Washington Co-Leads 21-State Fight to Block Endangered Species Act Rollbacks

Washington Attorney General Nick Brown is co-leading a coalition of 21 attorneys general that filed two federal lawsuits Wednesday challenging Trump administration rules that strip habitat protections from the Endangered Species Act. The cases, lodged in the U.S. District Court for the Northern District of California, target three regulatory changes the Interior Department and the National Marine Fisheries Service finalized in July. One lawsuit attacks a rule that dropped habitat destruction from the legal definition of "harm." The other challenges two companion rules that end automatic protections for newly listed threatened species and require federal wildlife officials to weigh economic objections before designating critical habitat.

"The Trump administration is trying to undermine the law, the will of Congress and the will of the people who overwhelmingly support protections for endangered species," Brown said at a press conference, according to Reuters. "Instead of stewardship, this administration's approach to our land, to our water is one of exploitation." Interior Secretary Doug Burgum has said the old reading of the statute was "weaponized" against landowners and businesses. The harm rule takes effect September 14, five days after the states sued.

Brown's Oakland Filings Put Washington Among Four Co-Leads

California Attorney General Rob Bonta, Maryland Attorney General Anthony Brown, Massachusetts Attorney General Andrea Joy Campbell, and Washington's Nick Brown are co-leading the pair of complaints, according to Bonta's office. They are joined by the attorneys general of Arizona, Colorado, Connecticut, Delaware, Hawaii, Illinois, Michigan, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, Wisconsin, and the District of Columbia. That is 20 states plus the District, matching the count used by both Reuters and New York Attorney General Letitia James.

The coalition asks a federal judge in Oakland to vacate the rules as violations of the Endangered Species Act, the Administrative Procedure Act, and the National Environmental Policy Act, Courthouse News Service reported. One complaint names the U.S. Fish and Wildlife Service and the National Marine Fisheries Service over the harm definition. The second names Fish and Wildlife over the threatened-species and critical-habitat rules. Fish and Wildlife did not immediately respond to Reuters. The fisheries service, part of the Commerce Department, said it does not discuss pending litigation.

Washington is not a late joinder. Brown spoke from the same podium as Bonta, told Courthouse News the administration is "wrong on the merits, the morals and the law," and framed the 1973 statute as a bipartisan achievement that pulled the bald eagle back from collapse. As of September 2, his office's federal litigation tracker listed 75 cases against the current administration, 26 of them led or co-led by Brown. Wednesday's filings add a wildlife docket to a caseload that already includes Medicaid, elections, and climate rules. For a Kitsap reader, the legal posture matters: a co-lead writes the briefs and argues the hearing. A tagalong does not.

Habitat Destruction Drops Out of the Legal Meaning of Harm

For decades, federal regulations defined "harm" under the Endangered Species Act to include significant habitat modification that actually kills or injures listed wildlife by impairing breeding, feeding, or sheltering. The Interior and Commerce departments announced on July 10 that they had finalized a rule rescinding that definition. The Federal Register published it on July 14 as 91 FR 43300, effective September 14. The agencies removed the text from 50 C.F.R. sections 17.3 and 222.102 and did not replace it. Direct killing or injuring of a listed animal remains illegal. Existing permits and incidental-take statements stay in force, Interior said.

The administration's stated legal hook is the Supreme Court's 2024 decision in Loper Bright v. Raimondo, which ended judicial deference to an agency's reasonable reading of an ambiguous statute. Interior calls the prior harm definition an "unlawful regulatory intrusion" on private property. The Federal Register preamble goes further: the services "reject the majority's interpretation of the ESA as articulated in Sweet Home," the 1995 Supreme Court case that upheld habitat modification as harm when it actually kills or injures wildlife. New York's complaint calls the change "a reversal of staggering proportions" that conflicts with that precedent, according to James's office.

Reuters summarized the new rule as allowing oil drilling, mining, and other activities in those habitats "so long as those activities do not directly kill or injure the animals." The fight is not over whether shooting an orca is illegal. It is over whether filling an estuary that an orca's Chinook prey needs still counts as a take. Connecticut Attorney General William Tong's office said the old definition covered habitat damage that could kill or injure wildlife by impairing breeding, feeding, or sheltering. That reading is what Interior just deleted.

Newly Threatened Species Lose the Automatic Safety Net

The second lawsuit targets two Fish and Wildlife rules announced July 17. The first eliminates what Interior calls the "blanket rule" under section 4(d). For years, a species listed as threatened automatically received many of the same "take" prohibitions that apply to endangered species, unless the service wrote a species-specific exception. Going forward, a newly listed threatened species will not receive those default protections unless Fish and Wildlife writes a customized 4(d) rule, with no deadline to do so. Interior says the change does not disturb protections already in place for species currently listed as threatened. James's office warns that animals now under consideration for listing, including the monarch butterfly, could be designated threatened and still sit unprotected while a species-specific rule is drafted.

The companion rule revises how the service designates critical habitat under section 4(b)(2). Interior says the revision considers economic, national security, and other impacts, and "allows an area to be excluded from a 'critical habitat' designation if that exclusion will not cause the extinction of the species." James's office puts a sharper edge on the same text: if a company claims protection will be bad for business, the government must consider excluding the area, and if the business benefits outweigh the risks, regulators must approve the exclusion unless it would cause extinction of the entire species. California's complaint calls that an unlawful process based on "third party costs and regulatory burdens and other non-biological considerations."

