For more than two decades, Ken Klemm managed his 4,000-acre ranch, where he grazed bison to produce high-quality meat and feed the nation. He also provided valuable ecosystem services, implementing holistic management practices and working to restore his ranch, with the hope that native plants and animals would thrive on the property.
But regulations effectively penalized his efforts instead of rewarding them. That’s because the U.S Fish and Wildlife Service ignored Congress’s design for the Endangered Species Act. For decades, the agency treated species with more remote risks of extinction the same as species on the brink of extinction. By extending ESA regulations far beyond Congress’s original intent, Interior put significant restrictions on property owners, limiting the ways that they could productively use their land.
In 2019, the Department of Interior announced that it would restore the Endangered Species Act’s two-step system for protecting species. Instead of punishing Klemm for aiding in the recovery of the lesser prairie chicken, the new policies would ease restrictions on Klemm’s land as the bird’s outlook improves. Because of that, the policy change was welcome news for property owners like Ken.
The 2019 reforms also brought the government back into line with the ESA’s requirements for designating critical habitat: replacing an ad hoc and standardless system, first introduced in 2016.
But as soon as Interior finalized its changes, 17 states and environmental groups sued to overturn the changes. If the reforms were rolled back, Klemm and other property owners would once again face significant burdens stemming from ESA regulations and would once again have been penalized for helping in the recovery of threatened species.
Represented by PLF at no charge, Ken Klemm, Beaver Creek Buffalo Co., and the Washington Cattlemen’s Association successfully intervened in the lawsuit to maintain protections for property owners nationwide.
On July 5, 2022, the district court vacated all three ESA reforms and reinstalled the pre-2019 regime of ad hoc, capricious habitat designations, and the unlawful blanket extension of significant protections to species facing only a remote risk of extinction. It did so based only upon the new presidential administration’s stated intent to repeal or revise the 2019 rules, and a plea from the plaintiffs to simply erase the 2019 rules—allowing the new administration to circumvent the ordinary rulemaking process. As such, the district court made no finding as to the underlying legality of the 2019 rules.
Upon appeal, the Ninth Circuit agreed with our clients that courts cannot merely erase federal rules from the books without considering the rules’ merits. The lower court judge subsequently ordered that the 2019 rules stay in place while the agency goes through the proper process to amend or repeal them and the agency has set a May 2024 timeline for completion. The case is a big win for our clients and all Americans who will now be able to exercise their right comment on—and support or oppose—proposed rule changes.
What’s At Stake?
- The ESA’s recently restored two-step protections for species better protects property rights and creates incentives for species conservation.
