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Legislative Issues


Senate Indian Affairs Committee (Dorgan)
Full Committee oversight hearing to receive the Department’s views and priorities with regard to Indian affairs related issues in the coming year. DOI witness not yet determined

ENDANGERED SPECIES: BLM, FWS launch 'pioneering' conservation agreements, but market slump could limit success
PARKS: Final rule allows concealed guns in nearly all national parks
FISHERIES: Farmers, Indian tribe reach unconventional settlement over salmon suit
CLIMATE: Feds plan to enlist citizen help to look for warming's impact on wildlife


ENDANGERED SPECIES: BLM, FWS launch 'pioneering' conservation agreements, but market slump could limit success (12/11/2008)
April Reese, Land Letter Western reporter

ALBUQUERQUE, N.M. -- With high-level Interior officials, local ranchers and energy company representatives looking on, U.S. Fish and Wildlife Service and Bureau of Land Management officials formally launched a pair of new voluntary conservation agreements this week aimed at protecting two species in line for listing under the Endangered Species Act.

But with oil markets in a major slump, it remains to be seen how many energy companies will sign up for the program, whose success is dependent upon the number of participants. Meanwhile, FWS also announced this week that one of the two species to benefit from the agreements is in worse shape than originally thought. The agreements, formally adopted by FWS and BLM on Monday during a signing ceremony at the Rio Grande Nature Center, are designed to encourage private landowners, energy companies, ranchers, and federal and state agencies to protect or restore habitat for the lesser prairie chicken and the sand dune lizard. Both species occur in the Permian Basin, one of the biggest oil and gas producing regions in the West.

One agreement, called a candidate conservation agreement (CCA), will apply to federal agencies and ranchers or energy companies that lease lands from the federal government. The other document, called a candidate conservation agreement with assurances (CCAA), applies to private landowners, state agencies, and entities leasing state lands (Land Letter, Oct. 10).
FWS has determined that both species qualify for listing under the Endangered Species Act but must wait in line behind other, more imperiled species. The objective of the agreements is to provide a kind of insurance for participants against incurring additional requirements if the species are listed.

Essentially, a signatory that takes certain conservation measures, or pays into a fund to support conservation of the species, will not have to go through a lengthy -- and in the eyes of some entities, cumbersome -- consultation process with FWS if the species become listed.

"Nobody wants to go through that process, because it's very time-consuming," said Rand French, a biologist with Marbob Energy Corp. in Artesia, N.M. "And time is money in the oil and gas industry." Private landowners who have signed a CCAA are assured they will not be required to do more than they have committed to through the conservation program. Two participants signed agreements with the agencies at Monday's event: Marbob Energy Corp. and Chris Brininstool, a rancher in Lea County. Marbob agreed to reduce the number of wells it plans to drill on a lease in Lea County by using directional drilling and locate infrastructure outside lesser prairie chicken habitat.

Brininstool agreed to mark fences with brightly colored tags to keep prairie chickens from colliding with them during pre-dawn flights to mating grounds. She also agreed to restore grassland habitat and build "exit ramps" in livestock tanks to provide trapped animals with an escape route.

Conservation on a landscape scale

The effort marks the first time a CCA and a CCAA have been used in tandem. Pairing them will allow for voluntary conservation at a landscape scale, across lands under various types of ownership, agency officials said.
"Our goal in this effort is to protect and recover the two species," said Benjamin Tuggle, FWS's Southwest regional director. "No agency or group can accomplish this alone."

"We have folks that operate on public lands, and until these agreements, we didn't have a means of inspiring them to address species that could be listed," said Lynn Scarlett, deputy secretary of the Interior, after the announcement. "This really is pioneering."
Energy companies that participate in the program will contribute money to a conservation fund, which will be used to restore habitat, remove power lines and undertake other projects to help the two species.

The need for expanded conservation measures is clear: Even as it launched the new agreements, FWS was putting the finishing touches on a listing proposal for the sand dune lizard. And yesterday, FWS issued its updated list of candidate species, and the prairie chicken's priority ranking rose from 8 to 2, meaning it is now at the front of the line to be considered for listing.
Meanwhile, Brian Millsap, FWS's state administrator for New Mexico, said the agency is finalizing a draft listing proposal for the sand dune lizard, which is found only on sand dunes blanketed with shinnery oak, a type of ecosystem found in southeastern New Mexico and western Texas. Listing proposals can take into consideration voluntary conservation measures, but the effectiveness of the new agreements may not be apparent before the proposal is issued, he said.

Impact of market slump

But the success of the candidate conservation agreements depends upon broad participation by energy companies in the region, and with oil prices falling to the lowest levels in decades, many operators are scaling back. That could mean less interest in the program, acknowledged Millsap.

