Newspaper column: New endangered species rule falsely maligned

When the Interior Department released new rules for enforcing the 45-year-old Endangered Species Act (ESA) this past week, self-styled environmentalists and many in the news media falsely maligned the changes, saying they would require the Fish and Wildlife Service to consider economic impact in deciding whether to list a species as endangered or threatened.

In fact, the press release announcing the finalizing of the new rules specifically states that designations will be based solely on the “best available scientific and commercial information” as the original law dictates. The change simply allows the public to be informed of economic impacts created by the law by removing the phrase “without reference to possible economic or other impacts of such determination.”

The rule change proposal noted, “Since 1982, Congress has consistently expressed support for informing the public as to the impacts of regulations in subsequent amendments to statutes and executive orders governing the rulemaking process.” The only change is giving the public more information.

“The best way to uphold the Endangered Species Act is to do everything we can to ensure it remains effective in achieving its ultimate goal — recovery of our rarest species. The Act’s effectiveness rests on clear, consistent and efficient implementation,” said Interior Secretary David Bernhardt in the press release. “An effectively administered Act ensures more resources can go where they will do the most good: on-the-ground conservation.”

Nevada Sen. Catherine Cortez Masto reacted on Twitter: “Trump’s gutting of the Endangered Species Act — even as species struggle with the effects of the #ClimateCrisis & human activity — threatens protected species & could put even more plants and animals at risk.”

The rule changes actually should help address a fundamental problem with the enforcement of the ESA up until now — that it focuses almost entirely on limiting any conceivable profitable use of land or water that is “critical habitat” of an endangered or threatened species, thus maintaining a fragile status quo rather than actually encouraging recovery of the species population.

The Property and Environment Research Center (PERC), which refers to itself as the home of free market environmentalism, reports that more than 1,600 species are listed under the ESA, but only 39 species have been determined to be recovered since the law passed (half of those mistakenly listed in the first place), while 11 have become extinct. Nevada has 16 endangered species and 11 threatened.

Previously, when states tried to reintroduce endangered species by breeding, the federal government threatened to sue, saying possession of the species required a federal permit, which it refused to issue.

Another significant change requires that when designating critical habitat that the species is actually present or the area has features essential to the species’ conservation.

This addresses issues raised by a Supreme Court case out of Louisiana in which the owner of 1,500 acres of land was prohibited from using the property because it was declared critical habitat for the dusky gopher frog, even though none of the frogs had been seen in the area for 50 years and the land itself could no longer support the frogs.

The case was finally settled in July in the property owner’s favor. 

Mark Miller, an attorney for the Pacific Legal Foundation which sued on behalf of the landowners, said of the agreement, “This federal frog feud is over, and property rights and good government win. The government tried to ban development of 1,500 acres of private property at a cost of $34 million in the name of an endangered frog that does not live on the property and cannot survive there. The feds may as well have labeled this Louisiana property critical habitat for a polar bear. It would have done just as much good.”

Also, in the future a species listed as threatened would not be treated as stringently as those listed as endangered, as currently is the case. 

Advocates of the changes say this will provide incentives for landowners to help species recover. In the past, landowners confronted with restrictions under the ESA were said to have been incentivized to shoot, shovel and shut up. No species. No restrictions. 

“Our interest is getting this landmark wildlife protection law to work better,” said PERC’s executive director Brian Yablonski in a statement. “That means fostering conditions so landowners become more enthusiastic in their role as stewards for species recovery, not worried if they find an endangered species on their land. States and landowners will respond better to carrots, not clubs, in our efforts to improve species recovery results.” 

Delisting of species is preferable to merely maintaining the status quo in perpetuity.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Editorial: Modifications to Endangered Species Act overdue

Canadian lynx (USFWS pix via PERC)

It is about time.

A few weeks ago the Interior Department announced proposals to modify the way it enforces the Endangered Species Act of 1973 to make the law a bit less onerous for private businesses and land owners. The agency is currently accepting comments on its proposals.

One of the proposals is to remove the phrase “without reference to possible economic or other impacts of such determination.” Listings of species as endangered or threatened would still be made “solely on the basis of the best scientific and commercial data available.” The change simply allows the public to be informed of potential impacts on the economy.

“Since 1982, Congress has consistently expressed support for informing the public as to the impacts of regulations in subsequent amendments to statutes and executive orders governing the rulemaking process,” the proposal states.

