August 25, 2019

New Obama Administration Habitat Rules Grant Limitless Discretion to Federal Agencies

Press Release from the House Committee on Natural Resources:

WASHINGTON, D.C., April 19, 2016 – Today, the House Committee on Natural Resources held an oversight hearing on the Obama Administration’s expansive new definitions and revised criteria for designating critical habitat under the Endangered Species Act.Chairman Rob Bishop (R-UT) argued the new rules allow the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration’s (NOAA) Fisheries Service nearly limitless discretion in restricting private and federal land use. He pointed out the negative impact they will have on the American people.

“These rules will now make it even easier for the federal government to absorb larger and larger swaths of land and water […] from local, state governments and private citizens. […] It’s going to hurt people, and unfortunately those people who are going to be hurt have almost no recourse towards this particular situation,” Bishop said.

The rules usurp Congress’ legislative and constitutional prerogatives, and create sweeping new authorities to designate critical habitat at the agencies’ sole discretion.

“The Services have essentially granted to themselves authority to designate any area that may, someday in the future, become suitable for a species—even in places where there is absolutely no evidence currently that the species have existed there. […] In the future, I expect the agencies to ask Appropriations for tarot cards and ouija boards so they can do the work under this expanded rule,” Bishop stated.

Vice Chairman Cynthia Lummis (R-WY) highlighted the expected litigious challenges that will result from the new rules and called for an updated conservation strategy.

“Court battles slow down the ability to recover species and steal money from recovery. We need a new 21st century conservation effort that is consistent with the movement that the American people have made in their understanding of sound science. […] We can and should do better for our wildlife,” Lummis stated.

Wyoming witness Karen Budd-Falen, Senior Partner of Budd-Falen Law Offices, LLC, grew up a fifth-generation rancher and commented on the impact the rules will have on the local agriculture community.

“While the agriculture community raised a huge alarm over the ‘waters of the U.S.,’ the Fish and Wildlife Service was quietly implementing these new rules, in a piecemeal manner, without a lot of fanfare. Honestly, I believe these new habitat rules will have as great or greater impact on the private lands and federal land permits […]. I would hope that the outcry from the agriculture community, private property advocates, and our Congressional delegations would be as great,” Budd-Falen said.

Colorado witness Robbie LeValley, County Administrator of Delta County, argued the new rules will not benefit habitat species and will have a negative economic impact on ranchers and rural communities.

“Imposing regulatory change on grazing without any scientific basis is unwarranted and makes it clear that this Administration’s intent is to manage away from productive uses, rather than actually protecting species and their habitat,” LeValley stated.

Highlighting the FWS’s inconsistent track record on ESA implementation, Rep. Dan Newhouse (R-WA) asked Dan Ashe, Director of FWS, why—despite growing numbers of wolves—the Service has not finalized its 2013 proposed wolf delisting.

“The wolf is probably one of the most frustrating issues during my tenure as Director. […] We’re kind of like that truck that’s in the mud up to the running board, so you know we can’t go forward and we can’t go backward,” Ashe responded.

Contact: Committee Press Office 202-226-9019
Share

ESA: Definition of Destruction or Adverse Modification of Critical Habitat

SUMMARY: The U.S. Fish and Wildlife Service (FWS) and the National 
Marine Fisheries Service (NMFS), collectively referred to as the 
``Services'' or ``we,'' revise a regulatory definition that is
integral to our implementation of the Endangered Species Act of 1973, 
as amended (Act or ESA). The Act requires Federal agencies, in 
consultation with and with the assistance of the Services, to insure 
that their actions are not likely to jeopardize the continued existence 
of endangered or threatened species or result in the destruction or 
adverse modification of critical habitat of such species. On May 12, 
2014, we proposed to revise the definition for ``destruction or adverse 
modification'' in our regulations as this definition had been found to 
be invalid by two circuit courts. In response to public comments 
received on our proposed rule, we have made minor revisions to the 
definition. This rule responds to section 6 of Executive Order 13563 
(January 18, 2011), which directs agencies to analyze their existing 
regulations and, among other things, modify or streamline them in 
accordance with what has been learned.

FINAL RULE: Listing Endangered and Threatened Species and Designating Critical Habitat; Implementing Changes to the Regulations for Designating Critical Habitat

Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act
 
Share

ESA Recovery Plans: Mandated, Needed, Necessary?

Lynx canadensis  Canada LynxI’ve been involved in business nearly my entire life. Most dealings with business have been in “micro” business and yet I learned decades ago that the ONLY way to be successful in business, or anything in life for that matter, was to have a plan.

Having said that, why does the U.S. Fish and Wildlife Service (USFWS) not have a Recovery Plan for Canada lynx? As you will discover, this is just another example of why the Endangered Species Act needs to be either seriously amendment or ripped up and written all over again.

