Alabama landowner heads to court over a snake that isn’t there

By Bonner Cohen, Ph. D. |October 6th, 2022| Environment, Property|73 Comments @ CFACT

No good deed goes unpunished. Where has reason gone in this country?

Gray Skipper, whose family has practiced silviculture in rural southwestern Alabama’s Clarke County for four generations, is incredulous. The U.S. Fish and Wildlife Service (FWS) is itching to slap land-use restrictions on his property in order to protect the rare black pinesnake under the Endangered Species Act (ESA).

But there is a problem: There is scant evidence that Skipper’s land is home to a single black pine snake.

In response to a lawsuit filed by the Arizona-based Center for Biological Diversity (CBD), FWS in 2015 listed the black pinesnake, a non-poisonous creature measuring four to six feet in length, as “threatened” under the ESA. In 2020, FWS designated 324,679 acres in Alabama and Mississippi as “critical habitat” for the snake, including 93,208 acres of private land. The designation included 10,000 acres home to the Skipper family’s lumber business.

FWS says the Skipper property is “occupied” by the snake but can produce no evidence backing that up. According to a complaint filed on Skipper’s behalf by the Pacific Legal Foundation (PLF), there have been a total of five sightings of black pinesnakes on the Skipper property over the past 25 years, four of them over 20 years old and the last one in 2015. So much for the land being “occupied” by the snake.

Punishing Stewardship

The Skipper family has worked closely with various state of Alabama conservation programs since 1956, and Gray Skipper has shown himself to be a model private conservationist. But the ESA has a long history of punishing, not rewarding, environmental stewardship.

“By opening their land, maintaining original habitat and a complex forest system, encouraging wildlife, and permitting research, the Skipper’s land was identified by FWS,” PLF attorney Charles Yates was quoted in Farm Journal (Sept. 22) as saying. “Critical habitat and the Endangered Species Act treat species as liabilities — not assets. This means families that maintain habitat are punished, and FWS’ policy is self-defeating.”

“I want people to find out how power-hungry FWS is in our case,” Skipper told Farm Journal. “A landowner already doing the right thing to save a species is not the person to clamp down on, and it’s crazy because we were already doing everything they wanted based on our own concerns for the environment, including prescribed burns and leaving stumps alone, encouraging habitat. All the generations of my family have been proud to be involved in conservation and didn’t ask or expect anything back. I still believe somewhere down the line, common sense is going to kick in, but that may be too naïve on my part.”

Scott Jones, CEO of Forest Landowners Association, a nonprofit representing 5,000 forest family landowners and 50 million acres of woodland in 45 states, has joined Skipper in suing FWS over the snake. Jones says FWS makes in critical habitat designations based on soil type and tree species, not on the actual presence of the species on the designated land.

“Think of the logic,” he told Farm Journal. “FWS says the Skipper’s private land is critical habitat – as in the land is so critical for the species to survive – yet, how can the species survive on the Skipper’s land if there are no pinesnakes to begin with?”

The Snake and the Frog

The case is reminiscent of the dusky gopher frog controversy in Louisiana. In 2011, FWS designated land in Tammany Parish as critical habitat for the tiny frog, even though none had been seen in Louisiana since 1967 and the only known habitat for the roughly 100 remaining dusky gopher frogs was in Mississippi. Even worse, the land in Louisiana designated as critical habitat was no longer suitable for the frog. After an eight-year journey through the court system, the case was settled in 2019 when the U.S. Supreme Court ruled, in an 8-0 decision, against FWS, forcing the agency to withdraw the critical habitat designation.

FWS may be facing a similar face with its black pinesnake designation on the Skipper property.

Author

• Bonner Cohen, Ph. D.

  Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT, where he focuses on natural resources, energy, property rights, and geopolitical developments. Articles by Dr. Cohen have appeared in The Wall Street Journal, Forbes, Investor’s Busines Daily, The New York Post, The Washington Examiner, The Washington Times, The Hill, The Epoch Times, The Philadelphia Inquirer, The Atlanta Journal-Constitution, The Miami Herald, and dozens of other newspapers around the country. He has been interviewed on Fox News, Fox Business Network, CNN, NBC News, NPR, BBC, BBC Worldwide Television, N24 (German-language news network), and scores of radio stations in the U.S. and Canada. He has testified before the U.S. Senate Energy and Natural Resources Committee, the U.S. Senate Environment and Public Works Committee, the U.S. House Judiciary Committee, and the U.S. House Natural Resources Committee. Dr. Cohen has addressed conferences in the United States, United Kingdom, Germany, and Bangladesh. He has a B.A. from the University of Georgia and a Ph. D. – summa cum laude – from the University of Munich.