The law currently defines a “threatened species” as “any species which is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.” The proposal is to more specifically define what the “foreseeable future” is on a case-by-case basis. Self-styled environmentalists would define the “foreseeable future” as any remote risk at any time in the future.

The proposal seeks to better define “critical habitat.” In the past the federal land agencies have sought to block such things as farming, grazing, logging, recreational uses and mineral exploration on land deemed “critical habitat” for the dusky gopher frog in Louisiana and the Canadian lynx in Colorado, though neither species had been spied in those areas for decades.

The agency further proposes to better define when, why and how a species might be delisted.

The Property and Environment Research Center, which refers to itself as the home of free market environmentalism, reports that currently 1,623 species are listed under the act, but only 39 species have been determined to be recovered since the law passed, while 11 have become extinct.

The environmentalists rage against the modest changes claiming the law has successfully kept 98 percent of listed species from going extinct, while others focus on the fact only 2 percent have been recovered, largely due to the fact enforcement in the past has only been aimed at blocking human endeavors and little or nothing has been done to actually increase the population.

According to an article in PERC’s magazine, Colorado wildlife agencies took it on their own to reintroduce several endangered fish and the Canadian lynx, both successfully.

“The federal government threatened to sue to stop the state’s recovery efforts, claiming that even possession of endangered species — much less raising them in captivity and reintroducing them into the wild — was prohibited without federal permits,” the magazine reported. “And the government did not want to permit our hatchery or any restocking program.”

When the state threatened to hold press conferences exposing opposition to species recovery efforts, the agency backed down rather than be shown to be hypocritical about “protecting” species.

Republican Sen. John Barrasso of Wyoming has a draft bill that would require species recovery plans and give states more leeway in conservation efforts. Democrats are almost universally opposed, apparently preferring to allow nature to take its course, even if that means 98 percent of species remain listed and economic endeavors are blocked in perpetuity.

We support the modest Interior Department changes to the regulatory language, as well as Barrasso’s bill to actually do something about species recovery.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

 

Newspaper column: Nevadans welcome review of sage grouse land use plans

Nevada Attorney General Adam Laxalt, who had filed a lawsuit attempting to overturn the Interior Department’s 2015 land use plan to protect greater sage grouse, is praising the recent decision by the Trump administration to review those plans.

Secretary of the Interior Ryan Zinke signed an order establishing an internal review team to evaluate federal and state sage grouse plans and report back to him in 60 days. He specifically called on the review team to consider local economic growth and job creation, as well as protection of the birds.

“While the federal government has a responsibility under the Endangered Species Act to responsibly manage wildlife, destroying local communities and levying onerous regulations on the public lands that they rely on is no way to be a good neighbor,” said Zinke after issuing the order. “State agencies are at the forefront of efforts to maintain healthy fish and wildlife populations, and we need to make sure they are being heard on this issue. As we move forward with implementation of our strategy for sage-grouse conservation, we want to make sure that we do so first and foremost in consultation with state and local governments, and in a manner that allows both wildlife and local economies to thrive. There are a lot of innovative ideas out there. I don’t want to take anything off the table when we talk about a plan.”

Greater sage grouse (BLM pix)

Though Interior decided to not list the sage grouse under the Endangered Species Act, its land use plan essentially barred mineral exploration on 3 million acres in Nevada and locked out most economic activity on 10 million acres in a dozen Western states.

Laxalt was quoted in a press release as saying, “My office remains dedicated to protecting the interests of Nevada and ensuring that federal agencies take our unique needs and concerns into account. We look forward to working with Secretary Zinke to develop a plan that protects the greater sage grouse in ways that recognize Nevada’s expertise and commitment to this important issue, and that also preserves and expands Nevada jobs in sectors like mining and ranching. An intelligent sage grouse plan can do both successfully.”

In October 2015 Laxalt filed suit on behalf of the state and was joined by nine Nevada counties, several mining companies and a ranch. The suit repeatedly stated that the various federal land agencies ignored state and local input on the land use plan.

Nevada’s senior Sen. Dean Heller also welcomed the Zinke review.

“I am pleased that Secretary Zinke is initiating a review of the previous administration’s sage-grouse land use plans and committing to work with those who know how to best protect threatened species: states and localities,”
Heller stated. “As I have consistently maintained, allowing states like Nevada to have a seat at the table as an active participant in the discussion surrounding conservation efforts is central to the viability of the sage-grouse. Moving forward, I am hopeful that the Department of the Interior will partner with Governor Sandoval and the Nevada Sagebrush Ecosystem Council to begin targeting the real threats to sage-grouse and their habitat: invasive species, wildfire, and wild horse overpopulation.”

