Unelected bureaucrats must follow the law, too

Originally published by The Hill, December 19, 2018.

One of the first things Americans learn in civics class is that Congress makes laws and the executive branch enforces those laws. Unfortunately, that key constitutional principle has been eroded, with regulatory agencies ignoring congressional commands and instead making their own laws through administrative regulations. Even worse, courts often refuse to review these agency decisions, which results in an unaccountable bureaucracy running the country.

Last month, a unanimous Supreme Court issued a decision that could help restore the balance of power between the legislative and executive branches. In Weyerhaeuser v. United States Fish and Wildlife Service, the court held that the Fish and Wildlife Service (FWS) does not have unfettered discretion when enforcing the Endangered Species Act (ESA).

As the court recognized, the ESA requires that the FWS review the costs and benefits of designating land as “critical habitat” for an endangered species, and allows the FWS to exclude areas if the costs of a designation outweighs the benefits. For years, the FWS has sought to prevent courts from reviewing their decisions about critical habitat designations.

But while the law gives the agency some discretion in making its decisions, it does not give the agency the authority to make decisions that are irrational or unsupported by evidence. As the Supreme Court said in Weyerhaeuser, an argument that the FWS did not reasonably consider costs and benefits when designating critical habitat “is the sort of claim that federal courts routinely assess when determining whether to set aside an agency’s decision as an abuse of discretion.”

Many legal scholars and lawyers have remarked about the importance of the Weyerhaeuser decision on administrative law. But this victory is not just academic. Judicial review of agency decisions is important for the everyday people who are impacted by those decisions, and review is necessary when agency decisions violate constitutionally protected rights.

That’s why Pacific Legal Foundation (PLF) followed up our victory in Weyerhaeuser with a new lawsuit in New Mexico. The lawsuit challenges the 2016 critical habitat designation for the New Mexico meadow jumping mouse, a small rodent found in Arizona, Colorado and New Mexico. The designation results in heavy costs, especially for the ranchers who graze livestock in the area.

PLF represents the Northern New Mexico Stockman’s Association and the Otero County Cattlemen’s Association. Many of these organizations’ members and their ancestors have been ranching in New Mexico for centuries, some even before the area was granted statehood. These ranchers own water rights related to their livestock grazing, as a federal court in Washington, D.C., confirmed last month.

The critical habitat designation interferes with these ranchers’ ability to raise livestock and access their water. In Otero County, the U.S. Forest Service has put up electric fences to prevent access to streams and creeks. The FWS has stated that these ranchers may have to reduce the number of cattle grazed in the future because of the critical habitat designation.

In total, the FWS estimated the designation will lead to about $20 million in added regulatory costs, and that number likely underestimates the total costs. It does not, for example, take into account the costs of interfering with the ranchers’ water rights.

But even assuming the FWS’s cost estimate were correct, the agency was required to explain its thought process for weighing the costs and benefits of designating critical habitat. In the recent words of the Supreme Court, the Endangered Species Act “describes a unified process for weighing the impact of designating an area as critical habitat.” The FWS did not follow that process here, but rather made conclusory statements about how the designation was warranted.

The Constitution’s separation of powers requires that the legislative branch makes the laws and the executive branch executes those laws. In other words, regulatory bureaucrats cannot ignore congressional commands when making a decision. When they do, a court can — and should — set aside that decision. The Supreme Court reaffirmed that principle last week. The federal court in New Mexico should follow suit and help protect New Mexico ranchers’ livelihood.

Jeffrey McCoy is an attorney with Pacific Legal Foundation in Sacramento, California. He represents the Northern New Mexico Stockman’s Association and the Otero County Cattlemen’s Association in a lawsuit against the U.S. Fish and Wildlife Service.