On November 29, 2016, 18 states filed suit in the U.S. District Court for the Southern District of Alabama to challenge two final rules published by the U.S. Fish and Wildlife Service on February 11, 2016. The states allege that the final rulemakings exceed the authority given to USFWS in the Endangered Species Act.
In their complaint, the states allege that the final rulemakings erode the distinctions between occupied and unoccupied critical habitat mandated by the ESA. Specifically, the states allege that USFWS may only designate areas unoccupied by an endangered species as critical habitat “when a designation limited to [the species’] present range would be inadequate to ensure the conservation of the species.” The states allege that the final rulemakings allow USFWS to designate areas as “occupied critical habitat” even if the areas are not occupied and are not capable of supporting the species.
The case is State of Alabama v. Nat. Marine Fisheries Serv., 1:16-cv-00593 (S.D. Ala. Filed Nov. 29, 2016).