News accounts quoted Zinke as saying the Republican governors of Nevada, Utah and Idaho all prefer that the sage grouse plans give them more flexibility and rely less on habitat preservation “and more on numbers” of birds in a given state.

Gov. Brian Sandoval has complained in the past about Nevada’s input being ignored. In one letter he stated, “I believe the proposed land withdrawal will not be able to show any measurable results except for the demise of the mineral exploration industry in Nevada. The urgency to implement the withdrawal proposal prior to conducting the proper analysis needed to evaluate the efficacy of the action and socio-economic impact of the action is unclear,” adding that the agencies involved have “provided no science or analysis at any level to support the rationale” for excluding mining operations.

Interior’s draft environmental impact statement estimated its grouse restrictions would reduce economic output in Nevada each year by $373.5 million, cost $11.3 million in lost state and local tax revenue and reduce employment by 739 jobs every year for the next 20 years.

And it all may be for naught. According to a 2015 Western Association of Fish and Wildlife Agencies survey, the population of greater sage grouse had grown by nearly two-thirds in the previous two years — before the implementation of strict land use plans.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Newspaper column: Nevada joins challenge of Endangered Species Act rule changes

This could be declared critical habitat for some endangered species of fish because someday a stream might run through it. (U.S. Fish and Wildlife Service photo)

Nevada has joined an 18-state coalition that has filed suit against various federal land agencies for essentially rewriting the Endangered Species Act of 1973 (ESA) to in effect give themselves potential veto power over any use whatsoever on every square foot of rural land in the country.

Though the ESA gives the U.S. Fish and Wildlife Service authority to protect “critical habitat” occupied by endangered or threatened species on public and private land, the new rules sweepingly redefine “critical habitat” to include land currently unoccupied by those species and even to include land that just might someday, in someway, somehow later become “critical habitat.”

The new rules give federal agents the power to block or alter any activity — grazing, farming, buildings, mining, recreation, roads, fences, pipelines, ditches, power lines, irrigation, oil and gas exploration — that might somehow adversely affect a potential habitat for certain protected rodents, minnows, bugs, birds, reptiles and beasts.

In a press release announcing the litigation, Nevada Attorney General Adam Laxalt noted that the rule change could allow the federal government to declare “desert land as critical habitat for a protected fish and then prevent the construction of a highway through the land, under the theory that it would prevent the future formation of a stream that might one day support the fish.” The passage is almost verbatim from the lawsuit.

The suit was filed this past week in federal court in Alabama. It names as defendants the U.S. Secretary of the Interior, the National Marine Fisheries Service, the U.S. Secretary of Commerce and the U.S. Fish and Wildlife Service.

“As we have seen countless times, this administration’s novel rules reach well beyond anything Congress could have ever intended and will have adverse effects on individual states, businesses and families,” said Laxalt in the press release. “In practice, these latest rules expand federal oversight to the point that the federal government could potentially designate an entire state or even multiple states as critical habitat for certain species. I will continue to protect our state from this type of unwarranted and burdensome federal overreach.”

The sweeping definition of habitat appears to fly in the face of the law’s requirement that “critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species,” except in circumstance determined by the secretary of the Interior.

Alabama’s Attorney General Luther Strange said in a press release, “Washington bureaucrats have gone beyond common sense by seeking to expand their control to private property adjoining the habitat of an endangered species solely on the basis that these areas might one day be home to a threatened species.”

The suit declares the new rules are “an unlawful attempt to expand regulatory authority and control over State lands and waters and should be vacated and enjoined because they violate the ESA and the Administrative Procedure Act. (APA)”

The suit goes on to say that the ESA as written by Congress respects the rights of states to manage and control land inside their boundaries, but, “The Final Rules issued by the Services trample upon the sovereign rights of the States as landowners and stewards of their natural resources. They directly implicate state management decisions related to wildlife regulation, forest management, water management, state owned or supported projects, and other areas of traditional State control.”

The suit also takes issue with the aforementioned fact that the new rules “declare that essential features include not only the physical or biological aspects that actually support the species, but also items that might lead to the development of those species-supporting features sometime in the future.”

Arguments against the rules posted in the Federal Register earlier this year note that this “constitutes an impermissible reliance upon hope and speculation.” As well as a crystal ball or reading of tea leaves.

