December 6, 2018

It’s time to restrain federal agencies’ power grabs

By Jeffrey W. McCoy Attorney

PLF filed a fresh lawsuit today on the heels of our latest Supreme Court victory. Last week, in Weyerhaeuser v. United States Fish and Wildlife Service, a unanimous Supreme Court reaffirmed that agencies are not immune from judicial review of their actions.

This wasn’t just a win for PLF and our clients: it was also a win for the critical principle that government agencies do not have unlimited power to make regulatory decisions that infringe on Americans’ constitutional rights.

Specifically, the court held that the U.S. Fish and Wildlife Service (FWS), when making decisions under the Endangered Species Act, must follow the procedures Congress laid out in the statute. Furthermore, the agency’s decisions must be reasonable, because Congress set limits on the FWS’s discretion to act.

Our newly file suit focuses on a 2016 rule in which the FWS failed both these tests. That year, the service designated “critical habitat” for the New Mexico Meadow Jumping Mouse, a small rodent found mostly in New Mexico. A critical habitat designation results in heavy costs, especially for the ranchers who graze livestock in the area.

Many of these ranchers decided to challenge the 2016 critical habitat designation, with PLF’s help. Members of the Northern New Mexico Stockman’s Association and the Otero County Cattleman’s Association have been ranching land in New Mexico for generations. In fact, many members of the Northern New Mexico Stockman are part of the historic Hispanic Ranching Families of New Mexico, whose histories date back to the original founding of the livestock industry in North America. These ranchers own water rights related to their livestock grazing, but their history and livelihood are now at risk.

The designation threatens the ranchers’ access to that water, even in areas where the mouse is not found. In Otero County, the U.S. Forest Service has put up electric fences to prevent access to streams and creeks. The FWS has also stated that these ranchers may have to reduce the number of cattle grazed in the future because of the critical habitat designation.

In deciding to take these drastic measures, FWS officials failed to follow the proper procedures, and then reached an irrational decision contrary to the evidence before the agency.

As the Supreme Court stated last week in Weyerhaeuser, the Endangered Species Act “describes a unified process for weighing the impact of designation an area as critical habitat.” Federal officials are required to weigh all of the economic impacts of a critical habitat designation, and then decide whether the benefits of excluding certain areas from designation outweigh the benefits of the designation.

In total, the FWS estimated the designation will lead to about $20 million in added regulatory costs. But that number vastly underestimates the costs of the service’s actions.

First, they did not even attempt to consider the economic impacts of interfering with the ranchers’ access to their water. Moreover, the FWS is supposed to analyze all economic impacts—even those that may be attributable to causes in addition to critical habitat designation—before designating critical habitat. Again, FWS officials simply ignored that requirement. But even taking their flawed economic analysis as true, the critical habitat designation has had (and will continue to have) a significant economic impact on ranchers in New Mexico.

Such a large impact should have given the FWS pause. Instead, they merely concluded that the critical habitat designation would not result in any “disproportionate costs” to anyone. It is unclear how they reached this conclusion, because it failed to define what it meant by “disproportionate costs.” In fact, it failed even to assess the supposed benefits of the critical habitat designation.

To once again steal a line from the Weyerhaeuser opinion, the FWS “did not properly justify its determination under a standard set forth in the statute.”

Regulatory bureaucrats cannot ignore Congressional commands when it makes a decision. When they do, a court can and should set aside that decision. The Supreme Court reaffirmed that principle last week. With this latest suit, PLF will continue to apply that principle and hold agencies accountable when they do not follow the law.

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