Looking back on a century of ranching in the West, one thread that runs unbroken throughout that history is a trend toward ever-increasing—and seemingly unending—environmental regulations. Possibly well intentioned, often costly and always burdensome, laws with acronyms such as NEPA, FLPMA, CWA and a host of others have become familiar to most ranchers over the past five decades. Among these laws, however, none have equaled the impact or unbridled reach of the Endangered Species Act (ESA).
Originally enacted in 1973, the ESA traces its roots to species preservation laws written in the late 1960s. While these earlier laws established the concept of listing species, the ESA expanded on this by broadening the authority of federal agencies to implement protective measures—including the designation of “critical habitat”—prevented these agencies from jeopardizing the survival of listed species and required they take action to protect imperiled species.
[inline_image file=”b3601a2f22e6bc98c304415733a79d5e.jpg” caption=”A sage grouse lek and grazing cattle.”]
Also buried within the pages of the law was a section titled “citizen suits,” which states that any person or entity may bring a lawsuit in federal court against anyone they allege is violating the ESA, including the government itself. It is this section, perhaps more than any other, that has contributed to the ESA’s transformation into the regulatory juggernaut that it has become.
Intentions gone awry?
“I think that when Congress passed the ESA, they envisioned this would be about big, important species,” Wyoming attorney Karen Budd-Falen told WLJ. “There were 10 species that they were really worried about, and that’s what they were focused on.” According to Budd-Falen, who has recently returned to her practice following a two-year appointment with the Department of Interior, it was lawsuits, not legislation, that fundamentally altered the character of the ESA, shifting the focus from preservation to regulation.
“There wasn’t one definitive event,” Budd-Falen said. “The act itself was very simple. But every time there was a court case, the agency would make the documentation bigger and more difficult. Now, in my opinion, the ESA really is off the rails,” she added.
“The ESA was passed during a time when there was a real concern about loss,” said Kaitlynn Glover, executive director of the Public Lands Council (PLC). “Loss of quality habitat, of diversity, loss of those things we’ve always considered to be special about America. These laws were always intended to be a framework for how we got started in our conservation efforts,” she added.
“But there have been a few species over time that have really set the stage for the law being much more cumbersome and rigid than biology requires, or than Congress ever intended.”
[inline_image file=”f19c76dc6c328ba49168f2e60cc40c33.jpg” caption=”A curious pair of black-footed ferret kits.”]
Whatever the intentions of the legislation’s framers, the early lawsuits filed under the ESA rapidly showcased the law’s far-reaching implications. In 1976, a suit was filed on behalf of the snail darter, an endangered minnow native to the Tennessee river. The lawsuit sought to stop construction of a Tennessee Valley Authority (TVA) dam that plaintiffs contended would destroy critical snail darter habitat.
While neither party disputed the fact that habitat would be lost, TVA’s position was that, with $100 million in government funds already spent, it did not make economic sense to halt construction. The case eventually made it to the Supreme Court, which held that the ESA had no provision for economic considerations, and the snail darter must be protected from extinction “at any cost.”
While subsequent changes to the law ultimately allowed the Tellico Dam to be built, the message was clear: When it came to interpreting ESA law, the protected species came before everything else.
Following the snail darter case, Congress amended the ESA, requiring agencies to consider economic and other factors when designating critical habitat. Over time, however, Glover indicated that implementation of the law has reverted to that same single-minded approach.
“The cases that are the most controversial are the ones where protection efforts are done at the expense of everything else,” she said. “(The ESA) was meant to be a mechanism of last resort. Instead, species are sometimes protected at the expense of biodiversity and often at the expense of local economies. The way the law has been applied over time has changed.”
ESA and ranchers
The impacts of the ESA on the ranching community over the past 48 years is virtually impossible to quantify. On western public lands, nearly every region has seen multiple grazing allotments cleared of livestock in the name of one species or another. On private property, listed species can lead to restrictions on land use, prevention of development and devaluation of the land itself.
In a study published in the journal Land Economics in 2020, economists identified a 53 percent drop in property value on land in California that was assigned as critical habitat when the red-legged frog was listed in 2006. While permitting requirements and the potential for increased regulation at the state level were cited as the primary reasons for property to decline in value following its designation as critical habitat, the study also points out that such designations often bring increased, and potentially unwanted, scrutiny from nongovernmental organizations and individuals as well.
