Sen. Cynthia Lummis

Wyoming Sen. Cynthia Lummis has proposed to set aside a Biden administration revision of a Trump-era definition of “habitat” as defined under the Endangered Species Act, one of several recent attempts to change the act by Republican lawmakers through legislation.

Lummis contends by scrapping the Trump Administration’s habitat definition, it’s “causing chaos and confusion among private property owners throughout Wyoming and the west. Two-thirds of all endangered species are located on private lands, so private property owners need to be partners in species recovery, not the enemy,” she said in a press release Friday.

The Fish and Wildlife Service and National Oceanic and Atmospheric Administration Fisheries division rescinded the Trump-era definition last June after President Biden issued an executive order which required all executive departments and agencies to review federal regulations and actions taken during the previous administration. The definition had effectively kept critical habitat designations from including habitat not currently occupied by a protected species, the Fish and Wildlife Service said with the rescinding of the definition on Jan. 20, 2021.

Lummis is joined by 17 Republican co-sponsors including Sen. John Barrasso (R-Wyoming).

“The Biden administration is once again burdening Wyoming farmers, ranchers and landowners with regulations that hurt our agriculture producers and reduce land value,” Barrasso said as they rolled out the news.

Rep. Cliff Bentz (R-Oregon), currently the chairman of the Natural Resources Subcommittee on Water, Wildlife, and Fisheries, introduced a companion resolution in the U.S. House of Representatives alongside Montana Reps. Matt Rosendale (R-Montana) and Ryan Zinke (R-Montana), among others.

“The Endangered Species Act is being misused, abused and mis-
applied, and it is time to get to work on fixing this. If the ESA is
to work properly, without bankrupting all businesses and the USA, federal agencies must follow the science and narrowly tar-
get their efforts in ways best sui-
ted for the species, while not des-
troying communities,” Bentz said.

Bentz claims the Biden administration, in rescinding the Trump Critical Habitat Rule, “gave Washington bureaucrats the green light to designate critical habitat where the species in question had not been seen in decades,” he said.

The two resolutions are part of continuing attacks on the Endangered Species Act despite it being extremely popular with Americans, said Andrew Carter, director of conservation policy at the Center for Conservation.

“This is just one of a long line of attacks on the ESA, including several we’re seeing now in this legislative session,” he said, adding, “The act is unpopular in certain segments of society, but it is very popular among the general public. More than 80% of Americans support the ESA and don’t want to see it weakened.”

This law currently protects more than 1,260 animal and plant species. Fifteen bills were introduced in 2022 seeking to change the ESA and 13 bills have been proposed this year, including efforts to delist Greater Yellowstone Ecosystem grizzly bears.

The species was delisted twice, once during the Obama administration and most recently in 2017 during the Trump administration, but legal challenges reversed the decisions.

Carter, who works on wildlife conservation policy at the Center for Conservation Innovation researching conservation governance strategies and emerging policy issues to develop innovative approaches to habitat and species protection, said the Trump definition limited future efforts to save threatened and endangered species by restricting the creation of new habitat.

“We’re dealing with climate change, we have to be forward looking,” he said. “We can’t just work on what we have now. We need to look forward to the future when trying to figure out the best way to save these species.”

He gave successful work done to conserve the New Mexico meadow jumping mouse, which was threatened due to overgrazing of cattle, as an example of areas that at one time didn’t support the species, but were essential for their conservation.

At the time of the species’ designation for the mouse, it wasn’t present in certain areas. But with the designation, the Forest Service worked with local ranchers to install cattle exclusion fences that allowed the area to return to a state where it could support the mouse.

“I think that shows like kind of the value of forward looking conception of critical habitat designation,” Carter said.

Lummis is attempting the legislative change by invoking the Congressional Review Act (CRA), a 1996 law that gives Congress broad authority to invalidate rules established by federal agencies, to block the changes. Interestingly, Democratic legislators attempted to use the same Act to protest changes in the ESA in 2019 when the Trump Administration rolled out changes significantly weakening protections.

Former Secretary of the Interior David Bernhardt unveiled “improvements” to the implementing regulations of the ESA, claiming the changes were designed to “increase transparency and effectiveness and bring the administration of the act into the 21st century.”

“The best way to uphold the Endangered Species Act is to do everything we can to ensure it remains effective in achieving its ultimate goal—recovery of our rarest species. The act’s effectiveness rests on clear, consistent and efficient implementation,” Bernhardt said. “An effectively administered act ensures more resources can go where they will do the most good: on-the-ground conservation.”

The Democrat-led CRA failed, but last year the U.S. District Court for the Northern District of California ruled in favor of the Animal Legal Defense Fund following its lawsuit to vacate the rules imposed in 2019.

“By design, the Endangered Species Act puts animals’ protection over corporate and industry interests — and the 2019 rules clearly violated that principle and the law’s intended purpose,” says Animal Legal Defense Fund Executive Director Stephen Wells. “The Endangered Species Act is one of few federal laws that protects animals and is critical for providing enforcement options through the civil court system.”

The Trump administration finalized the rule in 2020 defining the term “habitat” as “the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.”

The likelihood that legislation will make it through the Democrat-controlled Senate — which is necessary to make it to the president’s desk for approval — is unlikely, Carter said. Although he didn’t want to make predictions on the effectiveness of Lummis’ CRA challenge, he said “if it gets through Congress, we hope President Biden will veto it.”

Lummis’ CRA is supported by the American Farm Bureau, the National Cattleman’s Beef Association, the Public Lands Council, the National Mining Association, the Western Energy Alliance, the Independent Petroleum Association of America, Property and Environmental Policy Research Center (PERC) and the Dallas Safari Club.