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Endangered Species Act

Cheyenne – While the Endangered Species Act (ESA) may have started with the idea of conserving majestic and grand species, Kent Holsinger of Holsinger Law in Denver, Colo. noted that its implications reach much farther today.

“The ESA was passed in 1973 and signed by President Nixon with visions of grizzly bears and bald eagles,” explained Holsinger. “I don’t think anyone at the time would have envisioned the scope of the issues that we face these days with sage grouse, Preble’s mice, burying beetles, bladder pods and more.”

He noted that the ESA is one of the most powerful environmental laws created, with influence driven by the court system, rather than by actual rulemaking.

“There is probably more litigation in the ESA than virtually any other federal law,” Holsinger continued. “Anyone can petition a species for listing as either threatened or endangered.”

However, with challenges in handling ESA today, Holsinger said that there are opportunities to improve the act.

“Why do we care about the ESA?” Holsinger asked during the mid-March 2017 CLE Water and Energy Law Conference in Cheyenne. “Litigation has led us to the most recent decisions on species.”

Litigation

“Litigation abuse with the ESA is out of control,” Holsinger said. “Groups file petitions, and then they file suit because the agency hasn’t considered the petitions fast enough. Then, there’s a settlement, and the groups collect attorney’s fees. Then, they do it all over again.”

Holsinger emphasized, “There’s a terrible incentive to litigate.”

“The usual suspects when it comes to ESA litigation are Wild Earth Guardians and Center for Biological Diversity,” he said. “We tallied federal court records since electronic filings were available in 1990, and these groups have filed over 1,500 lawsuits.”

Multiple species

When species are considered for listing, Holsinger noted that it is also a problem to consider the number of species that are contained in one petition.

One petition during the Obama administration asked to  list757 species at a time.

“Today, there are more listed species in the ESA than ever before in history,” Holsinger said. “Over 1,500 species are listed today. For many years, that hovered around 1,100.”

He added, “The Obama administration really ramped up listings.”

He advocated that species should be considered with one petition at a time, not 300, 600 or 1,000 species at a time.

“We need to consider species one at a time,” he said. “Petitions for 300 or 400 species at a time are an abuse of the process.”

Science

With the increase in the number of listings, Holsinger said that science is imperative, but transparency is an important piece of the listing decisions.

“We found problems with the sage grouse science,” he said. “I found it incredibly ironic that President Obama was posting that this was the most transparent administration in history, but we had to file a lawsuit under the Freedom of Information Act on what the agencies are supposed to publish already.”

He noted that the U.S. Geological Survey is often the most secretive of all agencies, which is improper for the science arm of the Department of the Interior.

Sub-species

Another problem with ESA, explained Holsinger, is the listing of sub-species.

“We’re not listing the grizzly bear or bald eagle,” he said. “We’re listing one of the 13 subspecies of mouse, snail or beetle.”

Holsinger sees potential improvements in the ESA by listing only full species rather than subspecies.

“If we can’t tell something apart without dissecting it or looking at its chromosomes, it shouldn’t be listed,” he said. “We should look at decisions with on-the-ground science and focus on conservation work, rather than litigation.”

States’ rights

Another area of infringement within ESA is a lack of state input on wildlife management decisions, described Holsinger.

As an example, the Mexican gray wolf is a significant species. The District Court of New Mexico said U.S. Fish and Wildlife Service (FWS) couldn’t release wolves without a state permit, but FWS reintroduced the wolf without consultation.

“The state wildlife agency sued, and we’re waiting right now to see what the 10th Circuit Court does,” Holsinger said.

Focus on recovery

While listing species that are truly endangered or threatened is important, Holsinger also noted that recovery programs are also important.

“There hasn’t been a great deal of interest in recovery programs, and they are largely interpreted to be voluntary,” Holsinger said. “They don’t carry the force and affect of the law.”

He continued, “We’ve got new policies on collecting information on experimental populations and recovery planning guidance.”

With a new administration in place, Holsinger sees potential, but he notes that there are going to be large-scale efforts that will have to be in place.

