The U.S. Supreme Court is tasked with—among other things—reviewing federal regulations and determining whether they comply with the statutes passed by Congress. In 2019, the U.S. Supreme Court did just that with the Endangered Species Act (ESA) by stating that before the U.S. Fish and Wildlife Service can designate an area as “critical habitat,” first the area “must be” habitat.
The Supreme Court did not say that the area could become habitat at some time in the future or that the federal government could blackmail you into restoring an area into habitat in the future. The court said ESA critical habitat must first be habitat.
Despite this plain language and knowing that every student learned the difference between present, past and future verb tenses, the Biden administration has repealed the Trump regulations implementing the Supreme Court’s habitat definition. According to Biden, it was necessary to rescind the Trump definition because the government wants to designate (and regulate) areas that do not meet a listed species’ needs now but may be able to “in the future” due to “natural processes or restoration.”
Take a practical example. My husband and I have a ranch north of Cheyenne, WY. Our property supports a cow-calf operation, several horses, a decent cow dog, two worthless but loveable mutts, several barn cats and our daughter’s homely potbellied pig.
Lodgepole Creek runs through our property, although the creek dries up in the late summer and fall if we don’t get any rain. Two hundred and seventy-eight miles past our house, Lodgepole Creek drains into the South Platte River (a navigable water).
Currently, our private property is not designated as habitat for any ESA species. We use our property to raise beef to feed our family, this nation and the world. Under the Trump definition of habitat, the federal government would have to scientifically show that our land currently contains (present verb tense) at least one of the physical or biological features necessary to support a threatened or endangered species to define our property as “habitat.”
However, under Biden’s pronouncement, our private land could be designated as habitat today—for a species that cannot live there today—because the species might live there “someday” based on natural processes (i.e., climate change) or by blackmail.
Ah, but the government says, “Oh no, your land is not affected because the designation of critical habitat does not impact private property use.” What the government doesn’t mention is that if you need a permit from any federal agency to put in a water tank, for example—which we would if we wanted one near Lodgepole Creek, as it falls under the Corp of Engineers’ jurisdiction—the government could condition the granting of our permit on us “restoring” our property as habitat for a species that doesn’t live there.
In one interview, a Biden official was asked whether the new rule means the federal government could force someone to tear up a paved parking lot and plant trees as habitat, and she admitted that could happen. Never mind that a parking lot may be necessary for the survival of a small business, the economic cost of doing the “restoration” to the property owner or the amount of time that the parking lot had been in place. Also never mind that this will add to skyrocketing inflation, more food insecurity, fewer jobs and greater burdens on small businesses.
And don’t get me started on whether our ranch could support polar bears based on climate change. The Biden decision doesn’t give a time frame on when the “natural processes” need to happen. In 10 years or 10,000 years, climate change could make our backyard polar bear habitat, so it could be designated as habitat now. So, watch your backyards, farms, ranches and homes. Based on “natural processes” or “restoration,” you could be living in polar bear habitat too. — Karen Budd-Falen
(Karen Budd-Falen is an attorney with Budd-Falen Law Offices LLC, with a primary focus on property rights, environmental and natural resources law.)
