Builders Harmed in ESA Settlement, NAHB Tells Court of Appeals

Two court settlements that forced the  to make quick decisions on protecting hundreds of species under the (ESA) ended up endangering the rights of property owners to develop their land, NAHB told the U.S. Court of Appeals Tuesday.

It’s a violation of the Administrative Procedure Act, attorneys said, and it’s not how the ESA is supposed to work anyway.

Under the ESA, organizations may petition the U.S. Fish and Wildlife Service to add species to the endangered or threatened list, and then the service must determine if the species is “warranted” for listing, “not warranted,” or “warranted but precluded” due to higher priority species, explained NAHB Vice President for Legal Advocacy Tom Ward.  The “warranted but precluded” plants and animals are called “candidate” species.

In 2011, the U.S. Fish and Wildlife Service settled a series of lawsuits with two environmental advocacy organizations, and in doing so abandoned the process, specifically declining to put these 251 species on the candidate list and effectively bumping them in line.

NAHB challenged the settlement agreements in federal District Court, arguing that this action unlawfully rewrote the ESA. Unfortunately, the judge that approved the settlements held that NAHB did not have “standing” to bring the case: He did not believe the NAHB members were harmed by the settlement agreements.

NAHB appealed that decision to the D.C. Circuit Court of Appeals. On May 4, the court heard oral arguments.  NAHB’s attorney explained that the U.S. Fish and Wildlife Service has developed programs that incentivize landowners to take actions to protect candidate species and that NAHB’s members have spent money to study candidate species and set aside candidate species habitat to keep them off the endangered species list.

NAHB’s attorney further explained that these members were harmed when the U.S. Fish and Wildlife Service decided to forgo the entire candidate listing process.

“If the court agrees, the case will go back to District Court, where we will have the opportunity to argue the merits of our case,” Ward said. “We should know by the end of the year.”

For additional information, contact Tom Ward at 202-266-8230.