“As we’ve seen, the media is relentlessly in crisis mode over everything that occurs, but there’s good things ahead,” Holsinger said. “We have a tremendous amount of work to do.”

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..

The mid-May decision to reject a petition to reclassify three black-footed ferret populations managed under the 10(j) experimental, nonessential designation of the federal Endangered Species Act (ESA) was met with relief and support in Wyoming, South Dakota and Arizona.
“Under the ESA, the black-footed ferret is a listed species, and it’s the rarest animal in North America. We’re trying to recover it and get it off the ESA list. This petition would have done severe damage to ferret reintroduction programs in Wyoming as well as recovery programs across the country,” states a news release from the Game and Fish.
“One of the provisions to do that is a 10 (j) ruling, which gives us a lot more flexibility on management. We can put together a set of 10(j) assurances for landowners that allow them to do everything they already do. If we can work out 10(j) provisions the landowners are comfortable with, then we release the ferret. That’s what happened in the Shirley Basin,” explains Wyoming Game and Fish Department (WGFD) Deputy Director and Chairman of the Black-Footed Ferret Recovery Implementation Team Executive Committee John Emmerich.
He adds the recent petition to relist the ferret was backed by three environmental groups that challenged the treatment of “experimental, non-essential” populations on public land.
“Under 10(j) we can designate an area as an experimental, nonessential populations and that gives us flexibility in management. In their petition they said that shouldn’t be used on public lands. Fish and Wildlife Services (FWS) said there were adequate protections on both public and private lands and that they will continue to support language in the current 10(j) rules,” says Emmerich.
Nongame Mammal Biologist with Wyoming Game and Fish Martin Greiner adds the WGFD worked with FWS initially to address the petition and assist in the decision making process.
“The petition highlighted some fears of landowners and attempted to undermine the relationships we have built with the private landowners who have been instrumental in moving the ferret recovery program forward,” explains Greiner. “At this point we can start over again with our landowner partners and hopefully get going with reintroducing and monitoring ferrets on private lands.”
Director of Arizona Game and Fish Larry Voyles says the loss of public trust that would have resulted from reclassifying an existing 10 (j) population would almost certainly have hindered, if not crippled, the vast strides made in recovering threatened and endangered species. This is in addition to destroying the foundation of cooperative conservation that has been a major contributing factor in progress already achieved.
Active reintroduction of ferrets into the wild has been ongoing since 1991 and today there are 19 black-footed ferret reintroduction sites across the United States, Canada and Mexico.
The species was believed to have gone extinct until a small colony was discovered near Meeteetse in 1981. Canine distemper outbreaks and the possibility of exposure to the plague reduced the population to 18 individuals, which were captured and put into a captive breeding program.
“Of those last 18 animals captured, only seven of the 18 are represented genetically. The other 11 animals were never bred in captivity,” says Greiner.
Of the lack of genetic diversity within the current population estimated at 800 to 1,000 individuals, Greiner says the bottlenecked genetic pool appears to have a minimal impact.
“Ferrets appear to be able to overcome some of these bottlenecks we’ve seen negatively impact other carnivore populations. Lack of genetic diversity doesn’t appear to be as important to the ferret,” notes Greiner.
“It all boils down to the landowners getting back to a comfort level where they’re willing to work with ferret reintroduction again. We’re not going to do it unless landowners are willing to participate, and we’ll start working on it again as a result of the ruling,” says Emmerich.
“Now that we have the final determination on the petition we are planning to revisit our partners and see how we can pick up the pieces and move forward,” adds Greiner. “We take a different approach in Wyoming through focusing on individual relationships with landowners. It’s important to make sure the rules aren’t changed on private landowners down the road. That’s what really concerned us about this petition.”
Heather Hamilton 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 April 1, the U.S. Fish and Wildlife Service  (FWS)announced it will list the northern long-eared bat as a threatened species under the Endangered Species Act (ESA), an action that impacts a large portion of the Midwest and eastern United States. 

Eastern Wyoming is among the areas impacted by the listing decision. 

