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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..

Laramie – “Anyone can petition any organism for listing under the Endangered Species Act (ESA) at any time, for any reason,” remarked Gary Beauvais of the Wyoming Natural Diversity Database.

Beauvais spoke in Laramie at the Wyoming Association of Conservation Districts, Wyoming Section of the Society for Range Management and Wyoming Weed and Pest Council “Partners in Resource Excellence” convention, held Nov. 2-5.

“A potential organism could be the full species, a subspecies or it could be what is known as a distinct population segment. We are seeing trends toward petitions targeting distinct populations and subspecies more than for full species,” he explained.

Listing process

Once the Fish and Wildlife Service (FWS) receives a listing petition, they have a 90-day period to decide if there is enough evidence of decline and threat to the targeted organism to warrant further investigation. If there is not, the petition is set aside. If there is enough evidence, the next step is a 12-month investigation.

During the 12-month investigation, FWS must determine if the targeted organism is in significant danger of extinction, in which case it is classified as endangered, or if it is in significant danger of becoming endangered, in which case it is classified as threatened.

“At the end of that process, if there is not enough evidence, the petition is not considered any further and that’s what’s known as a ‘not-warranted’ decision,” noted Beauvais.

Listed species

If the species is considered to be warranted for listing, FWS has a number of options, including listing the species immediately under the ESA or placing the species on a waiting list under a candidate status.

“This is where we were for a long time with the sage grouse. It was warranted for listing under the ESA but the actual listing, paperwork and documentation was precluded by higher priority tasks that the FWS had,” Beauvais said.

If a species is listed under the ESA, FWS is required to formulate a recovery plan and designate critical habitat for the species. The recovery plan defines adequate population levels and distribution for the listed organism that are required for it to be delisted.

“The listed species are reviewed periodically to evaluate whether those listed as endangered can be moved to threatened or if those listed as threatened can be delisted,” he continued.

Court cases

Litigation is common surrounding ESA decisions, and the fates of many species are often in court for long periods of time.

“Once species are listed, people sue to delist them, and once they are delisted, people sue to relist them. A lot of these high profile species tend to be stuck in this litigation limbo for a while, with court orders variously remanding decisions to the Service, reversing decisions or putting a stay on listings. That can really put a lot of uncertainty on the listing situation,” remarked Beauvais.

Potential listings

Currently, there are 14 taxa that occur regularly in Wyoming listed under the ESA, including four listed plants and two candidate plants. There are also more listed taxa that occur in the state occasionally.

“These species are not thought to be residents, but when they do occur, there is an impact from the ESA. These would be species like the whooping crane and the Dakota skipper butterfly,” Beauvais explained.

Several other species in Wyoming are also currently under petition for the ESA, meaning that they are under consideration for a listing.

“Bison and feral horses are perennially under a listing decision. They have been petitioned many times and denied listing many times,” he noted.

The other species under consideration include the white-tailed prairie dog, a bat known as the little brown myotis, the western toad – formerly known as the boreal toad, a subspecies of the spotted skunk, a distinct population segment of the black-backed woodpecker, the monarch butterfly and two types of bumblebee.

Successes

“I think it’s important to realize there have been at least 50 Wyoming organisms that have been petitioned for listing and denied listing by FWS over the last couple of decades,” Beauvais added.

Three species in Wyoming have also been delisted, including the bald eagle, peregrine falcon and the pond snail.

“Trains that don’t wreck don’t make the news. It’s tempting to look at all of the listed species and all of the species coming up and think there is a huge problem, that the ESA doesn’t work or it needs to be changed. In fact, it does work in a lot of cases,” he said. “We have to consider those 50 taxa not listed as successes as well.”

Natasha Wheeler is editor of the Wyoming Livestock Roundup and can be contacted 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..

Cody – As chairman of the Western Governors’ Association (WGA), Governor Matt Mead delivered the keynote address on Nov. 12 in Cody at the opening workshop for his Species Conservation and Endangered Species Act Initiative, asking everyone to work together to improve the Endangered Species Act (ESA).

