Proper Protection or Perverse Incentive? Orgs Challenge ESA Process

by Robert Chaney

As the Trump administration launches a multi-pronged effort to weaken the Endangered Species Act from within the federal government, two Montana-based organizations have sued to change it from the outside.

The Property and Environmental Research Center along with the Rocky Mountain Elk Foundation teamed up to challenge the U.S. Fish and Wildlife Service’s use of a “Blanket Rule” that provides strict protections to species which don’t yet have individually tailored ESA recovery plans. The rule had been in use since 1975, before getting dismantled during Donald Trump’s first administration and then reinstated under President Joe Biden. The two organizations prefer the Trump version.

Jonathan Wood, PERC’s vice president for law and policy, said the rule created “perverse incentives” that drove private landowners away from wildlife conservation.

“We’re in the position where we should not do conservation because we’ll be punished for it,” Wood said of the lawsuit, which was filed on March 10. “That happens because of the fear and anticipation of [an ESA] listing. States make decisions based on today’s harms, and the potential of future listings makes those harms worse.”

Wood argued that because an ESA listing of a plant or animal triggers lots of restrictions on what someone can do with their property, even the potential that something might make the Endangered Species List discourages landowners from caring for their land in ways that might help the species thrive there. And the Blanket Rule makes that worse because it grants the full-bore protections of the law before biologists get around to making a more specifically tailored recovery plan based on the listed species’ actual needs.

The ESA offers two levels of protection: endangered and threatened. Metaphorically, “endangered” is like your house is on fire, and firefighters must come in to rescue you. “Threatened” is when your neighbor’s house is ablaze, and the firefighters try to keep the flames from spreading to your house.

An endangered listing imposes rules prohibiting “take” of the listed species, which means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct.” A threatened listing doesn’t automatically include the prohibition against take — instead it tells the FWS to make a recovery plan with specific rules to keep the species from reaching endangered status.

But the Blanket Rule allows FWS to impose the wide-ranging take restrictions on a threatened species before it’s completed the specific recovery plan. PERC and RMEF argue that gives the service a “lazy” way of protecting a species before its done the hard work of a detailed recovery plan that might not include all the take restrictions.

For example, the arctic grayling has nearly vanished from the Centennial Valley, west of Yellowstone National Park. While it has been a candidate for ESA protection, it has not made the list. But in PERC’s view, even having it petitioned for listing discourages the organization’s efforts to help Centennial Valley ranchers improve their fish habitat.

“If you accommodate a species or its habitat, you’re punished,” Wood said. “Under tailored rules, you look at the science — see what are the actual threats and how do we just focus on them. That way if you invest in habitat, you can do things without a federal permit. It excludes activities with de minimis harm.”

PERC has worked with a Centennial Valley ranch to manage cattle in ways that avoided conflict with grizzly bears, which are a threatened species under the ESA.

“That project relies on the fact that grizzly bears, although listed, are not regulated by the Blanket Rule,” the lawsuit states. “The Blanket Rule precludes PERC from developing similar projects for other threatened species unless PERC or its partners obtain a costly federal permit.

“These leases seek to improve habitat for gray wolves, arctic grayling, greater sage grouse and other species being considered for listing or likely to be considered in the future. And they involve activities regulated by the Blanket Rule but routinely excluded from regulation under species-specific rules.”

RMEF has a conservation easement on a 7,000-acre ranch in the Madison Mountains along the Madison River. It’s working on habitat restoration for black bear, grizzly bear, elk, moose, mule deer, and pronghorn antelope. The property is also within the range of greater sage grouse, gray wolf and pygmy rabbit “all of which have been petitioned for listing under the ESA.”

The organization objects to “the Blanket Rule’s prohibition on beneficial conservation activities and incidental take” citing a U.S. 9th Circuit Court decision which found that Montana trapping rules “for non-listed species violated the ESA because of the risk that a listed species may inadvertently be harmed.”

“The Blanket Rule also affects RMEF’s members’ environmental interests in visiting and enjoying areas with high-quality habitat by restricting state management of wildlife and their habitat, regulating private habitat maintenance and improvement, and reducing incentives for voluntary conservation,” the lawsuit brief stated. RMEF officials did not return a request for comment.

The Blanket Rule was first implemented in 1975, just over a year after the Endangered Species Act was signed by President Richard Nixon. President Donald Trump’s first administration rescinded it in 2019. President Joe Biden’s Fish and Wildlife Service Director Martha Williams reinstated it in 2024.

One legal analysis in 2024 called Biden’s return to the Blanket Rule “unwelcome news for the regulated community,” which could “prolong project timelines and add to project development costs both on federal and non-federal lands across the country.” Another noted “these final rules perpetuate the ongoing fluctuation … as each administration re-evaluates and revises the ESA policies and priorities of prior administrations,” adding “both environmental and industry groups have signaled likely legal challenges.”

“I think there’s a long-standing resentment for a small subset of listed species with the most political controversy and economic impact,” said Bret Hartel, government affairs director for the Center for Biological Diversity, which has its own 2024 lawsuit challenging Biden’s Blanket Bule. “But it’s not species they’re opposed to. It’s the concept of protecting species under the law that’s the bigger target. There used to be bipartisan agreement about its use. Now it’s a controversy because the right wing has shifted ever further to the right.”

That’s apparent in the Endangered Species Act’s frequent mention as an obstacle to Trump’s agenda. In executive orders declaring an energy emergency, calling for energy dominance, reducing government regulation and most recently, calling for “immediate expansion of American timber production,” Trump has demanded strategies for getting around ESA legal requirements and protections.

The Blanket Rule first took effect under the Republican Ford administration, and was not challenged in the subsequent Reagan, Bush I or Bush II presidencies.

“Not until Trump did this change into an ideological fight,” Hartel said. “Weakening environmental protections has become the new target.”

The Center for Biological Diversity sued the Biden administration over the Blanket Rule because its reinstatement wasn’t strong enough, Hartel said. That case is also still in progress. But Hartel predicted both cases might never get a ruling.

“They don’t have to worry about this ever going before a judge,” he said of the PERC/RMEF suit. “They won’t have to strain too hard. I suspect the Trump Justice Department will settle the case in their favor.”

Whether anyone will get what they want after that remains an open question. It took most of Trump’s first term to get the Blanket Rule revoked, and most of Biden’s term to put it back. Settling the PERC/RMEF case would likely trigger another rule-making process that could stretch the process even longer.

Meanwhile, Trump’s DOGE government reduction efforts have slashed staff and funding from all the agencies tasked with making ESA listing decisions and creating the tailored recovery plans. ESA critics frequently attack the law for its inability to delist species once they’re given protection. Hartel countered that’s a prime justification for the Blanket Rule.

“Why not help move a species toward recovery faster by giving it more protection at the front end?” Hartel said. “They complain that species are stuck on the list forever, but then say ‘we want to do as little as possible to recover them.’ It doesn’t work both ways.”