Issues
The Migratory Bird Treaty Act should be updated. A recent column in the Casper Star-Tribune by IPAA Senior Vice President of Government Relations & Political Affairs Dan Naatz and Petroleum Association of Wyoming Vice President Esther Wagner highlights an amendment proposed last month by U.S. Representative Liz Cheney to provide clarity to the Migratory Bird Treaty Act (MBTA).
The MBTA was passed in 1918 to protect migratory bird populations from overhunting and over poaching by imposing criminal penalties for such violations. Over the years, however, some have argued that the MBTA also applies to noncriminal, everyday activities that result in the accidental and unintended death of protected birds. This is the exact discrepancy Rep. Cheney’s amendment aims to reform.
“If the MBTA is read to impose strict criminal liability on otherwise legal conduct that results in the unintentional death of any one of over 1,000 protected bird species, many everyday activities would be deemed unlawful and subject to criminal sanctions,” Naatz and Wagner wrote. “For example, ordinary land uses like harvesting crops to driving a vehicle could lead to criminal charges under the MBTA if any bird deaths occurred because of such action. Even owning a building with windows or owning a cat could put an individual at risk for criminal charges under the MBTA.”
The authors note that Rep. Cheney’s amendment “attempts to guard against misuse of the law” and adopting it would ensure the MBTA is applied according to “its original purpose.”
FWS formally requests additional state officials for listing talks. According to a memo obtained by E&E News, the U.S. Fish and Wildlife Service (FWS) now requires that a representative from the respective state’s fish and wildlife management agency and an official from the Governor’s office join Species Status Assessment (SSA) teams prior to Endangered Species Act (ESA) listing decision-making.
SSAs are “biological risk assessments” in which government scientists determine how a species is currently fairing and what it needs to survive. The new SSA team policy comes as an effort to minimize the federal government’s role over environmental policy while expanding state control. According to the memo, sent by FWS Principal Deputy Director Greg Sheehan, FWS is required to “coordinate, collaborate, and use the expertise of state agencies in developing the scientific foundation upon which the Service bases its determinations for listing actions.” The new SSA requirement will allow FWS to access state-level data more efficiently.
In a statement, the Western Governors’ Association praised the policy update saying, “Early coordination between Governors and the Service through the SSA framework will increase clarity, and lead to a more informed decision process under the ESA.” However, some officials have weighed in raising concerns. Former Fish, Wildlife and Parks assistant secretary at the U.S. Department of the Interior Don Barry said, “[States] always like to say they know the wildlife best. The governor’s office will have nothing to bring to the table except politics and economic concerns.”
This mandate is now in effect and will apply to all SSA’s in consideration since Nov. 1.
Can markets save the West’s most controversial bird? Nevada, Colorado, and Wyoming have developed a market system in which they trade with industry operators in an effort to protect the Greater sage-grouse and its habitat. In these markets, developers – primarily energy and mining companies – pay for any impact their operations may have on sage-grouse habitat by purchasing “credits” from ranchers in the area who work to conserve the same amount of habitat utilized by the developers. So far, Nevada is the only state with this operation in practice, having conducted its first exchange at the beginning of November.
Because all the land within the market boundaries does not hold the same value to the sage-grouse, the companies and conservationists normally negotiate a price when it comes to the exchange. Each credit is worth one acre of land, which may vary in size and scope according to the purpose and quality it holds to the bird. Currently, Nevada’s Department of Conservation and Natural Resources oversees what it is calling the “Conservation Credit System” to ensure all credits are verified and priced appropriately.
Despite the opt-in system being in its early stages, state officials are confident that developers will choose to participate. “We’ve received several phone calls on the industry side,” Jim Lawrence, deputy director of the Nevada Department said. As of this week, there were approximately 40,000 credits to be sold.
