The State of Missouri recently joined 19 other states (7 of which are in Husch Blackwell’s geographic footprint) in challenging recently-enacted regulations extending the scope of the Endangered Species Act (ESA). State of Alabama ex rel. Strange v. Nat’l Marine Fisheries Service, No.16-cv-00593 (S.D. Ala.).  The National Marine Fisheries Service and the Fish & Wildlife Service (the Services) published the final regulations in February 2016 and they became effective in March 2016.

The ESA requires federal agencies to assure that their actions do not result in the “destruction or adverse modification” of habitat critical to the conservation of threatened or endangered species. Thus, a federal agency may not authorize or fund activities that adversely affect critical habitat.  The new regulations change the method for designating habitat as critical and the meaning of adverse modification.

The ESA distinguishes between “occupied” and “unoccupied” habitat. For the former, the Services must establish that the site has physical or biological features that are essential to the conservation of a species and may require special management considerations or protection.  For the latter, the Services must establish that habitat limited to its current range would be inadequate to ensure conservation of the species.  The statute explicitly states that critical habitat may not include the entire geographical area that can be occupied by the species.

According to the lawsuit, the new regulations exceed the Services’ powers under the ESA in four respects. First, they permit the Services to designate unoccupied land as critical habitat, even if unnecessary to recovery of the species.  Second, they permit the Services to designate areas as occupied critical habitat, even when neither occupied nor containing features necessary to conservation of the species.  Third, they allow the Services to designate uninhabited areas as critical habitat even if incapable of supporting the species.  Fourth, they allow the Services to declare broad, general swaths of land or water as critical habitat without requiring specificity.

The lawsuit also challenges the definition of destruction or adverse modification. It includes not just alterations of physical or biological conditions essential to the conservation of a species, but alterations that preclude or significantly delay development of such features.  Thus, it precludes alterations affecting features that do not presently exist.

The lawsuit seeks declaratory and injunctive relief that the new regulations violate the ESA by unreasonably broadening the Services’ power and under the Administrative Procedure Act as arbitrary and capricious. The Services have moved to dismiss the lawsuit on grounds of standing and ripeness, arguing that the States cannot suffer any concrete injury until one or another of the Services makes use of the allegedly newfound powers.