On January 15, in a parting gift to the timber Industry, the Trump Administration cut over 3.4 million acres of Critical Habitat for the northern spotted owl—some 42% of the amount designated in 2012 to ensure the owl’s survival—including thousands of acres in California. The cut was all the more staggering given that just a month before, the U.S. Fish and Wildlife Service acknowledged that the owl was under immediate threat of extinction, warranting a change in its designation from “threatened” to “endangered” under the Endangered Species Act.
EPIC is excited to announce that three actions, occurring simultaneously, will likely mean that this reduction in Critical Habitat is only temporary and will be reversed before any long-term damage can be wrought.
First, EPIC is sharpening our pencils for new litigation. On January 19, we sent the U.S. Fish and Wildlife Service a “Notice of Intent to Sue” letter, a required step prior to filing any lawsuit alleging violations of the Endangered Species Act. Consistent with its last minute publication, the new Critical Habitat reduction is sloppy, relies on the wrong legal standards, and contradicts decades of previous Service guidance. Additionally, EPIC has submitted a Freedom of Information Act request for all documents concerning this decision. We hope that we do not need to slug it out in court. Based on the clear legal violations inherent in the rule, we believe that there are sufficient grounds to allow the Biden Administration to invalidate the rule through a settlement.
Second, the Biden Administration has indicated it is performing a comprehensive review of regulations passed by the Trump Administration. The Biden Administration can undo the damage of the new Critical Habitat rule through beginning a new rulemaking to reverse the rule. Given the increasingly perilous outlook for the northern spotted owl, more protections are necessary to ensure the owl’s stabilization and recovery. We trust that Interior Secretary nominee Deb Haaland will give this rule, and others passed during the Trump era, a critical review.
Third, the new Critical Habitat cuts have attracted the attention of Congress. Congressman Jared Huffman, who represents the North Coast of California, together with Senate and House colleagues from the Pacific Northwest and beyond, have requested a formal investigation into the decision. In their February 2nd letter to the Inspector General of the Interior Department, the Congressional delegation wrote:
The USFWS decision appears to fit a larger pattern of malfeasance by the Trump
administration’s political leadership at the Department of Interior. In less than two brief years under David Bernhardt’s leadership, the Department has been mired in one ethical scandal after another. Bernhardt and his loyalists have demonstrated a willingness to insert themselves into the scientific process in order to achieve preferred policy outcomes, withhold information from the public, and even mislead Congress.
While the Biden administration has taken actions to mitigate the effects of this rule, we ask that you quickly review this decision and to determine whether USFWS contradicted or ignored scientific recommendations made by career staff.
Ultimately, the large bite at the Critical Habitat designation by the Trump Administration is likely to be its undoing. With multiple investigations and complaints forthcoming, the shoddy legal work will crumble. Had the agency attempted a more nuanced and narrow cutback of the owl’s habitat, it may have succeeded in crafting a more legally defensible decision. But, of course, hubris and not nuance was Trump’s modus operandi.