Designating non-habitat as "critical habitat?" Where does it stop?

In 2014, the U.S. Fish and Wildlife Service listed the Gunnison sage-grouse as “threatened” under the Endangered Species Act and designated over 1.4 million acres as “critical habitat” in Colorado and Utah. For years, the affected states, counties, and landowners have partnered to conserve the species while maintaining economic viability. Over 90% of sage-grouse habitat in the State of Utah is found on private land. Local landowners have provided 28,000 acres of their land for conservation management. After the expenditure of over $18 million, these cooperative efforts have increased the primary bird population by 30% and exceeded the government-established recovery goal. In combination with habitat areas that are federally owned and managed, over 75% of occupied habitat is protected, with more to come. But the Service claims this is inadequate and extended the “critical habitat” designation to cover 766,462 acres that are unoccupied. Much of this land is unsuitable as habitat and will remain so. Colorado is challenging the listing as unnecessary in light of the successful conservation efforts while Utah and San Juan County are challenging the designation of “critical habitat” as invalid, in addition to the listing.

Readers of this blog know we are already challenging federal authority to designate non-habitat as “critical habitat” in the U.S. Supreme Court in Markle v. U.S. Fish and Wildlife Service wherein the Service designated over 1500 acres of private land in Louisiana as critical habitat for the dusky gopher frog that is not used or occupied by the species; is not
near areas inhabited by the species; is not accessible to the species; cannot sustain the species without substantial modification; and, does not support the existence or conservation of the species in any way. Yet, the designation may cost the landowners up to $34 million
in lost value.

These cases show an alarming trend in government overreaching. If the ESA allows the Service to regulate and control private land that is not and cannot be used for species conservation, there is no limit to the agency’s power to regulate land nationwide. This is not just an abstract possibility. In 2016, the Service adopted a new rule defining “critical habitat” to include areas that may never be suitable habitat but have the theoretical potential, even if not the actual possibility, of becoming usable habitat. Of course, given enough time and money, any area can be turned into habitat for some species. Accordingly, 18 states have challenged this rule in the Southern District Court of Alabama. This approach to species conservation far exceeds agency authority under the ESA and is a breach of the public trust. Species conservation is laudable, but it must be accomplished by lawful means.

Last Friday, PLF filed an amicus brief  in support of the State of Utah and San Juan County apprising the Colorado District Court of our pending Markle case in the Supreme Court and reiterating the arguments we rely on in our petition for review.  A decision in the Markle gopher frog case will ultimately determine the outcome in the Gunnison sage-grouse case, and the scope of agency authority.

Let’s hope that both of these courts uphold the rule-of-law and draw a line on federal power under the Endangered Species Act.