Endangered Species Act
Changes to the Endangered Species Act will affect cattlemen.
SAN ANTONIO, Texas (Feb. 6, 2015) — The Endangered Species Act (ESA) is a widely encompassing act that often affects farmers and ranchers in their stewardship or conservation efforts. Attendees of the Property Rights & Environmental Management and Federal Lands Policy Committee joint meeting heard about two new aspects of the Endangered Species Act that can affect cattlemen. This meeting took place at the 2015 Cattle Industry Convention & NCBA Trade Show in San Antonio, Texas, Feb. 4-7, 2015.
Jonathan Wood, Pacific Legal Foundation (PLF), explained the Utah Prairie Dog Case and its broader implications. The PLF sued on behalf of the People for the Ethical Treatment of Property Owners (PETPO) in Cedar City, Utah, because federal regulations prohibited private property owners from capturing or killing the Utah prairie dog (see www.pacificlegal.org). The rodent is generally considered a pest; however, it was being protected under the interstate commerce clause.
Wood explained that this listed animal is specific to the state, and does not affect interstate commerce. Of the approximately 1,500 animals listed on the ESA, 70% are state-specific, like the Utah prairie dog.
Nov. 5, 2014, Federal Judge Dee Benson struck down the federal government’s regulations for the Utah prairie dog as unconstitutional because the prairie dog does not substantially affect interstate commerce. This case represents the sixth time the federal government has been challenged in terms of the ESA, but it is the first win, Wood added.
He said environmental groups try to list species to shut down natural gas production or watershed usage. Fish are being petitioned to be listed because that would give the federal government power over the entire watershed, Wood noted. This type of strategy will keep being used.
Another issue of the ESA is adverse habitat modification, said Scott Horgren, Western Resources Legal Center. The U.S. Fish and Wildlife Service (FWS) or the National Fisheries Service determines the critical habitat for ESA-listed animals. Critical habitat is a geographic area and vegetation/aquatic features that (1) is occupied at the time of listing and (2) is not occupied at the time of listing, but is an area essential for the conservation of the species.
Horgren said that two new rules are being introduced to critical habitat guidelines. The first is that “occupied” habitat includes where the entire range in which a species “occurs” and “even if not used on a regular basis.” Horgren likened that to saying the mailman occupied your house because he stops at your house daily.
The second proposed rule would create a new definition of destruction or adverse modification of critical habitat. The former definition considered destruction only if the survival of the species as a whole was “appreciably diminished.” The new rule, Horgren explained, makes the destruction definition more vague. Adverse modification could include places that could be inhabited in the future.
The livestock industry’s comments to these proposed rules have included that critical habitat will expand by millions of acres under the definition of critical habitat. The destruction and adverse modification of critical habitat is defined too broadly. These changes will increase actions requiring Section 7 consultation, which means more meetings with federal agencies.
When asked what the livestock industry can do, Horgren suggested the possibility of lawsuits to push legislature to reconsider these changes. However, he was not optimistic about other options.
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