Commentary: Nevada joins challenge of Endangered Species Act rule changes


Nevada has joined an 18-state coalition that has filed suit against various federal land agencies for essentially rewriting the Endangered Species Act of 1973 (ESA) to in effect give themselves potential veto power over any use whatsoever on every square foot of rural land in the country.

Though the ESA gives the U.S. Fish and Wildlife Service authority to protect “critical habitat” occupied by endangered or threatened species on public and private land, the new rules sweepingly redefine “critical habitat” to include land currently unoccupied by those species and even to include land that just might someday, in someway, somehow later become “critical habitat.”

The new rules give federal agents the power to block or alter any activity — grazing, farming, buildings, mining, recreation, roads, fences, pipelines, ditches, power lines, irrigation, oil and gas exploration — that might somehow adversely affect a potential habitat for certain protected rodents, minnows, bugs, birds, reptiles and beasts.

In a press release announcing the litigation, Nevada Attorney General Adam Laxalt noted that the rule change could allow the federal government to declare “desert land as critical habitat for a protected fish and then prevent the construction of a highway through the land, under the theory that it would prevent the future formation of a stream that might one day support the fish.” The passage is almost verbatim from the lawsuit.

The suit was filed this past week in federal court in Alabama. It names as defendants the U.S. Secretary of the Interior, the National Marine Fisheries Service, the U.S. Secretary of Commerce and the U.S. Fish and Wildlife Service.

“As we have seen countless times, this administration’s novel rules reach well beyond anything Congress could have ever intended and will have adverse effects on individual states, businesses and families,” said Laxalt in the press release. “In practice, these latest rules expand federal oversight to the point that the federal government could potentially designate an entire state or even multiple states as critical habitat for certain species. I will continue to protect our state from this type of unwarranted and burdensome federal overreach.”

The sweeping definition of habitat appears to fly in the face of the law’s requirement that “critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species,” except in circumstance determined by the secretary of the Interior.

Alabama’s Attorney General Luther Strange said in a press release, “Washington bureaucrats have gone beyond common sense by seeking to expand their control to private property adjoining the habitat of an endangered species solely on the basis that these areas might one day be home to a threatened species.”
The suit declares the new rules are “an unlawful attempt to expand regulatory authority and control over State lands and waters and should be vacated and enjoined because they violate the ESA and the Administrative Procedure Act. (APA)”

The suit goes on to say that the ESA as written by Congress respects the rights of states to manage and control land inside their boundaries, but, “The Final Rules issued by the Services trample upon the sovereign rights of the States as landowners and stewards of their natural resources. They directly implicate state management decisions related to wildlife regulation, forest management, water management, state owned or supported projects, and other areas of traditional State control.”

The suit also takes issue with the aforementioned fact that the new rules “declare that essential features include not only the physical or biological aspects that actually support the species, but also items that might lead to the development of those species-supporting features sometime in the future.”

Arguments against the rules posted in the Federal Register earlier this year note that this “constitutes an impermissible reliance upon hope and speculation.” As well as a crystal ball or reading of tea leaves.

The lawsuit also notes the rules create huge costs for private landowners and small business who must go to the expense of obtaining federal permits in order to make even minor modifications to their own property. Permits can be denied under rules that are arbitrary, capricious and onerous.

In addition to Nevada and Alabama, other suing states are Alaska, Arkansas, Arizona, Colorado, Kansas, Louisiana, Michigan, Montana, Nebraska, New Mexico, North Dakota, South Carolina, Texas, West Virginia, Wisconsin and Wyoming.

To place the effectiveness of the Endangered Species Act in perspective: Only 1 percent of listed species have ever recovered sufficiently to be delisted, despite the law’s immense impact on economic endeavors. Not much return on investment.

Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at He also blogs at


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