Indian Tribes.  

Recently, the Biden Administration’s Justice Department and the environmental litigation  group EarthJustice entered into an agreement to stay the proceedings in litigation Earthjustice  brought as a nationwide effort to overturn regulations developed in 2020. 

This agreement is  likely the first step at trying to eliminate regulations that affirmatively give State governments,  local governments, and Indian Tribes a greater voice in designation of critical habitat under the  Endangered Species Act (ESA). 

These 2020 regulations require the Fish and Wildlife Service  (FWS) to substantively consider “economic, national security and other relevant impacts” of the  designation of critical habitat on private property and federal lands. 

Although groups like  Earthjustice completely exaggerate its description of the impact and requirements of those regulations, the request of the Department of Justice to stay the litigation is consistent with the Biden Administration’s view that Washington D.C. knows what is best for rural America as  opposed to the State and local governments and Tribal leaders who represent these areas. 

It is  simply back to the mindset that one size fits all from Washington D.C. is the correct answer to  all problems. 

ESA section 4(b)(2) was a Congressional amendment to the ESA responding to the Supreme  Court’s 1978 decision in Tennessee Valley Authority v. Hill. 

That amendment required the  federal government to consider exclusions of particular areas from proposed critical habitat  designations based on economic, national security or other relevant impacts. 

The only caveat by  Congress was that the federal agencies could not exclude areas from critical habitat if it would  cause extinction to the species.  

Understanding Congress’ concern that critical habitat designations can have significant negative  impacts on private property uses, local economies, jobs, State and Tribal wildlife management agency plans and programs and can cause unlimited environmental destruction such as  increasing catastrophic wildlife or invasive species which harms threatened or endangered  species, in 2020 the Secretary of the Interior issued regulations that require consideration of  these human and environmental impacts as seen through the eyes of those who are directly  impacted by proposed designations, in other words, State and local governments, Tribal  governments, private property owners and federal lands users. 

Of course, areas of critical  habitat can never be excluded if exclusion will result in extinction of the species. 

That mandate  is noted in the ESA as well as in the 2020 regulations. But a plain reading of the statute shows  that it is a policy choice whether the Secretary of the Interior will exclude particular areas from  proposed critical habitat based on human use, jobs, rural families, local economies, and the local  environment, so long as the species does not go extinct. 

And who better to describe these economic and relevant factors than the state, local and Tribal representatives who live and work  in areas where critical habitat is proposed. 

Thus, in 2020, the Secretary made the right choice to  require the FWS use the credible information provided by state governments, local  governments, and Indian Tribes to exclude these areas from designation as critical habitat so  long as the result is not extinction of the species concerned.  

Having long advocated that State and locally elected officials should have a significant and  considered voice in the federal agency decisions directly impacting them, the EarthJustice  litigation and the Biden review of the ESA 4(b)(2) regulations are a huge concern. 

I would urge  State, Tribal, and local officials and rural America to advocate that the 2020 regulations be  strongly defended by the Justice Department as the right policy supported by law and the right  protection for rural America, property rights and users of the federal lands. 

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