Chief U.S. Magistrate Candy Dale refused in December to reconsider her ruling the previous August that the U.S. Fish and Wildlife Service’s process for listing the plant under the Endangered Species Act was flawed. The Obama administration appealed her decision to the 9th U.S. Circuit Court of Appeals, but Tuesday it voluntarily asked the appellate court to dismiss that appeal.
So, victory for Idaho Gov. Butch Otter?
Not so fast. Dale tossed the listing because Otter’s very smart attorneys said the listing was flawed because the Service failed to adequately define “foreseeable future” as it applied to the threat to the plant. The Service defined “foreseeable future” as “that time period over which events can reasonably be anticipated,” which Dale found as too generic. She remanded the case back to the Service with the order it define “foreseeable future” on a species-by-species basis.
That may sound like legalese to you. To Todd Tucci, senior attorney for Advocates for the West, that sounds like victory.
Otter made the same argument Tucci used when the latter sued the Service on behalf of the Western Watersheds Project for not listing slickspot peppergrass in 2004. Tucci won then and the government had to go back to the drawing board. It came out with its decision to list the plant in 2009 that Otter challenged.
“Advocates for the West welcomes Governor Otter’s strict application of the Endangered Species Act,” Tucci said.
Scientists have concluded that grazing on public lands is low on the list of threats to the annual flowering bush that grows in wet areas of southwest Idaho’s sagebrush steppe desert. Yet its listing would have more impact on ranchers on public lands than any other group.
Fire and the spread of cheatgrass has done more to place the Lepidium papilliferum on the threatened species list, but these two threats are now more tied to the effects of changing climate. What the U.S. Fish and Wildlife Service determined is that when it’s wet and there are more “slick spots,” the number of plants rise. When its dry, and the number of slick spots drop, so do the number of plants. But overall the numbers have declined and the trend suggests that will continue.
Idaho and Gov. Butch Otter disagree and they have challenged the scientific view of the future of slickspot peppergrass since 2003 with both their political might and now using Western Watershed’s main tool, the law. Idaho developed a conservation plan in 2003 along with ranchers in Owyhee County, who organized their neighbors to take a series of actions so their cattle would not disturb the plant in the spring when it is flowering and going to seed.
But remember, cattle really are not a major factor in the downward trend of the plant.
Otter and his Office of Species Conservation found a flaw in the listing procedure. Dale didn’t buy any of their scientific arguments. The fate of the species hasn’t changed.
Unless Owyhee County gets wetter the slickspot peppergrass is going to get scarcer.
In his press release Tuesday, Otter ignored Western Watersheds and aimed at the U.S. Fish and Wildlife Service and the Obama administration.
“It took a while, but the feds apparently have figured out that collaborating and finding common ground is more effective than forcing a wrongheaded listing down our throats,” Otter said. “The ‘critical habitat’ designations that would have followed a threatened species listing could have been devastating for farmers, ranchers and recreational land users in southwestern Idaho.”
This is the same Fish and Wildlife Service that Otter and other Idaho officials are holding up as an example of flexibility and wisdom because of their positive approach to Otter’s proposed sage grouse conservation plan. And Dale put the decision back in its hands.
Otter hopes that combination of political pressure and cajoling can keep them from listing the plant again.
“We remain committed to our management plan that focuses on protecting both the plant and the people,” Otter said.
As for Tucci, he has already used Dale’s decision and Otter’s argument to strengthen his case for listing pygmy rabbits as an endangered species. He told me he doesn’t even have to sue to get the Obama administration to reconsider listing slickspot peppergrass.
All he has to do is to write them a letter. If they ignore him, then he will sue.