Endangered Species Weigh On Ag

October 24, 2015 02:29 AM

Farmers need to participate—not dodge—the process 

When endangered species legislation first entered the halls of Congress, it was advertised as a strong measure to save threatened plants and animals. While congressional members applauded their own wisdom, President Richard Nixon signed the Endangered Species Act (ESA) into law in 1973—ripping the lid off a 
Pandora’s box of litigation.

Thousands of lawsuits later, almost 1,400 species—plants, fungi, invertebrates, fish, birds, mammals, reptiles and amphibians—are listed under the ESA. “No state governor, legislature or judge can overturn an ESA listing, and failure to comply with its provisions is a violation of law,” says Aubrey Bettencourt, executive director of the California Water Alliance, a statewide not-for-profit that advocates for the water needs of families, cities, businesses and farmers. 

Delta Smelt

As part of a multigenerational farm family in Kings County, Calif., Bettencourt is keenly aware of the sweeping ESA consequences for landowners. In 1994, the Delta smelt, a 2" minnow in the Sacramento-San Joaquin River Delta, was placed under ESA protection. The low-lying Delta is the heart of California’s water supply. In 2007, the Natural Resources Defense Council filed suit, claiming pumps were driving down smelt population. Using regulatory logic under ESA, the U.S. Fish and Wildlife Service (USFWS) tagged the smelt as an indicator species for overall Delta health. The recommended action was to shut down the pumps and restrict water deliveries for months at a time, Bettencourt says. 

“Fish and animals are the direct priorities of the agencies, while dried-up farmland and people are not,” she adds. “Where is the accountability in these decisions—proof the things they do actually help the species?” 

A. Blair Dunn and Dori E. Richards, law partners with Western Agriculture, Resource and Business Advocates, say many special interest groups use ESA litigation to keep out human presence in particular areas. Dunn and Richards are currently fighting ESA protection of the New Mexico jumping mouse. Riparian mouse habitat could be zoned off, which would prohibit ranching activity in the area. 

“In this case, activist environmental groups want to push agriculture away from water sources,” Dunn notes.

New Mexico Jumping Mouse

Cases take several years to navigate the system, depending on the vigilance of the agriculture industry. Environmental groups such as the Center for Biological Diversity (CBD) and WildEarth Guardians serve as litigation machines and use a phalanx of lawyers to probe ESA application. Areas of contention result in a notice of intent to sue, followed by a lawsuit 60 days later. Groups such as CBD often negotiate with USFWS on how to handle a given species. Absent the agriculture community, settlements are often completed behind closed doors.

“It’s crucial for farmers and ranchers to join together in public interest groups—entities that have designated people to watch for activist lawsuits to make sure agriculture’s voice is heard,” Richards says. “Right now, agriculture has no sexy Hollywood stars like Robert Redford to back their efforts. Agriculture has to band together to have a voice at the table.” 

Dunn believes agriculture has failed to counter ESA litigation and is 20 years behind special interest groups pushing ESA efforts. “Agriculture needs financial support. Not to ramp up litigation, but to counter litigation brought by hardcore environmentalists,” he says. 

The consequences of the ESA on private land ownership strike across the country. Ben Cone Jr. took 7,200 acres of bare land bought by his father in North Carolina and, with proper silviculture, turned the ground into well-managed pine forest for timber harvest. Over time, the pines attracted the red-cockaded woodpecker, but due to the birds’ residency on 1,500 acres, ESA enforcement sealed off Cone Jr.’s rights to his own timber in 1991. 

As in Cone Jr.’s case, an ESA listing dictates a private landowner must take measures to protect habitat. In practical terms, an ESA listing can put a landowner and species at odds, rather than turning the landowner into a cooperative partner to save a given species. 

“There’s no incentive to the landowner who finds an endangered species on his property if ESA presence takes away his livelihood,” says Bonner Cohen, senior fellow, National Center for Public Policy Research.

Thus, the response from the landowner who knows his property is harboring a species in distress is to “shoot, shovel and shut up,” Cohen says. “There are plenty of cases where a producer knows if the feds find out about a particular ESA species, they’ll come on the land. The ESA ignores human nature and can be a reverse incentive,” he describes.

Cohen advocates for a non-regulatory, cooperative relationship between government and private landowners: a mechanism where land can be voluntarily set aside, in the same manner as Conservation Reserve Program acreage. “Incentivize the process and turn adversaries into partners. The notion that rural landowners are hostile to endangered species is ridiculous,” Cohen says.

ESA is popularly viewed as sacred and change is often taboo. Opposition typically brings protests and strawman arguments, but federal employees enforcing the letter of the law can transform a farm operation with the swipe of a pen.

“Anyone in agriculture who thinks this is not in their area needs to wake up,” Dunn says. “They’ll come onto your land in your state next. Agriculture truly needs some sort of foundation or non-profit to help fight these type of issues.”

“Take a lesson from California,” Bettencourt says. “I encourage farmers to be willing participants in the ESA process. Examine the science and invest in research to fight on merit, not emotion, for the true protection of the species and the farming community. Make no mistake: The ESA is a federal silver bullet.” 

How Americans Feel About the Endangered Species Act

63% support modernizing the ESA.

62% believe the act should help with species recovery, as opposed to merely cataloging changes in their populations.

69% want the federal government to offer resources to third parties to help species recovery.

49% believe state or local authorities, rather than the federal government, should lead in recovery of endangered and threatened species. Only 31% favor the federal government taking the lead.

To learn more about the Endangered Species Act and find resources to help make your voice heard, visit www.AgWeb.com/agriculture_challenge


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