Controversial conservation law to be debated in 3 hearings

By Corbin Hiar | 04/18/2016 07:00 AM EDT

House Republicans this week will closely evaluate the Fish and Wildlife Service’s implementation of the Endangered Species Act, the powerful and increasingly controversial conservation law.

In three hearings by two separate congressional panels, lawmakers will consider how a suite of changes to ESA habitat protection regulations are affecting landowners and animals and plants on the endangered or threatened species lists, as well as the challenges FWS faces when it attempts to delist species.

Tomorrow morning, the full Natural Resources Committee will focus on FWS’s new rules and policies for "critical habitat," areas that the agency has deemed essential to the recovery of listed species in which federal permitting or other government actions can be limited.


FWS recently updated its definition for what constitutes "destruction or adverse modification" of critical habitat, a key test for whether federally funded or permitted projects may be approved. The agency also clarified the criteria for designating critical habitat and updated its policy on critical habitat exclusions (Greenwire, Feb. 5).

FWS Director Dan Ashe is certain to defend those changes before Chairman Rob Bishop (R-Utah), a frequent critic of the law.

Ashe is unlikely to get much support from the other hearing witnesses.

Karen Budd-Falen, a senior partner at the Budd-Falen Law Offices LLC in Cheyenne, Wyo., in a March memo described the updates as a "major regulatory expansion" and warned that they would result in "expanding designated critical habitat."

Similar objections will probably be made by David Bernhardt, the co-chairman of the natural resources department at the law firm Brownstein Hyatt Farber Schreck LLP. The former George W. Bush administration Interior Department solicitor frequently represents water, mining and energy companies affected by the ESA.

Fourth-generation cattle rancher Robbie LeValley, the administrator of Delta County, Colo., is expected to present the livestock industry’s concerns with critical habitat regulations that it views as overly restrictive. According to a profile of LeValley by a grazing advocacy group, private and federal land around her ranch is home to the Gunnison sage grouse, a ground-dwelling bird on the threatened species list.

On the other hand, Loyal Mehrhoff, the endangered species recovery director at the Center for Biological Diversity, is sure to criticize the changes as too accommodating to business. The conservation group has warned that the habitat protection updates could lead to death by a thousand cuts for protected species.

Before joining CBD, Mehrhoff was a former top official in FWS’s Honolulu office (E&ENews PM, Sept. 18, 2015).

Two hearings on delisting

Budd-Fallen will return to Capitol Hill on Wednesday afternoon for the first of two House Oversight and Government Reform Subcommittee on Interior hearings on delisting.

Chairwoman Cynthia Lummis (R-Wyo.), and Budd-Falen will be joined by fellow Wyomingite Joel Bousman, a rancher and the chairman of the Sublette County Board of Commissioners. At a Western Governors’ Association workshop last November, he said that on endangered species issues "too often federal government either ignores or simply checks the box in county involvement."

Another witness, Robert Thornton, is an Irvine, Calif.-based partner at the law firm Nossaman LLP. He specializes in advising state and regional infrastructure authorities and has successfully defended more than $10 billion in regional infrastructure improvements against federal and state environmental challenges.

The final witness for Oversight’s first of two hearings on delisting is Lowell Baier, the president emeritus of the Boone and Crockett Club, a hunting and wildlife conservation group founded by Theodore Roosevelt in 1887, prior to winning the White House.

Baier, who last year donated his $20 million estate to the Indiana University Maurer School of Law, made his fortune developing warehouses, residential properties, office buildings and shopping centers. His 2015 book "Inside the Equal Access to Justice Act: Environmental Litigation and the Crippling Battle over America’s Lands, Endangered Species and Critical Habitats" raised concerns about environmental groups’ use of citizen suits to enforce the ESA.

Ashe will appear before the Oversight subcommittee the following morning. As he is sure to note, the Obama administration has delisted 15 species due to recovery — more than any previous administration. It is also poised to delist in two terms in office more than the 18 species other administrations together managed to recover in more than 30 years (Greenwire, May 29, 2015).

Schedule: The Natural Resources Committee hearing on critical habitat changes is on Tuesday, April 19, at 10 a.m. in 1324 Longworth.

Witnesses: FWS Director Dan Ashe; Karen Budd-Falen, senior partner at Budd-Falen Law Offices LLC; David Bernhardt, shareholder at Brownstein Hyatt Farber Schreck LLP; Robbie LeValley, administrator of Delta County, Colo.; and Loyal Mehrhoff, endangered species recovery director at the Center for Biological Diversity.

Schedule: The first Oversight and Government Reform Subcommittee on Interior hearing on delisting is on Wednesday, April 20, at 2 p.m. in 2154 Rayburn.

Witnesses: Karen Budd-Falen, senior partner at Budd-Falen Law Offices LLC; Lowell Baier, president emeritus of the Boone and Crockett Club; Robert Thornton, partner at Nossaman LLP; and Joel Bousman, chairman of the Sublette County Board of Commissioners.

Schedule: The second Oversight and Government Reform Subcommittee on Interior hearing on delisting is on Thursday, April 21, at 9 a.m. in 2154 Rayburn.

Witness: FWS Director Dan Ashe.