“In WGA, we recognize that we have political differences and we have different points of view, but we focus on areas where there is a common interest. In those areas of common interest, we put politics aside in favor of progress,” he remarked.

The Governor invited representatives from industry, government and non-government organizations (NGO) to be a part of the conversation, seeking input for positive changes to the Act.

“We, collectively, have to have the courage and the faith that people of good faith, with good intentions, can work together and put together something to present not only at WGA, but broader than that – to the National Governors’ Association and to Congress,” he said.

Throughout the workshop, wolves, grizzly bears and sage grouse were common examples of species that western states have been confronted with in regards to the ESA.

Changing the story

“We have had successes, and we have had things that have been sources of frustration. We have found that the ESA generates endless lawsuits, which are costly, time consuming and, frankly, do little at all to help species,” stated Mead.

Moving forward, the Governor hopes to elevate the role of the states, using best management practices in species management and conservation, while also discovering ways to make the ESA statute more efficient and effective overall.

“We need to have the ESA viewed as a good news story. We need to have a day coming where rancher Joe or Jill finds a threatened species on their place and they don’t view it as bad news. Instead, they view it as a sign of celebration for the stewardship they’ve had to allow for a species to survive,” he noted.

A series of panels followed the keynote address, featuring speakers from business sectors, such as energy and mining; sportsmen, recreation and environmental interests; agriculture and forestry; and government and quasi-governmental entities.

Proactive management

Ed Arnett, senior scientist at the Theodore Roosevelt Conservation Partnership, encouraged conservation efforts to preclude the need for ESA litigation.

“While we certainly agree there are some reasonable reforms that will likely improve the effectiveness of the ESA and its implementation, we believe that the very best solution to improve the Act is to avoid having to use it in the first place,” he explained.

Arnett argued that, throughout the history of the United States, sportsmen have played an important role in conservation and that management plans should not be focused on a single species.

“The future of species conservation has to focus on proactive collaboration, and it needs to utilize that landscape scale, science-based approach to conserve ecosystems and multiple species, well in advance of needing to list them in the first place,” he remarked.

Building partnerships

Albert Sommers, Wyoming state representative and president of the Upper Green River Cattle Association, spoke on behalf of livestock producers in the West and described increased death losses due to predation in the Upper Green River cattle allotment.

“Prior to 1994, we averaged about two percent death loss on calves in the allotment. In the last four years before 2015, we were in excess of nine percent calf loss in that allotment,” he noted.

When the Greater Yellowstone Coalition requested a partnership, producers were wary of their intentions, but Sommers encouraged stakeholders to look for opportunities.

“We have to develop relationships with people before we can ever develop any kind of plan or come to any kind of collaboration. We have to be mindful of the past, but we have to look forward and see where the opportunities are in the future. Problems may not be the same as they were in the past,” he stated.

ESA concerns

Wyoming Game and Fish Department Director Scott Talbott illustrated the importance of wildlife to the culture of the West, citing a recent survey that determined 74 percent of Wyoming residents feel the presence of wildlife enhances their quality of life in the state.

“Wildlife is very important to us,” he said. “Wyoming statute requires Wyoming Game and Fish Department to manage all wildlife in the state.”

Talbott highlighted state efforts toward conservation and raised concerns about inconsistencies in the implementation of the ESA.

“The Act is administered extremely inconsistently, not only across species but from state to state. While we, as state managers, need some flexibility, I think some of the administration of the Act on a local or regional basis within the Service has created some fairly significant problems for the states,” he noted.

Funding has also been a concern in regards to the ESA, as many federal projects have been supported with state funds.

“I think that funding is a huge issue. I think there needs to be adequate federal funding for federal management of those species,” he commented.

Best science

Using the best available science in ESA decisions was also a popular point of discussion throughout the workshop, and Talbott reported that 13 peer-reviewed papers were presented to courts supporting the delisting of grizzly bears from the endangered species list.