Bonta's office notes that two of the three rollbacks restore rules first adopted in the previous Trump term, challenged in court, and later reversed by the Biden administration. Tong said his office "sued and stopped Trump from implementing these rollbacks in his first term, and we're suing again now." The coalition's legal theory is that the agencies ignored the statute, failed to give a reasoned explanation, and skipped the environmental review NEPA requires.

Southern Resident Orcas and Salmon Sit at the Center of Washington's Case

Brown told KUOW the rollback is "dramatically increasing the likelihood of the habitat being damaged, and that species will be harmed as a result." He named two Washington animals: southern resident orcas and salmon. Southern residents are listed as endangered. The July tribal complaints, which KUOW tied to this week's state cases, argued that habitat degradation is a primary driver of salmon decline in the Puget Sound region and named Puget Sound Chinook, steelhead, bull trout, marbled murrelet, and the southern residents. Chinook are the residents' primary prey. Damage to a spawning reach in a Puget Sound tributary does not look like the shooting of a whale. Under the old harm definition, it could still be a take. Under the new one, it may not.

Wednesday's state cases pick up that thread at a national scale, with Washington at the counsel table rather than as a bystander. Oregon Attorney General Dan Rayfield filed with the same coalition, with Governor Tina Kotek's support, KTVZ reported. Columbia Basin salmon do not respect the state line. A habitat rule that loosens in Idaho or Oregon still shows up in a Puget Sound orca's diet.

That is the original case for a multi-state complaint filed in California rather than a Washington-only suit in Seattle: the fish and the whales move, and so do the projects that alter the rivers they use. Brown's choice to co-lead, rather than join, puts a Puget Sound attorney general on the brief that a California court will read first. For Kitsap readers, the species at issue are the same ones that already structure shoreline permits, in-water work windows, and salmon recovery plans around the Sound. The states are not claiming those projects will start killing whales. They are claiming the legal hook that forced agencies to look at habitat first is being pulled out of the statute.

Burgum Says the Old Rules Were Weaponized Against Landowners

Interior's July 10 release is the administration's fullest statement of purpose. "For years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses," Burgum said. "That approach turned routine activity into a regulatory trap, drove up costs that impacted people's lives, and expanded federal authority beyond what Congress intended." Commerce Secretary Howard Lutnick added that the old rules "have restrained our fishermen for too long." Direct take remains illegal. What ends, Interior said, is punishment for "indirect or speculative impacts never contemplated by Congress."

On July 17, Burgum went further. "For too long, the Endangered Species Act has been weaponized to stop almost any new project in America," he said in the Interior release announcing the 4(d) and critical-habitat changes. He offered a recovery statistic the states do not use: "Nearly 97 percent of species ever placed on the list remain there today. Success should be measured by species recovery and delisting, not by adding more species to the list." James's office answers with a different number. The Act, she said, has produced "extraordinary results, with 99 percent of species protected by the Endangered Species Act avoiding extinction." Both figures can be true. They measure different things.

Brown, speaking to Courthouse News, called the Act "a monument to the wisdom of the American people" and said ubiquitous species, including the bald eagle, had been driven close to extinction before it passed. Bonta called the harm change "illegal, unscientific and contrary to common sense." The administration's reply is already on paper: follow the text, follow Loper Bright, and stop treating habitat as a proxy for take. A Northern District of California judge will have to pick between those two readings before, or just after, the harm rule takes effect.

Tribal Suits From July Now Sit Alongside the States in Federal Court

Wednesday's filings are not the first challenge to the harm rule. On July 14, the Swinomish Indian Tribal Community and the Squaxin Island Tribe, along with conservation groups including the Center for Biological Diversity and Columbia Riverkeeper, sued in the U.S. District Court for the Western District of Washington, the Seattle Times reported. Those complaints argued the rescission would make it legal to kill and injure listed species by destroying habitat, and they named Puget Sound Chinook, steelhead, bull trout, marbled murrelet, and southern resident orcas. That docket is still live. It is a different court, a different set of plaintiffs, and a narrower target: the harm definition, not the July 17 4(d) and critical-habitat package.

The two tracks can help each other or collide. A Western District ruling on the harm rule would not automatically bind the Northern District of California, and the reverse is also true. Conservation groups and tribes can press treaty and trust claims the states cannot. The states can press APA and NEPA theories at a national scale and ask for a nationwide vacatur. Neither case has a hearing date in Wednesday's press materials.

The immediate calendar is the regulation itself. The harm rescission takes effect September 14. Unless a judge stays it, federal biologists will stop treating habitat modification, standing alone, as a prohibited take five days from the filing. The 4(d) and critical-habitat rules do not carry the same published effective date, but they are final. Brown told KUOW the administration's decisions "would do harm to the very species that this law was designed to protect." Burgum says the law was used as a trap. The next move is a preliminary injunction request. The states did not attach one to Wednesday's press materials. They will have to file quickly if they want the old definition of harm to survive past Monday.