"The dropping price of oil may have an effect on participation," Millsap said after the ceremony. "Companies are having to be more careful with their expenditures now."  French, who worked on Marbob's CCA, acknowledged that the current state of the market did give the company pause."That's crossed our minds," French said. "However, if you feel that these things will be listed, it would still be a good idea to do something now as opposed to later. It gives us greater certainty, versus playing the gambling game -- if they are listed, then what's going to happen? You're willing to pay a bit to know what's required." But so far, Marbob is the only energy company to sign on the dotted line, although BLM says Devon Energy is expected to sign a CCA soon.

Jerry Fanning Jr., an environmental coordinator with Yates Petroleum Corp., said that while his company has discussed participating in the program, that prospect is essentially on hold while the company weathers the market slump."The market is definitely affecting us," Fanning said. "We have numerous wells shut down. It's a tough time." He said the company could participate in the future, however. "We do think it's a good program, but we just haven't had the chance to utilize it yet."


PARKS: Final rule allows concealed guns in nearly all national parks (12/11/2008)
Noelle Straub and Eric Bontrager, Land Letter reporters
This article originally ran in E&ENews PM.

Visitors will be allowed to carry concealed, loaded guns into national parks and wildlife refuges in 48 states under a final rule announced Friday by the Interior Department, generating intense criticism from parks and law enforcement groups. The final rule, which went into effect upon publication in the Federal Register, is even broader than the version proposed in April, which would have allowed national park visitors to carry concealed weapons only in those states that allow such guns in their state parks. Now visitors will be able to carry concealed firearms into national parks in all states that have concealed carry laws -- even in states that outlawed such weapons in their own parks.

"If you can carry a concealed weapon down Main Street, you can carry it in a national park," said Interior spokesman Chris Paolino.
If a state wants to prohibit individuals from possessing a concealed weapon on federal lands within state boundaries, it may enact a law to do so, Interior said. The only two exceptions are Illinois and Wisconsin, which do not allow concealed carry. The move drew outrage from groups including the Coalition of National Park Service Retirees, the Park Ranger Lodge of the Fraternal Order of Police, the Association of National Park Rangers and the National Parks Conservation Association. They noted concerns raised by every living former director of the Park Service, several ranger organizations and retired superintendents and said the rule will put the safety of national park visitors and wildlife at risk. But the department said the proposed change is intended to resolve conflicts between state and federal rules that complicate efforts to regulate firearms on public land. Other agencies -- the Bureau of Land Management and Forest Service -- defer to state laws on carrying firearms.

"The department's intent in adopting this final rule is to better reflect the decisions of the states in which parks and refuge units are located to determine who may lawfully possess a firearm within their borders, while preserving the federal government's authority to manage its lands, buildings and other facilities," an explanation of the rule says.

The new rule does not allow concealed weapons to be carried into federal buildings or facilities in national parks.
Interior Secretary Dirk Kempthorne ordered the department to review its firearms regulations in February after 51 senators -- including 13 members of the Energy and Natural Resources Committee -- sent letters claiming the policies were confusing and could conflict with the Second Amendment rights of gun owners.

The department broadened its proposed rule after receiving more than 125,000 public comments on it. Interior dropped a reference to "similar state lands" from the final version, saying it was ambiguous and confusing, and instead made a more general reference to state law as the governing standard. Interior did not do a full environmental review under the National Environmental Policy Act for the rule. Instead, it used a "categorical exclusion," saying that the change was legal in nature and that no extraordinary circumstances existed to trigger an analysis.

Some are happy, some aren't

The National Rifle Association, which argued that federal laws should keep in line with evolving state laws, took credit for leading the effort to amend the policy."These changes respect the Second Amendment rights of honest citizens as they enjoy our public lands," said Chris Cox, chief lobbyist for the NRA, in a statement. "We applaud the Interior Department's efforts to amend these out-of-date regulations." Park, conservation and law enforcement groups oppose Interior's rule revisions, arguing that the proposal would reduce safety and boost the risk of impulse shootings of wildlife.

Bryan Faehner of the National Parks Conservation Association noted that in many states, individuals won't be allowed to carry a concealed weapon into a state park but will be able to in a national park."With this decision, state parks are going to have better protections for wildlife and visitors than our national parks," Faehner said. He added that NPCA is considering legal action but will first consult with other partner groups. Other groups also vowed to fight the change. Rep. Raúl Grijalva (D-Ariz.), who has been mentioned as a possible Interior secretary for the incoming Obama administration, wrote a letter during the comment period opposing the changes.
In explaining the rule, Interior cited an "alarming increase in criminal activity" on some Interior lands and the inability of federal law enforcement officers to guarantee a specific level of public safety on their lands.

