Cameron Edwards has two driving passions in life: growing his small agricultural operation and realizing his grandfather’s vision. His family business, Lone Butte Farms, grows corn, ranches cattle, and operates two oil wells on 7,000 acres of land in Logan County, Kansas. Cameron’s grandfather first purchased the land, and three generations of the Edwards family have since produced food, fiber, and fuel to support the region’s economy and their livelihoods.
Environmental stewardship is another treasured Edwards family tradition: 3,000 acres of carefully maintained grassland on their property serve as both a healthy rangeland for cattle grazing and a potentially valuable ecosystem for the lesser prairie-chicken, a threatened species under the Endangered Species Act (ESA). The Edwards family previously saw no conflict between their business operations and environmental stewardship. Indeed, operating their property to its highest and best use as a cattle ranch necessarily involved the maintenance of high-quality grassland habitat.
Nevertheless, the Edwards family is now being punished for its stewardship. In November 2022, the FWS issued an ESA rule (known as a “Section 4(d)” rule) for the lesser prairie-chicken. That rule broadly prohibits an enormous array of common land use activity that could affect grassland habitats and thus harm the lesser prairie-chicken, no matter how inadvertently. Violators face severe civil and criminal penalties.
This rule covers a vast array of land—the lesser prairie-chicken is found in Texas, Oklahoma, and Colorado, as well as Kansas—and jeopardizes essential local government services, including the building and maintenance of roads, utility poles, and emergency radio towers. Something as simple as erecting a tower to ensure citizens are notified of a tornado warning is now regulated, and possibly prohibited by the rule.
Because the 4(d) rule heavily regulates virtually anything a landowner might wish to do within the lesser prairie-chicken’s habitat, landowners like the Edwards family will face a dilemma. They either must make costly changes to their land use to comply with the rule, which could destroy their livelihoods, or they could keep using their land freely and productively and pray that the government doesn’t punish them.
Deliberately shutting down productive and responsible land use with minimal corresponding benefits to the lesser prairie-chicken is not only illogical. It’s illegal.
Section 4(d) of the ESA requires the FWS to balance conservation efforts with the economic impacts of regulation on private parties. This principle is central to the framework set forth by Congress. And it was central to ESA reforms in 2019 that PLF inspired at the Supreme Court, championed at the Department of the Interior, and successfully defended at the Ninth Circuit.
Finalizing the lesser prairie-chicken rule with complete disregard for its economic costs violates the ESA and the Administrative Procedure Act. Additionally, the agency’s failure to analyze the rule’s impact on small businesses violates the Regulatory Flexibility Act.
By ignoring these well-established limitations on its power, the FWS essentially believes it can do whatever it wants, whenever it wants, to whomever it wants. The agency is also dismissing the critical role of private landowners in species recovery and favoring conflict over cooperation among regulators, property owners, and conservationists.
More broadly, under the separation of powers, federal agencies do not constitutionally possess inherent power over the lives of ordinary Americans like Mr. Edwards. Agencies may exercise such power only to the extent the people’s elected representatives in Congress have given it to them.
Yet, the FWS claimed breathtaking regulatory powers in another stark example of an absolutely massive power grab by the administrative state under the guise of saving the environment. If federal agencies can ignore Congress’ intent and unilaterally impose punishing regulations on landowners, then we no longer live in a country governed by the rule of law.
With their livelihoods and their constitutional rights on the line, Mr. Edwards, Lone Butte Farms, Schilling Land, JDC Farms, and the Kansas Natural Resource Coalition—an association of 30 county governments—are filing a federal lawsuit to hold the FWS to its obligations as intended by Congress and in a manner that respects private property rights.
What’s At Stake?
- It is fundamental to the American system of administrative law that federal government agencies may not pursue their goals at all costs. Deliberately shutting down productive and responsible land use with only minimal corresponding benefits to a species threatens livelihoods and property rights. It also upends incentives for cooperative conservation among regulators, property owners, and conservationists.
- The United States Fish & Wildlife Service (FWS) must adhere to its obligations as intended by Congress and in a manner that respects private property rights. By ignoring limitations placed upon its power in the language of the Endangered Species Act, the FWS essentially believes it can do whatever it wants, whenever it wants, to whomever it wants. If federal agencies can ignore Congress’ intent and unilaterally impose punishing regulations on landowners, then we no longer live in a country governed by the rule of law.
