Polar Bear Habitat: Now Coming to a Backyard Near You

By Karen Budd-Falen

The U.S. Supreme Court is tasked with, among other things, reviewing federal regulations and determining whether they comply with the statutes passed by Congress. In 2019, the U.S. Supreme Court did just this with the Endangered Species Act (ESA) by stating before the U.S. Fish and Wildlife Service can designate an area as “critical habitat,” first the area “must be” habitat.  

The Supreme Court did not say the area could become habitat at some time in the future or the federal government could blackmail people into restoring an area into habitat in the future. The court said ESA critical habitat must first be habitat. 

Despite this plain language and knowing every student learned the difference between present, past and future verb tenses, the Biden administration has repealed the Trump regulations implementing the Supreme Court’s habitat definition. According to Biden, it was necessary to rescind the Trump definition because the government wants to designate (and regulate) areas which do not meet a listed species needs now but may be able to “in the future” due to “natural processes or restoration.” 

Take a practical example. My husband and I have a ranch north of Cheyenne. Our property supports a cow/calf operation; several horses; a decent cowdog; two worthless but loveable mutts; several barn cats and our daughter’s homely pot-bellied pig. Lodgepole Creek runs through our property, although the creek dries up in the late summer and fall if we don’t get any rain. Two hundred and seventy-eight miles past our house, Lodgepole Creek drains into the South Platte River, a navigable water. 

Currently, our private property is not designated as habitat for any ESA species. We use our property to raise beef to feed our family, this nation and the world. Under the Trump definition of habitat, the federal government would have to scientifically show our land currently contains (present verb tense) at least one of the physical or biological features necessary to support a threatened or endangered species to define our property as “habitat.” 

However, under Biden’s pronouncement, our private land could be designated as habitat today – for a species which cannot live there today – because the species might live there “someday” based on natural processes (i.e., climate change) or by blackmail. 

Ah, but the government says, “Oh no, your land is not affected, because the designation of critical habitat does not impact private property use.” 

What the government doesn’t mention is if you need a permit from any federal agency to, for example, put in a water tank (which we would if we wanted one near Lodgepole Creek which falls under the Corp of Engineer’s jurisdiction), the government could condition the granting of our permit on us “restoring” our property as habitat for a species which doesn’t live there. 

In one interview, a Biden official was asked whether the new rule means the federal government could force someone to tear up a paved parking lot and plant trees as habitat and she admitted this could happen. 

Never mind the parking lot may be necessary for the survival of a small business, the economic cost of doing the “restoration” to the property owner or the amount of time the parking lot had been in place. Also, never mind this will add to sky-rocketing inflation, more food insecurity, less jobs and greater burdens on small businesses. 

And don’t get me started on whether our ranch could support polar bears based on climate change. The Biden decision doesn’t give a timeframe on when the “natural processes” need to happen. 

In 10 years or 10,000 years, climate change could make our backyard polar bear habitat, so it could be designated as habitat now.  

So, watch your backyards, farms, ranches and homes. Based on “natural processes” or “restoration,” you could be living in polar bear habitat, too. 

Karen Budd-Falen is a senior partner with Falen Law Offices, LLC. The office has attorneys licensed to practice law in Colorado, Idaho, Illinois, Montana, Nebraska, New Mexico, North Dakota, South Dakota and Wyoming.