A coalition of conservation groups, including the Arcata-based Environmental Protection Information Center (EPIC), is suing to block the Trump administration’s move to strip longstanding habitat protections for imperiled wildlife from the Endangered Species Act (ESA).
For more than 50 years, the word “harm” has been delineated to mean not just directly hurting or killing a listed species as a form of “take” prohibited under the landmark law, but also “significant habitat modification or degradation” that impedes its basic survival, including the ability to reproduce, feed and find shelter.
A federal rule change slated to go into effect Sept. 14 rescinds that definition, which the administration describes as an “overly broad and burdensome.” That opens the door for extraction activities ranging from logging and mining to dredging and drilling to take place in areas previously off-limits as long as an endangered animal itself is not physically harmed in the moment.
The sudden reversal of the decades-long protection course previously forged by the U.S. Fish and Wildlife Service and National Marine Fisheries Service, according to the case filed in the Northern District Court of California last week, was made without a proper examination of the consequences in violation of the National Environment Policy Act and the Administrative Procedure Act.
If allowed to proceed, the plaintiffs argue, the radical shift in interpretation will push the rare birds, fish and other animals the ESA was enacted to save from extinction to extinction, describing the services’ action as “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law,” and “without observance of procedure required by law.”
“The prohibition on degrading or modifying habitat for ESA-listed species to the extent it results in ‘take’ is a predicate to the survival, conservation and recovery of ESA-listed species,” the complaint states.
Like other similar cases filed on the issue, the coalition is asking the court to “issue a declaratory judgment that the services have violated federal laws, set aside or vacate their actions, and remand [the matter back] to the services.”
The Trump administration touts the change as eliminating years of “federal overreach” and a return to the original roots of the ESA.
“For years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses,” Department of the Interior Secretary Doug Burgum says in a July 17 announcement. “That approach turned routine activity into a regulatory trap, drove up costs that impacted people’s lives, and expanded federal authority beyond what Congress intended. This action restores common sense, respects private property, provides much-needed certainty for landowners and follows the statute Congress actually passed.”
With habitat loss the “primary driving force” in extinction, EPIC Executive Director Tom Wheeler, one of the complaint’s drafters, says the change is antithetical to the essential purpose behind the ESA — preventing species from becoming a footnote in ecological history and facilitating their recovery.
Long story short, no longer having a place to call home, forage for food and raise young puts survival in the rearview mirror.
Passed with wide bipartisan support and signed into law by President Richard Nixon in 1973, the ESA is credited with the continued existence of iconic species including the Bald Eagle, gray whale, Whooping Crane and the California Condor.
Now that mission is under threat, Wheeler says.
“We’re creating an absurd result in this interpretation of the ESA,” he says, noting there’s been a “consistent application” on the essential importance of habitat “for nearly the entirety of the history of the act.”
As to the Trump administration’s assertion that the change better aligns with what Congress had originally intended, Wheeler counters that “Congress has still had those same 50 years to amend the law to make clear that is not what they intended, and Congress has never done that. Instead, the opposite is true.”
North Coast Congressmember Jared Huffman, the ranking member on the House Natural Resources Committee, describes the change as “corrupt, illegal and completely untethered from scientific reality.”
“Trump is doing everything in his power to let his billionaire, big industry buddies ravage and obliterate our country to turn a quick buck,” Huffman says in a statement. “This move would let special interests destroy an endangered animal’s home, its food, its clean water — the basic things it needs to survive and recover — with zero repercussions or accountability. He’s pushing species to the brink of extinction and hurting the surrounding communities that depend on thriving ecosystems for their businesses, healthy air and water and way of life.”
While the rule change would have broad impacts for endangered species across the board, the local region has a “unique connection” to the inclusion of habitat protection in the ESA, Wheeler says, noting, “It has been important to the North Coast in a way that is outsized or larger than other areas.”
That includes the 1996 decision by the Ninth Circuit Court of Appeal in the Marbled Murrelet v. Babbit case, in which EPIC successfully challenged a logging operation being proposed in Humboldt County by PALCO for an isolated 440-acre section of old growth forest known as Owl Creek.
As the title denotes, the case focused on impacts to the rare seabirds, which were declared endangered in 1992. While they spend most of their time on the ocean, Marbled Murrelets come back to coastal forests to breed, But they don’t build nests, instead creating impressions in moss deposits or duffs to deposit their eggs. That means the birds need “big, old trees” with large limbs, he says, noting murrelets are “the most pure old-growth dependent terrestrial species that we probably have.”
What EPIC was able to show, Wheeler says, was that “murrelets were using these forests and therefore cutting down these forests would cut out their nesting habitat,” resulting in the appellate court affirming the harm definition now on the chopping block.
Around the same time, a similarly situated case out of Oregon centered on the Northern Spotted Owl. Known as Babbitt v. Sweet Home, the case saw the U.S. Supreme Court also uphold that habitat modification and degradation amounts to harm under the ESA.
Additionally, although there were other factors, including tree sitters and other disruptions of logging activity, part of the reason why the 7,500-acre Headwaters Forest Reserve “exists and is in public hands” today is that precedent, which “fundamentally made it so these older forests were off limits for logging,” Wheeler says, prompting PALCO to realize it was in “its best interest to sell the damn forest and move on.”
Using the Marbled Murrelet as an example of what’s at stake, Wheeler says the ESA would still prevent a tree with an active nest from being cut down under the change “because then it would be a direct application of force against an individual.”
“And when they are not nesting, in theory, it would no longer be prohibited under Trump’s interpretation of the ESA to go in and cut down all the forest they had been using for nesting,” he says. “And, of course, then, in that circumstance, the murrelets could not nest and would therefore be locally extirpated and cumulatively these actions would lead to the extinction of that species.”
As the lawsuit moves forward, Wheeler says he’s “fairly certain that we are going to win here,” given the legal precedent, including the Supreme Court decision in the Sweet Home case. But, in the interim, he says, “the Trump administration has inserted uncertainty into regulations that I don’t think meaningfully benefits anyone.”
He notes that local timber companies like Green Diamond and Humboldt Redwood Co. have invested heavily and spent decades adapting their business practices “to avoid taking endangered species” and have shown “that you can maintain a timber business and not cause the extinction of an endangered species.”
Meanwhile, as the ESA harm definition issue makes its way through the courts, Wheeler says, there is “still some statewide protection for these forests.”
“It’s not just a give-me but the primary tool that was used in their protection back in the ’90s was the Endangered Species Act,” Wheeler says. “That was the most forceful tool that we had.”
Kimberly Wear (she/her) is the assistant editor at the Journal. Reach her at (707) 442-1400 ext. 105 or kim@northcoastjournal.com.
This article appears in 20 Years at the Playhouse.