“There is a problem with the process when we have an animal like the grizzly bear that has exceeded all recovery criteria for 12 years and that animal is still listed,” he said.

Talbott explained that sound scientific data should carry weight throughout the conservation process.

“I think they do use the best available science for listing. I think they should also use the best available science for delisting species,” he remarked.

Moving forward

The opening workshop was concluded with a number of strategic breakout sessions to identify commonalities and opportunities for cooperation. The next two workshops will be held on Jan. 19 in Boise, Idaho and Feb. 12 in Oahu, Hawaii.

Conversations will also continue throughout the West through webinars, virtual town halls and other meetings.

Gary Frazer, United States Fish and Wildlife Service assistant director of Ecological Services, stated, “For a challenge as big as species conservation and an act as far reaching and consequential as the ESA, we can never stop learning and evolving.”

Natasha Wheeler is editor of the Wyoming Livestock Roundup and can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..

Casper – While species like the Greater sage grouse, gray wolf and grizzly bear are readily cited when talking about the Endangered Species Act, Tyler Abbott of the U.S. Fish and Wildlife Service (FWS) noted that there are a number of less-known species that are facing the potential for listing.

“Invertebrates – also known as bugs – often don’t quite make the headlines,” said Abbott. “We have had several proposals for listing in the last year.”

The first step in a listing process is a 90-day finding. The finding provides a “low bar” for whether or not a closer look should be taken at the species, he said. A positive finding means that the FWS must do a 12-month finding, which determines whether a species is warranted for listing or not.

Butterflies

“The Monarch butterfly did have a substantial 90-day finding in December,” Abbott said. “Although Wyoming is listed for the Monarch, we don’t know hardly anything about Monarchs in Wyoming.”

While data on Monarch sightings have been solicited, Abbott noted that there are no confirmed findings of the Monarch butterfly in Wyoming.

“It looks to me that Wyoming is in the middle of two migrations – one on the West Coast and one in the center of the U.S.,” Abbott said. “At this point, there is little information, so this 12-month finding will be an education for all of us.”

The Fritillary butterfly also had a substantial 90-day finding that was released in September.

“There was enough information regarding its decline for a 12-month finding,” Abbott explained. “It has undergone a drastic decline since 1980.”

The range of the butterfly is in Kansas, Nebraska and Missouri, although Abbott noted that Wyoming may fall within its range.

“Wyoming is on the western edge of the range,” he continued. “It lives in tall grass prairie habitat and is found in the Midwest. That finding is underway.”

Beetle

Next, Abbott noted that a 90-day finding for the narrow-footed diving beetle is expected to be published soon.

“This beetle tends to occur in perennial stream habitat, streams areas and standing water pools that have water year-round,” he explained. “The bugs tend to like overhanging vegetation for at least part of their lifecycle.”

Abbott noted that the species has been seen in 10 documented occurrences in Fremont, Natrona and Johnson counties, but the beetles are very hard to identify.

“That calls into question whether we have documented sightings,” he said. “If the 90-day finding is positive, it will be an opportunity to learn more, but if it is negative, we don’t have to take the next step.”

Bee

A petition for a 90-day finding for the western bumblebee was received by FWS in September, which is underway.

“The western bumblebee demonstrates a precipitous decline over the last 20 to 30 years,” Abbott commented. “Being a West-wide, multi-state evaluation, I think the problem areas are in the Pacific Northwest, which was what prompted the petition to list.”

“These 90-day findings are a low bar,” Abbott added. “If there are certain areas where the species have undergone precipitous declines, then we will do a 12-month evaluation. When that occurs is open to question.”

In addition to these four findings, Abbott commented that FWS has a number of other priorities.

Abbott addressed the attendees of the 2015 Wyoming Stock Growers Association Winter Roundup Wildlife Committee meeting on Dec. 1.

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..