But the parks and conservation groups said there were 1.65 violent crimes per 100,000 national park visitors in 2006, making national parks some of the safest places in the country."National parks are different from other public lands," said John Waterman, president of the Park Ranger Lodge of the Fraternal Order of Police. "The visitor population expects, demands and gets a higher degree of protection, enforcement and restriction in a national park. ... This vague, wide-open regulation will only increase the danger U.S. park rangers face."

Seven former directors of the National Park Service said in an April letter to Kempthorne that there is no need to change the existing regulation. "In all our years with the National Park Service, we experienced very few instances in which this limited regulation created confusion or resistance," the letter states. "There is no evidence that any potential problems that one can imagine arising from the existing regulations might overwhelm the good they are known to do."

The department disputed the argument that visitors with concealed weapons would be more likely to use them to injure wildlife, saying that has not been a problem in state parks. In response to comments that the rule would inhibit park rangers from halting poaching because brandishing a gun would no longer be probable cause to search for evidence of wildlife parts, Interior disagreed, saying it expects visitors to abide by prohibitions on poaching and that they would be subject to arrest if they break the law.
Interior gun rules were established in the 1930s to curb poaching. They were amended in 1983 to allow unloaded firearms to be carried in parks and refuges.

Click here to read the final rule.
Click here to read Interior's frequently asked questions about the rule.
Click here to read Interior's decision memorandum granting a NEPA categorical exclusion for the rule.


FISHERIES: Farmers, Indian tribe reach unconventional settlement over salmon suit (12/11/2008)
Patrick Reis, Land Letter reporter

After successfully suing a Washington state diking district in federal court for harming juvenile salmon, the Swinomish Indian Tribal Community asked the judge to allow it to negotiate a settlement in which the fishers and farmers would become partners in advocacy for salmon restoration efforts. Under the settlement finalized Tuesday, the Swinomish waived their right to financial penalties and court-ordered restoration in exchange for the Skagit County Diking District 22's cooperation in advocacy efforts on a habitat restoration project on publicly owned land in the Skagit delta.

"By focusing on restoration opportunities rather than penalties, the parties can promote salmon recovery while supporting our agricultural industry," said Brian Cladoosby, Swinomish tribal chairman. "There is room in the Skagit for both healthy, fishable salmon runs and healthy, sustainable farms, and this settlement supports both."
The Swinomish tribe sued the diking district in 2007, saying that in order to build water control projects in the Skagit delta that prevented farm fields from flooding, the district needed a permit under the Clean Water Act. Because the project involved chinook salmon, an endangered species, acquiring a permit required consultation with the National Marine Fisheries Service, which determined that the water projects were damaging key habitat for juvenile salmon. The federal judge sided with the tribe in September 2008, finding the district to be in violation of both laws.

Under the settlement, the district will advocate for the restoration of 200 acres of estuary habitat at the mouth of Skagit River, which is the largest river flowing into the Puget Sound and home to viable populations of many of the region's threatened salmonid species.
Estuary habitat is critical for juvenile salmon as they travel downriver to ocean habitats. It provides a transition zone that is high in food sources and low in predators, said Jan Hasselman, an Earthjustice lawyer who represented the Swinomish in their suit.
Gary Jones, who represented the diking district, said the districts' constituents understood that both they and the environment would be better off through a cooperative effort. His clients were also pleased that the deal would not take private farmland out of production but would instead use public land for salmon conservation, he said.

The district now has a financial stake in the approval of the larger restoration effort, both lawyers said, because if the state does not approve and fund the project, the diking district will be financially responsible for funding a habitat restoration project of its own.


CLIMATE: Feds plan to enlist citizen help to look for warming's impact on wildlife (12/11/2008)
Scott Streater, special to Land Letter

As part of a multipronged effort to study and understand the effects of global warming, the federal government is adopting a new tact: It has partnered with an environmental organization to engage regular citizens to track the impacts on wildlife as part of a far-reaching program that is ultimately designed to find ways to cope with climate change. The U.S. Geological Survey this month announced it is partnering with the Wildlife Society to recruit thousands of volunteers to monitor everything from the date when mule deer migrate south to when monarch butterflies first appear in the sky each spring.

The study of seasonal changes in plants and wildlife is called phenology, and the information is critical to scientists trying to get a handle on the domino effect caused by global warming. For example, if mammals come out of hibernation and birds migrate earlier in the year they could starve if the flowers and fruits they feed on don't also adjust to the warming climate, scientists warn.
"We don't want to collect data for data's sake. We are trying to track the immediate effects of climate change on plants and animals and landscapes," said Jake Weltzin, a USGS ecologist and executive director of the federal program called the USA National Phenology Network.

