County Commissioners testify at Western Governors’ Endangered Species Act forum
by Wyoming County Commissioners Association
November 15, 2015
Sublette County Commissioner Joel Bousman and Park County Commissioner Lee Livingston testified on Wednesday, November 12th at the Western Governors' Species Conservation and Endangered Species Act (ESA) Initiative workshop in Cody, Wyoming.
Commissioner Livingston, who runs a successful outfitting business in Cody, detailed how the ESA, and particularly how the growth in population of the grizzly bear and gray wolf, has affected his outfitting business. He looks at the recovery of both species as success stories, yet laments the arduous process of getting these species de-listed.
"The federal government, by listing these animals under the ESA, basically brokered a deal with the people of Wyoming and surrounding states wherein if we accepted the new regulations and changed our backcountry practices, once the grizzly and wolf reached healthy and recovered population levels, they would be de-listed," remarked Livingston. "By all accounts from the state and federal experts who manage these species, both species are fully recovered and have exceeded recovery criteria for over a decade."
Commissioner Bousman, who serves as the 2nd Vice President of the Western Interstate Region of the National Association of Counties, expressed his concerns that the U.S. Fish and Wildlife Service does not always uphold its obligation to coordinate with counties on ESA decisions. He sees this as a flaw that needs to be rectified to allow the law to be its most successful.
"The Endangered Species Act, unfortunately, is a law deeply rooted in a 20th century model of top-down mandates. The ESA should be a mechanism that provides support and resources to states and local governments," said Bousman. "I’m hopeful that one outcome of these forums is a recognition that the ESA can and should work better for species and people, and that one way to do that is more inclusion of local knowledge."
The Western Governors' Species Conservation and Endangered Species Act Initiative is the Chairman's Initiative of Governor Matt Mead. Among other things, the initiative will: create a mechanism for states to share best practices in species management; promote and elevate the role of states in species conservation efforts; and explore ways to improve the efficacy of the Endangered Species Act
About The WCCA:
The Wyoming County Commissioners Association (WCCA) is an organization consisting of the Boards of County Commissioners of all twenty-three Wyoming counties. The WCCA exists to strengthen the counties and the people who lead them through a program of networking, education, and unified action.
Full written testimony of Commissioner Bousman
Testimony of the Honorable Joel Bousman
Sublette County, Wyoming
2nd Vice President
Western Interstate Region, National Association of Counties
Western Governors’ Association Forum on the Endangered Species Act
November 12, 2015
I want to thank Governor Mead and the Western Governors’ Association for taking on this important topic, and for the invitation to address you today.
My name is Joel Bousman; I am a rancher and County Commissioner in Sublette County Wyoming. I also serve as the 2nd Vice President for the National Association of Counties, Western Interstate Region.
Earlier today my colleague, Commissioner Lee Livingston from here in Park County talked a little bit about the importance of engaging state officials in the ESA process. Commissioner Livingston rightly pointed out that Wyoming’s Game and Fish Department has qualified people and can be trusted to manage wildlife in Wyoming. However, I want to expand on that point a little more to talk about the role local government – particularly county government – can play in effective wildlife management and in improving the outcomes of the ESA.
Often when we think about species conservation and the ESA we tend to think about the federal government’s relationship to the states. However, it’s important to understand that the Fish and Wildlife Service also has an obligation to consult with and receive input from counties affected by petition listings and regulations written as result of listings.
Section 1533(b) of the ESA twice lists counties as necessary partners in the process. First, when deciding upon whether a species is threatened or endangered, the Fish and Wildlife service must take into account the conservation efforts not only of the state, but also of the state’s political subdivisions. Later in the same section the Fish and Wildlife Service is required to give actual notice of any new regulation or designation to counties and invite comment from counties about those regulations.
Despite the plain language, I am concerned that too often the federal government either ignores its obligations to counties, or acknowledges counties only as a "check-the-box" exercise. I think if we are honest we have to acknowledge the language of the ESA lets the Fish and Wildlife Service off the hook on any coordination with counties. This is a flaw with the ESA that should be rectified if we want a law that leads to successful conservation and actual recovery.
The National Association of Counties has a section on improving the ESA in its platform. Inclusion in NACo’s platform means this issue is a consistent and important issue for every county in the nation, not just here in the West. The NACo platform acknowledges that the ESA is a critically important law, and it goes on to say:
"NACo supports reforming the ESA to mandate that the federal government treat state and county governments as cooperating agencies with full rights of coordination, consultation, and consistency to
decide jointly with appropriate federal agencies when and how to list species, designate habitat, and plan and manage for species recovery and de-listing."