 

Blast From the Past: Commentary by Jim Beers: The Same Tired Nostrums

By Rich Kozlovich 

This appeared in P&D on Tuesday, June 28, 2016. That was five years ago, and, as you read this you can't help but conclude nothing has changed. 

By Jim Beers,

Am I the only one seeing the fatally-flawed EU bureaucratic processes in the never-ending reporting of increasingly horrific and unmanageable wildfires in the western US? Your article, “Dead Trees Intensify Wildfire Risk” is but the latest in recent years of the government land-owning bureaucrats (USFS, NPS, USFWS, BLM, States, et al) blaming “Drought, extreme heat and high winds” and American journalists busily copying down their words and calling it “reporting”.

I submit it is intentionally misleading to blame “Bark beetles, heat and California’s five-year drought” for “66 million” dead trees.  Think about, ask about and then report about:

• All of the expanding government land ownership (and private property eased with government funding) where forest management of trees and range management of forage plants (fuel for fires) have been eliminated by regulations, policies, and philosophies of agencies that have vilified logging and sawmills; grazing and ranching; access roads (used for access to fight fires and make breaks) just as they have hunters, trappers and other legitimate users, uses of and generators of revenue for management from Renewable Natural Resources from the land and the economic lifeblood of rural communities.
• The effects of radical environmental policies and programs adopted by government land-managers and the bureaucratic workforces in recent years from Wilderness and Roadless Areas to “Critical” Habitat Declarations (think Spotted Owl) and government bureaucracies as tyrannical enemies (the correct word) of rural residents, rural communities, Local governments and the revenues that they must have to exist.
• The philosophical and human values in both bureaucracies and Universities underpinning current government land non-management and former government Renewable Natural Resources management.  Examine the rural worlds they once were, and now are, responsible for creating in addition to fewer catastrophic fires and widespread destruction of Rural America within, around and near these government fire pits.

“66 Million Dead trees” were once live trees that if carefully managed through logging would be far more resistant to beetles, drought and other natural mayhem.  Fires are much more manageable to contain when roads (logging, access, et al) exist and water is not off-limits because of some fish.  Fuel is what burns, and fuel is much more limited (and fires less intense and difficult to fight) when forest and range plants are limited by logging and the grazing of healthy wild and domestic animals.

If there was a “BREXIT” vote for Rural Americans (unencumbered by urban idealists’ votes and political majorities that are insulated from their government-enforced imaginings) Americans would all be even more surprised than the British and European “establishment” was by the results of “BREXIT”. 

 

Jim Beers is a retired US Fish and Wildlife Service Wildlife Biologist, Special Agent, Refuge Manager, Wetlands Biologist, and Congressional Fellow. He was stationed in North Dakota, Minnesota, Nebraska, New York City, and Washington DC.  He also served as a US Navy Line Officer in the western Pacific and on Adak, Alaska in the Aleutian Islands.  He has worked for the Utah Fish & Game, Minneapolis Police Department, and as a Security Supervisor in Washington, DC.  He testified three times before Congress; twice regarding the theft by the US Fish & Wildlife Service of $45 to 60 Million from State fish and wildlife funds and once in opposition to expanding Federal Invasive Species authority.  He resides in Eagan, Minnesota with his wife of many decades. 

Jim Beers is available to speak or for consulting.

You can receive future articles by sending a request with your e-mail address to:   jimbeers7@comcast.net

 

Editor's Note:  I don't know if Jim is involved any longer.  I've not heard from him for a few years, however, you may wish to view his work here, with the last post in 2016. RK

 

Improving the Interior Departments Science and Policies

H. Sterling Burnett @ Heartland Insititute

The U.S. Department of Interior (DOI) is taking a page out of the U.S. Environmental Protection Agency’s (EPA) playbook, to improve the transparency behind the science used to develop regulations on the millions of acres of public lands it controls, and the legal actions it takes in response to lawsuits filed against it.

