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Endangered Species Act

Casper – The endangered species status of the Greater sage grouse, wolf and grizzly bear are currently a concern for the state of Wyoming, according to Jerimiah Riemann, natural resource policy director in Governor Matt Mead’s office. 

Riemann addressed attendees of the 2014 Wyoming Stock Growers Association Winter Roundup, held Dec. 1-3.

Greater sage grouse

There are currently 15 Environmental Impact Statements in the western states under joint consideration of the BLM and U.S. Forest Service for Greater sage grouse.

“In Wyoming, we have three outstanding Resource Management Plans (RMP) – the Buffalo RMP, Bighorn Basin RMP and the Nine Plan,” stated Riemann.

Proposed final drafts are scheduled for release in spring of 2015. Once the plans are released, there will be a 30-day comment period for the public.

“It will be important for all of us to evaluate those documents,” Riemann explained.

Ninety-five percent of BLM grazing leases will be affected if the Greater sage grouse is listed as an endangered species, and roughly 40 percent of private lands would fall into critical habitat.

After seven years in the making, the record of decision was signed earlier this year for the Lander RMP. Forty percent of Wyoming’s Greater sage grouse population resides within the boundaries of this plan.

“The Lander RMP represents the first RMP that was signed anywhere in the West that includes the Greater sage grouse,” Riemann explained.

He continued, “We are certainly eager to continue the implementation of this plan to demonstrate the efficacy of Wyoming’s plan and our ability to protect sage grouse under that.”

Other concerns

Riemann noted that hunting should be considered in the context of the landscape, calling it an adequate regulatory mechanism for the management of the grouse. Wyoming, through the Wyoming Game and Fish Department, has moved the sage grouse hunting season from being one of the earliest in the year to a later season.

“There is only a very short period of time when we can hunt those birds,” Riemann said.

Hunting allows for management of the populations within habitats that can support the Greater sage grouse, he explained. 

Eleven states are currently reviewing Greater sage grouse management strategies.

“Wyoming remains the only state with a plan that has been endorsed by the U.S. Fish and Wildlife Service (FWS), but others are coming along,” said Riemann.

He hopes that the states can retain control and that sage grouse does not become a federally protected species, as the wolf recently has.

Wolves

Since a court ruling returned control of wolves to the FWS the state is considering all of its options to regain management of wolf populations, according to Riemann. These include filing an appeal to overturn Judge Jackson’s ruling and working with congress to revise the rule.

“FWS did file a notice of appeal,” Riemann said.

He continued that this does not necessarily mean that they will file an appeal, but that they gained 60 days to determine how they want to proceed. It could take upwards of six to eight years for a judicial review to complete, if that course of action is taken.

Governor Mead has also asked Congress to review the ruling, Riemann stated. That course of action could take as long as two years.

“Wyoming continues to have conversations with FWS, to determine what pieces of our management plan they might ask us to revise,” said Riemann.

He noted that it is important to remember the wolf is a federally protected species.

“Wyoming does intend to continue animal damage payments. The state will not participate in law enforcement actions, and Wyoming will continue to look at all of the options,” he said.

Grizzly bears

Riemann then moved on to discuss the endangered status of the grizzly bear.

“This is the Governor’s next priority in terms of delisting,” he explained.

Riemann continued that data and information compiled shows that populations have exceeded the recovery criteria set by both the state and FWS. 

There has not been as much urgency under the current Secretary of the Interior to move forward on the issue as there was under the last Secretary, he said. 

The Governor has requested that processes start immediately for delisting the grizzly bear.

“It is time for us to move forward on this species,” stated Riemann.

He believes that Wyoming can prove its abilities to manage all wildlife species of Wyoming, including grizzly bears, wolves and Greater sage grouse.

Natasha Wheeler is editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.

On Feb. 4, the Endangered Species Act (ESA) Congressional Working Group, led by Representatives Doc Hastings (R-Wash.) and Cynthia Lummis (R-Wyo.) released its final report, which included the findings and recommendations of the group.

“There is no doubt of the strong and widespread support for helping to protect endangered species,” Hastings commented. “However, our findings clearly show that there is room for improvements and ways to bring this 40-year-old law into the 21st century.”

