One more thing Texas does right

Could the DC court's decision on the Dunes Sagebrush Lizard signal the end of conservation-by-lawsuit?"

By Marita Noon

When the Dunes Sagebrush Lizard (DSL) was being considered for listing under the Endangered Species Act (ESA), significant parts of the Texas economy were placed at risk," Chris Bryan, agency spokesman for the Texas Comptroller, told me when I asked about the recent decision from a United States District Court that dismissed a lawsuit filed by environmental groups.

On September 30, District of Columbia District Court Judge Rudolph Contreras ruled against the Center for Biological Diversity (CBD) and the Defenders of Wildlife. The groups brought charges in the hopes of requiring the Fish and Wildlife Service (FWS) to reverse its 2012 decision not to list the DSL as endangered.

The 2012 decision was the first time that community engagement successfully beat back a proposed ESA listing-a stinging defeat that environmental groups didn't take kindly. (Writing and speaking about the DSL, I was an active part of that effort. My work earned me a nasty press release from the CBD.) The groups responded with the lawsuit, likely confident of success in the courts-after all, with more lawyers on staff than biologists, legal victories have been the benchmark.

In August 2013, Texas Comptroller Susan Combs was granted intervenor status in the case. In October, several regional and national oil-and-gas associations-including the New Mexico Oil and Gas Association and the Permian Basin Petroleum Association-joined Combs.

The DSL story is important because it represents a new chapter in ESA compliance-a successful chapter that allows conservation and human economic activity to coexist. Previously, presence of an ESA listed species would shut down activity with harsh consequences for landowners and communities.

The spotted owl history is the trophy of bad ESA policy. More than 20 years ago, the spotted owl was listed as an endangered species. As a result, virtually the entire logging industry in the Pacific Northwest has been shut down-leaving thousands unemployed and hundreds of communities decimated. Fifty percent of the nation's forestry jobs lost from 1990 to 2009 were in just two states: Oregon and Washington. Yet, the listing did not stop the decline of the spotted owl. And, as a result of the listing, forest management in the West changed-leaving thousands of acres overgrown, unhealthy, and susceptible to the devastating wildfires we see today.

Texas decided to do it differently.

Aware that the DSL was an ESA target, conservation efforts started in 2008. About 46 percent of the DSL habitat is private land in the Permian Basin of West Texas and Southeastern New Mexico-an area that produces 15 percent of U.S. oil and 5 percent of the nation's natural gas and is a prime ranching and farming region. The locals were very worried that if the DSL were listed, the regulations would seriously impact their operations and impose substantial costs. Bryan told me: "This listing had the potential to dramatically curtail economic activity in the Permian Basin-which accounts for approximately 57 percent of Texas' total crude oil production and supports roughly 47,000 oil-and-gas-related jobs. The oil-and-gas industry has a very high economic 'multiplier,' stemming from the fact that companies buy tremendous amounts of equipment, material and services in Texas, in addition to the direct jobs they create in the oil patch itself."

Historically, the ESA's excessive legal and literal penalties have discouraged landowners from engaging in conservation efforts. In hope of keeping the regulatory authorities from showing up, the mantra when an endangered species is found on your property was: "shoot, shovel and shut up."

Illustrating the devastating results of finding an ESA-listed species on your land, a new report on ESA reform from the Reason Foundation tells the story of Craig Schindler, a Missouri farmer, whose property includes caves containing the grotto sculpin-which just received ESA listing:

Based on an economic impact analysis carried out for Fish and Wildlife, the 18 acres Craig estimates he will have to sacrifice for the sculpin is worth some $90,000 and produces approximately $7,000 in crops annually.

"They're cutting my living down," Craig told the local Perryville News, "I have cattle and grow crops, but if you take 18 acres away from a guy, that's quite a bit."

Fish and Wildlife also proposed to place buffer zones around sinkholes that lead to caves with sculpins. Under the listing, Craig could face up to $100,000 and/or a year in jail for killing or injuring just one sculpin, or even harming its habitat. So, in addition to losing the use of 18 acres, he will have to spend thousands of dollars to fence the buffer zone in order to prevent livestock on the rest of his ranch from inadvertently harming the sculpin. "I'm going to have to pay for this fence out of my pocket, and lose the ground for cattle to graze on," he said. But even that will not immunize him from prosecution under the ESA because local Fish and Wildlife personnel have the power to decide if his uses of other land, such as fertilizing crops and grazing livestock, harm the sculpin.