On March 3, 2000, the USFWS formally listed the Canada lynx as a “threatened” species in part or all of the following states: CO, ID, ME, MI, MN, MT, NH, NM, NY, OR, UT, VT, WA, WI, WY

Before I post that portion of the Endangered Species Act that spells out exactly, in a way where lawyers can have a field day with it, let me first say that a definite change to the ESA that is necessary is that NO species should be allowed to be listed in any category if it does not have a Recovery Plan with it – PERIOD.

[Sec. 4] (f)(1) RECOVERY PLANS.—The Secretary shall develop and implement plans (hereinafter in this subsection referred to as ‘‘recovery plans’’) for the conservation and survival of endangered species and threatened species listed pursuant to this section, unless he finds that such a plan will not promote the conservation of the species. The Secretary, in development and implementing recovery plans, shall, to the maximum extent practicable—

(A) give priority to those endangered species or threatened species, without regard to taxonomic classification, that are most likely to benefit from such plans, particularly those species that are, or may be, in conflict with construction or other development projects or other forms of economic activity;

(B) incorporate in each plan—

(i) a description of such site-specific management actions as may be necessary to achieve the plan’s goal for the conservation and survival of the species;

(ii) objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list; and

(iii) estimates of the time required and the cost to carry out those measures needed to achieve the plan’s goal and to achieve intermediate steps toward that goal.

(2) The Secretary, in developing and implementing recovery plans, may procure the services of appropriate public and private agencies and institutions and other qualified persons. Recovery teams appointed pursuant to this subsection shall not be subject to the Federal Advisory Committee Act.

(3) The Secretary shall report every two years to the Committee on Environment and Public Works of the Senate and the Committee on Merchant Marine and Fisheries of the House of Representatives on the status of efforts to develop and implement recovery plans for all species listed pursuant to this section and on
the status of all species for which such plans have been developed.

(4) The Secretary shall, prior to final approval of a new or revised recovery plan, provide public notice and an opportunity for public review and comment on such plan. The Secretary shall consider all information presented during the public comment period prior to approval of the plan.

(5) Each Federal agency shall, prior to implementation of a new or revised recovery plan, consider all information presented during the public comment period under paragraph (4).

Sec. 4 (f)(1) states that the Secretary shall create and implement a recovery plan – well that is if he deems it necessary to protect and recover a species. The ESA must be a joke. Think about it for a minute. If a recovery plan was deemed not necessary for the protection and conservation of a species then why is it even listed to begin with? Either way, because the ESA was written for lawyers and not for the purpose of protecting and recovering endangered species, we now know that there doesn’t necessarily have to be a recovery plan.

However, early on in Section 4, 3(B) of the ESA, we know that the Secretary, must designate “critical habitat” at the same time any species is listed as “threatened” or “endangered.”

(3) The Secretary, by regulation promulgated in accordance with subsection (b) and to the maximum extent prudent and determinable—

(A) shall, concurrently with making a determination under paragraph (1) that a species is an endangered species or a threatened species, designate any habitat of such species which is then considered to be critical habitat; and

Fourteen years after the Canada lynx listing, a U.S. District Court in Montana ordered the USFWS to develop a timeline in which they are to create and implement a Recovery Plan for Canada lynx. That Court made the determination that the USFWS had no justifiable reason to not have a recovery plan. The ESA provides “flexibility” or deference, if you will, that allows the Secretary to not include critical habitat listing at the time of species listing but the Secretary must prove doing so would negatively affect the conservation of the Canada lynx. The Court said it couldn’t be proven.

According to the linked-to article just above, it states that according to the ESA there is no timeline to list critical habitat. I disagree. Above, the ESA clearly states that the Secretary: “Shall, concurrently with making a determination…that a species is an endangered or threatened species, designate any habitat…” Last time I checked, concurrently meant at the same time.

The USFWS also argues that it hasn’t been able to devise a Recovery Plan because of lawsuits involving the designation of critical habitat. If the law requires that critical habitat be designated at the same time that Canada lynx is listed as threatened, and no critical habitat has been designated, then why is the species listed as threatened? By law, it should have been delayed.

We also know that last January, the USFWS announced – and still without a plan – that it is going to be conducting a review to determine what to do about the Canada lynx listing, i.e. keep it as “threatened,” increase it to “endangered,” or remove the animal from the list altogether.

This is a very sad joke being perpetrated onto the American public. All of this reveals why the ESA doesn’t work. In the meantime, there is no plan for lynx recovery, there is no designated critical habitat in all areas and people are suffering economically because of an illegal protection with no plan to find an end.

