Montana Joins Multi-State Lawsuit Opposing Expansion of Critical Habitat Definition

Montana Attorney General Tim Fox, along with 16 other state attorneys general and one state fish and wildlife agency, filed a lawsuit in federal court in Alabama Tuesday, challenging two newly issued regulations promulgated under the authority of the Endangered Species Act by the U.S. Fish and Wildlife Service (FWS) and the U.S. National Marine Fisheries Service (NMFS).

The states assert that the final administrative rules defining “critical habitats,” as recently issued by the two defendant federal agencies, unlawfully exceed the authority granted to them by Congress as provided in the Endangered Species Act.  The statutory definition of “critical habitats” are those “specific areas within the geographical area occupied by the species at the time it is listed . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection.”

The states assert that the federal agencies have improperly, and unlawfully, expanded the definition of critical habitats by adopting administrative rules to include any land or water habitat currently unoccupied by a threatened or endangered species, but which could potentially provide for the survival of such species in the future.

Congress specifically directed that “critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.” Moreover, Congress directed that lands unoccupied by threatened or endangered species cannot be designated as critical habitat for those species unless the Federal agencies expressly find that those lands “are essential for the conservation of the species.”

The lawsuit contends, that if allowed to stand, the rules would allow U.S. FWS and U.S. NMFS to exercise virtually unlimited power to declare land and water as critical habitat for endangered and threatened species, regardless of whether that land or water is occupied by the species, regardless of physical or biological features necessary to sustain the species, and regardless of whether the land or water is actually essential to the conservation of the species.

The lawsuit also asserts that the final rule would allow the U.S. FWS and U.S. NMFS to declare almost any activity as “destructive of critical habitat,” as any activity could potentially prevent eventual development of characteristics necessary to support the survival of a threatened or endangered species.

Speaking to the newly issued rules being challenged by the States, Montana Attorney General Tim Fox said, “While it’s important to preserve habitat critical to the survival of endangered species, these newly issued regulations are clearly unlawful expansions of authority by the executive branch, and allowing them to move forward would only further erode the integrity of our country’s lawmaking process. I’m hopeful that the incoming administration will scrap these rules, and instead, respect the process used to create laws in this country, rather than promulgate law by executive fiat.”

Click here to view a copy of the full complaint.

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