The primary reason for the listing, says FWS, is “due to the threat posed by white-nose syndrome, a fungal disease that has devastated many bat populations.”

The listing will become effective on May 4 – 30 days after publication of the final listing determination in the Federal Register.

Listing decision

“Bats are a critical component of our nation’s ecology and economy, maintaining a fragile insect predator-prey balance. We lose them at our peril,” said FWS Director Dan Ashe. “Without bats, insect populations can rise dramatically, with the potential for devastating losses for our crop farmers and foresters. The alternative to bats is greater pesticide use, which brings with it another set of ecological concerns.”

FWS noted that the long-eared bat was once common across the country, but after white-notes syndrome emerged, populations declined dramatically over a short period of time. 

“The range of the long-eared bat extends into 37 states and white-nose syndrome has spread to 25 of those states, with the fungus that causes the disease documented in an additional three states,” said FWS. 

They continued, “Based on surveillance and research since white-nose syndrome symptoms were first seen on bats in 2006, we expect that white-nose syndrome will spread throughout this bat’s range and that impacts will be the same as those documented in areas already affected by white-nose syndrome.”

History

In October 2014, FWS proposed the northern long-eared bat as a potential endangered species following noted declines. In their review, however, they determined that the species only warranted a “threatened” listing status. 

“In making this decision, we reviewed the best available scientific information on the northern long-eared bat, including information gathered from more than 100,000 public comments,” said FWS Midwest Regional Director Tom Melius. “We are listing this species because a disease – white-nose syndrome – is spreading and decimating its populations. We designed the 4(d) rule to provide appropriate protection within the area where the disease occurs for the remaining individuals during their most sensitive life stages, but to otherwise eliminate unnecessary regulation.”

Working together

Despite the declines of bats and the listing decision, FWS noted and recognized the important contributions that states and local governments are making to address the challenge. 

“FWS, states, federal agencies, tribes, conservation organizations and scientific institutions are working together on a national response team to address white-nose syndrome through disease monitoring and management, conservation and outreach,” they said in a press release. “FWS has granted more than $20 million to institutions and federal and state agencies for research and response.”

However, they also mentioned that human activities, particularly those close to hibernation sites, impact the species, “creating heightened challenges for bat populations already weakened by disease and underscoring the need to protect important habitat while research continues to develop a cure for white-nose syndrome.”

4(d) rule

In conjunction with the listing, FWS issues an interim special 4(d) rule. 

The interim special rule “eliminates unnecessary regulatory requirements for landowners, land managers, government agencies and others in the range of the northern long-eared bat,” commented FWS in a news release. “The public is invited to comment on this interim rule as the Service considers whether modifications or exemptions for additional categories of activities should be included in a final 4(d) rule that will be finalized by the end of the calendar year.”

The measures provided in the 4(d) rule, said FWS provide an exemption for “take” resulting from certain activities, including forest management practices, maintenance and limited expansion of transportation and utility rights-of-way, removal of trees and brush to maintain prairie habitat and limited tree-removal projects, as long as these activities occur away from known maternity roosts and hibernation caves. 

“These measures are designed to protect northern long-eared bats when they are most vulnerable, including when they are hibernating and during the two-month pup-rearing season from June through July,” FWS said.

Public input

Public comments on the 4(d) rule will be accepted through July 1. Comments can be made electronically by visiting regulations.gov and entering Docket Number FWS-R5-ES-2011-0024. 

Hard copy and hand-delivered comments will also be accepted at Public Comments Processing, Attn: FWS–R5–ES–2011–0024; Division of Policy and Directives Management; U.S. Fish and Wildlife Service, MS: BPHC; 5275 Leesburg Pike, Falls Church, Va. 22041-3803.

Congressional comments

On hearing about the listing, Congressional Western Caucus Chairman and Wyoming Representative Cynthia Lummis said, “Naturally-occurring diseases don’t respect government rules or regulations. White-nose syndrome is the sole reason FWS decided to list the northern long-eared bat, but this unprecedented listing, which focuses entirely on regulating humans, does nothing to actually recover the bat.”