Disgusting government bureaucracy geared to fattening the wallets of lawyers and environmental groups.

Share

USFWS Proposed Lynx Assessment: Increase Critical Habitat in Northern Maine/Wyoming on Private Land

“The lynx was protected under the ESA in 2000, when it was listed as threatened throughout its range in the contiguous United States, due to the inadequacy, at that time, of existing regulatory mechanisms. The Service designated critical habitat for the species in 2006 and revised the designation in 2009 to include habitat in six northern states. The current proposal includes most of the areas designated in 2009, as well as additional private timber lands in northern Maine, and Bureau of Land Management and National Park Service lands in northwestern Wyoming.”<<<Read More>>>

Share

The Future of Trapping in Maine Looking Sketchy Leaving a Lot of Unanswered Questions

With the Maine Department of Inland Fisheries and Wildlife (MDIFW) recently presenting an application for incidental taking of Canada lynx to the U.S. Fish and Wildlife Service (USFWS), what most deemed a great opportunity to rectify a lot of trapping and snaring issues, is rapidly turning into a nightmare.

The Canada lynx was declared a “threatened” species in the state of Maine in 2000. In 2009, the Federal Government designated a large chunk of northern Maine as “critical lynx habitat”. In the midst of a lawsuit by animal rights/environmental extremist groups, Maine agreed to and signed a Consent Decree that would allow the state to continue with its trapping program, albeit in a limited and restricted fashion. Also in the Consent Decree, MDIFW listed Wildlife Management Districts (WMD) 1,2,3,4,5,6,8,9,10, and 11 as their own brand of critical Canada lynx habitat designation. According to the Consent Decree, within these WMDs, Maine trappers were restricted to smaller trap sizes, aimed are reducing “incidental” trapping of lynx and the use of snares for limiting coyote mortality on deer in wintering yards was banned, among other restrictive measures. Maine remains under the throes of the Consent Decree until such time as the state can obtain an Incidental Take Permit (ITP) from the Federal Government.

An ITP is an agreement reached between the state and the Feds on how to conduct a trapping plan in order to continue adequate protection of a “threatened” or “endangered” species in order that this species will not be blocked from recovery. You can view the application for an ITP for Canada lynx at this link.

I learned a few days ago, through hours of research, that Maine’s current laws on trapping are NOT what most sportsmen believe them to be. I would strongly suggest reading that article before proceeding with this one.

Most sportsmen in Maine believe that if Maine can obtain this seemingly illusive ITP, then trapping can resume as normal and that the commissioner of the MDIFW can implement snaring programs to save the deer herd. This is not the case.

To be as brief as possible, the current law governing trapping and specifically snaring in Maine can be found in Maine Statute 12252 and Maine Statute 10105, as recodified under LD 1600 signed into law on June 3, 2003 by Gov. John Baldacci. MS 12252 bans snaring in Maine with exceptions. In part, MS 10105 lists the authority the commissioner has to utilize some form of “coyote control program”, in which he can hire trained agents to implement snaring in unorganized townships during winter (this was not part of LD 237).

While the law was effectively rewritten during recodification, it must be further understood that obtaining an ITP from the USFWS will not free up the commissioner or even the Maine Legislature to use snares to kill coyotes.

First of all, the application for an ITP is nothing more than a clone of the Consent Decree signed in 2007. It bans the use of snares and still retains the restrictions on trap sizes. The application and plan is not restricted to just those WMDs that MDIFW listed. It becomes statewide.

In the very first parts of the application it states:

The Department seeks a Section 10 permit that would cover its agents and licensees from liability in the event of incidental take of Canada lynx (Lynx canadensis) in Maine that may occur as the result of otherwise lawful activities.

This Consent Decree clone of an application now will stretch out and cover the entire state, or at least that is how I understand the terms of the plan as written thus far. In essence Maine rids itself of one ball and chain, Consent Decree, and replaces it with a bigger ball and chain, ITP.

In short, where currently Maine is continuing its trapping program under the Consent Decree, which I believe in conjunction with current laws, the commissioner COULD, implement a snaring program outside of the 10 WMDs listed, in unorganized townships during winter. When and if this ITP is granted, the commissioner will lose his authority to do that.

If my calculations are correct, then short of dealing with some kind of liability issue for incidentally catching and or killing a lynx (which by the way, since 2000 no lynx has been killed as the result of an incidental take), why would Maine even seek an ITP that is more restrictive than the one in place now?

Some believe that Maine then needs to apply for an ITP for snaring in Maine. You will probably witness me walking on water before that ever happens. I doubt that if you collected all those in Maine Government and the Federal Government who would support an effective snaring program, you could fit them all into the eye of a needle.

From the frying pan to the fire.

Tom Remington

Share