Summary Judgment

William Perry Pendley
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Posted: Nov 02, 2006 4:02 PM

Days ago, in a proposal unnoticed by the media, the U.S. Fish and Wildlife Service (FWS) announced the largest land grab since President Clinton designated massive national monuments across the West. When Clinton decreed 1.9 million acres of federal land in Utah as the Grand Staircase - Escalante National Monument to kill a vast underground coal mine that would have employed 1,000 locals in the most economically depressed region of southern Utah, generated $20 million in annual revenue, and produced environmentally - compliant coal for generating electricity, there were protests across the West. When the Bush Administration published its plans, there was barely a ripple of protest.

There should have been a tidal wave of opposition! What Bush officials propose would make Clinton and his Interior Secretary, Bruce Babbitt, proud indeed. While Clinton's national monument proclamations affected only federal land, the Bush plan affects primarily state - and privately - owned land. Moreover, while Clinton designated a total of 5.9 million acres to receive special federal protection as national monuments, the Bush plan would impose a protective federal overlay upon 11.5 million acres (18,000 square miles) or an area the size of the states of Massachusetts and Maryland combined.

Formally entitled "Revised Designation of Critical Habitat for the Contiguous United States Distinct Population Segment of the Canada Lynx" and published in the Federal Register on November 9, 2005, the plan results from a March 2000 ruling by a federal district court in the District of Columbia. There, after ten years of litigation, a host of environmental groups succeeded in efforts to require the FWS to use the Endangered Species Act (ESA) to protect the Canada lynx (Lynx canadensis) in the contiguous United States.

That was only the beginning. After the FWS placed the lynx on the ESA list in July 2003, Defenders of Wildlife urged the federal court to order the FWS to designate critical habitat in the lower 48, notwithstanding that the lynx's natural habit is in Canada—hence its name. In January 2004, the court issued that mandate with a November 1, 2006, deadline. After issuing its plan a year ahead of schedule — when was the last time that happened — in August 2006, the FWS released its "Economic Analysis of Critical Habitat Designation for the Canada Lynx." A month later, the FWS published its "Draft Environmental Assessment: Designation of Critical Habitat for the Contiguous United States Distinct Population Segment of the Canada Lynx," then opened the matter up for public comments, which ended last month. There is much that is worthy of comment, mostly of the negative variety.

Under the plan, 8.4 million acres of private land would be included, at a cost, over twenty years, of $889 million. Although the plan includes Washington, Idaho, Montana, Minnesota, and Maine, its greatest impact is on the latter three with one million acres affected in both northwestern Montana and northeastern Minnesota and six million included in northern Maine. Thousands of landowners will find their ability to use their private property greatly constrained, if litigious environmental groups have anything to say about it, and they will. Worst of all, the FWS admits that, because the historic range of lynx only marginally includes the lower 48, the designation of critical habitat will achieve little, if anything.

For radical environmental groups, however, designation of critical habitat for the Canada lynx will achieve one thing: it will provide them with another tool to bar the use of private property coveted by the groups. In one troubling action, the federal court that ruled on the lynx has retained jurisdiction, apparently to preside over the implementation of the habitat rule. That is very bad news for landowners, those who respect private property, and those who love freedom. No wonder scores of Members of Congress, in rare bi-partisan agreement, have introduced bills to reform “critical habitat” authority. Unfortunately, such reform will come too late for those facing the Bush Administration’s most audacious land grab.