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)

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.