For 20 minutes, Wyoming lawyer William Perry Pendley railed against “environmental extremists” and boasted about the legal battles his right-wing nonprofit had waged on behalf of Western property owners. The tirade came at a September 2014 conference of the conservative American Dream Coalition in Denver.
Environmentalists primarily use three laws, including the Endangered Species Act of 1973, as tools to “drive people off the land” and into cities where they can be “controlled,” he said. At the time, Pendley was president of the Mountain States Legal Foundation, a Colorado-based nonprofit law firm that focuses on “protecting property rights” and advocates for selling off millions of federal acres in the West.
“We’ve gone from protecting the warm and fuzzies to protecting the cold and slimies,” he said. “It was supposed to apply only to federal land. Today, it applies to private property ― coast to coast, border to border ― which leads us here in the West to say what? ‘Shoot, shovel and shut up’ if you encounter one of those critters on your property.”
He continued: “That, by the way, is not legal advice.”
“Shoot, shovel and shut up” ― also known as the “3-S treatment” ― is a strategy extreme property rights advocates have embraced for getting rid of unwanted, imperiled species on private land. Pendley has also written that the law underlying federal species protection is used “to kill or prevent anybody from making a living on federal land.”
Late last month, Interior Secretary David Bernhardt tapped Pendley to serve as acting director of the Bureau of Land Management, an agency of the Interior Department that oversees 245 million acres of public land, or more than one-third of the federal estate. This week, the Trump administration finalized rules that significantly weaken the Endangered Species Act. Among other things, the changes will make it easier for government agencies to remove species from the protected list and limit their ability to account for the impacts of future climate change. The rollback comes on the heels of a United Nations report that found up to 1 million species around the globe are at risk of extinction due to human activities.
That the Interior Department took aim at the ESA comes as no surprise when one considers some of the people in high-ranking posts. Pendley is one of several agency officials who detest what is arguably America’s most important law for protecting imperiled plants and animals.
Susan Combs, a former Texas comptroller who was confirmed in June as Interior’s assistant secretary for policy, management and budget, once equated proposed ESA listings to “incoming Scud missiles” headed for her state’s oil and gas-rich economy. As a state lawmaker in the 1990s, she championed legislation prohibiting state wildlife officials from gathering endangered species data from private lands without permission, according to The Austin Chronicle. As Texas comptroller, she fought against the federal government’s proposal to list the dune sagebrush lizard ― an effort that primarily benefited fossil fuel interests. And in 2015, Combs led three groups in a failed effort to petition to have federal protections removed for the golden-cheeked warbler, an endangered songbird native to central Texas.
Karen Budd-Falen, Interior’s deputy solicitor for fish, wildlife and parks, has called the ESA “a sword to tear down the American economy, drive up food, energy and housing costs and wear down and take out rural communities and counties.” As a private lawyer, she was involved in several ESA-related legal disputes, including representing parties accused of violating the law.
Budd-Falen was among several Interior officials who briefed reporters about the ESA overhaul on Monday.
Kathy Benedetto, a top adviser at Interior, said in 1995 that the ESA “states that plants, animals and bugs are more important than human beings and that’s morally bankrupt,” according to a daily newsletter from the Alliance for America, a property rights group that was “dedicated to bringing human concerns into environmental decision-making.”
“Most species became extinct before man showed up,” Benedetto added. “The earth changes constantly.”
At the time, Benedetto was an executive committee member at the Grassroots ESA Coalition, which was, as the Alliance for America described it, working to “throw out” the 1973 law.
Then there’s Interior chief Bernhardt, a former fossil fuel lobbyist and lawyer who has been a key figure in the Trump administration’s deregulatory agenda. In 2008, while working as the department’s top lawyer during the Bush administration, Bernhardt issued a legal memo that concluded it’s impossible to prove planet-warming greenhouse gases are impacting imperiled species and instructed federal agencies not to consider climate change when making listing decisions. As an industry lawyer, he sued the federal government over its implementation of the act. And as an official in the Trump administration, he intervened to block a scientific report by the Fish and Wildlife Service about the threat certain pesticides pose to more than 1,000 endangered species, as an investigation by The New York Times uncovered earlier this year.
Bernhardt and the agency have defended the ESA rework, saying it will increase transparency and lift regulatory burdens without negatively impacting species recovery.
“We celebrate the #EndangeredSpeciesAct as the nation’s foremost conservation law w/ the ultimate goal of recovering the most imperiled species,” Interior’s press office wrote in a post to Twitter. “We are updating ESA implementation to make it more clear, consistent & better address conservation challenges of the 21st century.”
What’s clear, however, is that there are several people walking the halls of Interior’s headquarters in Washington who don’t share that sentiment and want to see sweeping revisions to the ESA. And that’s exactly what environmental groups say the American public is getting with the new rules, which alter how federal agencies implement portions of the law.
“You’ll hear from the administration that a lot of these changes are just kind of cleaning up and technical in nature,” Jamie Rappaport Clark, president and CEO of the conservation nonprofit Defenders of Wildlife and a former director of the U.S. Fish and Wildlife Service under President Bill Clinton, told reporters Monday. “But this package of regulations in no way will improve species conservation, they’ll do quite the opposite. They’ll seriously undermine the Endangered Species Act’s effectiveness in significant and important ways.”
This story has been updated with additional comments from Karen Budd-Falen.