The report is the culmination of the working group’s eight-month effort to examine the ESA from a variety of viewpoints and angles, receive input on how the ESA is working and being implemented, and how and whether it could be updated to be more effective for both people and species. 

Lummis added, “We all agree on our obligation to protect imperiled species. Our working group has concluded that the Endangered Species Act needs updating in light of tremendous conservation advances since 1973.” 

Report findings

Hundreds of comments from outside individuals and testimony from nearly 70 witnesses who appeared in the wide variety of working group forums and House Natural Resources Committee hearings were incorporated into the report. 

The report concludes, “After more than 40 years, sensible, targeted reforms would not only improve the eroding credibility of the Act, but would ensure it is implemented more effectively for species and people.”

Hastings added, “Returning focus of the law to species recovery, addressing litigation and settlement reforms, improving state and local participation and improving science and data are some of the specific areas of improvements on which I believe we can build consensus.”

Recommendations

The report recommends changes in four major categories of the ESA.

First, the committee noted that the ESA should ensure greater transparency and prioritization of ESA with a focus on species recovery and delisting. 

A reduction in ESA litigation and encouragement for settlement reform was also targeted. 

The report recommended empowering states, tribes, local government and private landowners on ESA decisions affecting them and their property and required more transparency and accountability of ESA data and science.

“The American people have grown by leaps and bounds in their understanding of conservation, their willingness to conserve species and their ability to conserve species,” Lummis added. “The ESA needs to grow with them.”

In Wyoming

Wyoming industry groups also commented on the report, noting that it should help to influence the changes that the industry hopes to see.

“I’m not anticipating that we will see changes this year, but it builds a good case for the legal time that allows reform,” says Wyoming Stock Growers Association Executive Vice President Jim Magagna. 

Magagna added that the report reaffirmed the notion that on-the-ground conservation by people in the industry is top priority.

“Hopefully, this sets the stage for focusing on a  new way of doing business that provides incentives to private landowners and land managers to provide good resource management that benefits an array of species, rather than thinking we are protecting species by restricting land use,” he said.

Wyoming Farm Bureau Executive Vice President Ken Hamilton added, “The report articulated many of the problems with this particular law. There was a lot of evidence presented about how it has been misused by certain groups and how those groups have actually prevented effective recovery efforts by the federal government.”

“If, and I believe this is a big ‘if,’ the proposals and recommendations do find their way into the Act, most of the recommendations would be helpful to Wyoming agriculture,” he commented.

Lummis continued that the manner that the ESA continues to operate within is not only detrimental to industry but is also not effective for conservation.

“The ESA is stuck in a litigation driven model.  This outdated model hinders the boots on-the-ground conservation we should be harnessing to actually recover endangered species, not just spout flowery rhetoric about the law in courtrooms.  Our report is an exciting opportunity to bring the ESA into the next millennia,” Lummis commented.

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

 