With the proposed listing of the grotto sculpin, Craig Schindler discovered the upside-down world of the ESA. In return for harboring rare wildlife, he was to be punished by having his property turned into a de facto federal wildlife refuge but paid no compensation.

To add insult to injury, if the grotto sculpin were to be listed under the ESA, Craig would still have to pay taxes on the land he would not be able to use.

Stories such as Schindler's and histories like the spotted owl's prompted the Texas State Legislature to pass a bill creating the Interagency Task Force on Economic Growth and Endangered Species to help municipalities and regional governmental bodies cope with the ESA through technical assistance; help formulating and implementing species-conservation initiatives and plans; assessing the economic impact of federal, state and local endangered-species regulations; and creating advisory committees to help the Task Force.

Additionally, the Comptroller's Office provided funds to survey the DSL habitat-which revealed 28 more Texas DSL populations, in addition to the three known populations.

The 2011 surveys were possible because of a special provision the legislature passed in 2011 that allowed DSL population locations to remain confidential. Without the force of state law, landowners are resistant to cooperating in conservation efforts out of fear, that like Schindler, their property would be rendered unusable.

By being proactive, Texas was able to enact voluntary conservation programs that brought about the 2012 FWS decision not to list the DSL. Addressing the Texas approach, in a thorough review of the September 30 ruling, Brian Seasholes, director of the Endangered Species Project at the Reason Foundation, says: "the Texas Conservation Plan (TCP) for the Dunes Sagebrush Lizard is based on a number of provisions, including a robust scientific process; beneficial and measurable conservation outcomes; participation by a wide range of stakeholders from the state and federal levels, the regulated community, and academia; effective monitoring and oversight by independent third parties; regular reporting on the plan's progress and implementation; and a highly innovative habitat mitigation mechanism called the Recovery Credit System." Seasholes sees that the Texas approach protects landowners from the ESA and the federal government, while finding a balance between economic activity and species conservation.

Comptroller Combs is elated with the court's decision, especially considering the pushback she received when she took a risky stand and embarked on an experimental plan to forge an innovative, flexible and successful conservation plan for the DSL. Responding to the court ruling, Combs said: "It supports our basic belief that the TCP provides appropriate conservation for the lizard and reaffirms that the research conducted by Texas A&M University about the DSL helped to provide Fish and Wildlife the best scientific data available to make the decision not to list the species as endangered."

New Mexico Congressman Steve Pearce, who spearheaded much of the public education on the potential impacts the DSL listing would have on communities in his district, was, likewise, pleased with the court's decision: "It is about time the courts stood up for private landowners over radical environmental groups that continually use sue-and-settle tactics to exploit taxpayer money to pay lawyers and fund themselves instead of recovering species. This decision ensures that sound conservation efforts are carried out in Eastern New Mexico without sacrificing the economic activity that the area depends on. The plan itself is a great example of how cooperative conservation efforts between private industry, state officials, landowners, and the federal government are more than adequate to protect species. This decision differs from the Fish and Wildlife's listing of the lesser prairie chicken in March that severely hindered a successful cooperative conservation effort. I hope the Fish and Wildlife Service along with the courts continue to allow future efforts like this to succeed."

Hopefully, now that they can see Texas' proactive efforts-such as those engaged to protect the DSL-can withstand legal challenge, other states will take similar legislative and conservation actions that will prevent environmental groups (under the guise of conservation) from using lawsuits to block economic growth in the United States.

This originally appeared here, and I wish to thank Marita for allowing me to publish her work.  The author of Energy Freedom, Marita Noon serves as the executive director for Energy Makes America Great Inc. and the companion educational organization, the Citizens' Alliance for Responsible Energy (CARE). Together they work to educate the public and influence policy makers regarding energy, its role in freedom, and the American way of life. Combining energy, news, politics, and, the environment through public events, speaking engagements, and media, the organizations' combined efforts serve as America's voice for energy.