By: Karen Budd-Falen
The U.S. Supreme Court is tasked with, among other things, reviewing federal regulations and determining whether they comply with the statutes passed by Congress. In 2019, the U.S. Supreme Court did just that with the Endangered Species Act (ESA) by stating that before the U.S. Fish and Wildlife Service (FWS) can designate an area as “critical habitat,” first the area “must be” habitat. The Supreme Court did not say that the area could become habitat at some time in the future or that it could be an area that the federal government could blackmail you into restoring into habitat in the future. The Court said ESA critical habitat must first be habitat. Despite this clear language and knowing that every student learned the difference between present tense, past tense and future tense, the Biden administration has now repealed the Trump regulations implementing the Supreme Court’s habitat definition. Rather according to Biden, it was necessary to rescind the Trump definition because the government wants to designate (and regulate) areas that currently do not meet a listed species needs now but may be able to “in the future” due to “natural processes or restoration.”
Take a practical example. Frank and I have a ranch north of Cheyenne, Wyoming. Our property supports a cow/calf operation; several horses; a decent cow dog; two worthless but loveable mutts; several barn cats and our daughter’s homely pot-belly pig. Lodgepole Creek runs through our property, although the creek dries up in the late summer and fall if we don’t get any rain. Two hundred and seventy-eight miles past our house, Lodgepole Creek drains into the South Platte River (a navigable water).
Currently, our private property is not designated as habitat for any ESA species. We use our property to raise beef to feed our family, this nation and the world. Under the Trump definition of habitat, the federal government would have to scientifically show that our land currently contains (present verb tense) at least one of the physical or biological features necessary to support a threatened or endangered species to designate our property as “habitat.” However, under Biden’s pronouncement, our private land could be designated as habitat today for a species that cannot live there today because the species might live there “someday” based on natural processes (i.e., climate change) or because of forced restoration.
Ah, but the government says, “oh no, your land is not affected because the designation of critical habitat does impact private property use.” What the government doesn’t mention is that if you need a permit from any federal agency to, for example, put in a water tank (which we would if we wanted one near Lodgepole Creek because under Biden’s Clean Water Act definition, Lodgepole Creek is a navigable water governed by the Corp of Engineers), the government could condition the granting of our permit on us paying to “restore” our property as habitat for a species that doesn’t live there. In one interview a Biden official was asked whether the new decision means that the federal government could force someone to tear up a paved parking lot and plant trees as habitat and she admitted that could happen. Never mind that parking lot may be necessary for the survival of a small business, or the economic cost of the restoration to the owner or the amount of time that the parking lot had been in place. Also never mind that this will add to sky-rocketing inflation, more food insecurity, less jobs and greater burden on small businesses.
And don’t get me started on whether our ranch could support polar bears based on climate change. The Biden decision doesn’t give a timeframe on when the “natural processes” need to happen, so in 10 years or 1000 years, climate change could make my backyard polar bear habitat so it could be designated as habitat now. So watch your backyards, farms, ranches and homes. Based on “natural processes” or restoration, you could be living in polar bear habitat too.