Endangered Species Law & Policy

A bill (pdf) to amend the Endangered Species Act (ESA)—entitled the Endangered Species Management Self-Determination Act (Bill)—has been introduced in the United States Senate. The Bill, authored by Senators Rand Paul (R-Ky.), Mike Lee (R-Utah) and Dean Heller (R-Nev.) and by Representative Mark Amodei (R-Nev.), seeks to make two fundamental changes to the ESA: to alter the balance of power between states and the federal government, and to provide new property rights to landowners impacted by the ESA.

First, the Bill would tip the balance of authority to manage protected species in favor of the states and away from the federal government. Currently (pdf), the ESA requires the Secretary of the Interior or the Secretary of Commerce, as applicable (collectively, Secretary), to determine whether to list a species as endangered or threatened, and to promulgate regulations to protect listed species.

The Bill would change this process by requiring the Secretary to obtain the consent of the governor of each state in which a species is present prior to listing the species under the ESA. Put another way, only after the Secretary receives such consent could the Secretary list a species as endangered or threatened. The listing would also have no legal effect until approved by Congress. If Congress approves the listing, then the Secretary could promulgate regulations to protect the species. Any listed species would automatically be removed from the list after five years.

The Bill also gives governors the option to regulate wholly intrastate threatened and endangered species. Under the Bill, each governor, at his or her sole discretion, may determine that a species is intrastate, and that the state, as opposed to the federal government, will manage that species. If the governor makes this determination, he or she will have the exclusive authority to promulgate or enforce regulations, designate critical habitat, issue permits or licenses, and develop and implement recovery plans. The Bill provides that any determination by a governor is not judicially reviewable in any federal or state court.

Second, the Bill would add a new section entitled Property Rights to the ESA. The proposed section would allow a landowner to submit to the Secretary (the section would not apply if the state had decided to manage the species) an application that includes any proposed use of his or her land, and the Secretary must respond within 90 days with a written determination as to whether the proposed use would violate the ESA. If the Secretary delays more than 90 days in responding, the proposed use is deemed permissible.

If, however, the Secretary determines that the use does not comply with the ESA, the landowner may then seek compensation for this restriction placed on the use of his or her land. If the landowner’s property value was reduced by more than 50 percent as a result of the Secretary’s determination, the Secretary must then pay the landowner 150 percent of fair market value of the land.