In the News
Court ruling reopens debate over Yellowstone grizzlies. E&E News (sub req’d). The Fish and Wildlife Service could be thinking twice about how it removed Endangered Species Act protections from Yellowstone-area grizzly bears, thanks to a critical court ruling on wolves. In an unusual move, the agency is now effectively reopening debate on its controversial decision in July declaring grizzlies in the Greater Yellowstone Ecosystem to be a distinct population and removing them from the list of threatened or endangered species. Already facing several lawsuits challenging the delisting decision, FWS in a notice issued today invites comments on whether the appellate court’s reasoning in the August wolf-related case undermines the grizzly decision (Greenwire, Sept. 7). “We are interested in public input on whether the [wolf] opinion affects the GYE grizzly bear final rule and what, if any, further evaluation the service should consider regarding the remaining grizzly bear populations and lost historical range,” the agency states.
Feds nix protections for white-tailed prairie dog. E&E News (sub req’d). The white-tailed prairie dog does not deserve federal Endangered Species Act protection, according to a new Fish and Wildlife Service determination that burrows into some old conflicts. One of five prairie dog species in western North America, the animal inhabits parts of Wyoming, Utah, Colorado and Interior Secretary Ryan Zinke’s home state of Montana. Myriad threats, including energy development, have “significantly reduced” the population, FWS reports. But federal officials, in a notice to be published tomorrow in the Federal Register, cite the species’ “resilient populations” and “adaptive capacity” in concluding that an ESA listing is not warranted. “We found that white-tailed prairie dog populations are in moderate to high overall condition, with population trends stable or exhibiting some declines from [certain] events followed by recovery,” said FWS. The agency’s action comes more than 15 years after it first received a petition in July 2002 to list the white-tailed prairie dog as threatened or endangered. What followed has been a case study in the litigation-driven and seemingly interminable ESA process.
House panel considers extending endangered fish recovery programs. Courthouse News. The House Natural Resources Committee considered legislation Wednesday that will extend endangered fish recovery programs in the Upper Colorado and San Juan rivers and direct the Interior Department to conduct an in-depth review of the success of the program to date. The bill, the Endangered Fish Recovery Programs Extension Act of 2017, is the first sponsored by Rep. John Curtis, the newest member of Utah’s congressional delegation. He was elected in November to fill the unexpired term of Rep. Jason Chaffetz, who stepped down in June, citing a “mid-life crisis” and desire to spend more time with family. The legislation considered Wednesday would do two things: first, it would allow for the continued annual collection of fees from water and power users to continue funding the collaborative restoration efforts involving state and federal agencies, tribes and other stakeholders. Without the bill, the collection of those fees is set to expire in 2018. Second, the bill directs the Interior Department to assess how well the programs are working and how they can be improved.
Senate Appropriations releases interior, environment bill. High Plains/Midwest AG Journal. The Senate Appropriations Committee Nov. 20 released a fiscal year 2018 bill that addresses the issues including the U.S. Forest Service firefighting budget, the Environmental Protection Agency and certain threatened species. In a summary of the bill, Senate Appropriations Committee Chairman Thad Cochran, R-MS, noted that it includes $5.8 billion for the U.S. Forest Service, including the full 10-year average for wildfire suppression costs as well increased funding for hazardous fuels reduction to help prevent catastrophic wildfires. The bill also includes $3.6 billion to fight wildland fire, representing fire suppression funding at 100 percent of the 10-year average and emergency suppression funds made available if regular suppression funding is insufficient to cover the costs of fighting wildfires, a committee statement said.
Court trims Texas lawsuit over warbler listing. E&E News (sub req’d). A federal court last week narrowed Texas’ lawsuit against the federal government over protections for an endangered songbird. The U.S. District Court for the Western District of Texas dismissed two of three claims the Lone Star State brought in seeking the removal of the golden-cheeked warbler from the endangered species list. Texas is barred from challenging the warbler’s listing as endangered and failed to state a plausible claim under the National Environmental Policy Act, Judge Sam Sparks wrote for the court. The Texas General Land Office brought its lawsuit against the Fish and Wildlife Service in June, alleging the agency had unlawfully dismissed a petition that called for the warbler’s delisting. FWS first listed the songbird as endangered in 1990, largely because of habitat destruction due to development around Austin.
