CLEANING UP THE ACT
August 18, 2014
In 1988 Ronald Reagan was president. Interest rates were in the double-digits, calves were bringing $.87 per pound and the Winter Olympics were in Calgary. It was also the last time the Endangered Species Act was amended.
July 29 saw the ESA move a little closer to the new millennium when H.R. 4315: The 21st Century Endangered Species Transparency and Reasonableness Act, passed the U.S. House of Representatives.
"It's time to bring the ESA into the 21st century. This legislation is a small but important step in that direction," said Wyoming congresswoman Cynthia Lummis, who co-chaired the bill, on her website. "It won't solve all of the ESA's problems overnight, but it will start the reform process by instilling transparency, accountability and an elevated role for states in the ESA's implementation. The law's heavy mandates and costs have been borne by Wyoming's citizens for too long without meaningful oversight, which this legislation will facilitate by shining light on rampant ESA litigation and the questionable science used to make decisions that impact people's livelihoods."
Lummis authored portions of the bill that would require the Department of the Interior to track, publish on the Internet, and report to Congress how taxpayer funds are spent in response to ESA lawsuits, the number of federal employees who work on ESA litigation, and the attorney's fees awarded in ESA litigation and settlement agreements.
The amendment further requires federal agencies to provide states, tribes and local governments all data used in formulating a listing decision prior to making the decision, in addition to requiring due consideration of any data provided by local governments, tribes and/or states. Attorney fees for litigation would also be capped at $125 per hour.
Dustin Van Liew, executive director of the Public Lands Council, and director of National Cattlemen's Beef Association – Federal Lands, said the house bill takes steps in a larger process needed to completely revamp the law.
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"We've seen radical environmental and animal rights groups abuse the ESA and use it for things the law was never intended to do. Specifically limiting the amount of fees lawyers can collect will disincentivize the abuse of the act," Van Liew said.
Though livestock producers provide much of the habitat needed for species recovery, the current law discourages ranchers from providing that habitat. Agencies or groups say they are working to save a species but their misuse of the act ends up making it more of a control mechanism of implementing their ideas of how private and public land should be managed to the exclusion of ranching or other uses, Van Liew said. "We thought that requiring the Fish and Wildlife Service to make data publicly available that they use to make their decisions would allow the public to be involved and judge whether they are relying on junk science."
Gary Heibertshausen, a sheep producer from Carter County, Mont., has a personal interest in the ESA. He lives on a sagebrush-rich ranch within a core sage grouse habitat area and is one of the few remaining locations boasting strong sheep production in Montana. This unique position has made his ranch the ideal location for sage grouse studies conducted by both government and private entities. While the sage grouse is not under the jurisdiction of the ESA, it is under consideration because of declining populations. Listing the bird under the ESA would affect landowners in 11 Western states, and landowners like Heibertshausen have been working to show that they manage the land in a way that supports their livelihood and the wildlife.
"We don't know if any of the studies conducted here were fully used, or that anyone in D.C. even saw them," Heibertshausen said. "With the transparency component of this bill, studies like these will be used to their fullest potential over old and outdated statistics and formulas that aren't even feasible in this day and age."
Under the house amendment, local and state data like this would have to be considered before listing a species. "Our industry believes the best decisions are made close to the ground and this requirement would reflect that," Van Liew said.
Heibertshausen agrees. "The ESA is one of those things that unless you're really out here it's hard to understand. People sit in D.C. and all they do is fly over the west. When they don't see any lights at night they believe there must not be anyone that lives down there, so what could these rules and laws possibly hurt? Well, it hurts a lot of people, not necessarily ranchers because there aren't a lot of us. But the hurt to us translates to food, dollars and cents, and the economy of the entire country."
Heibertshausen said he questions how effective change can be that is implemented by people located thousands of miles from the species, habitats and people impacted by their decisions. Ideally, he would like to see local and state governments take over control and management of endangered and threatened species in their areas.
"The blanket coverage management that is imposed upon an animal being listed is a serious concern, and poses the risk of altering many operations and what they can and cannot do going forward. Our ranch and other area ranches most likely have higher populations of sage grouse because of what we are doing with our land. I'm not saying that how people manage in other areas is why we have fewer grouse, it's just that some practices in combination with our location work for the sage grouse.
"A prime example of this is the predator control we enforce as sheep producers. If the sage grouse were to be listed, the predator control measures we practice that create a safe haven for the grouse would be largely eliminated. A three-year study conducted here saw predators as being the sage grouse's biggest threat. While it's a good thing that information will now be used in formulating decisions, if they still decide to list them it will eliminate aspects of management that actually improve habitat and populations," Heibertshausen said.
Even more problematic to Heibertshausen than the blanket management of listed species is the belief that man is the sole cause of endangered species, and that managing man is the solution.
"I would like to keep all of God's creatures available on the earth, but we're not really in charge of that. For example, sage grouse are highly susceptible to West Nile. That comes from a mosquito, and I can't control those. Some of these things are the result of Mother Nature at work. We need to take a good hard look at why populations are increasing or decreasing, and everyone needs to know exactly what's going on because we're the only ones able to live in harmony with these species and ironically we're also the ones expected to change our way of life," he said.
NCBA and PLC encourage producers to contact their senators and support the passage of a companion bill through the senate before session draws to a close. Even the omnibus spending bill could be used as a vehicle to move similar legislation, Van Liew said. A bill to require economic impact studies prior to listing a species is sponsored by senators from Arkansas and Louisiana but has not passed the senate.
"This bill is probably as good as we're going to get simply because there are not enough of us in ag to make a big enough voice to make things work anymore," Heibertshausen said. While he fully supports the amendment, he also believes the ESA should undergo substantial additional change for the benefit of the species it was designed to protect and the landowners who provide critical habitat for those species.
"I really hope that our congressional leaders understand the gravity the decisions they make with a vote after a swiping glance over the information on issues like this one. I hope they all take this very seriously both today and in the future and fully understand that there are people trying to make a living out here to put food in the public's belly while managing the land in a way that is beneficial for all species. This bill is a good first step, but that's the core issue impacted by the ESA that we need to address," he said. F