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Legally Speaking


Issue: February, 2008
Author: Tony Hoch, Ph.D., P.G.

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Tools for Managing Endangered Species on Private Lands

Many families in Wyoming have worked for generations to be good stewards of their land. They know that good conservation practices are a must to maintain healthy rangeland, properly functioning riparian zones, and clean water for their operations to remain viable. In fact, ranches in Wyoming contain a majority of the prime wildlife habitat for our native species, due to the settlement near and development of precious water resources. Private ranches are havens for wildlife in the face of impending outside development pressures and most ranchers take great pride in maintaining habitat and attracting diverse wildlife communities. Ironically, one of the greatest fears of a private land owner is attracting species deemed “threatened or endangered” by the U.S. Fish and Wildlife Service (FWS), under the Endangered Species Act of 1973 (ESA). Having threatened or endangered species present can lead to federally-imposed restrictions on the use of private property, and the ESA has historically provided negative incentive to conserve species – it is easier to destroy habitat or “shoot, shovel, and shut up” than deal with the potential restrictions resulting from having these plants and animals on private land.

These fears are valid. Although it has prevented extinction of several species, a major criticism of the 1973 Endangered Species Act is that it often places strict regulations on private property owners without working for the recovery of endangered species. About 2,000 plants and animals are listed as threatened or endangered and only a handful has come off the list in over three decades. In order for the people who own, manage, and improve the habitat to stay in business, there must be avenues to legally coexist with these species.

Section 10 Programs
The ESA is often criticized for offering regulation with no remedy. However, there are programs authorized under Section 10 of the Endangered Species Act, which include agreements recognizing the conservation needs of species along with the needs of private land owners and their private property rights. At the heart of these programs are two key concepts: the “incidental take permit” and “no surprises” assurances for land owners. “Taking” in the case of endangered species includes physically harming or killing an animal or destroying its habitat. Under Section 10 Program agreements, it is assumed that takings may occur through normal activities on private property, but that there will still be a net conservation benefit, due to management practices that maintain or enhance habitat. “No surprises” assurances specify that the FWS will not require additional commitments under the agreements, unless the private cooperator consents. Thus, conflicts between private property rights and endangered species may be resolved through forward-looking negotiations and agreements, rather than litigation. Some major Section 10 Programs include:

  • Habitat Conservation Plan – Anticipates the adverse effect on an endangered species through a proposed activity (such as logging activity or industrial development) and proposes to minimize and mitigate adverse effects though conservation activities elsewhere.

  • Safe Harbor Agreement – Promotes voluntary management for listed species on non-federal lands and gives assurances to cooperators that no further restrictions will be imposed if an incidental take occurs through normal activities. Should the land owner opt out of the agreement, the FWS will remove listed species back to pre-agreement baseline numbers.

  • Candidate Conservation Agreement with Assurances – Allows non-federal cooperator to formally address the conservation needs of species on the verge of being listed or proposed for listing, in order to circumvent future restrictions in the case of listing. This discourages land owners from managing their property to prevent or discourage colonization by these species.

    Section 10 Programs – A Local Example
    The only example of a Safe Harbor Agreement in Wyoming is for the endangered Wyoming Toad. The Laramie Rivers Conservation District (LRCD) holds a 50-year agreement and an “incidental take permit” that covers all of Albany County. Individual land owners interested in participating in the toad reintroduction program may enter into an agreement called a Landowner’s Cooperative Management Agreement or LCMA with LRCD. The cooperating land owner is then issued a “certificate of inclusion” under the LRCD incidental take permit, allowing for takings resulting from activities like haying or cattle grazing. The cooperator defines the exact area to be enrolled in the program, states how the habitat will be managed to benefit the species, and in exchange, the FWS agrees to not interfere with the private party’s “normal” operations. In fact, with LRCD as an intermediary, the private party never has to deal with the FWS. Since the Wyoming Toad was essentially extinct in the wild, the baseline population is zero, and not difficult to maintain. In the original draft agreement, the FWS agreed to extend coverage of the incidental take permit to the area within a one mile radius, centered on the toad release site. Neighbors within this area or “buffer zone” are also protected from incidental take, should the toads wander onto their land. There was legitimate concern from neighbors that the toads would migrate outside of the buffer zone, and the FWS agreed that the incidental take protection would move as the toad moves and this was written into the final draft of both agreements. Basically, the FWS said that if private land owners are making a good faith effort to conserve the species, then they should have assurance from the federal government that no one will be susceptible to prosecution for going about their normal land management routine. The LCMAs between LRCD and private land owners are for 15 years, and if land owners wish to opt out of the program, they may do so, and the FWS would then, in theory, remove the animals and return the population to a baseline of zero.

    Getting these agreements in place can take years and they are species–specific. Section 10 agreements are not appropriate for every species or situation. A relatively immobile toad released on 500 acres is a completely different situation from a highly mobile fox or bird. Ideally, these types of plans would cover multi-species over larger geographic areas, rather than a single species on a single property, but we need to start somewhere.

    Looking Ahead
    The law firm that reviewed the Wyoming Toad Safe Harbor Agreement for the LRCD stated that the agreement required a certain “leap of faith” on behalf of all parties. It is this author’s contention that with the listing of ubiquitous species like the sage grouse, on the horizon, the private land owners and the FWS need to explore all possible legal tools to make cooperative conservation efforts before third party lawsuits stop anyone from getting anything done.

    Tony Hoch, Ph.D., P.G. is the District Manager of the Laramie Rivers Conservation District in Laramie.

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