Critical habitat designations threaten private property rights

Updated FWS regulation attempts broad re-orientation of scope and purpose of critical habitat designations under Endangered Species Act.

April 20, 2016

3 Min Read
Critical habitat designations threaten private property rights

On Tuesday, the House Committee on Natural Resources held an oversight hearing on the Obama Administration’s expansive new definitions and revised criteria for designating critical habitat under the Endangered Species Act.

Chairman Rob Bishop (R., Utah) argued that the new rules allow the U.S. Fish & Wildlife Service (FWS) and the National Oceanic & Atmospheric Administration’s Fisheries Service nearly limitless discretion in restricting private and federal land use. He pointed out the negative impact they will have on the American people.

“These rules will now make it even easier for the federal government to absorb larger and larger swaths of land and water from local state governments and private citizens. It’s going to hurt people, and unfortunately, those people who are going to be hurt have almost no recourse towards this particular situation,” Bishop said.

The rules usurp Congress’ legislative and constitutional prerogatives and create sweeping new authorities to designate critical habitat at the agencies’ sole discretion.

“The services have essentially granted to themselves authority to designate any area that may, someday in the future, become suitable for a species — even in places where there is absolutely no evidence currently that the species have existed there," Bishop stated.

Committee vice chairman Rep. Cynthia Lummis (R., Wyo.) highlighted the litigious challenges that are expected to result from the new rules and called for an updated conservation strategy.

“Court battles slow down the ability to recover species and steal money from recovery. We need a new 21st-century conservation effort that is consistent with the movement that the American people have made in their understanding of sound science. We can and should do better for our wildlife,” Lummis said.

Karen Budd-Falen, a witness from Wyoming and senior partner at Budd-Falen Law Offices LLC, grew up a fifth-generation rancher and commented on the impact the rules will have on the local agricultural community.

“While the agriculture community raised a huge alarm over the ‘waters of the U.S.’ (rule from the Environmental Protection Agency), the Fish & Wildlife Service was quietly implementing these new rules, in a piecemeal manner, without a lot of fanfare. Honestly, I believe these new habitat rules will have as great or greater impact on the private lands and federal land permits. I would hope that the outcry from the agriculture community, private property advocates and our congressional delegations would be as great,” Budd-Falen said.

Fourth-generation rancher Robbie LeValley of western Colorado argued that the new rules will not benefit habitat species and will have a negative economic impact on ranchers and rural communities.

“Imposing regulatory change on grazing without any scientific basis is unwarranted and makes it clear that this Administration’s intent is to manage away from productive uses rather than actually protecting species and their habitat,” LeValley, chairman of the National Cattlemen’s Beef Assn. Federal Lands Committee, testified.

In response to a question about collaboration with federal agencies, LeValley said, “While we are working with the Fish & Wildlife Service, there are times, especially recently, where they have said, ‘Our preferred alternative is no livestock grazing.’ That’s concerning.”

On LeValley's ranch, habitat for the Gunnison sage grouse has been a priority since 1995, when they engaged with Colorado Parks & Wildlife and the Bureau of Land Management to protect grouse habitat through the implementation of several conservation easements, plus an additional 1,300 acres covered in a Candidate Conservation Agreement with Assurances.

LeValley said, “My operation, and the operations of other ranchers, proves that managed grazing not only provides for livestock but for wildlife as well. The time and money that ranchers invest into public land improves water sources, controls invasive species and removes the fine fuel loads that contribute to catastrophic wildfires that destroy habitat and food sources for wildlife.”

To highlight FWS’s inconsistent track record on Endangered Species Act implementation, Rep. Dan Newhouse (R., Wash.) asked FWS director Dan Ashe, why — despite growing numbers of wolves — FWS has not finalized its 2013 proposed wolf delisting.

“The wolf (delisting) is probably one of the most frustrating issues during my tenure as director,” Ashe responded. “We’re kind of like that truck that’s in the mud up to the running board, so you know we can’t go forward, and we can’t go backward.”

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