The lawsuit also notes the rules create huge costs for private landowners and small business who must go to the expense of obtaining federal permits in order to make even minor modifications to their own property. Permits can be denied under rules that are arbitrary, capricious and onerous.

In addition to Nevada and Alabama, other suing states are Alaska, Arkansas, Arizona, Colorado, Kansas, Louisiana, Michigan, Montana, Nebraska, New Mexico, North Dakota, South Carolina, Texas, West Virginia, Wisconsin and Wyoming.

To place the effectiveness of the Endangered Species Act in perspective: Only 1 percent of listed species have ever recovered sufficiently to be delisted, despite the law’s immense impact on economic endeavors. Not much return on investment.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Nevada joins in suit to challenge sweeping redefinition of ‘critical habitat’ under Endangered Species Act

Nevada has joined an 18-state coalition that has filed suit against various federal land agencies for rewriting the Endangered Species Act of 1973 (ESA) to in effect give themselves carte blanche over ever square foot of land in the country.

The new rules were published in the Federal Register in February and took effect in March. Though the ESA gives the U.S. Fish and Wildlife Service authority to protect “critical habitat” occupied by endangered or threatened species on public and private land, the new rules sweepingly redefine “critical habitat” to include land currently unoccupied by those species and even to include land that just might someday, in someway, somehow later become “critical habitat” by way of global warming or some other possible change.

The new rules give federal agents the power to block or alter any activity — grazing, farming, construction, mining, recreation, roads, fences, oil and gas exploration — that might somehow adversely affect that potential habitat for certain protected rodents, minnows, bugs, birds, reptiles and beasts.

In a press release announcing the litigation, Nevada Attorney General Adam Laxalt noted that the rule change could allow the federal government to declare “desert land as critical habitat for a protected fish and then prevent the construction of a highway through the land, under the theory that it would prevent the future formation of a stream that might one day support the fish.” The line is lifted almost verbatim from the lawsuit.

The suit was filed Tuesday in federal court in Alabama. It names as defendants the U.S. Secretary of the Interior, the National Marine Fisheries Service, the U.S. Secretary of Commerce and the U.S. Fish and Wildlife Service.

“As we have seen countless times, this administration’s novel rules reach well beyond anything Congress could have ever intended and will have adverse effects on individual states, businesses and families,” said Laxalt in the press release. “In practice, these latest rules expand federal oversight to the point that the federal government could potentially designate an entire state or even multiple states as critical habitat for certain species. I will continue to protect our state from this type of unwarranted and burdensome federal overreach.”

The sweeping definition of habitat appears to fly in the face of the law’s requirement that “critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species,” except in circumstance determined by the secretary of the Interior.

Alabama’s Attorney General Luther Strange said in a press release, “Washington bureaucrats have gone beyond common sense by seeking to expand their control to private property adjoining the habitat of an endangered species solely on the basis that these areas might one day be home to a threatened species.”

The suit states:

The Final Rules are an unlawful attempt to expand regulatory authority and control over State lands and waters and should be vacated and enjoined because they violate the ESA and the Administrative Procedure Act (“APA”).

The ESA carefully delineates how and when the Services may designate areas as critical habitat. The ESA provides that when a species is listed as endangered or threatened, the Services shall “designate any habitat of such species which is then considered to be critical habitat” and “may, from time-to-time thereafter as appropriate, revise such designation.”

The ESA defines critical habitat as “specific areas within the geographical area occupied by the species at the time it is listed … on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection.” Unoccupied areas trigger an additional requirement — the Services must determine that “such areas are essential for the conservation of the species.”

By employing two different definitions, “[t]he statute thus differentiates between ‘occupied’ and ‘unoccupied’ areas, imposing a more onerous procedure on the designation of unoccupied areas by requiring the [Services] to make a showing that unoccupied areas are essential for … conservation.” The Services have long recognized that they may designate unoccupied areas “only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” (Citations omitted.)

The suit also takes issue with the aforementioned fact that the new rules “declare that essential features include not only the physical or biological aspects that actually support the species, but also items that might lead to the development of those species-supporting features sometime in the future.”

Arguments against the rules posted in the Federal Register note that this “constitutes an impermissible reliance upon hope and speculation.”

As well as a crystal ball or reading of tea leaves.

