• Karen Budd-Falen

Will “Fly-Over Country” Have a Voice to Protect Private Property Rights under Endangered Species Act

The proceedings in a distant courthouse in Hawaii might not normally be the central focus of most private property owners, but recent actions at one can only be viewed as the beginning of an effort to crush the voices of rural America, state and local governments and Indian Tribes. Recently, the Biden Administration’s Justice Department and the environmental litigation group EarthJustice entered into an agreement to stay the proceedings in litigation EarthJustice brought as a nationwide effort to overturn regulations developed in 2020. This agreement is likely the first step at trying to eliminate regulations that affirmatively give State governments, local governments, and Indian Tribes a greater voice in designation of critical habitat under the Endangered Species Act (ESA). These 2020 regulations require the Fish and Wildlife Service (FWS) to substantively consider “economic, national security and other relevant impacts” of the designation of critical habitat on private property and federal lands. Although groups like EarthJustice completely exaggerate its description of the impact and requirements of those regulations, the request of the Department of Justice to stay the litigation is consistent with the Biden Administration’s view that Washington D.C. knows what is best for rural America as opposed to the State and local governments and Tribal leaders who represent these areas. It is simply back to the mindset that one size fits all from Washington D.C. is the correct answer to all problems.

ESA section 4(b)(2) was a Congressional amendment to the ESA responding to the Supreme Court’s 1978 decision in Tennessee Valley Authority v. Hill. That amendment required the federal government to consider exclusions of particular areas from proposed critical habitat designations based on economic, national security or other relevant impacts. The only caveat by Congress was that the federal agencies could not exclude areas from critical habitat if it would cause extinction to the species.

Understanding Congress’ concern that critical habitat designations can have significant negative impacts on private property uses, local economies, jobs, State and Tribal wildlife management agency plans and programs and can cause unlimited environmental destruction such as increasing catastrophic wildlife or invasive species which harms threatened or endangered species, in 2020 the Secretary of the Interior issued regulations that require consideration of these human and environmental impacts as seen through the eyes of those who are directly impacted by proposed designations, in other words, State and local governments, Tribal governments, private property owners and federal lands users. Of course, areas of critical habitat can never be excluded if exclusion will result in extinction of the species. That mandate is noted in the ESA as well as in the 2020 regulations. But a plain reading of the statute shows that it is a policy choice whether the Secretary of the Interior will exclude particular areas from proposed critical habitat based on human use, jobs, rural families, local economies, and the local environment, so long as the species does not go extinct. And who better to describe these economic and relevant factors than the state, local and Tribal representatives who live and work in areas where critical habitat is proposed. Thus, in 2020, the Secretary made the right choice to require the FWS use the credible information provided by state governments, local governments, and Indian Tribes to exclude these areas from designation as critical habitat so long as the result is not extinction of the species concerned.

Having long advocated that State and locally elected officials should have a significant and considered voice in the federal agency decisions directly impacting them, the EarthJustice litigation and the Biden review of the ESA 4(b)(2) regulations are a huge concern. I would urge State, Tribal, and local officials and rural America to advocate that the 2020 regulations be strongly defended by the Justice Department as the right policy supported by law and the right protection for rural America, property rights and users of the federal lands.


Karen Budd-Falen is an Attorney with Budd-Falen Law Offices, LLC with a primary focus on property rights, environmental, and natural resources law. Budd-Falen Law Offices, LLC, has attorneys licensed to practice law in Colorado, Idaho, Illinois, Montana, Nebraska, New Mexico, North Dakota, South Dakota, Texas, and Wyoming. This article should not be understood to state or imply that any lawyers of this law firm are certified as specialists in a particular field of law. Colorado does not certify lawyers as specialists in any field. The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer’s credentials and ability, and not rely upon advertisements or self-proclaimed expertise. This article is informational and is not legal advice. Use of this article or contact with this law firm does not create an attorney-client relationship.

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