Changes to ESA rules

[shootbrownelk]

Next up, bringing back DDT...

Nuke the Condors!

 

[Forkyfinder]

It was their idea after all and they now have the power.

Is it about keeping score for you? The reality is the abuse of the EAJA and the ESA. Who are the primary perpetrators of that again? Who benefit$ from that and who fund it?

Not really unique to this issue either. Typically the benefits are connected to the funding fronting as something else, ie dark money political groups benefitting their constituents.

The same incestuous nature of the corruption in the GOP exists on the left. And democrats are just as blind to it as maga.

 

[SAJ-99]

Is it about keeping score for you? The reality is the abuse of the EAJA and the ESA. Who are the primary perpetrators of that again? Who benefit$ from that and who fund it?

Not at all about keeping score. Just trying to explain why it hasn’t been fixed to date. My point is I don’t think you understand the scope of how the EAJA is used by various groups. And you can also look at political contributions by the offenders. Yes they are party specific, but the $ amount isn’t much. Like I said, let’s see what happens in committee. I will write my rep and express some support for it.

 

[Forkyfinder]

Just trying to explain why it hasn’t been fixed to date.

It hasnt been fixed to date - because a single party special interest is a major beneficiary. I'll acknowledge in advance - no different than a number of issues on the other side of the coin.

 

[El Jason]

The EAJA is a different topic. The issue here is the fact habitat alterations are no longer considered “harm” to an ESA species.

 

[Forkyfinder]

The issue here is the fact habitat alterations are no longer considered “harm” to an ESA species.

What litigation could possibly be the motive, for a change?

 

[El Jason]

What litigation could possibly be the motive, for a change?

I don’t understand what specifically you are asking.

 

[Forkyfinder]

I have some questions for people who view this as bad for wildlife as an absolute:

1. What do you think as far as damage or harm will come of this?
2. How has the ESA slowed development of habitat?
3. Its well established that the ESA has slowed active mamagement that could be benefical. That could (ie northwest mt - overgrown forest - less forage less ungulates for spring grizz food - worse habitat for grizz) lead to habitat damage - wouldnt that improve?
4. Beyond something like grizzly - that require a relatively immense amount of space - what habitat has been preserved by actions from the ESA?

I could be convinced this is bad - but im really not seeing it as objectively awful? A mixed bag at worst for the things in my backyard.

 

[BigHornRam]

What litigation could possibly be the motive, for a change?

Feds move to return threatened grizzly bear management to the states | Wyoming Public Media https://share.google/58dHG1OA2Hjh6gxO8

 

[BigHornRam]

I have some questions for people who view this as bad for wildlife as an absolute:

1. What do you think as far as damage or harm will come of this?
2. How has the ESA slowed development of habitat?
3. Its well established that the ESA has slowed active mamagement that could be benefical. That could (ie northwest mt - overgrown forest - less forage less ungulates for spring grizz food - worse habitat for grizz) lead to habitat damage - wouldnt that improve?
4. Beyond something like grizzly - that require a relatively immense amount of space - what habitat has been preserved by actions from the ESA?

I could be convinced this is bad - but im really not seeing it as objectively awful? A mixed bag at worst for the things in my backyard.

Looks like a neutering of WWP to me. What a miserable group of human beings, that organization is.

 

[Big Fin]

Feds move to return threatened grizzly bear management to the states | Wyoming Public Media https://share.google/58dHG1OA2Hjh6gxO8

I'm all in favor of delisting GBs. It's long overdue.

Unfortunately, this stunt by the administration to remove "harm" from the promulgated regulations of the ESA is going to make litigation even more endless for GBs.

Every state management plan and the Federal recovery plans are all tied to habitat protection. There are habitat assessment criteria. It is going to be a litigators field day, as now the sideboards for habitat protection no longer apply under the ESA, yet those sideboards are part of the management plans the states are supposed to follow upon delisting. Are they going to ignore the management and recovery plans they've adopted?

As for the recission of "harm" from the regulations, we recorded a Fresh Tracks weekly segment on this yesterday. That will roll out next week. When you research the ESA, how the rules ended up adopting "harm" and how it was previously litigated and the language and standard of "harm" was upheld, it shows this is nothing but a political stunt, an exercise in virtue signally to the donor class.