Casper – Deputy Chief of staff for the Governor’s Office Ryan Lance explained Wyoming’s position and planned approach for dealing with the Endangered Species Act during the closing general session of the WSGA/WWGA joint winter convention in early December.
“The reality of our circumstance is that even in favorable climates and circumstances our ability to move the ESA reform wasn’t very successful. That handicaps where we are today with the current players and doesn’t cast a positive light. We are thinking about creative ways to address ESA at the state level,” he told the audience.
The issue began when states were asked to make a list of species to study and develop recovery plans. Wyoming Game and Fish put about 270 species on the list. Of those, roughly 250 were listed simply to find out more about the species.
“A couple years ago we got a pot of about $1.5 million to go out and do our own research and determine what is really going on,” Lance explained. This proactive approach uses the research findings to prove listing a species is unwarranted.
The state has currently spent over $100,000 conducting such research on the Black Hills snail. They found the snail to be pervasive across the entire West and received a not warranted ruling from U.S. Fish and Wildlife Service when it was petitioned for listing.
“We are now studying the narrow-footed diving beetle,” said Lance. The beetle is found in the Powder River Basin and, if listed, could prove detrimental to the area’s industry.
“Doing this over and over and over for the 250 species found on the sensitive species list is the ultimate goal,” said Lance, adding finite resources also make it a matter of choice. “We need to determine which species we will waste millions of dollars on and which we won’t.”
Compensation is also made to landowners for working with the state to conduct research. These deals can be complicated at times, but they’re a logical facet to utilize for research. Lance explained that conducting research with the state usually involves minimal management practice changes, as ranchers are already doing the best job at preservation.
Possible listing of the sage grouse is a top concern for Wyoming.  “We are paying the price for the rest of the West not doing a good job on weed control. We have 52 percent of the bird population, yet still face listing, which is ridiclous, but it’s what we have to deal with.”
The state is prepared to fight should a listing occur. “Our concern is that with a listing comes the potential to open up a resource management plan for point of grazing. We have a liaison with the BLM to work on conservation ideas.” Lance pointed out that many of them would already in practice, prociding rest-rotation grazing as an example.
Candidate Conservation Agreements (CCA’s) don’t prevent listings, but  do protect the ability to continue ongoing practices in the event of a  listing.
Lance also assured his audience, “We will continue to move forward. The state is working hard to prevent future misrepresentation by the ESA of Western plant and animal species. “That fact that we have to spend hundreds of thousands of dollars to protect our livelihood is ridiculous, but it’s something we have to do today.”
Heather Hamilton is assistant editor of the Wyoming Livestock Roundup. Send comments on this article to This email address is being protected from spambots. You need JavaScript enabled to view it..

Casper – With four members of the United State House of Representatives Committee on Natural Resources present, Wyoming citizens and public lands users provided witness testimony at the committee’s Sept. 4 hearing on “State and Local Efforts to Protect Species, Jobs, Property and Multiple Use Amidst a New War on the West.”

“Congresswoman Lummis and I are co-chairmen of the Endangered Species Act (ESA) Working Group,” explained Chairman Doc Hastings (R-Wash.) during the Sept. 4 meeting. “The working group is made of members from around the country who understand the need to carefully examine the ESA.”

“Executive orders and actions by litigious groups are wreaking havoc on people affected by the ESA,” Hastings continued. “This includes multiple use of lands designed for multiple use, rural economics, energy development and some state’s own conservation activities.”

Other committee members present included Representatives Cynthia Lummis (R-Wyo.), Doug Lamborn (R-Colo.) and Steve Daines (R-Mont.)

“The ESA is an act that was well intended and has many good purposes, but it has been prone to some abuse on the part of those who want to shut down development and access to energy in the name of preserving species,” commented Lamborn. “We all want to make sure our heritage and species are protected and restored, but we have a balance to reach.”

Citing that the authorization for the ESA lapsed more than 25 years ago, Lummis marked the hearing as both timely and appropriate.

“This hearing is centered in a part of the country that has been ground zero for the development of the ESA,” she added. 

“During the first half of the 20th century, the nation had bountiful and almost unlimited natural resources that we exploited in a manner that caused concern for people such that during the second half of the 20th century, the command and control of big government and litigious policy by courtrooms, rather than policy by Congress, seemed to dominate the manner that natural resource policy was implemented,” she continued.

Lummis noted that she supports 21st century conservation – a conservation ethic recognizing new and progressive approaches and sound science combined with the ability to utilize resources in a smart, scientifically-based manner focusing on utilizing private sector principles and voluntary efforts to create a better overall environment. 

Testimony

Hastings, Lummis, Lamborn and Daines heard from Natrona County Commissioner Rob Hendry, Wyoming Sportsmen for Fish and Wildlife Executive Director Robert Wharff, Taylor Environmental Consulting Owner Renee Taylor, Sweetwater River Conservancy Managing Partner Jeff Meyer and rancher Meghan Lally.

Hendry, also a rancher from Lysite, emphasized the economic impact of species protected by the ESA, such as wolves and grizzly bears, on ranchers and their surrounding communities.

“In 2012, we had approximately 1,000 head of cattle killed, a value of $742,000, and 1,500 at a value of $273,000,” he said.

The dollars lost from those livestock deaths, Hendry explained, will not roll over in communities across Wyoming, resulting in major economic impacts.

Other impacts, he commented include impacts resulting from regulations that leads to decrease in development or loss of private property rights, which can have major impacts.

