Defining opportunities, WSGA convention looks at sage grouse moving forward
Cody – “As we look down the road, we haven’t seen a better cattle market than we are seeing today,” said Wyoming Stock Growers Association President Jim Wilson during the opening general session of the Wyoming Cattle Industry Convention and Trade Show on June 5. “Along with that, we’ve got grass.”
“Our inputs keep increasing, but surely our income will increase this year to go along with it,” he continued.
With the positive news coming forward, challenges continue to face the agriculture industry, including sage grouse.
The first general session of the convention, as a result, opened with what many agree is one of Wyoming’s most challenging topics – sage grouse.
David Willms, attorney with Dray, Dyekman, Reed and Healey in Cheyenne, visited with producers about legal concerns related to the candidate conservation agreement with assurances (CCAA) for sage grouse.
“CCAAs can be a fairly valuable tool that is at least worth considering,” said Willms. “I’m not here to recommend that producers all go out and enroll in a CCAA, however.”
The Greater sage grouse was determined to be warranted for listing under the ESA in March 2010, but precluded by other species.
“Because of a court-endorsed settlement agreement, Fish and Wildlife Service (FWS) is in a position where they have to make an up or down listing for sage grouse by September 2015,” Willms explained. “What is important here is that they can’t come back with a warranted but precluded finding again. They have to say the sage grouse is warranted or not warranted for listing.”
He further added that information is available showing that sage grouse numbers region-wide have declined by 30 percent.
“The state is doing everything it can to keep the species off the list,” he added.
Private property rights
The Sage Grouse CCAA developed by FWS, he continued, is a tool worth producers’ consideration.
“I’m not advising that any producer sign up,” he added. “It depends on their personal situation and what is important to the individual producer.”
However, Willms noted that there are concerns by producers, including the impact of the CCAA on private property rights.
“Many people ask me if CCAAs impact and infringe on private property rights,” he said. “The CCAA is 100 percent unequivocally and absolutely voluntary. If a producer doesn’t want to enter into an agreement, they don’t have to.”
Also, if a producer does decide to enter into a CCAA, they have the option to withdraw from the agreement at any time.
Willms also said that cost concerns related to the CCAA have also been paramount for producers.
“There are certain requirements that inherently go along with enrolling in a CCAA,” Willms said. “There are conservation plans and conservation measures, as well as annual reporting.”
He further said that it isn’t possible to determine what the cost will be for an individual producer.
“I don’t know how much it will cost each producer because it depends on their individual circumstances,” Willms explained. “If they already have conservation measures identified and in practice, it may not change their costs at all.”
On the other hand, for producers who are implementing new measures, the cost of the CCAA may be more extensive.
Prevention of listing
An additional concern of producers that Willms has heard about is whether or not a CCAA can prevent listing of sage grouse.
“I also don’t know if CCAAs will prevent a listing,” he said. “I want to drive home that I don’t think that should be a consideration as to whether a producer should enroll. Whether they decide to enroll should be based on their circumstances.”
While a CCAA might be a component that prevents sage grouse listing, it may not, as well.
“The research I’ve done shows that there are six situations of species that are covered by CCAAs where an up or down listing decision was faced,” Willms explained. “Of those six, three were determined by FWS to not warrant listing, and CCAAs were given as one of the reasons, at least in part, why listing wasn’t warranted.”
“Based on the limited body of data we have, it has about a 50 percent success rate when there is a listing determination,” he added. “That being said, there are so many factors that go into a listing decision.”
“The last question I hear a lot is, are CCAAs legally sound?” said Willms.
Because CCAAs are relatively new in nature, Willms commented that long-term implications are unknown.
The CCAA program started in 1999, and 26 agreements have been developed around the country.
“Not one of those CCAAs has been struck down or invalidated – or even challenged by a court,” he said. “There is one case with the sand dunes lizard in Texas and New Mexico where the CCAA is being challenged, but it is being challenged on different grounds.”
In the case, Willms explained that the issue in court is that FWS used it as a main reason for not listing the species – not because of the underlying CCAA and the assurances provided for landowners.
“We can never say it is 100 percent, but it is very unlikely that we will have a court come and invalidate a CCAA,” he said.
Willms noted that there are many considerations that producers should take before deciding to undertake a CCAA agreement, but they can be a useful tool that should be considered for landowners.
Endangered Species Act
David Willms, an attorney with Dray, Dyekman, Reed and Healey in Cheyenne, said that the Endangered Species Act was established in 1973.
“Since that time, there have been a number of species added to the ESA,” he said. “As of June 4, in the U.S., there are 1,536 listed species. Of those, 654 are animals and 876 are plant species.”
Additionally, 145 species have been identified as warranted, but precluded, for listing.
“Since the ESA was first implemented, there have only been 59 species delisted,” he said. “That is deceiving, because 31 were delisted because their numbers were recovered, 10 were delisted because they went extinct, and 18 were delisted because new data became available showing they never should have been listed.”
Willms emphasized that 59 delistings is only two percent of listed species.