The Trump administration has settled a lawsuit filed by Nevada and 19 other states over Obama administration rules that sweepingly redefined what constituted critical habitat for endangered species and has agreed to rewrite those rules.
The suit, filed in November 2016 against various federal land agencies, accused the federal bureaucrats of essentially rewriting the Endangered Species Act of 1973 (ESA) to give themselves potential veto power over any use whatsoever on every square foot of rural land, public or private, in the country.
Though the ESA gives the U.S. Fish and Wildlife Service authority to protect “critical habitat” occupied by endangered or threatened species, the rewritten rules redefined “critical habitat” to include land currently unoccupied by those species but just might someday, in someway, somehow — as a result of global warming or a meteor strike, perhaps — later become “critical habitat.”
Those rules gave federal agents the power to block or alter any activity — grazing, farming, buildings, mining, recreation, roads, fences, pipelines, ditches, power lines, irrigation, oil and gas exploration — that might somehow adversely affect a potential habitat for certain protected rodents, minnows, bugs, birds, reptiles, beasts and weeds.
The settlement, reached this past week, requires the federal land agencies to submit revised rules for public review within 60 days. The states reserve the right to file another lawsuit if the new rules are unsatisfactory.
“I commend the federal government for agreeing to reconsider rules created in the previous administration that could have severely restricted property owners’ use of their own land,” said Nevada Attorney General Adam Laxalt, who joined the suit, which was filed in Alabama. “If this federal land grab had been implemented, the federal government could have expanded critical habitat designations to include entire states. I am proud of the result of our joint efforts to protect Nevada land from burdensome and unconstitutional federal overreach.” (Critical habitat)
That overreach flew in the face of the ESA’s requirement that “critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species,” except in a circumstance determined by the secretary of the Interior.
Opponents of the rules said they impermissibly relied on hope and base speculation.
The lawsuit also said the rules create huge costs for private landowners and small businesses who must go to the expense of obtaining federal permits in order to make even minor modifications to their own property. Permits could be denied under rules that were obviously arbitrary, capricious and onerous.
Arkansas Attorney General Leslie Rutledge commented on the settlement and said, “Our wildlife must be protected for future generations, but it is completely unreasonable to give the federal government broad authority to restrict land usage just because bureaucrats in D.C. think an animal might, possibly, one day inhabit that land — even if that land does not have features necessary for its survival. These rules are a clear example of an Obama-era overreach that must be changed to protect the rights of land owners and the States.”
Alabama Attorney General Steve Marshall noted Congress had purposefully set a stricter standard for land not occupied by endangered species, saying the Obama administration rules violated the intent of Congress and defied common sense.
“These rules even allowed the federal government to prevent activities it decided could adversely affect habitat features that do not actually exist,” Marshall said. “For example, as the States noted in their complaint, the federal government ‘could declare desert as critical habitat for fish and then prevent the construction of a highway through desert lands, under the theory that it would prevent the future formation of a stream that might one day support the species.’”
Of course, the self-styled environmentalists don’t want any changes. An attorney for the Center for Biological Diversity told E&E News in an email, “We’ll be taking a close look at the revised rules and are likely to challenge them if we identify any departure from the Endangered Species Act’s requirement that the agencies protect habitats essential for species recovery.”
In addition to Nevada, other states participating in this settlement include: Alabama, Alaska, Arkansas, Arizona, Colorado, Idaho, Kansas, Louisiana, Michigan, Missouri, Montana, Nebraska, New Mexico, North Dakota, South Carolina, Texas, West Virginia, Wisconsin and Wyoming.
Over the 45 years since the passage of the Endangered Species Act the return on investment has been practically nil. Only 1 percent of listed species have ever recovered sufficiently to be delisted, despite the law’s huge impact on economic endeavors. Hopefully, the rewritten rules will lessen the impact.
A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.
4TH ST8 
ESA requires that Critical Habitat designation (or for that matter any habitat designation) must be based on first identifying the Primary Constituent Elements that the habitat must contain and then certifying that each and every one of the Primary Constituent Elements is present within the area designated as habitat. US Fish and Wildlife Service hardly ever lists the Primary Constituent Elements and if they do they do not quantify or otherwise objectively determine if those elements of habitat are all present and accessible to the protected species.
Consequently, in recent years we have had a barrage of sage grouse habitat delineations, Sierra Nevada Bighorn Sheep habitat delineations, Yellow Legged Frog habitat delineations etc with no clear identification of the PCEs and no measure of the habitat being adequate to provide for a healthy, thriving, reproductive population of the protected species. Instead we get healthy, thriving, and reproducing populations of well paid wildlife biologists.