The information collected by the volunteers will be entered into a massive database that will allow scientists not only to gauge the repercussions of global warming but also devise strategies to cope with them.
The wildlife monitoring partnership is the second phase of the 30-year program funded primarily by USGS and U.S. Fish and Wildlife Service. The first part of the program kicked into high gear this past summer with a successful effort to sign up more than 4,000 people nationwide to monitor cyclical changes to trees, flowers and even invasive weeds, such as cheatgrass. Volunteers record their observations online for use in the database. The wildlife portion of the program probably will not begin recording observations online until the spring of 2010. Researchers at USGS and the Wildlife Society are in the process of developing a list of which birds, mammals, amphibians, insects, and fish they want to track.

One goal of the National Phenology Network effort is to use all the information gathered in the database to develop computer models and other tools to help forecast where drying weather has increased the danger of forest fires and when non-native invasive plant species are green enough to apply herbicides."Wildlife managers are trying to quickly adapt to a changing climate, and this program is designed to help them adapt effectively," said Michael Hutchins, executive director of the Wildlife Society, a professional association of nearly 8,000 wildlife scientists, managers and conservationists.

Many sets of eyes
The National Phenology Networks aims to capitalize on the abundance of gardeners, hikers and anglers who can observe and document seasonal changes, and the relevance of the data could be far-reaching."Because these changes are happening on such a broad scale the only way to do that is to have a bunch of eyes out there helping us," Weltzin said. People with absolutely no scientific training have been doing it for centuries. One of the most famous was Henry David Thoreau, the writer who famously chronicled life on Walden Pond in Concord, Mass., during the 19th century.

Abraham Miller-Rushing, an ecologist with the Wildlife Society who will coordinate the wildlife portion of the National Phenology Network, was one of a group of scientists that compared Thoreau's observations to conditions in Concord today. In a study published last month in the Proceedings of the National Academy of Sciences, it was reported that many of the buttercups, orchids and lilies that Thoreau described are not found anywhere in Concord because the flowers could not adapt to the warming climate.
Miller-Rushing said the National Phenology Network researchers would search for other credible historical observations, particularly in the West where records are scarce in many regions, and compare them to current conditions to gauge the warming impact.
"People want to do something about climate change and understand the impacts it's already having on nature," Miller-Rushing said. "With this program, people can participate in the climate change science in a meaningful way."

Warming climate impacting nature
Few dispute that the climate is warming and that there are effects to wildlife. A groundbreaking 2002 study published in the journal Nature reported that the date when plants bloom and birds migrate in North America and Europe has occurred as much as four days earlier each spring every decade for the past 30 years. In the area north of the Mason-Dixon Line, satellites have been able to measure that the time when the land turns green each spring has been occuring, on average, eight hours earlier every year since 1982.
The changes appear to have a direct effect on nature since the lifecycles of plants and wildlife are intertwined. If flowers adjust to the warming climate and bloom early, but bees do not, the timing is confused and the bees do not have access to enough nectar.
"We disrupt these natural systems, we're really playing with fire," Hutchins said.

Examples abound. At a research station in the Rocky Mountains at Crested Butte, Colo., researchers have found that marmots are emerging from hibernation three months early and robins are migrating to the mountains each spring three weeks early, when a frost still covers the ground, said David Inouye, a biologist at the University of Maryland."The food the marmots and the robins depend on may not be there if the snow is not completely melted," Inouye said. "This is particularly important for the marmots because they haven't eaten for eight months. They run the risks of running out of food."

In Southern California, the bay checkerspot butterfly -- already listed by the federal government as a threatened species -- is disappearing, and a big part of the blame goes to the disruption of timing caused by the warming. The reason: The dwarf plantain the butterflies feed on is blooming earlier. When the butterflies hatch and enter the first phase of their lifecycle as a caterpillar, they have about a three-week window to eat and grow. If the plantain has already dried up, they die, said Stuart Weiss, a Stanford-educated conservation ecologist who has spent decades studying the rare butterfly.
"The lifecycles of the butterfly and the caterpillar food plants have to fit into each other in any given year," said Weiss, who founded the Creekside Center for Earth Observation in Menlo Park, Calif. "Basically the warmer the growing season, you tend to see population stability decline. That's not a good sign."

Changes like these could completely alter ecosystems across the United States, said Paul Alaback, a forest ecologist at the University of Montana."We're setting up a series of changes in what species survive," Alaback said. "Some will adjust, some won't. The plants that come out too late will not produce as much food or seeds, and they will slowly disappear."

Increased threat of forest fires
One major concern about a warming climate is the increased risk of forest and wildfires. Nationwide, fires destroyed 9.9 million acres in 2006 and 9.3 million acres in 2007 -- the most in the United States since 1960, according to a report by the Natural Resources Defense Council.

"Again, you have to know when plants are in certain stages before you can introduce beetles to eliminate knapweed, and that is where this network of citizen-scientists can help," Weltzin said.


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Last updated: October 3, 2018