The federal government wants to clarify the
Endangered Species Act with two upcoming policy changes that
ranching interests fear will greatly increase the law's
In both cases, the Obama administration is
attempting to resolve legal disputes over language in the
act -- and appears to side with arguments that would
interpret its authority more broadly.
Ranchers would be affected by a more
expansive understanding of the ESA's scope, as many rely on
public lands for grazing and own property potentially
inhabited by protected species.
The combined effect of the policies would be
to subject more land to ESA restrictions while relieving the
government from considering the law's full economic impact,
according to rancher advocates.
The first policy deals with how the
government deals with a species that faces varying levels of
danger across its range.
Under the ESA, protections are extended to a
species that is endangered or threatened "throughout all or
a significant portion of its range."
The Bush administration understood the law to
mean that protections may only apply to the "significant
portion" where the species is threatened or endangered, not
to areas where it's healthy.
However, two federal judges disagreed with
that approach because it excluded some members of a listed
species from ESA protection.
The Obama administration withdrew the
previous policy and has proposed a replacement to resolve
"tensions and ambiguities" in the law.
The proposed policy states that if the
viability of a species is at risk in a significant portion
of its range, protections will apply across all of its
One practical effect of the new policy will
be to open more of the landscape to designation as "critical
habitat," said Karen Budd-Falen, an attorney who represents
ranchers and other natural resource industries.
"It will be more designations and bigger
designations," she said.
Federal agencies cannot "adversely modify"
critical habitat, even if an area isn't occupied by a
For example, cattle can be subject to greater
restrictions on grazing near streams that are considered
critical habitat even if no endangered or threatened fish
swim in them, said Budd-Falen.
Another looming policy change involves the
economic analysis that the government must conduct when
designating an area as critical habitat.
Faced with conflicting appeals court rulings,
the administration has chosen to adopt an interpretation
that minimizes the full measure of economic disruption.
The policy assumes that a protected species
already inhabits an area, said Budd-Falen. The economic
analysis is thus limited to the incremental impact of the
critical habitat designation.
In reality the species may not occupy the
area at all, so the approach fails to consider the full
economic consequences associated with the designation, she
Under the ESA, areas can be excluded from
critical habitat based on economic harm, Budd-Falen said. If
the administration assumes there's no impact, though, more
land will qualify for designation.
"It's pretty critical to us to have economic
considerations included in the Endangered Species Act," she
The issue is especially worrisome because
critical habitat designations could result in restrictions
on private land if ranchers receive federal crop insurance
or other federal assistance, Budd-Falen said.
"It is massively far-reaching," she said.
Dustin Van Liew, executive director of the
Public Lands Council, which advocates for grazing, said it's
troubling that the federal government is trying to resolve a
conflict between two appellate rulings, which should be the
role of the U.S. Supreme Court.
Van Liew said he'd like Congress to resolve
these questions more permanently as part of a broad ESA
"We'd like to see this as part of that
discussion, so there would be certainty afforded to
ranchers," he said.
The Center for Biological Diversity, an
environmental group, believes the Obama administration's
definition of "significant portion" is too restrictive.
Under the proposal, an area is considered
significant only if it's absence would put the species in
danger of extinction.
Noah Greenwald, endangered species director
for group, said that bar has been set too high.
He said it's an "erroneous conclusion" that
the overall policy change would result in more critical
As for the economic analysis policy,
Greenwald said it makes sense to consider the listing itself
separately from the critical habitat designation.
Even if an area doesn't contain the species,
it may be needed for critical habitat to provide stability
for the population, he said.