“Our efforts need to be focused on addressing the real problem at hand: white-nose syndrome, a goal which we all share but that is not furthered one iota by today’s listing,” Lummis added. “Instead, this listing shoves regulatory burdens on American families and job creators whose actions are not responsible for the bat’s decline.”

Public information meetings

With the listing of the long-eared bat, the U.S. Fish and Wildlife Service will be holding three public meetings to provide details and answer questions about the listing and the interim 4(d) rule. 

Meetings will be held via teleconference and are slated for April 3 at 12 noon, April 8 at 2 p.m. and April 9 at 10 a.m. 

To participate, call 877-918-2510 and enter passcode 9285200#.

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..

Over the last several weeks, the U.S. Fish and Wildlife Service (FWS) and Wyoming Game and Fish Department (WGFD) have held a series of public meetings across the four corners of Wyoming to conduct outreach on the proposed Black-footed ferret 10(j) rule that is slated for publication in the Federal Register by mid-April. 

“FWS and WGFD have been conducting outreach and stakeholder meetings to communicate to attendees how they can participate in the Black-footed ferret 10(j) and what it means to them,” says Clark McCreedy, FWS partnership coordinator. “Right now, the proposed 10(j) rule is being reviewed internally by FWS. Once that review is complete, the next part of the process is to issue a Notice of Availability, which triggers a 60-day comment period.”

At that point, the proposed rule will be available for review by the general public, and FWS is hoping to receive good, substantive comments on the rule. 

“We are definitely interested in getting this rule through the process,” says Zack Walker, WGFD non-game bird and mammal program supervisor. “We want people to know what we are trying to do and why. We also want this process to be as transparent as possible to alleviate concerns about the 10(j) rule.”

Inside 10(j)

The proposed 10(j) rule strives to set up protections for landowners regarding Black-footed ferrets. 

Walker explains, “A 10(j) rule relieves the burden off landowners for incidentally taking a ferret.”

“FWS acknowledges that wild ferrets don’t exist in the state of Wyoming outside of those that have already been reintroduced,” McCreedy explains. “Those reintroduced populations are in the Shirley Basin.”

The new rule proposes to designate the entire state of Wyoming as a 10(j) area. 

“This designation would provide substantial regulatory relief for not just private landowners but also people who use public lands,” he emphasizes. “We are expanding the regulatory relief that exists in the Shirley Basin across the state.”

Purpose

Effectively, McCreedy explains that the rule provides protections for landowners should a ferret move outside the existing 10(j) area.

“Secondly, should we have a private landowner who wants to participate in ferret reintroductions in the future, the 10(j) rule makes certain that regulatory relief is already in place for all landowners,” he says. 

McCreedy adds, “Regulatory relief is the primary goal of this proposed 10(j) rule. The regulatory relief is substantial.”

“Essentially, it takes away all the endangered and threatened status of the ferret for legal activities,” Walker says. “The impetus for the statewide 10(j) is to make sure landowners are covered for incidental take.”

Relief

Included in regulatory relief, says McCreedy, is a provision for incidental take. 

“The 10(j) rule takes away the prohibition for incidental take,” he says. “What that means is, if someone is conducting an activity on their property, operation or ranch – and it is a legal and acceptable practice – if a ferret is injured or taken, they are completely covered under the 10(j) rule.”

Activities such as driving down a two-track road, moving irrigation pipe, baling hay, moving cattle and others are examples McCreedy lists where ferrets may be injured or taken, but he emphasizes that any legal activity is covered. 

“The incidental take language is all-encompassing,” he says. 

Walker notes, “We still can’t go out and purposely take or shoot ferrets, but the rule provides protection for legal activities.”

The provisions also include all landowners – not just those who may choose to participate in a reintroduction. 

“If a ferret moves, the landowner is protected, regardless, as long as their activities are legal,” McCreedy says. 

Concerns

McCreedy notes that during the course of the meetings several consistent concerns have been heard, including concerns about the extent of the relief and the potential for ferret reintroductions. 

“One concern has been about the regulatory relief provided and the reliability of that relief,” McCreedy says. “We want folks to know the regulatory relief is substantial.”