In addition to Nevada and Alabama, other suing states are Alaska, Arkansas, Arizona, Colorado, Kansas, Louisiana, Michigan, Montana, Nebraska, New Mexico, North Dakota, South Carolina, Texas, West Virginia, Wisconsin and Wyoming.

To place the ESA in perspective: Only 1 percent of listed species have recovered sufficiently to be delisted, despite the immense impact on economic endeavors.

Every square foot covered in red tape.

Federal agencies never let the facts get in the way of their paperwork juggernaut

The U.S. Fish and Wildlife Service has a deadline of Sept. 30 to decide whether to list greater sage grouse under the Endangered Species Act and put into effect conservation measures developed by the agency and the Bureau of Land Management. There is almost no chance Fish and Wildlife will not decide for listing, despite what the science and statistics say.

When it does so, about 10 million acres of land in 11 states — nearly 3 million in Nevada alone — will be off limits to economic development. Countless potential jobs will be lost to save a bird that does not need saving.

Sage grouse

According to analysis by the Western Association of Fish and Wildlife Agencies, the number of male sage grouse across the bird’s range has increased 63 percent from 2013 to 2015, and that is just in the accessible leks that were counted by hand. That report said population trends in Nevada have been flat since the mid-1990s.

While this may be an indicator that the state’s and local governments and businesses have already succeeded in protecting grouse, it is unlikely to sway the paperwork juggernaut of the federal government.

Gov. Brian Sandoval displayed some of his frustration with the agencies’ lack of cooperation and deafness to reason in a 12-page letter to the acting head of the BLM two weeks ago.

“The process was intended to be collaborative, inclusive and proactive; an unprecedented undertaking to bring federal agencies and states together to craft plans to adequately conserve the Greater Sage-grouse and preclude a listing under the Endangered Species Act,” the governor wrote. “Western state and multiple agencies have participated in this effort in good faith. We have expended millions of dollars and thousands of hours to present a scientific, innovative and effective conservation plan.”

Instead, the states were stonewalled, says Sandoval. He noted that the final 3,500-page land use plan released in May left unresolved, dismissed or ignored issues raised by the state. There was insufficient public notice or opportunity for comment. Scientific methodologies were changed without justification or explanation.

Sandoval said the plan “contains many new elements that disregard best science, Nevada’s state and local plans, and federal law. It is disappointing that this process has changed from a collaborative, proactive approach, to a now heavy-handed, federal approach that uses status-quo approaches and relies primarily on information from federal officials in Washington, D.C., rather than expertise from state conservation and wildlife agencies, and local input.”

 

 

Court should stop federal public land agencies from usurping our rights

Sometimes you have to fight fire with fire.

The agencies in charge of federal public land have developed a penchant for “sue and settle” — some friendly environmental group files suit to demand protection of some weed, bug, minnow or rodent and the agency compliantly settles.

The U.S. Fish and Wildlife Service did just this in 2011 settling with the WildEarth Guardians and the Center for Biological Diversity and agreeing to set up a schedule for listing or not listing 251 species under the Endangered Species Act (ESA). 

The deadline for the bi-state sage grouse in Northwestern Nevada was a couple of months ago. The deadline for listing the greater sage grouse, which live in most of the state, is set for September 2015, though a rider on a spending bill by Rep. Mark Amodei may delay that.

Fish and Wildlife listed the bi-state grouse as endangered, but backed off when its scientific data was challenged. Especially telling was that a Fish and Wildlife report found core populations of bi-state grouse had actually increased by between 120 and 144 percent.

A couple of weeks ago a coalition of public and private groups filed their own lawsuit in Nevada’s U.S. District Court challenging the legality of that 2011 court settlement.

The suit was filed by the Nevada Association of Counties, Nevada Mineral Resources Alliance, the American Exploration & Mining Association, and FIM Corp. – a family-owned million-acre sheep ranch in Northern Nevada.

To begin with, the suit points out that Fish and Wildlife agreed in the settlement to either list or not, entirely leaving out a third option required by the ESA — “listing is warranted but precluded because the species at issue has a lower listing priority as compared to other species.”

This error is compounded by the fact Fish and Wildlife has failed to follow the congressional requirement under the ESA that species that are candidates for listing must be re-evaluated once each year using the best scientific and commercial data. The agency in a letter from its regional office reported that it will not be completing this annual review because it is too busy implementing the lawsuit settlements.

The suit claims expensive efforts by the state and local governments to protect sage grouse habitat were ignored.

