What’s More Threatened, The Prairie Chicken Or The Rule Of Law?

Jessica Medeiros-Garrison President, Rule of Law Defense Fund
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The answer is not the punch line in a legal comedy. Unfortunately, it is the recurring, Groundhog Day-like reality playing out at the Department of the Interior. Once the staid agency most known for preserving our national parks, Interior now has made a more infamous mark for cozying up to green, special interest ideologues bent on destroying jobs and economic growth through a tactic known as “sue and settle.” It’s the antithesis of the rule of law, and Republican Attorneys General are on the front lines fighting it.

Here’s how the scheme operates. Big green groups, such as WildEarth Guardians, petition the Fish and Wildlife Service (FWS), organized under Interior, to review the status of certain wildlife species under the Endangered Species Act (ESA). When FWS does not meet its very short, congressionally-mandated deadline for review under the ESA, the environmental activist groups sue to force a decision. Instead of defending the suit, FWS settles with the group by setting up a timetable to decide if the species are endangered or threatened. The settlement precludes Fish and Wildlife from considering a species a “candidate species,” which subjects it to an annual review based on certain criteria but does not place them on the endangered or threatened list. It ignores the process mandated by Congress for a transparent review and public comment. As a kicker, the settlement sweeps in many species that were not part of the original petition.

Oklahoma AG Scott Pruitt initiated the lawsuit earlier this year, concerned with the threat to the rule of law and the settlement’s impact of placing the lesser prairie chicken on a list of threatened species. Oklahoma had already spent $26 million to preserve the small grouse, an amount sure to skyrocket if the state has to guard against “taking” of the species. “Increasingly, federal agencies are colluding with like-minded special interest groups by using ‘sue and settle’ tactics to reach ‘friendly settlements’ of lawsuits filed by the interest groups. These settlements, which often impose tougher regulations and shorter timelines than those imposed by Congress, are having a crippling effect on the U.S. economy,” said Pruitt.

Kansas AG Derek Schmidt and North Dakota AG Wayne Stenehjem soon joined in the suit, seeking to address an agency altering its legal obligations in the absence of congressional action or a public rulemaking.

By entering into private settlements with special-interest litigants, FWS attempts to circumvent the legislative and regulatory process and make fundamental changes to the ESA-imposed obligations. In Oklahoma for instance, three species have been held on the “candidate species” list for some years, but under the settlement terms FWS was forced to either list the species or take them off the table. They weren’t taken off the list. The Lesser Prairie-Chicken and Rabbitsfoot Mussel were listed as “threatened,” the Neosho Mucket Mussel as “endangered.”

Other species at issue are the notorious Greater Sage-Grouse, the Sprague’s Pipit, and the Northern Long-Eared Bat. While these creatures may not mean much to most Americans; ranchers, farmers, and job producers are well familiar with them now, particularly in western states where environmental activists have made an end-run around the law. Any species on the aforementioned lists is protected from harm which the ESA defines as merely modifying or degrading the habitat or inadvertently harassing a single member of the species. Compliance can be cost prohibitive, involving in some instances quarantining an area of four square miles.

Rather than protecting wildlife, the environmental activist agenda is motivated by restricting land and often focuses directly on hindering ranching, farming, and energy production. The Center for Biological Diversity publicizes on its website its use of lawsuits to shut down oil and gas drilling.

This sue and settle scheme is not just limited to FWS. According to the U.S. Chamber of Commerce, this scheme was used by the Environmental Protection Agency (“EPA”) in over 60 lawsuits between 2009 and 2012. This lack of defense resulted in the EPA publishing more than 100 new regulations outside of the normal regulatory framework. Observing these guidelines can cost billions of dollars. The Obama administration and big green plaintiffs appear as adversaries on legal filings, but the charade stops there. Behind closed, “settlement” doors it is business as usual to stifle the rule of law. As the Heritage Foundation points outs, the plaintiffs and the current federal agencies have common goals, which lead to quick and lop-sided settlements.

Sadly, not all western states affected by this collusive scheme have AGs ready to step up on this or similar issues of federal government overreach. Nevada farmers and ranchers are all too familiar with the sage grouse, which the FWS has proposed to list as a threatened species. Adam Laxalt, Republican candidate for AG in Nevada, recently discussed the consequences of the listing in his state. We need more brave AGs, like Pruitt, Schmidt, and Stenehjem for the rule of law to be protected from big green and their cozy friends in Washington, DC.