He also mentions that FWS has a track record of vigorously defending the use of 10(j) rules, and McCreedy says, “The use of 10(j) rules is one tool that we think is really key in actually realizing the goals of recovery.”

“We want folks to know that we will defend the use of the 10(j) rule,” he emphasizes.

Ferret reintroductions

To date, Black-footed ferrets have been reintroduced in the Shirley Basin and along the Colorado border south of a small portion of Sweetwater County. However, McCreedy notes that there is potential for additional reintroductions. 

“Colorado was able to implement an incentive program, and there was substantial interest among landowners in terms of participating in ferret reintroduction in Colorado,” he explains. “There could be, foreseeably, an interest in reintroductions if we were able to implement an incentive program in Wyoming.”

He also emphasizes, however, that reintroductions would be driven entirely by the WGFD and state of Wyoming, in cooperation with private landowners. 

“We want to proceed toward any future reintroductions from the ground up – with landowners working with an agency that they have trust in,” he says. 

Ranch implications

“The 10(j) rule is entirely compatible with ranching operations, so the anticipation is that landowners won’t have to make any changes in their operation,” McCreedy says. 

“If we get a 10(j) in place, we hope that we will relieve concerns from people,” Walker says. “We think this rule will help with recovery.”

“The ferret is one of the unique situations where recovery is entirely feasible, and that is the ultimate regulatory relief – to get the critter completely off the Endangered Species List,” McCreedy comments. 

Safe harbor agreement

In addition to the proposed 10(j) rule, a safe harbor agreement is in place regarding Black-footed ferrets. 

“The range-wide safe harbor agreement does much the same as the 10(j) rule in terms of providing regulatory relief, but it is specific for private lands,” Clark McCreedy, FWS partnership coordinator, explains. “Landowners or groups of landowners can obtain a separate Section 10 permit under the safe harbor agreement.”

In addition to the protections against incidental take, the safe harbor establishes that, prior to reintroduction, the baseline population of ferrets is zero. 

“The safe harbor allows landowners, at their discretion, to say they want to return to the baseline population – zero ferrets,” McCreedy says. 

“If for any reason all the ferrets die, landowners are completely covered,” Zack Walker, Wyoming Game and Fish Department non-game bird and mammal program supervisor, says. “On the other side, if someone buys a property and says they don’t want ferrets anymore, we can go back to the baseline population of zero.”

“We want to work with landowners as much as we possibly can,” he adds.

The only change for landowners is that, under the safe harbor, a conservation zone is agreed on where ferrets could be reintroduced, and a management zone would be established where prairie dogs would continue to be managed – the only stipulation being no use of the anti-coagulant rodenticides,” McCreedy adds.

“The recognition is that landowners need to manage encroachment of prairie dogs. Our goal is to achieve recovery of the ferret while taking into consideration the needs of private landowners,” McCreedy says.  

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..


Commerce City, Colo. –
On Sept. 22, Secretary of the Interior Sally Jewell opened a press conference at the Rocky Mountain Arsenal National Wildlife Refuge Visitor Center, saying, “The U.S. Fish and Wildlife Service (FWS), the premier wildlife agency in the world, has concluded the Greater sage grouse does not need protection under the Endangered Species Act.”
Joining Jewell at the ceremony, FWS Director Dan Ashe, USDA Undersecretary Robert Bonnie, Gov. John Hickenlooper, Gov. Matt Mead, Gov. Steve Bullock, Gov. Brian Sandoval, Audubon Rockies Executive Director Brian Rutledge and Nevada rancher Duane Coombs all praised the cooperative efforts of federal, state and local governments, landowners and more toward staving off the listing decision.

“This decision means a brighter future for one bird that calls the West home, and it means certainty for states, communities, ranchers and developers,” Jewell added. “This is the largest, most complex land conservation effort ever in the history of the U.S.”

Ashe added, “Today is a good day to be a sage grouse, a rancher, a governor and a federal or state agency employee. We have won. Through great leadership and great partnerships we can come together and cooperate for the best interests of the West and the nation.”

