Inside the Battle Over the ESA

A half-century in, do the numbers of the Endangered Species Act show it’s winning or losing?

Losing so bad it needs a major overhaul, according to the chairman of the House Natural Resources Committee. Rep. Bruce Westerman, R-Arkansas, has a 44-page bill to do that by changing the rules for designating critical habitat, reducing its regulatory powers, prohibiting some court review, streamlining new permits, and retroactively modifying past permits that guide development affecting endangered species.

Ranking Committee Member Jared Huffman, D-California, says the ESA is winning 99 percent of the time, except for the interference thrown up by Republicans. “To the extent it has failed in recovering species,” he said, “it is because our Republican friends are endlessly at war with the budgets of the wildlife agencies doing that work.”

It was a busy week for the Endangered Species Act. Westerman’s ESA Amendments Act of 2025 got a hearing last week before the Natural Resources Subcommittee on Water, Wildlife and Fisheries. The next day, former Wyoming Game and Fish Director Brian Nesvik appeared before the Senate Environment and Public Works Committee confirmation hearing to lead the U.S. Fish and Wildlife Service.

Also Wednesday, the Center for Biological Diversity filed its response to a lawsuit challenging a core tool of the ESA by Bozeman-based Property and Environmental Research Center and Missoula-based Rocky Mountain Elk Foundation. Those two groups seek to overturn the “blanket rule” that allows FWS high-level protections intended for species listed as “endangered” to apply to species with the lower-grade “threatened” listing.

Congress first passed the Endangered Species Act in 1973 and reauthorized it in 1988. Westerman said since then about 1,200 of the 1,700 plants and animals it protects got added to its lists. But while 99 percent of those have avoided extinction, he said the law was failing its original intention, which was to bring species to recovery.

“It is a well-intentioned law hijacked by litigation and executive overreach to the detriment of the species it was supposed to help recover and the communities its regulations impact,” Westerman told the subcommittee on Tuesday. In the process, only about 3 percent of those protected creatures have reached delisting status. Using a football analogy, he said the government was playing great defense, “but on the offense side, it’s dismal.”

“Maybe we should stop punting on first down because we keep firing the offensive coordinator,” Huffman responded. He claimed FWS had lost 50 percent of the planning experts and biologists who consult with other federal agencies on species protection plans due to President Donald Trump’s DOGE cuts. “This is the office that speeds things up and it’s been gutted,” Huffman said. “Over 400 Fish and Wildlife Service employees have been fired nationwide, and more cuts are coming. These cuts are causing chaos.”

Montana’s newest congressional, Rep. Troy Downing, had to wait until the end of the two-hour hearing to get his comments in. The eastern district Republican is not a member of the House Natural Resources Committee, but was one of several House members allowed to participate in the March 25 hearing.

“The Endangered Species Act has been repeatedly misused to block industry in Montana, from timber to mining to energy development,” Downing said, adding that it relied on “dubious claims about habitat impact rather than scientific evidence of harm to species.” 

The person likely to oversee the Endangered Species Act evolution is Brian Nesvik. The former game warden who rose to lead Wyoming’s wildlife agency and represent it at the Interagency Grizzly Bear Committee, told senators he was now prepared to prioritize Trump’s energy development agenda.

“President Trump’s America First agenda includes building a government that better serves the citizens of our country,” Nesvik said in his opening remarks to the Senate Environment and Public Works Committee. “And there are immediate and transformational opportunities to demonstrate that: improving the Service’s interactions with the public, simplifying regulations, accelerating permitting with technology, and relying more on education, voluntary compliance, and verification. I share [Interior Secretary Doug] Burgum’s vision that innovation outperforms regulation.”

Nesvik would replace Martha Williams, Montana’s former Department of Fish, Wildlife and Parks director, who held the FWS top job during the Biden administration. He would also join the line behind John Turner, another Wyomingite who led FWS during the George H. W. Bush administration in the 1990s.

Westerman’s ESA amendments would greatly change how the Fish and Wildlife Service regulates public and private land managers in places critical to threatened and endangered species. The lawsuit presented by PERC and RMEF would remove the service’s ability to impose many of those regulations in the first place.

One of the strongest tools the ESA has is the power to restrict “take” of an endangered species. Legally, “take” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct.” An endangered species is at immediate risk of going extinct – gone forever.

A threatened species, legally, is one that is at risk of becoming endangered. Because it has more slack in its risk rope, the ESA calls for creation of detailed recovery plans that may allow more habitat development, hunting or other “take” than an endangered species could endure. But those plans take time to produce, so the blanket rule allows for stiff initial protections to keep the listed species from going endangered or extinct in the meantime. About 100 threatened species currently have blanket-rule status.

“This cynical court challenge has nothing to do with conservation and everything to do with stripping protections from vulnerable wildlife,” Noah Greenwald, endangered species director at the Center, said in a press release. “We’re going to do our utmost to ensure threatened species like Florida scrub jays and marbled murrelets don’t lose the safeguards that keep them alive.”

PERC vice president for law and policy Jonathan Wood recently told Mountain Journal the blanket rule imposed “perverse incentives” for landowners to prevent at-risk plants and animals from using their property. They won’t maintain habitat for those creatures, Wood said, because even a potential ESA listing would bring down onerous regulations on their property rights.

The Endangered Species Act actually calls out those property rights and development interests as the force it’s intended to confront. In its initial findings, the law states, “Congress finds and declares that …various species of fish and wildlife and plants in the United States have been rendered extinct as a consequence of economic growth and development untampered by adequate concern and conservation.”

While explaining his intention to “bring the ESA into the 21st century,” Westerman said, “Congress must examine to see if the law is being implemented as originally intended.” He also quoted Gifford Pinchot, the first chief of the U.S. Forest Service: “Unless we practice conservation, those who come after us will have to pay the price of misery, degradation and failure for the progress and prosperity of our day.”