“The ESA is 40 years old,” said Hendry. “It can be characterized like an old ranch truck. It serves a very useful purpose but is in bad need of repair.”

Wildlife impacts

Wharff, who emphasized the wildlife consequences of listing species, mentioned that it is important species are removed from the ESA when they exceed recovery goals.

Utilizing the wolf as an example, he noted that the species is not suffering, but rather, it thrives in the northern U.S. and Canada. Wildlife population distribution maps demonstrate dhis point.

“Why are we putting our heritage at risk to protect a species that is anything but threatened?” Wharff asked. 

Scientific basis

Taylor noted that selective use of scientific literature is problematic.

“The agencies tell us that all decisions must be made using peer-reviewed literature, but we also see non-peer-reviewed literature, including gray literature, while information from private parties is ignored,” she emphasized.

In addition, she marked that moving conservation targets make it impossible for land managers to meet their goals. 

“Agency response to our concerns is, ‘The sky is falling, and we must do whatever we can to conserve and act immediately,’” Taylor added, noting that the response is unjustified.

A second concern marked by Taylor was the lack of ability to adhere to timelines by the Fish and Wildlife Service (FWS).

“The ESA specifies timeframes that not only allows plaintiffs to set agency priorities but also take staff away from landowners and states trying to work within the act,” Taylor commented.

Solutions

Along with highlighting the problems, witnesses provided ideas for solutions to repair the ESA.

Hendry offered that listing petitions should be more expansive and require more scientific data.

“The cost of filing a petition is not more than a 48 cent stamp,” he commented. “A listing should be required to include a reasonable amount of peer-reviewed science to support the claim and available data on its historic range in North America.”

He continued that the designation of crucial habitat should always include an analysis of the other wildlife and species that will be impacted. 

“Most importantly, I would like to emphasize the immeasurable social and economic impacts on ranchers and local government,” Hendry noted.

Management

Wharff mentioned that some of the problems caused by the ESA could be alleviated in state management of wildlife. 

When asked by the panel about the potential of state primacy in managing endangered species, Taylor commented, “The concept of primacy relative to the ESA is one that is very intriguing.”

Her primary concern with the idea, however, was funding. 

“I’m not sure where the state of Wyoming would come up with the funds to be able to afford management of the ESA,” Taylor explained. “However, if the states have a valid conservation program, it should be accepted by FWS and allowed to play out.” 

Single species management of wildlife, Wharff added, is also a problem the ESA seems to promote.

“Single species management simply doesn’t work,” he said. 

Collaborative opportunity

Lally cited solutions in potential collaborative opportunities.

“I believe collaborative processes are a great tool for increasing success of the ESA,” she said, providing the example of Wyoming’s Bighorn sheep and domestic sheep working group partnership. 

In addition to the benefits offered in collaboration, Lally commented that by simplifying processes to allow land managers to effectively work on the lands they lease or own would increase conservation abilities. 

“Industry and agriculture create stability and protect species where they currently exist and are thriving,” she added.

However, as noted by Wharff, working with the opposing side isn’t easy. 

“I work with a number of different groups,” he said. “The biggest thing I try to do is to pull everyone to the middle. When we move to extremes we tend to get into dangerous territory.”

Hastings echoed Wharff’s sentiment, noting, “I recognize that this committee is a full committee hearing and should be bipartisan in nature. We opened an invitation to the other side. They could have had witnesses, but they declined the invitation.”

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

A 2010 court settlement agreement mandated that the U.S. Fish and Wildlife Service (FWS) must determine whether the Greater sage grouse should be proposed for listing under the Endangered Species Act (ESA) by Sept. 30 or is no longer warranted for listing. At the same time, a congressional rider in last year’s appropriations package prevents FWS from proposing a rule to list the bird.

FWS Mountain-Prairie Region Assistant Regional Director Michael Thabault comments, “All we can do is make a decision about whether the species continues to be warranted for protection under the ESA, but we are precluded from proposing a rule in the event that it is warranted.”

Listing process

“The ESA is a forward-looking exercise,” Thabault comments. “We are trying to determine if – at some point in the future – the species is likely to become extinct or get to the point that there is a threat of extinction.”

The process in arriving at a decision whether or not to protect the sage grouse – or any species – under the ESA is complex.