Conservation efforts

Since sage grouse became a focus of conservation work West-wide, Jewell noted that numerous efforts have taken place on the landscape across roughly 170 million acres.

“Forty-five percent of sagebrush landscape is on state and private lands,” she added, noting that she visited with governors across the West to see efforts on the ground.

“The Natural Resources Conservation Service (NRCS) led the Sage Grouse Initiative,” Jewell continued, “and they worked alongside Bureau of Land Management (BLM) and FWS, who put together Candidate Conservation Agreements, which have made a huge difference on public and private lands to put conservation measures in place on millions of acres.”

The Sage Grouse Initiative, said Bonnie, has involved more than 1,100 ranchers across 4.4 million acres, with an additional commitment of $200 million over the next eight years.

“I want to give a nod to ranchers who have proven to be true conservationists,” Jewell mentioned. “Thousands of ranching families have taken steps to make their lands better for sage grouse and cattle.”

She further emphasized that land use plans released by the Bureau of Land Management and U.S. Forest Service on Sept. 22 help to continue those efforts.

Land use plans

“Over the past three years, the agencies have worked with states, stakeholders and scientists to update 98 land use plans,” Jewell said. “We also released the plan that outlines a path forward for sustainable economic development. It puts targeted protection on 67 million acres, with the highest protection on about 12 million acres.”

She noted that the plans differ to reflect local landscapes, threats and conservation approaches with the overall goal to minimize and prevent disturbances all while improving and restoring habitats. 

“One number demonstrates how effective and balanced those plans are – 90 percent,” she commented. “Ninety percent of lands with high and medium oil and gas potential are outside primary habitat areas, and models estimate the plans significantly reduce threats to Greater sage grouse across 90 percent of the species and their habitat.”

Wyo perspectives

Ashe mentioned, “Many minds, hands and hearts have helped to get us here today, but the leadership we saw from Wyoming in 2008 showed us what was possible for sage grouse conservation.”

Mead said, during the ceremony, “As we think about the Endangered Species Act of 1973, there is nothing in the Act to say that the goal is to list species. The goal is to make sure we take care of our species and our habitat so we don’t have to list species.”

Mead noted that the diverse interests of groups across the West have come together for over a decade to conserve sage grouse, all while balancing western economic strength and balancing habitat.

Wyoming Farm Bureau’s Executive Director Ken Hamilton said, “We are naturally pleased with the FWS decision to not list the sage grouse as it is a species that should have never been proposed for listing. Listing a species causes a lot of problems and doesn’t necessarily benefit the species. We have always said those working the land know better how to manage the land and all of its features than those thousands of miles away.”

Other industry input

With partners across the West, a wide array of positive commentary poured forward on the decision, though there is some concern about the decision and the BLM and Forest Service land use plans. 

“The Administration came to the logical decision not to list the sage grouse, but went ahead and forced through their land use plans, which are just as concerning as a listing,” said Brenda Richards, Public Lands Council president. “Instead of recognizing the stewardship that land users have voluntarily put in place, they are pushing forward their agenda which ignores multiple use on our lands.”

“We are pleased with FWS and the Interior’s listing decision and their commitment to sound conservation practices based on locally-led initiatives, voluntary participation and funding assistance for local landowners and operators,” said National Association of Conservation Districts President Lee McDaniel.

A look forward

Despite the far-reaching and positive impacts of the decision not to list sage grouse, Jewell noted, “There is a lot of work ahead.”

“In many ways, this is the end of the beginning,” she continued. “In the weeks, months and years ahead, we need to implement the state and federal plans and the fire strategy that made this decision possible. “

Jewell noted that all stakeholders must remain committed to incorporating science in making decisions about species in the future and to maintaining the sagebrush steppe ecosystem.

“There are too many partners and individuals to recognize because of the scope, scale and complexity,” Jewell said. “To say it takes a village is a gross understatement. We are witnessing a glimpse into the future of the West.”

More information on the BLM and Forest Service land use plans and what they mean for public lands ranchers will be available in the Oct. 3 Roundup.

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..