STATES SUE OVER TRUMP ADMINISTRATION CHANGE-On August 25, 2019, seventeen States took it upon themselves to sue the Trump administration over changes to the Endangered Species Act (“ESA”). The changes were made after two years of public comment and review. The states suing were the usual suspects: California, Massachusetts, Maryland, Colorado, Connecticut, Illinois, Michigan, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont and Washington, the District of Columbia, and New York City. The changes can be read in the U.S. Fish & Wildlife Service – Endangered Species website.

Secretary David Bernhardt made a comment on the changes saying “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.” The changes made reflect this administrations desire to protect endangered species while still letting the public do what they want with their land. U.S. Secretary of Commerce, Wilbur Ross, said “these changes were subject to a robust, transparent public process, during which we received significant public input that helped us finalize these rules;” public comment that was open since 2017. The U.S. Department of the Interior released their report in August 2019.

The Actual Changes.

The revisions to the ESA start by clarifying the requirements for delisting and reclassifying a species. Both processes will now use the same five statutory factors. These factors for reclassification can be found under ESA § 424.11(c) (for delisting declassifying animals see subsection (e)(2) which requires use of the same standards) which states:

“(c) A species shall be listed or reclassified if the Secretary determines, on the basis of the best scientific and commercial data available after conducting a review of the species’ status, that the species meets the definition of an endangered species or a threatened species because of any one or a combination of the following factors:

(1) The present or threatened destruction, modification, or curtailment of its habitat or range;

(2) Overutilization for commercial, recreational, scientific, or educational purposes;

(3) Disease or predation;

(4) The inadequacy of existing regulatory mechanisms; or

(5) Other natural or manmade factors affecting its continued existence.”

The revisions also get ride of the “blanket rule” which existed but was not implemented, under rule 4(d). This rule previously gave threatened species, two separate classifications, the same protections as endangered species automatically. The terms “destruction or adverse modification,” “effects of the action” and “environmental baseline” were also given a clearer meaning than what was previously in the ESA.

The rules weren’t changed drastically. If anything, more clarity was given to a confusing and broad set of rules. The public can use their land while still protecting endangered species. These changes likely won’t allow you to go shoot a bald eagle during duck season, but you probably can cut down a few more trees on your land. After all, it is Your land.

What do you think of the new changes that have been implemented by Trump and his administration?

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