The Washington Cattlemen’s Association (WCA) and the Pacific Legal Foundation (PLF) have joined together to challenge a decision by the U.S. Fish and Wildlife Service (FWS) to apply the blanket protection of the Endangered Species Act (ESA) not only to species listed as “endangered” but also “threatened”.

On August 4, 2016 WCA and PLF filed a petition with the Fish and Wildlife Service demanding the repeal of a regulation that allows FWS to expand regulation beyond the original intent. Instituted in 1973, the Endangered Species Act prohibits any activity (direct, indirect, or accidental) affecting any member of the targeted species or its habitat.

Under ESA there exist a series of prohibited acts and these prohibitions are referred as a “take”.  “Take” can result in a ban on ordinary land use activities and violators are subject to lawsuits, fines, and imprisonment.

Original approaches to the ESA only applied a “take” automatically to species listed as “endangered” and species listed as “threatened” would have a “take” applied on a case-by-case basis.

Shortly after ESA approval, regulators disregarded the mandate to consider threatened species on a case-by-case basis and instituted a blanket approach to apply regulation automatically to “threatened” species.

The long-reaching effect of this blanket decision has been significant. The blanket approach applies to approximately 150 threatened species that are now subject to “take”, such as the Northern Spotted Owl and the Oregon Spotted Frog. Ignoring the legislative mandate to consider threatened species on a case-by-case basis has allowed the U.S. Fish and Wildlife Service to impose severe burdens on farmers, ranchers, and other property owners, while doing little for the species themselves.

The blanket “take” approach allowed the threatened Northern Spotted Owl to qualify for an automatic “take” instead of mandating the case be considered individually. This case severely damaged the Pacific Northwest’s timber industry – decreasing funding to schools and shutting down many small businesses, all without increasing the owl’s population.

Pacific Legal Foundation wrote, “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. 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.”

Unilaterally considering threatened species under the “take” clause removes the incentive for property owners to protect an “endangered” species. Costs incurred from the attempt to improve populations would only change the species’ listing in name, but the same regulatory burden and cost of the “take” would apply to a “threatened” species as it does an “endangered” species.

WCA and PLF argue “court action will be necessary” if FWS does not repeal this regulation. Returning to the original form of the regulation that directs “threatened” species to be considered on a case-by-case basis will encourage voluntary conservation efforts over intensified regulation. Estimates are that the ESA costs $1.75 billion a year to fund program administration.

Incentivizing species improvement by removing this unsanctioned regulatory expansion will go a long way in improving wildlife protection. Over 2,000 species are listed as threatened or endangered under ESA and during the 40 years of its existence only 63 species have been delisted.

Leaving conservation decisions in local hands allows farmers and landowners to adopt sound practices to improve species populations and their habitat. Harnessing their local knowledge with incentives and rewards rather than punishment will finally make landowners the friends of species at risk, rather than treating them as enemies.