The lawsuit against Fish and Wildlife also argues that its settlements with the environmental groups violate the Due Process Clause of the Fifth Amendment because they bind nonparticipating third parties, in this case the plaintiff counties and businesses.

“The due process clause of the Fifth Amendment to the Constitution forbids

government practices and policies that violate precepts of fundamental fairness,” the suit says. “Here, FWS’s decision to forego a specific statutory provision, to the detriment of the Plaintiffs, denies Plaintiffs due process and is fundamentally unfair to Plaintiffs.”

The suit further accuses Fish and Wildlife of violating the constitutional requirement of separation of powers by binding the executive branch to settlement that transfers powers of Congress to special interest litigants.

The damages caused by listing of species are not vague and speculative. They are specific and calculable.

The FIM sheep ranch reports that the earlier listing of the Sierra Nevada Bighorn Sheep under the ESA has cost the operation approximately $400,000 per year since 2000, and it believes the listing of the sage grouse will cause similar or greater damage to its bottom line due to grazing prohibitions and other restrictions.

The courts should give this case its urgent attention to curtail further damage to the economy of Nevada.

Newspaper column: States can do a better job of saving endangered species … and jobs

The Endangered Species Act (ESA) of 1973 was intended to protect the grand and noble eagles, bears, whooping cranes and condors, but it has turned into a tool for self-styled environmental groups to wipe productive human endeavors from private and public lands for the sake of protecting bugs, minnows, rodents and weeds.

During a recent online conference put on by Watchdog Wire, a network of citizen journalists, two authorities on the topic who come at it from the free market side suggested the best way to fight the ESA is to embrace its goal — saving species, as reported in this week’s newspaper column, available online at The Ely Times, the Mesquite Local News and the Elko Daily Free Press.

Greater sage grouse

Greg Walcher, president of the Natural Resources Group, noted that in the history of the ESA there have been more than 2,100 species listed, but fewer than half of 1 percent have been taken off — 10 because they were extinct.

He and Brian Seasholes, director of Reason Foundation’s Endangered Species Act project, said the U.S. Fish and Wildlife Service has been pressed by groups such the Center for Biological Diversity and Wild Earth Guardians into listing hundreds of species as endangered. In 2011 the federal agency settled a lawsuit by agreeing to list 757 species by 2018. Among those is the greater sage grouse, whose habitat covers much of Nevada.

Walcher, a former Cabinet Secretary of Colorado’s Department of Natural Resources, said:

“The endangered species protection and recovery was an enormously popular issue in our state, literally at 80-20 polling issue. People overwhelmingly support protecting and recovering endangered species and yet in the just concluded campaign every place we went it seemed like people were mad about it and he got asked about it on the campaign trail over and over and over again by angry people. It just struck us as sort of strange that people are no contentious and bitter, antagonistic and even litigious over issue that we supposedly all agree on.

“So we decided to take a completely different approach in our state — nothing particularly new or different about what was going on in Colorado, but based on three really essential premises. One, that the Endangered Species Act is one of the most powerful laws enacted by Congress when some federal official you’ve never heard of who is five rungs below anyone accountable can declare a species to be endangered or threatened and that kicks in a whole body of federal law that just sort of seems to trump everything else — other federal laws and state laws and local operations and everything else.”

Walcher said the state discovered — with respect to several specific species in Colorado — that there not only was no recovery plan in sight but no one ever really talked about goals or delisting criteria.

Colorado pikeminnow

“In fact, they didn’t have the first clue what that criteria ought to be,” Walcher said. “We started actually with the endangered fish in the Colorado River, because it’s a series of water issues that affect the well being and economy of 30 million people in seven states and is a part of a 75-year-old battle over use the Colorado River in the most arid part of the county where you have to be able to divert water out of that river and use it or you can’t live there.”

Colorado engaged the federal agency in a years-long battle, before it unilaterally spent $5 million to build a hatchery dedicated to endangered fish.

“We began putting razorback suckers and bony-tailed chubs and humpback chubs and Colorado River pikeminnow back in the river by the hundreds of thousands,” Walcher said.

“There came an ah ha moment for me … The Fish and Wildlife Service literally tried to tell us it was illegal to do that,” he said. “They brought in batteries of federal lawyers to tell us the state wasn’t even allowed to possess an endangered species much less raise them in captivity and reintroduce them into the wild. It was all very political, so we responded by saying, well, OK then the governor’s going to have a press conference on the capitol steps and tell the world that you, the federal Fish and Wildlife Service, are opposed to recovering endangered species.”