“Every species has a slightly different pattern,” he notes of the process for listing. “There is no recipe that we follow.”

“The vast majority of the time, the process begins when we get a petition from someone requesting a species be listed,” Thabault continues. “The ESA has a provision that allows anyone from the public to petition FWS to consider whether a species should be listed as threatened or endangered under the ESA.”

After a petition is received, a series of procedural steps are followed to determine whether the information provided by petitioners is substantial enough to continue the process.

“We look at if the petitioners have provided scientific literature and a good assessment of what they think the species is up against,” he says. “Assuming that we conclude that information is substantial enough to go to the next step, we begin to evaluate the status of the species.”

In making the determination, FWS considers scientific literature and an assessment of threats.

“We look at the status of the species over the long-term and into the future,” he says. “We look at what science says about each aspect threatening the species. What does science tell us about the effects of adverse action? We also look at what the science tells us about the impact of conservation actions.”

Five criteria are utilized in making a final decision. Those criteria include the present or threatened destruction; modification or curtailment of habitat or range; overutilization for commercial, recreational, scientific or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and other natural or man-made factors affecting a species survival. If any criterion is met, the species may be listed.

Policy impacts

In addition to the scientific evaluation, policy components of the ESA also come into play in making the decision.

“We look at whether the information we have fits our policy and if it complies with the definition in implementing the regulations that we have,” Thabault adds.

After assessing the scientific and policy information, FWS determines whether the species warrants protection.

In the event that the science is not clear or there are gaps, FWS makes informed judgment around assumptions and strives to make an informed decision.

A number of FWS employees are involved in developing a listing recommendation.

“FWS is a field-based organization, so we have scientists across the region in the field and in the regional office who help to formulate and make a recommendation to the Director of FWS,” Thabault explains. “The FWS Director is the ultimate decision maker.”

Legal implications

The ESA also includes a series of legal provisions, which are unique.

“For any decision that FWS makes, we are subject to be challenged on whether we made the right decision, the right decision for the wrong reasons or the wrong decision,” Thabault explains.

Legal challenges can be filed in the court of choice for the person or organization filing the lawsuit. The legal process is followed until the court system makes a decision. One of the stipulations is that FWS must receive a 60-day notice of intent to sue that lists the areas a protester seeks remedy for prior to a lawsuit filing.

“The courts may uphold the FWS, vacate the decision or remand the decision back to FWS for future consideration on an aspect of the case,” he adds.

Inside sage grouse

The decision whether to list sage grouse for protection under the ESA is more complicated than many listing decisions.

“The sage grouse is complicated because of congressional action,” Thabault explains. “We had a settlement agreement with the court to make a decision by the end of September, but a congressional rider has prohibited us from proposing a rule to list the species under the ESA.”

“Congress can continue that rider indefinitely, they may propose a new rider or they might withdraw the rider,” he continues. “The bottom line is, even if we were to propose the species be listed for protection, a proposed species cannot garner protection. The species is only protected once we finalize a rule, and we cannot propose a rule.”

Listing particulars

Though Thabault is not able to discuss any specifics related to the findings on sage grouse until after a decision is released, he notes that any species proposed for listing can be protected in several ways.

“We can protect an entire species, a subspecies or a distinct population segment,” Thabault explains. “The statute was amended in the 80s to allow listing of distinct population segments.”

He adds, “If we were to determine that there was a distinct segment of the population that is threatened enough to warrant protection on its own, we can do that. Such a listing is a policy consideration in relationship to the science.”

In addition, a particular area of interest with sage grouse is that a decision not to list the bird was made in 2005 but was subsequently determined to warrant protection in 2010.

“Much of what we are looking at is if there has been a sufficient enough change in what we are doing, regulations in place and the nature of the threats from our 2010 decision,” Thabault says. “We don’t have a clean slate with the sage grouse. We are trying to determine whether the decision we made still stands.”

A final decision on the fate of the sage grouse will be made by the end of September. Thabault was unable to speculate whether a decision may be released prior to that date.

Saige Albert is managing editor of the Wyoming Livestock Roundup and is available at This email address is being protected from spambots. You need JavaScript enabled to view it..