States Claim Feds Are Trampling On Their Land and Water Rights

BY TRACEY DALZELL WALSH

MOBILE, Ala. (CN) – Eighteen states, including Alabama, are challenging two newly-issued regulations under the Endangered Species Act that they claim are an attempt by the U.S. Fish and Wildlife Service to expand its regulatory authority and control their lands and waters.

In a complaint filed in the U.S. District Court for the Southern District of Alabama, the states explain that under the Endangered Species Act, they are required to plan construction projects to ensure they don’t damage critical habitat areas for endangered or threatened species, and that they must also closely monitor other activities, including the use of certain pesticides and herbicides to further protect those habitats.

But until now, they say, the Act and regulations stemming from it respected state sovereignty. At the heart of the lawsuit is how federal regulators define and designate “critical habitats.”

Previously, the Fish and Wildlife Service could only designate a parcel of land or a water body as a critical habitat if they were focusing on a specific area, occupied by a threatened or endangered species at the time it was listed.

The states claim the new rules being promulgated by the agency “essentially nullify” the longstanding statutory provisions that put those limits in place, and would allow federal regulators to designate areas as unoccupied critical habitat “almost without limitation,” even though “the statutory scheme intended designation of these areas to require a higher threshold than the designation of occupied areas.”

The complaint says the defendants, which include the National Marine Fisheries Service, and the states are “inextricably intertwined” because under the Endangered Species Act, “[u]nless preempted by Federal authority, States possess primary authority and responsibility for the protection and management of fish, wildlife and plants and their habitats.”

The plaintiff states claim the new rules allow the defendants to “exercise virtually unlimited power to declare land and water critical habitat for endangered and threatened species, regardless of whether that land and water is occupied or unoccupied by the species, regardless of the presence or absence of the physical or biological features necessary to sustain the species, and regardless of whether the land and water is actually essential to the conservation of the species.”

Additionally, they claim that under the rules, the defendant agencies can “declare desert land as critical habitat for a fish and then prevent the construction of a highway through those desert lands, under the theory that it would prevent the future formation of a stream that might one day support the species. Or the Services could prevent a landowner from planting loblolly pine trees in a barren field if planting longleaf pine trees might one day be more beneficial to an endangered or threatened species.”

U.S. Fish and Wildlife Service  spokesman Gavin Shire said that while he can’t comment directly on the lawsuit, “critical habitat designation is required by the Endangered Species Act and serves to identify those areas essential for the recovery of listed species. In revising the regulations and policies for the implementation of critical habitat, we endeavored to make commonsense changes that would clarify criteria and procedures and provide for a more predictable and transparent critical habitat designation process.”

He added: “These revisions largely reflect how we have designated critical habitat during the last 15 years. Allegations of greatly expanded authority and political intent are unfortunate and without merit. One need only look at our recent designations to see that.”

On its website, the U.S. Fish and Wildlife Service describes a critical habitat as an area essential to the conservation of a threatened or endangered species that may require special management considerations and protection, but a critical habitat designation affects only federal agency actions or federally funded or permitted activities.

Critical habitat designations do not affect private landowners who do not receive federal funding.

Spires explained that critical habitat “neither provides federal access to private lands nor cuts off landowner access to their own lands nor creates any sort of preserve or off-limits area. Instead, it mandates that federal agencies consult with the Fish and Wildlife Service in cases where their actions have the potential to impact our nation’s most at-risk species.”

The states claim the new rules are without foundation under the Endangered Species Act and are arbitrary and capricious under the Administrative Procedure Act. They seek a declaration that the rules are unlawful and should be set aside.

In addition to the agencies, Commerce Secretary Penny Pritzker and Interior Secretary Sally Jewell are also being sued in their official capacities.

The plaintiffs are each represented by the attorney general from their respective state, with the exception of New Mexico, which is represented by Alexandra Sandoval, Director of the New Mexico Department of Game and Fish.