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Making sense of it: Court rules vacating current ESA ruled unlawful

By Rebecca Colnar for Tri-State Livestock News

On September 21, the 9th Circuit Court of Appeals ruled that a district court improperly vacated 2019 revisions of the Endangered Species Act. The appeals court determined that a district court erred by reversing the regulations without deciding whether they were unlawful.

When the court struck down the Trump rules, there were effectively no rules for the US Fish and Wildlife Service to follow regarding those certain topics, and that was problematic, said Budd-Falen. Now, Trump-era rules will once again be in effect for the moment, “until the Biden administration writes new rules and goes through public notice and comment, or until the judge goes back and looks at the merits of the arguments and says ‘as a legal matter, Trump was wrong.’”

President Trump had implemented three new rules in 2019. Then a district court determined that the rules ought to be struck, without determining whether they were unlawful, said Cheyenne property rights attorney, Karen Budd-Falen. When the court struck down the Trump rules, there were effectively no rules for the US Fish and Wildlife Service to follow, which was problematic, said Budd-Falen.



The Biden administration indicated an interest in “revisiting” the rules but the court just struck them down, so in the meantime, no rules for that particularly part of the ESA existed, which caused problems, she said.

Budd-Falen, who, as the Deputy Solicitor for Wildlife and Parks under the Trump administration, actually helped write the 2019 rules, said that the part of the rule that will most affect ranchers has to do with habitat of endangered species.



The 2019 rule change required the government to distinguish between occupied and unoccupied critical habitat. Only land occupied by the endangered species could be designated as critical habitat. “In our opinion, (before the 2019 rule change) they were making much larger critical habitat designations than necessary. They included habitat ‘that could be manipulated into habitat.’ So you designate something as critical habitat today when you had to do something to it, restore it and manipulate it so that the species could live there.”

Trump staff said, “No, we believe that Congress meant that the species had to occupy the habitat now, not take 30 years to destroy it. We’re not going to take a parking lot and designate it now, and then tear up the parking lot and plant the trees, grass, or whatever it is. That’s not critical habitat, and that’s one of the things we changed.”

Habitat designations matter to ranchers because, once designated, the land can’t be “adversely modified” without government approval. So fences, buildings, sometimes grazing, water improvements, and more would have to be government-approved. This can occur on private or government land.

Budd-Falen said it was very confusing how the district court made its July ruling that vacated the 2019 revisions.

Budd-Falen, whose law office serves private property owners, ranching and farming organizations, and local governments, said, “Normally when you have a rule, and the court looks at the merits and says either the merits are wrong, or the merits are right, whatever the legal decision is. The district court didn’t ever say that. It just said that the Biden administration wants to redo the rules; therefore, they are vacating the rules as it is. That meant nobody knew what rules were implemented and how they would be implemented during the time it takes to write new rules.”

Budd-Falen said writing rules takes a long time and is not something that can be done in a couple of weeks. “That’s what this recent ruling at the Court of Appeals pointed out; you can’t revoke a rule and leave everything in complete limbo.”

The attorney said the rules written by the Trump Administration in 2019 had gone through the proper channels to become law, explaining three critical aspects for farmers and ranchers. One was the crititcal habitat issue explained earlier in this article. The other two have to do with what is causing a species to be threatened, and a third, ‘very complicated’ rule.

“One of the rules said that when a threatened species is listed, the Fish and Wildlife Service has to write what they call a 4-D rule to go with it. A 4-D under the ESA means that the U.S. Fish and Wildlife Service is to look at what is causing the species to be threatened and address those but leave everything else alone.

“For example, if you have, say, a bat that is listed as threatened. The Fish and Wildlife Service already said the problem is that these bats all have this white-nose syndrome, a disease from the soil. Scientists have not figured out how the bats get it or what’s causing it. These bats live in timber habitats. The rule said, “It’s not the fact the habitat is a problem, it’s that these bats have this disease, so only regulate those issues related to the disease. If something else is not hurting the bat, then we’re not going to regulate that.”

The third rule changed under the Trump Administration is in Section 7 consultation. The lawyer said it was complicated to summarize, but, “Trust me, it was better for ranchers,” Budd-Falen said.

The Trump changes will remain in place with this current Appeals Court ruling. The Biden administration will decide what regulatory changes they want to make and then go through the public notice and comment process before they can implement any changes.

Budd-Falen noted that is what the Biden Administration had requested, going through the proper channels to make revisions. Simply eliminating all of the changes in the ESA that the Trump Administration had made was what had been requested by the Center for Biological Diversity in district court.

How quickly the Biden Administration comes up with a rule change that goes through the proper protocol depends on how fast they want to move it along.

“It takes a while, though, because even if you want to move quickly, you still must have a competent process. You’ve got to make a draft rule, have a public comment process, analyze all the comments and respond to all the comments. You can’t do all of that in just a couple of months.”

The American Farm Bureau said they appreciated the 9th Circuit Court of Appeals ruling. “The revisions to the Endangered Species Act protected at-risk animals while ensuring farmers could continue feeding America’s families. This ruling doesn’t end the debate about modernizing the ESA, but it sends an important message to the 9th Circuit lower courts that their job is to rule based on the law, and they can no longer vacate a rule unless they determine it is unlawful.”

 


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