That stopped that.

Instead of confronting the agenda of environmentalists with arguments about how it affects human endeavors and the economy, Seasholes suggests states show the public how the ESA is harmful to its stated purpose. He noted how the law’s onerous penalties — “$100,000 and/or one year in jail if you harm one species, one egg, one chick, anything, or even if you harm its habitat” — provides a strong incentive for landowners to rid their land of endangered species and their habitat — often called shot, shovel and shut up.

Seasholes stated:

“Those of us in sort of the free market, limited government camp tend to think about environmental issues, especially stuff like the Endangered Species Act, as issues of secondary and tertiary importance. I think that you really need to pay attention to this issue because the Endangered Species Act is going through a phase of unbelievable growth right now. It is going to start touching parts of the country it has never touched, start touching sectors of the economy that have been relatively untouched, especially oil and gas. The Endangered Species Act is increasingly being used as a regulatory means to do other things, whether it is water quality, air quality, global warming. There is global warming slash climate change push with endangered species. So I think that this is something our side has really not paid much attention to its detriment. …

“But we have a winning had to play with this because the Endangered Species Act is so damaging and detrimental to its purpose of preserving endangered species.”

Another example cited by Walcher was how the Forest Service wrote up management plans for forests in Colorado to protect lynx, which had not been found in the state in decades and never amounted to a population of more than 18 even then. But the agency intended to close roads and ban snow mobiles and stop logging, grazing and drilling.

Lynx

The state imported hundreds of lynx and there are now more than ever before.

Though environmentalists and Fish and Wildlife bitterly opposed the restocking in private meetings, Walcher said, “I can tell you that not one time did any environmental organization or any federal agency ever publicly criticize us for it. … Who’s going to stand up in front of a room full of people and say, ‘You know I don’t really care about those fish I just want to control the water and stop growth in the Southwest.’ Or, ‘I don’t care about the lynx, I just wanted to stop logging.’ Or, “I don’t care about the Gunnison sage grouse, I just want to stop grazing and ranching.’ Nobody can admit to some other agenda, because the public wouldn’t be with them then.”

Time for the states to fight back against ‘sue and settle’ environmentalists with their own litigation

Perhaps it is time for Western states to take a page from the tactics of environmentalists — namely, sue and settle.

Over and over, federal land agencies are eagerly caving in to radical environmental groups seeking to block just about any human endeavor that in anyway comes anywhere near any animal, bird, reptile, bug or minnow whose population is even marginally in decline.

A Mono Basin bi-state sage grouse

This past fall, the the U.S. Fish and Wildlife Service designated as threatened — under the terms of the Endangered Species Act — the bi-state greater sage grouse found along the northern California-Nevada border, supposedly a distinct population segment of about 5,000 remaining birds, even though the birds are legally hunted in both states.

That decision followed an October 2010 lawsuit filed by the Western Watersheds Project challenging grazing permits granted by the Bureau of Land Management.

Lesser prairie chicken

This past week the FWS designated as threatened the lesser prairie chicken, which are found in Texas, Oklahoma, Colorado and New Mexico and Kansas.

Wild Earth Guardians sued the FWS in 2010 demanding rapid action on the listing status of 251 species. FWS agreed to determine whether to list the lesser prairie chicken by March 31. That is now a done deed.

Under the settlement, FWS must decide whether to list the greater sage grouse, which are found in 11 Western states, by September 2015. What do you think the odds are?

Kansas and Oklahoma plan to sue the FWS over the listing of the lesser prairie chicken.

Greater sage gouse

Though the lesser prairie chicken population dropped about 50 percent from 2012 to 2013, Jim Pitman, small game coordinator for the Kansas Department of Wildlife, Parks and Tourism, says the drop was largely attributed to drought.

“The important thing is the grassland is still there,” Pitman said. Once the grasslands regenerate from wet weather, the bird population will also increase, he said.

Among the topics of litigation the states should pursue are: Are the species really endangered? How scientific are the surveys? Have the federal agencies followed the law in deciding the listing or have they rushed to judgment? Has human activity in any way contributed to population decline or is nature merely taking its course?

Many of the causes of Western species decline have nothing to due with farming, ranching, oil and gas exploration or recreation, but with incompetent land management by the federal agencies, which have ignored fuel management practices and allowed vast wildfires to ravage the ranges. Additionally, there a lack of predator control, one of the biggest problems for most of the species in question, but a factor ignored by the feds.