The Fish and Wildlife Service’s proposed rule on listing petitions was a good first step as it included a requirement that states be given the opportunity to comment on species petitions. Our state association, the Wyoming County Commissioners Association asked in our written comments that counties also be included in that process.
But why do we want this? And what is it that counties have to offer that others do not when it comes to ESA petitions, regulations, or changes in status?
Probably the most obvious answer to the question of why we want this authority is that we have found in Wyoming that the most successful BLM or Forest Service management plans on any topic have been ones that were developed collaboratively with local governments. FLPMA’s requirements of coordination and CEQ’s cooperating agency process, while not silver bullets, provide the framework and the flexibility for local governments and the federal agencies to at least attempt a collaborative approach. As it is currently written, the ESA does not adequately promote, and certainly doesn’t require, that kind of collaboration with local governments.
What we have to offer in this process is, first and foremost, a broad view on the necessity, pitfalls, and effects on our counties as a result of ESA listings. Federal and even state agencies can sometimes be hindered by the narrow focus of their particular agency mission. By contrast, a County Commissioner, by the nature of the charge of the office, must take into account the health and welfare of their entire county: its people, land, water and wildlife.
This broad view means we have more on-the-ground specific knowledge of wildlife in our counties and how management decisions might have ripple effects. We also serve as a bridge between the federal agencies and the people living in our counties, but maybe most importantly, we often find ourselves as a bridge between federal agencies themselves. Since by necessity we work with every agency – sometimes finding ourselves trapped between two agencies with different missions – it is often the case that we end up the messenger between them.
This very scenario played out recently in an issue dealing with potential take of Grizzly Bears in the Bridger-Teton national forest in Sublette County. Grazing permittees found themselves in a very difficult situation as grizzly takes were approaching their limit. It took the county bringing together the Forest Service and the Fish and Wildlife Service, with help from our Governor, to reach an appropriate resolution.
In the cooperating agency process I already mentioned, Commissioners are recognized as having specific expertise on the socioeconomic status of the county and the possible socioeconomic impacts on the county from federal actions. The NACo platform calls for that authority in the ESA process as well. I agree.
Developing socioeconomic data that is usable and accurate is a difficult and expensive undertaking. Many counties struggle to ensure this data is kept up-to-date. In the federal land use decision-making process, counties at least have the assurance that well-maintained data will be used as part of the process. This isn’t true for the ESA, which is why the second part of NACo’s platform calls for cumulative and quantitative economic analysis of proposed regulations and their impact on all stakeholders, public and private.
There may have been a time in America’s past when inflexible laws were necessary to overcome cultural apathy toward conservation. As Wyoming’s Representative Cynthia Lummis has often spoken about, America’s conservation laws have not kept up with a new cultural conservation ethic. Representative Lummis calls it our 21st century conservation ethic. Allowing for greater local input, understanding the custom and culture of the local community, and an honest assessment of socioeconomic impacts is not a threat to species viability, but rather a help in creating regulations when necessary that can be embraced at the local level. The best decisions are always made by local people working collaboratively with state and federal agency personnel at the ground level.
The Endangered Species Act, unfortunately, is a law deeply rooted in a 20th century model of top-down mandates. The ESA should be a mechanism that provides support and resources to states and local governments. I’m hopeful that one outcome of these forums with the WGA is a recognition that the ESA can and should work better for species and people, and that one way to do that is more inclusion of local knowledge.
Thank you and I look forward to the discussion.
Full written testimony of Commissioner Livingston
Testimony of the Honorable Lee Livingston, Commissioner
Park County, Wyoming
Western Governors’ Association Forum on the Endangered Species Act
November 12, 2015
I’d like to thank Governor Mead and the Western Governors’ Association for hosting this forum, and for the opportunity to speak with you about my experiences with the Endangered Species Act.
My name is Lee Livingston and I am a County Commissioner here in Park County. My day job though is that of an outfitter in the mountains around Cody. I first went to hunting camp in 1975 when I was 9 years old. I own that camp now, along with a few others, and have been professionally guiding and outfitting here for the past 30 plus years. Every year my outfit takes over a hundred people into some of Wyoming’s most rugged back country to hunt, fish, or just enjoy the mountains and view the wildlife. My profession allows me to spend large amounts of time in the backcountry around Yellowstone, and the success of my business is very dependent on the health of Wyoming’s land, water, and wildlife.
Coincidentally, the same year I went to hunting camp as a boy the Grizzly Bear was first listed by the U.S. Fish and Wildlife Service. At the time there were thought to be only 130 grizzlies in Yellowstone. Forty years later here we are. Estimates are there are over 500 grizzlies in the region and they are self-sustaining. By all accounts conservation efforts worked. Still the grizzly remains listed as threatened.