Yeah, the ESA needs some reform. But this attempt is idiotic. It's not going to move a single animal off the list, will add more animals to the list, and will result in even more litigation. This is not reform. Reform would have been to tweak the scope of "harm" or change the litigation framework.

A little history of the ESA and how "harm" ended up being in the regulations.


The ESA was passed in 1973. It passed the US Senate 93-0. It passed the House 390-12, and signed by Republican President Richard Nixon.

1975 – USFWS adds “harm” to the regulations that implement the ESA. It went through the entire Administrative Procedure Act to get adopted was official regulation. It added that “harm” included actions that impair or degrade the habitat of protected species.


1995 – Sweet Home Case (Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon) was a USSC case that upheld the definition of “harm” to include actions that impair the habitat of protected species. The court agreed with the definition of “harm” in a 6-3 decision, with the majority decision written by Justice O’Connor (a Ronald Reagan appointment and hardly a liberal activist).

There was a dissenting opinion of three judges, Scalia, Rehnquist, and Thomas, who disagreed with how the term "harm" was being applied.

The DOI, NOAA, have been directed by POTUS to restate the Regulations that implement the ESA and in doing so, to follow the dissenting opinion of the Sweet Home Case - remove "harm" from the adopted regulations of the ESA. Even with a majority USSC decision, the Administration is telling the Departments to implement regulations that adopt the findings of the minority dissent opinion of the Sweet Home case.

The new rule rescinding the definition of “harm” as it applies to the ESA was published in the Federal Register today. It will become effective September 14, 2026. It is no longer open to public comment. During the public comment period that opened in 2025, 220,000 comments were received and 99% of the comments were against the recission.

Some comments from state wildlife agencies on the proposed change:

Bruce Kreft, the chief of the conservation and communications division of the North Dakota Game and Fish Department, “Threatened and endangered species are entirely dependent on healthy habitats." The proposed change, “would have dire consequences.”

Ted Will, former Director of the Georgia Department of Natural Resources Wildlife Resources Division, “The greatest threat to the vast majority of species of greatest conservation need in Georgia, whether federally listed or not, is habitat loss.”

USFWS Brian Nesvik has to know this is merely political pandering, yet he stands in line as the politicians tell him to do. He's not willing to speak truth to power.

The two biggest groups pushing the recission are the American Petroleum Institute and the American Mining Association. Imagine that.

Marcus said it best on the episode, "If you really think that habitat protection doesn't matter, then take a fish out of water and see how long it survives."

This was an opportunity to make some beneficial changes to the ESA that would have lasting impact, including and help the frustration of litigation abuse that happens. But, in classic fashion, we get another campaign debt repaid with the conservation infrastructure that has taken 150 years to build.

 

[SAJ-99]

I have some questions for people who view this as bad for wildlife as an absolute:

1. What do you think as far as damage or harm will come of this?
2. How has the ESA slowed development of habitat?
3. Its well established that the ESA has slowed active mamagement that could be benefical. That could (ie northwest mt - overgrown forest - less forage less ungulates for spring grizz food - worse habitat for grizz) lead to habitat damage - wouldnt that improve?
4. Beyond something like grizzly - that require a relatively immense amount of space - what habitat has been preserved by actions from the ESA?

I could be convinced this is bad - but im really not seeing it as objectively awful? A mixed bag at worst for the things in my backyard.

1&2 are obvious.
3. I have a slight quarrel with the word "management". I think we need a whole thread on that topic because most members just focus on what helps the things they see (i.e. hunt or might hunt), as your example shows. Nature is far more complicated than we want to admit and we overestimate our ability to successfully "manage" it.
4. I think the biggest impacts will be seen in the coastal areas. Earlier this year they exempted O&G from considering habitat when they drill in the Gulf to encourage more wells. The result isn't endangered turtles washing up dead on the beach. It has an impact over time as the turtles go from 900 to 800 to 700. This administration's response is basically to stop counting them and pretend the problem doesn't exist...all for $$$.

The ESA is one of the most successful laws enacted. The Grizzly bears are a prime example. It's not 100% successful (failed at mountain caribou) but we can look back and see measurable success over 50yrs. I wonder what we see when we look back after 50yrs of this interpretation. I don't think it will be good. We have lost a ton of habitat already and this rule change won't help that.