The Washington Cattlemen’s Association (WCA) has joined with Pacific Legal Foundation (PLF) in challenging a federal regulation that imposes harsh Endangered Species Act restrictions for as many as 150 species that Congress did not intend to be automatically covered — including the spotted owl and the Oregon spotted frog.
In a petition filed Aug. 4 with the U.S. Department of Fish and Wildlife, the WCA and PLF demand repeal of a regulation that applies the “take” ban in a blanket way to all species classified as “threatened,” contrary to congressional intent and the statute’s text. This regulation subjects ranchers and farmers in the Pacific Northwest — along with citizens from coast to coast — to the possibility of massive fines and even jail for land use activities that Congress has deemed legal.
The petition, demanding an end to the automatic application of the “take” ban for “threatened” species such as the spotted owl and the Oregon spotted frog, lays the groundwork for a lawsuit if it is not granted.
The onerous “take” prohibition forbids any activity that even indirectly affects a single member of a targeted species or its habitat. It prohibits a wide range of ordinary land uses, and subjects violators to costly lawsuits, substantial fines and even imprisonment.
Under the ESA, listed species are categorized as either “endangered” (i.e., facing imminent threat of extinction) or “threatened.” As detailed in the petition and in PLF’s litigation backgrounder for this case, Congress directed that the “take” ban would apply automatically only to “endangered” species. For “threatened” species, it would apply only on a case-by-case basis.
Disregarding this congressional mandate, the Fish and Wildlife Service in the late 1970s unilaterally issued a blanket ban on “take” for all “threatened” species. There are approximately 150 threatened species that are subject to the regulation.
Promoting responsible environmental policy — and the rule of law
“We are filing this petition to promote responsible environmental policy; defend the rights of ranchers, farmers and, indeed, all American landowners and citizens nationwide; and, above all else, to uphold the rule of law,” said PLF attorney Jonathan Wood. “As our petition makes clear, the Endangered Species Act does not permit regulators to categorically forbid the take of threatened species. They must examine each individual threatened species on a case-by-case basis. But instead of following Congress’s instructions, the Fish and Wildlife Service has taken the law into its own hands and unilaterally decreed a radical expansion of the ‘take’ prohibition. Through this usurpation of legislative authority, the agency is illegally imposing severe burdens on property owners and small businesses nationwide.
“Not only will repeal of this regulation free property owners from potentially suffocating micro-management, it will also promote species protection by encouraging private conservation efforts,” Wood continued. “Currently, even if a species’ status improves so it is upgraded from ‘endangered’ to ‘threatened,’ the regulatory restrictions remain unchanged. So people with ESA-listed species on their land have little incentive to invest time and effort in trying to aid a species’ improvement. That would change if the Service abided by the law and eased its regulations for species listed as ‘threatened.’”
Harm to ranchers, farmers, and other landowners
“The Washington Cattlemen’s Association is joining this petition because we have members who are harmed by draconian ‘take’ restrictions that aren’t justified either for environmental protection, or under an honest reading of the Endangered Species Act,” said WCA executive vice president Jack Field. “Everyone knows how the ESA restrictions for the spotted owl decimated the Pacific Northwest’s timber industry. What may be less known is that the spotted owl is categorized as ‘threatened,’ not ‘endangered,’ so regulators were overstepping when they imposed the ‘take’ prohibition and destroyed so many timber businesses and jobs. Many farmers and ranchers continue to be victims of illegal overkill by ESA regulators. We’re joining this petition because the bureaucratic lawlessness must end.”
Demonstrating the nationwide scope of the problem, earlier this year PLF filed a parallel petition against the expansion of the “take” prohibition, in concert with the National Federation of Independent Business. NFIB is a membership organization of tens of thousands of small business owners from coast to coast.
If the Service does not respond to these petitions by repealing its unlawful regulation, court action will be necessary.