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FWS Sued Over “Burdensome” ESA Regulations After Endangered Bird’s Habitat Overlaps With Cattle Ranch

Herd of steers looking at camera

Group of young steers in the meadow

A cattle growers’ association sued several federal agencies for the allegedly “burdensome federal regulations” on land use imposed under the Endangered Species Act, particularly for cattle growers who rely on their land for their livelihood.

The New Mexico Cattle Growers’ Association filed a complaint on Monday in the District of Columbia District Court against the U.S. Fish and Wildlife Service (FWS), the U.S. Department of the Interior (DOI), as well as the Secretary of the DOI and the Principal Deputy Director of the FWS for the listing of the southwestern willow flycatcher, a “small, neotropical migrant bird,” as an endangered species under the act, which has purportedly burdened members’ use of their lands.

The plaintiff noted that the Endangered Species Act’s regulations “impose significant burdens on ordinary land use.” Specifically, according to the complaint, the regulations “increase the costs of federal permitting, reduce the market value of affected lands, and expose landowners to potentially ruinous civil and even criminal penalties.” The Growers’ Association claimed that this is harmful to its members who earn their living by raising cattle.

According to the complaint, a member of the Growers’ Association has “had their property values and livelihoods harmed by the endangered subspecies listing of the southwestern willow flycatcher” because the member’s cattle ranch and grazing allotment significantly overlap with the “designated critical habitat for the flycatcher,” which imposes regulatory burdens on the ranch and grazing allotment. These regulations have decreased the value of the member’s ranch and the listing and designation as a critical habitat subject the member to potential lawsuits or agency enforcement actions, the Growers’ Association contended.

The Growers’ Association noted that in 2015 it sought to remove the southwestern willow flycatcher from the federal list of threatened and endangered species, asserting that scientific and commercial data “prove the flycatcher is not a distinct subspecies and is therefore ineligible for listing under the ESA.” However, the petition was denied after determining the bird is a subspecies. The Growers’ Association claimed that the FWS did not define “subspecies” in its decision, nor did it provide the criteria to determine if “any given population or group of populations qualifies as a subspecies” and it purportedly “ignored crucial scientific evidence bearing on the flycatcher’s subspecies designation.” Consequently, the plaintiff proffered that the ruling is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” and violates the Endangered Species Act.

Consequently, the Growers’ Association has asserted that the listing and designation has caused the member economic injury that can be traced to the critical habitat designation and denial of the Growers’ Association petition against the FWS’s final ruling. As a result, the plaintiff alleged that its members are irreparably harmed by the listing and designation.

The claims for relief against the defendants are violations of the Endangered Species Act and the Administrative Procedure Act, including failure to articulate “subspecies” standard as well as failure to consider relevant evidence and to use the best available data.

The Growers’ Association seeks declaratory relief, to set aside the final rule denying the plaintiff’s petition or to enjoin its enforcement, remand the final rule for the defendants to define “subspecies” and determine if the southwestern willow flycatcher satisfies that definition, as well as an award for costs, fees and other relief.

The Growers’ Association is represented by Pacific Legal Foundation.

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