ESA Reforms Restored by Ninth Circuit

Endangered Species Act Reforms Restored in Ninth Circuit Court Ruling

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The U.S. Court of Appeals for the Ninth Circuit restored previously vacated reforms to the Endangered Species Act. Pictured here is the Lesser Prairie-Chicken, currently listed as endangered by the U.S. Fish & Wildlife Service. (Photo courtesy of Natural Resources Conservation Service)

LINCOLN, Neb. (DTN) -- Trump administration Endangered Species Act reforms that were thrown out by a federal court have been at least temporarily reinstated after a federal appeals court ruled on Wednesday that a lower court erred in its decision.

The reforms were brought about by an executive order signed by President Donald Trump in 2019. The Trump administration and agriculture groups said the reforms would allow landowners to tailor protections to species' individual conservation needs but would not have affected protections for species identified as threatened.

AFBF President Zippy Duvall said in a news release the reforms were needed to provide certainty to farmers and ranchers.

"This ruling doesn't bring an end to the debate about modernizing the ESA," he said, "but it sends an important message to the Ninth Circuit lower courts that their job is to rule based on the law. They can no longer vacate a rule unless they determine it is unlawful."

Back in July this year, the rule supported by agriculture groups was vacated by the U.S. District Court for the District of Northern California.

On Wednesday, the U.S. Court of Appeals for the Ninth Circuit reversed that decision ruling, saying, "It is apparent that the district court in its July 5, 2022, order clearly erred in vacating the 2019 rules without ruling on their legal validity."

The appeal was filed at the end of August by the American Farm Bureau Federation on behalf of the Washington Cattlemen's Association.

DOES NOT END LAWSUIT

Brook Duer, staff attorney at Penn State University's Center for Agricultural and Shale Law, told DTN the Ninth Circuit ruling does not effectively end the lawsuit in the district court.

"This order means that the district court's invalidation of the ESA rule is stayed -- the ESA rule remains effective for the time being -- and now the district court is being told get back to work on the case," he said.

The district court had a motion before it to amend its prior judgement in the case, or a motion to reconsider. Duer said the Ninth Circuit ruling amounts to a stay in the case, giving the district court a chance to reconsider.

BLANKET RULES HAD BEEN REMOVED

The U.S. Fish and Wildlife Service in 2019 had removed a blanket rule in the ESA that automatically granted the same protections for threatened species that are available for endangered species.

In vacating and remanding the rule, U.S. District Judge Jon S. Tigar said the Trump rule contained a "serious" error in the way the rule was drafted that eliminated "so-called blanket protections for species listed as threatened."

The ESA reforms developed as a result of a Trump executive order did not affect protections for species that were listed as threatened.

Environmental groups, including the Center for Biological Diversity had sued the Biden administration, arguing the Trump rules removed needed protections.

AG GROUPS INTERVENED IN CASE

A number of states and agriculture groups intervened in the case including Nebraska and Kansas. Ag groups intervening included the American Farm Bureau Federation, National Cattlemen's Beef Association, Public Lands Council, Washington Cattlemen's Association, and the Pacific Legal Foundation. They were joined in the defense of the Trump regulation by the likes of the American Petroleum Institute.

In June 2021, the U.S. Fish and Wildlife Service announced its intention to rescind and revise the rule.

The Biden administration had asked the court to remand the rule to the services while leaving the rule in place during a rewrite. USFWS indicated in documents filed in the case that a remand and vacation could create confusion among the regulated public.

Back in 2019, Gary Frazier, then assistant director for endangered species at USFWS in the Trump administration, said during a news conference the ESA included protection for species for the "foreseeable future" without defining the term.

LISTED SPECIES

According to a March 2021 report by the Congressional Research Service, more than 2,400 species have been listed as threatened or endangered as a result of the Endangered Species Act.

As of October 2020, 91 species had been delisted under the ESA since it was enacted in 1973 or about 3.7% of the total number of species ever listed.

The Trump rules required lands designated as unoccupied critical habitat to include at least one physical or biological feature needed to conserve the species.

The rules required that decisions made to add or remove species from the threatened and endangered lists would continue to be based solely on best-available scientific and commercial information.

The Trump administration had urged federal agencies to consider economic factors when it comes to federal rules and regulations.

Changes made to section 7 of the ESA, made it less likely for government actions to jeopardize the continued existence of listed species or destroy or adversely modify their critical habitat.

Read more on DTN:

"Federal Judge Vacates Trump 2019 ESA Reforms," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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Todd Neeley