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Contact: Damien M. Schiff
Principal Attorney
Pacific Legal Foundation
(916) 419-7111

Jonathan Wood
Staff Attorney
Pacific Legal Foundation
(916) 419-7111  

PLF and NFIB challenge illegal expansion
of ESA “take” prohibition

SACRAMENTO, CA;  March 15, 2016: A U.S. Fish and Wildlife Service regulation unlawfully extends the Endangered Species Act’s broad “take” prohibition to all threatened species, contrary to clear congressional intent, the statute’s express language, and common sense.  As a consequence, ordinary citizens and small businesses face massive potential fines and jail time for activities that Congress deemed legal.

Damien M. Schiff
Principal Attorney

Jonathan Wood
Staff Attorney

So argues a Pacific Legal Foundation (PLF) petition, filed today with the Service, challenging that regulation.  The petition was filed on behalf of the National Federal of Independent Businesses (NFIB).  Donor-supported PLF is a legal watchdog for limited government, property rights, and balanced environmental regulations.  PLF represents NFIB without charge, as with all PLF clients.

“We are filing this petition to force unelected bureaucrats to follow the law,” said PLF Staff Attorney Jonathan Wood.  “This illegal regulation imposes onerous regulatory burdens on property owners and small businesses, and ultimately hurts the very species it purports to protect.  The Fish and Wildlife Service asserts the authority to criminalize any activity that affects any member of hundreds of threatened species across the country, without any express authorization from Congress.  The Supreme Court has explained that agencies may not exercise powers of such ‘vast economic and political significance’ without Congress’ clear say-so.”

The petition — a first step toward litigation, if necessary — is filed under the Administrative Procedure Act.  It seeks the repeal of a regulation that, for 40 years, has been illegally applying the ESA’s take prohibition to threatened species.  That regulation is found in the U.S. Code of Federal Regulations, Title 50, Section 17.31.

Regulators usurped the role of legislators — imposing onerous burdens and liability on average Americans without Congress’ consent

The regulation criminalizes the take of any threatened species, despite Congress’ decision to expressly limit the take prohibition to endangered species, i.e. those facing an immediate risk of extinction.  For threatened species, Congress decided that take should only be regulated if the Service can show that it is “necessary and advisable” for the conservation of the particular species.  Congress sharply limited this authority because it recognized how incredibly burdensome the take regulation could be.  In the words of Senator John Tunney, the ESA’s floor manager, Congress wanted to “minimiz[e] the use of the most stringent prohibitions,” which should “be absolutely enforced only for those species on the brink of extinction.”

The Senate Report, for instance, explains that the ESA authorizes the Service:

once [the Service] has listed a species of fish or wildlife as a threatened species, to issue regulations to protect that species.  Among other protective measures available, [it] may make any or all of the acts and conduct defined as “prohibited acts” ... as to “endangered species” also prohibited acts as to the particular threatened species.

“The Service cannot do what it attempts with the regulation — reverse Congress’ judgment.  Congress limited the take prohibition to endangered species,” Wood noted.  “Unelected bureaucrats cannot ignore that limit because they disagree with Congress’ decision.

“It’s not hard to see why Congress would be concerned about these crushing burdens,” Wood continued.  “As the late Justice Antonin Scalia explained in dissent in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the take prohibition ‘imposes unfairness to the point of financial ruin — not just upon the rich, but upon the simplest farmer who finds his land conscripted to national zoological use.’  This is because ‘take’ is capaciously defined to include any activity that has any sort of effect on a single member of a species or its habitat, including a wide range of ordinary activities and responsible land uses.  Running afoul of this prohibition can lead to large fines and imprisonment.”

Wood also explained that “the regulation undermines the conservation and recovery of listed species.  By treating endangered and threatened species the same, it substantially reduces the incentives for landowners to recover endangered species or prevent threatened species’ further slide.  If the Service followed the statute, the take prohibition would supply this incentive.”

A power grab with a painful price

“Over the decades, there has been a painful price paid in lost liberty and opportunity as a result of this unlawful expansion of the take prohibition,” Karen Harned, Executive Director of NFIB’s Small Business Legal Center, explained.  “Many of the ESA’s greatest burdens are a consequence of the illegal regulation.  The regulation caused severe cutbacks in timber harvesting in the Pacific Northwest due to the northern spotted owl.  It restricts farming in California’s Central Valley due to vernal pool fairy shrimp.  And it is responsible for annual beach closures in the northeast due to the piping plover.”

“Because of this regulation,” Harned added, “the Service does not acknowledge, much less attempt to justify, these costs.  Newly listed threatened species are automatically subject to the regulation, without any showing that prohibiting take is ‘necessary and advisable’ for their conservation.  This, too, contravenes Supreme Court precedent, which holds that agencies cannot impose severe costs through regulation without acknowledging those costs and justifying them.”

NFIB, and why it opposes the illegal expansion of the take prohibition

NFIB is the nation’s leading small business advocacy organization.  Founded in 1943 as a nonprofit, nonpartisan organization, NFIB’s mission is to promote and protect the right of its members to own, operate, and grow their businesses.  It represents approximately 325,000 independent business owners throughout the United States and in a wide variety of industries.  The typical NFIB member employs 10 people and reports gross sales of about $500,000 a year.

Small businesses are America’s largest private employer and a major source of economic growth.  However, they are also more vulnerable to burdensome regulations.  Environmental regulations, in particular, can impose severe restrictions on small business operations.  The illegal regulation extending the take prohibition to all threatened species, for instance, imposes severe costs on NFIB’s members, especially those involved in the timber, mining, agricultural, and construction industries.

The petition and a blog post are available at PLF’s website:

About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation is the leading legal watchdog organization that litigates for limited government, property rights, free enterprise, and a balanced approach to environmental regulations, in courts across the country.  PLF represents all clients free of charge.