August 5, 2016

PLF and Washington Cattlemen's Association call for repeal of illegal, counterproductive ESA regulation

By Jonathan Wood Attorney

This week, PLF submitted a petition, on behalf of the Washington Cattlemen’s Association, asking the U.S. Fish and Wildlife Service to repeal a regulation that illegally forbids the “take” of all species listed as “threatened” under the Endangered Species Act. This regulation has a huge impact on property owners in Washington and across the country, despite overwhelming evidence that Congress never gave the Service power to issue it.

It’s difficult to overstate the impact of this regulation on affected property owners. As regular readers may recall, the ESA defines “take” incredibly broadly, so that essentially anything that affects a single member of a protected species or its habitat is forbidden, and potentially subject to criminal sanctions. If listed species are on your property, you essentially lose any ability to use it, unless you can navigate expensive and complicated federal permitting. Even activities intended to benefit the species are forbidden, as a Virginia girl learned a few years ago when her family was cited because she saved a protected bird from a cat and nursed it to health (capturing, regardless of the reason, is considered take).

When Congress enacted the ESA, it recognized that the take prohibition imposes significant burdens on property owners. However, it decided that this was necessary as a last resort to protect the most at-risk species. That’s why the statute expressly limits the prohibition to endangered species–those currently facing extinction. The ESA also provides for the listing of “threatened” species–which merely may become endangered at some point in the foreseeable future. For these less-vulnerable species, Congress decided that the take prohibition generally isn’t warranted.

Unfortunately, bureaucrats at the Service thought they knew better than Congress and decided to adopt a regulation prohibiting the take of all threatened species. In addition to showing why this regulation is illegal, our petition also explains that it is counterproductive. By imposing the same draconian regulations to endangered and threatened species, the Service has eliminated a key incentive for private, voluntary conservation efforts. If Congress’ original plan was restored, property owners would have strong incentives to recover endangered species on their lands, because doing so would mean they’d escape the take prohibition. However, under the regulation, property owners receive no reward for devoting their own money and energy to recovering rare species. To the contrary, by doing so, they expose themselves to the threat of lawsuits and the possibility that they’ll inadvertently violate the take prohibition and wind up in jail.

If you’d like to learn more about our petition, check out our litigation backgrounder, the petition, this law review article (on which the petition is based), and our case page.

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Petitions to Repeal 50 C.F.R. § 17.31

PLF filed parallel petitions asking the Fish and Wildlife Service and Department of Interior to rescind an illegally-adopted regulation that extends the Endangered Species Act’s “take” prohibition to all threatened species, including those not yet listed. The ESA treats endangered and threatened species differently. The penalties for a “take” of an endangered species results in substantial civil and criminal penalties.

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