ESA Takings Challenged

Washington Cattlemen Seek Repeal of Endangered Species Act Take Provision

: The U.S. Fish and Wildlife Service removed the lesser prairie chicken from the threatened list this summer. The Pacific Legal Foundation has petitioned USFWS to repeal the takings regulation that applies to threatened species. (Photo by Marcus Miller, courtesy NRCS)

OMAHA (DTN) -- The Pacific Legal Foundation petitioned the U.S. Fish and Wildlife Service to repeal a regulation that applies the take provision of the Endangered Species Act to every threatened species listed, according to a 19-page petition filed late last week.

In the petition brought on behalf of the Washington Cattlemen's Association, the group makes the case the law does not give blanket authority to federal regulators to apply its take provision to each of 150 threatened species listed.

A Congressional Research Service report from 2013 said the statute defines a taking as any act that adversely affects a species that includes "to harass, harm, pursue, hunt, capture or collect" a listed animal. The USFWS defines "harm" to include habitat modifications made by private landowners.

There has been an outcry from farmers and ranchers in the West who say the federal government is overreaching and protecting species and their habitats, essentially assuming control of private land after the federal government strikes deals with litigants behind closed doors.

The majority of species that are candidates for listing under the Endangered Species Act are found in Western states. However, many species are located in Corn Belt states including Nebraska, Kansas, Missouri, Iowa, Illinois and Indiana.

The PLF petition points to examples in the Pacific Northwest where the take regulation on threatened species -- including the northern spotted owl -- hurt industries. The USFWS classification of the owl as threatened hurt the timber industry, according to the petition.

Applying the takings regulation to threatened species, PLF said, has hurt voluntary conservation measures.

"In the 1970s, the service adopted a regulation extending the statute's burdensome take prohibition to all threatened species, despite Congress' decision to expressly limit the application of that 'stringent prohibition' to endangered species," PLF said. "That regulation erodes the distinction between endangered and threatened species, stripping away what should be the key incentive to preserve threatened species and recover endangered ones.

"The regulation also frustrates the service's reform effort, by reducing predictability for landowners and creating a strong incentive for lawsuits... Repealing the regulation will normalize the service's practice of favoring private, voluntary conservation efforts over regulation, giving both the service and affected landowners more certainty and reducing litigation."

If the Fish and Wildlife Service does not respond to the petition by repealing its regulations, the Pacific Legal Foundation states "court actions will be necessary."

Vanessa C. Kauffman, public affairs specialist with the USFWS, said the agency cannot comment on pending litigation. However, she told DTN the Endangered Species Act has done its job.

"The take provision of the Endangered Species Act forms the very foundation of the nation's most important wildlife conservation law," she said. "Its role in recovering dozens of species and preventing the extinction of hundreds more, both threatened and endangered, during the act's 43-year history speaks for itself."

Jack Field, executive vice president of the Washington Cattlemen's Association said in a news release the takings regulation continues to hurt farmers and ranchers in the state.

"The Washington Cattlemen's Association is joining this petition because we have members who are harmed by draconian 'take' restrictions that aren't justified either for environmental protection, or under an honest reading of the Endangered Species Act," he said.

"Everyone knows how the ESA restrictions for the spotted owl decimated the Pacific Northwest's timber industry. What may be less known is that the spotted owl is categorized as 'threatened,' not 'endangered,' so regulators were overstepping when they imposed the 'take' prohibition and destroyed so many timber businesses and jobs. Many farmers and ranchers continue to be victims of illegal overkill by ESA regulators."

PLF attorney Jonathan Wood said in a statement the USFWS is not following Congressional intent.

"As our petition makes clear, the Endangered Species Act does not permit regulators to categorically forbid the take of threatened species," he said.

"They must examine each individual threatened species on a case-by-case basis. But instead of following the instructions of Congress, the Fish and Wildlife Service has taken the law into its own hands and unilaterally decreed a radical expansion of the 'take' prohibition."

In April, USFWS Director Dan Ashe told members of a subcommittee of the U.S. House of Representatives Oversight and Government Reform committee, his agency is trying to be proactive to avoid ESA litigation.

According to the USFWS, 63 species have been de-listed since the law went into effect 44 years ago. There are about 2,000 species listed. The reason is environmental groups have largely opposed efforts to de-list species, although some are no longer in need of federal protection.

The American Farm Bureau Federation estimates a cost of about $1.75 billion annually to protect species.

Nearly 300 new species have been listed during the Obama administration. That includes more than 120 species listed as a result of litigation.

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

Follow him on Twitter @toddneeleyDTN

(CC/AG)