During my time as an outfitter I was also witness to the introduction and listing of the gray wolf here in Wyoming and surrounding states. We started with zero in 1994 and the latest wolf population estimates put the number well over 400 wolves and growing. Here again we’ve witnessed a population recovery that is by all accounts a success. And here again, the wolf remains on the endangered species list.
During all this time I have seen firsthand the impacts the listing of the grizzly and the wolf has had on my industry. There is no doubt that both the grizzly and the wolf have become icons for many. For my clients interested in wildlife watching these apex predators are a big draw. My own website sells grizzly sightings as a benefit of taking a backcountry trip with us. The ESA has accomplished what it was intended to do with these two species, but for some reason the ESA doesn’t allow for success.
The federal government, by listing these animals under the ESA, basically brokered a deal with the people of Wyoming and surrounding states wherein if we accepted the new regulations and changed our backcountry practices, once the grizzly and wolf reached healthy and recovered population levels, they would be de-listed. By all accounts from the state and federal experts who manage these species, both species are fully recovered and have exceeded recovery criteria for over a decade. While there are always radicals on both ends of any hot button issue the majority of the folks in Idaho, Montana, and Wyoming accepted the new regulations and moved forward. They did so with the understanding that there was an end game in sight.
The problems began to arise when first the federal government started moving the goalposts, and now the federal courts are moving the goal posts.
Instead of celebrating the recovery of two species, we’re locked in a legal battle with groups more interested in raising money and spending time in courtrooms than actually taking yes for an answer. That is why public tolerance has declined, and it is why federal congressional tolerance for the ESA has declined.
As the Western Governors’ Association and others contemplate changes to the ESA, I encourage us to take a hard look at how difficult it is to delist a species. The goal of the ESA is to recover a species and delist them, not keep them on the list forever.
On the one hand we should recognize when the ESA has worked, but on the other hand, we must also recognize that recovery of these species comes with a cost.
As the grizzly and wolf populations have grown there has been a major reduction in elk hunting opportunities in the areas around Cody. This has resulted in a negative economic impact to outfitters and related businesses here. There is an area less than 30 miles north of where we now sit where a group of 5 outfitters, who prior to 2010 historically hosted an average of 85 elk hunting clients per year, are today hosting less than 25. Those numbers may mean little to some folks, but that kind of a decline is unsustainable for a part of the tourism industry that is so important to the economy of Park County.
In my opinion this single species management is one of the primary flaws of the ESA. When considering a species’ status for delisting, there appears to be no consideration on the effects on other wildlife population. Single species management plans may work to recover that species, but they also have severe impacts on areas that have such a diverse wildlife population as we do here.
As I said before, while you might find a few radicals who believe the only good grizzly or wolf is a dead one, I believe most people realize they are an integral part of the wildlife ecosystem and go a long ways towards keeping our wilderness wild. However we are growing weary of seeing them portrayed as the poster children of the Yellowstone ecosystem at the expense of other wildlife populations.
Balanced wildlife management takes careful consideration of the entire ecosystem. Unfortunately, the ESA does not allow for that. The ESA has tunnel vision for only the species on the list, and to hell with everything else.
Western states should be allowed to have complete management control over species within their borders. The ESA is an effective tool to identify and protect species requiring listing, but it lacks the necessary components to delist in a timely and reasonable manner. And, most importantly, to ensure a delisted species stays delisted. The recent decision by Washington D.C. based Federal District Court Judge Amy Berman Jackson clearly illustrates this major flaw in the ESA. Judge Jackson acknowledged Wyoming Gray Wolf populations were recovered but still restored ESA protections based on what most would say was an arbitrary technicality. I know for a fact that Wyoming, and I’m sure it is the same with our neighbors, has a deep pool of extremely talented wildlife managers. These people are close to the ground here, they understand the terrain, the animals, and the people. Maybe most importantly, they have a broad view of wildlife management, not the narrow view the ESA forces federal wildlife managers to have.
I realize that if a species is listed management shifts to the federal government and it takes a delisting to get it back in the hands of state. It is time for the ESA to write the final chapter and allow the state to do what they have been doing all along and that is manage the grizzly and the wolf, and do so with the support and approval – not hindrance of – federal oversight. But even before that, the ESA should allow for more input at the state and local level, from the petitioning process, to management, and to delisting.
I believe it is time to go back to the drawing board and make the ESA more effective and suitable to the needs of the western states and their wildlife. When two fully recovered species remain on a list that says they are not recovered, it’s time make some changes.