“If you have land that is designated critical habitat, you are not allowed to adversely modify that habitat, exactly the same as on public land,” said Budd-Falen. “We’re starting to see listing petitions for species on private land as well. (Environmental groups) are not differentiating between that and public land.”
[inline_image file=”d104acbff45a5a92dc6946da53aa4155.jpg” caption=”A spotted owl.”]
In the wider agricultural world, protections for species such as the spotted owl in the Pacific Northwest or the shortnose sucker fish in the Klamath Basin have decimated entire economies, reducing logging and farming communities to shells of their former selves. Cases such as these leave ranchers throughout the West worrying that their region may be host to the next iconic species in need of “protection at any cost.”
In an effort to stave off these potentially damaging listings, ranchers in recent years have turned to collaborative efforts with agencies and nonprofit organizations, often investing significant time and money into habitat restoring projects to protect imperiled species. In 2010, the U.S. Fish and Wildlife Service (USFWS) announced that the greater sage-grouse, a bird native to the Great Basin, likely deserved protected status under the ESA.
Amid fears that the sage grouse would prove to be the spotted owl of the Great Basin, landowners banded together with local agencies and nonprofit groups, established habitat plans at the state level and ultimately spent tens of millions of both federal and private dollars on habitat restoration and mitigation efforts.
“After years of successful, voluntary conservation efforts and the development of meaningful partnerships, the ESA designation of the lesser prairie-chicken is severely disappointing.”
Initially, this approach was met with some success. In 2015, USFWS announced that the sage grouse no longer warranted protection under the ESA, crediting the change in status to the efforts of the landowners. Then-Interior Secretary Sally Jewell called the collaboration “the largest land conservation effort in U.S. history.” Despite these accolades, however, USFWS announced at the end of November 2021 they intend to once again assess the status of the sage grouse, leading many to worry that years of effort may prove futile in the long run.
In a similar case on the Great Plains, landowners have mounted a multi-million dollar effort over the last few years to restore habitat for the lesser prairie-chicken, only to have USFWS propose listing the species in June 2021, with the actual endangered listing likely to occur in mid-2022.
“The decision to implement restrictive ESA protections for the species after a decades-long conservation partnership directly disincentives continuation of effective public-private conservation partnerships,” said Glover in a press release. “After years of successful, voluntary conservation efforts and the development of meaningful partnerships, the ESA designation of the lesser prairie-chicken is severely disappointing.”
Even when a listed species is considered recovered by the ESA’s own metrics, it does not necessarily mean that conflicts immediately come to an end. As a result of the citizen suit provision, most delisting efforts are immediately challenged in court by environmental groups, leaving the decision in the hands of federal judges instead of agency scientists. In the Greater Yellowstone area, for example, grizzly bears remain listed despite surpassing the benchmark set for recovery by USFWS personnel in 2005.
Though FWS has tried to delist the species twice, both attempts were struck down by federal judges following lawsuits by environmental groups. Area ranchers, meanwhile, find themselves faced with nearly double the number of bears recommended by USFWS, and many have learned to take 10 percent calf losses as a matter of course.
“Just because it doesn’t work as intended anymore doesn’t mean that the effort to protect biodiversity is any less important.”
Following a similar trajectory, gray wolves required four attempts, beginning in 2008, prior to their eventual delisting late in 2020. Even that decision may not be final, as environmental groups waited just two weeks before filing in federal court to reinstate protections. “We’re disappointed,” said Glover on behalf of the PLC in a September press release. “It is unacceptable for the Service to continue to be held hostage by groups who want nothing more than to turn the ESA into a permanent management tool.”
While ESA has largely become a four-letter word in ranching circles, Glover does point out that it is the punitive and single-minded enforcement of the law, not its basic ideal, that leads to friction with landowners. “The ESA was intended to be a great conservation tool,” she said. “Just because it doesn’t work as intended anymore doesn’t mean that the effort to protect biodiversity is any less important. But we need to move away from single species management if we’re going to have sound wildlife and land management policies in the future.”
