Nevada joins in suit to challenge sweeping redefinition of ‘critical habitat’ under Endangered Species Act

Nevada has joined an 18-state coalition that has filed suit against various federal land agencies for rewriting the Endangered Species Act of 1973 (ESA) to in effect give themselves carte blanche over ever square foot of land in the country.

The new rules were published in the Federal Register in February and took effect in March. Though the ESA gives the U.S. Fish and Wildlife Service authority to protect “critical habitat” occupied by endangered or threatened species on public and private land, the new rules sweepingly redefine “critical habitat” to include land currently unoccupied by those species and even to include land that just might someday, in someway, somehow later become “critical habitat” by way of global warming or some other possible change.

The new rules give federal agents the power to block or alter any activity — grazing, farming, construction, mining, recreation, roads, fences, oil and gas exploration — that might somehow adversely affect that potential habitat for certain protected rodents, minnows, bugs, birds, reptiles and beasts.

In a press release announcing the litigation, Nevada Attorney General Adam Laxalt noted that the rule change could allow the federal government to declare “desert land as critical habitat for a protected fish and then prevent the construction of a highway through the land, under the theory that it would prevent the future formation of a stream that might one day support the fish.” The line is lifted almost verbatim from the lawsuit.

The suit was filed Tuesday in federal court in Alabama. It names as defendants the U.S. Secretary of the Interior, the National Marine Fisheries Service, the U.S. Secretary of Commerce and the U.S. Fish and Wildlife Service.

“As we have seen countless times, this administration’s novel rules reach well beyond anything Congress could have ever intended and will have adverse effects on individual states, businesses and families,” said Laxalt in the press release. “In practice, these latest rules expand federal oversight to the point that the federal government could potentially designate an entire state or even multiple states as critical habitat for certain species. I will continue to protect our state from this type of unwarranted and burdensome federal overreach.”

The sweeping definition of habitat appears to fly in the face of the law’s requirement that “critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species,” except in circumstance determined by the secretary of the Interior.

Alabama’s Attorney General Luther Strange said in a press release, “Washington 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.”

The suit states:

The Final Rules are an unlawful attempt to expand regulatory authority and control over State lands and waters and should be vacated and enjoined because they violate the ESA and the Administrative Procedure Act (“APA”).

The ESA carefully delineates how and when the Services may designate areas as critical habitat. The ESA provides that when a species is listed as endangered or threatened, the Services shall “designate any habitat of such species which is then considered to be critical habitat” and “may, from time-to-time thereafter as appropriate, revise such designation.”

The ESA defines critical habitat as “specific areas within the geographical area occupied by the species at the time it is listed … on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection.” Unoccupied areas trigger an additional requirement — the Services must determine that “such areas are essential for the conservation of the species.”

By employing two different definitions, “[t]he statute thus differentiates between ‘occupied’ and ‘unoccupied’ areas, imposing a more onerous procedure on the designation of unoccupied areas by requiring the [Services] to make a showing that unoccupied areas are essential for … conservation.” The Services have long recognized that they may designate unoccupied areas “only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” (Citations omitted.)

The suit also takes issue with the aforementioned fact that the new rules “declare that essential features include not only the physical or biological aspects that actually support the species, but also items that might lead to the development of those species-supporting features sometime in the future.”

Arguments against the rules posted in the Federal Register note that this “constitutes an impermissible reliance upon hope and speculation.”

As well as a crystal ball or reading of tea leaves.

In addition to Nevada and Alabama, other suing states are Alaska, Arkansas, Arizona, Colorado, Kansas, Louisiana, Michigan, Montana, Nebraska, New Mexico, North Dakota, South Carolina, Texas, West Virginia, Wisconsin and Wyoming.

To place the ESA in perspective: Only 1 percent of listed species have recovered sufficiently to be delisted, despite the immense impact on economic endeavors.

Every square foot covered in red tape.