Would you trust these people to save a species?

Then there are the multimillion-dollar efforts by federal bureaucrats to save species that nature would have let expire long ago, such as the Devil’s Hole pupfish. These minnows have been so managed, so manipulated that they can no longer truly be said to exist “in the wild.” The federal government even built a $4.5 million aquarium for them that matches the Devil’s Hole environs. Why not just put a couple in a fish tank and let nature take its course with the rest?

The 40-year-old Endangered Species Act is less about saving species than it is about building a huge bureaucracy of overseers. Less than 2 percent of listed species have been delisted. Once on the list they are on the list forever.

Of course the feds are not really serious about restoring species to their natural habitat. They may reintroduce wolves to Yellowstone but they’d not think to reintroducing them to Central Park in New York City.

What about herds of bison roaming eastern Colorado?

Jurassic Park anyone?

There is no balance, no logic, no rationale to the way feds are handling this law. There needs to be cost-benefit-ratio analysis used to determine when the harm to farmers, ranchers, oil and gas exploration and recreation outweigh the fleeting and futile salvation of a few birds, reptiles, rodents, bugs, weeds and minnows.

In fact, there appears to be a violation of the First Amendment Establishment Clause. The established federal religion is now the worship of Gaia.

Gaia

Legislation and litigation take aim at Endangered Species Act

Nevada’s Sen. Dean Heller and Rep. Mark Amodei have joined with Sen. Rand Paul of Kentucky to introduce a bill that would take the power to regulate intrastate endangered and threatened species away from federal agencies and give it to state governors. It is called, appropriately enough, the Endangered Species Management Self-Determination Act. 

A Mono Basin sage grouse. (National Park Service photo)

The bill points out that since passage of the Endangered Species Act in 1973, less than 1 percent of the total number of species in the United States have been recovered and removed from the ESA list, and those were largely due to data errors or other factors. Additionally, there has been no study of the costs or benefits of ESA and no accounting of how much state and federal governments and the private sector have spent to comply with the law.

“(T)he ESA effectively penalizes landowners for owning endangered species habitat by forcing them to bear the cost of conservation,” the bill says, without mentioning that it can lead many landowners to shoot, shovel and shut up. It goes on to point out that ESA “has become a tool for environmentalists to undermine, slow down, or halt construction of infra structure projects, hampering economic growth and employment …”

The bill would basically restore a modicum of plenary power to the states, which, under the 10th Amendment, is where it belonged in the first place, since there is no enumerated power allowing Congress to regulate species.

In a statement announcing the bill, Amodei said:

“Giving governors greater flexibility would go a long way mitigating the one-size-fits-all impact of the ESA, which is threatening to shutdown vast swatches of the American West, including Nevada. Governor Brian Sandoval has met the challenge posed by the looming sage grouse listing and that kind of leadership deserves respect from federal land managers.”

Heller commented:

“We have a responsibility to be good stewards of wildlife and the habitat that they rely on.  In Nevada, we have been working hard to protect both the sage grouse and our economy, which is why I am working hard with the Governor, the delegation, and Nevadans to prevent a listing for the bird. The Endangered Species Act already has an abysmal success rate, so it is time to give the states to the opportunity to step in where the ESA has largely failed.”

Paul said:

“By removing the red tape, state governments will be better equipped to manage, regulate, develop and implement recovery plans for their critical habitats. This bill will better protect endangered species by allowing a more tailored response as implemented by the states.”

While the bill is a good move short of outright repeal, perhaps the best solution to the problems of the ESA is a declaration by the courts that the law is unconstitutional in the first place.

Utah Prairie dogs. (National Park Service photo)

The Pacific Legal Foundation is challenging the ESA on behalf of the residents of southwestern Utah suffering from an infestation of Utah prairie dogs , which are listed as threatened.

The PLF notes that the supporters of ESA argue Congress has such power under the Commerce Clause, which is ludicrous on its face. “In Cedar City, Utah, residents are suffering the loss of their constitutional rights, their private property, and — perhaps most distressingly — the disruption of their loved ones’ final resting place,” PLF’s Jonathan Wood writes. “The city is overrun with Utah prairie dogs, a species that is subject to the federal take prohibition despite existing only in Utah and having nothing to do with commerce.”

In Nevada the sage grouse are probably going to be listed as threatened or endangered, which will affect mining, oil and gas exploration, grazing, power lines and pipelines and recreation.

Two fronts is better than none.