On September 11, Interior Secretary Ryan Zinke signed a Secretarial Order promoting transparency and accountability in consent decrees and settlement agreements, aimed at ending secret “sue and settle” deals with activist plaintiffs.

Zinke’s order comes almost a year after the EPA issued rules ending such agreements at the agency.

DOI reports from January 1, 2012 through January 19, 2017, Interior entered into more than 460 settlement agreements and consent decrees, resulting in the payment of more than $4.4 billion to plaintiffs, while keeping key provisions of these agreements secret. In President Barack Obama’s last year in office, Interior entered into 96 such agreements or decrees, costing taxpayers more than $1.7 billion.

Although consent decrees and settlements may sometimes be a prudent way to avoid costly litigation in cases DOI is likely to lose, Zinke notes, “concerns have been raised” DOI has used secret settlement agreements to undermine the safeguards Congress established to ensure public input into policymaking.

Order 3368 requires DOI to file public notice of all litigation, proposed settlement agreements, and consent decrees in the Federal Register. Another provision establishes a process for public input before Interior can approve a settlement with significant policy implications or large payouts.

The order requires DOI to establish a publicly accessible “Litigation” webpage linked in the federal Office of the Solicitor’s homepage. Entries on this page must include the names of the parties involved in litigation, the case number, the date filed, the court where the complaint was filed, and the statutory or regulatory provisions at issue in the complaint.

By December 11, 2018, the Solicitor’s office must begin compiling, and the Chief Information Officer to begin posting, a searchable list of final judicial and administrative consent decrees and settlement agreements governing DOI’s actions. The summaries must include a brief description of each decree or agreement, details of any attorney fees or costs paid, and a link to the text of the decree or agreement.

Also, within 15 days of receiving service of a complaint or petition for review of a law or regulation, the Solicitor must notify any state or tribe possibly affected by a pending complaint or petition, except when the state or tribe is a party to the petition.

An example of how this may work comes from EPA’s website, which now includes a page titled “Notices of Intent to Sue the U.S. Environmental Protection Agency,” providing details of nearly 300 notices of intent to sue, mostly from citizen groups plus a few from state and local governments, with a separate table listing about 380 active environmental cases, and a third table providing details of 15 finalized consent decrees and settlement agreements.

In another pro-transparency, pro-accountability move, in the last week of September, DOI followed EPA’s lead once again, implementing a new policy intended to improve the transparency, integrity, and quality of the science its agencies use to make decisions. Going forward, officials may use only scientific studies or findings the underlying data for which are publicly available and reproducible, with few exceptions. EPA proposed a similar policy earlier in 2018.

DOI’s policy covers the science used by the wide variety of bureaus under its jurisdiction, including the Bureau of Land Management, the National Park Service, the U.S. Fish and Wildlife Service, and the U.S. Geological Survey, affecting the science used to shape policies ranging from endangered species determinations and protections—such as the decision to list polar bear populations as endangered based on speculative future risks from climate change even while their numbers are increasing—to decisions about grazing, hunting, mining, and oil and gas production on public lands and offshore. Under the new policy, the climate science used to justify any future actions by DOI to close public lands or offshore areas to oil and gas development, or impose more stringent limits on greenhouse gas emissions from those operations, would now be open to review by the public, including outside scientific auditors.

Announcing the policy, Deputy Secretary David Bernhardt said the order is intended to ensure Interior “bases its decisions on the best available science and provide[s] the American people with enough information to thoughtfully and substantively evaluate the data, methodology, and analysis used by the Department to inform its decisions.”

People have a right to know what their government is up to, yet under previous presidents the science used to justify regulations and policies and the terms of settlement agreements at DOI often blindsided local, state, and tribal governments, industries, public land lessors, and private land owners adjacent to public properties, imposing huge costs on them with little or no notice, based on science hidden from public view. This was unfair, amounting to regulation behind closed doors.

These orders should improve the transparency and soundness of DOI’s policies by giving the general public, we who pay DOI’s bills and for whom they are supposed to work, some input into its decisions.

Trump’s DOI is giving the government back to the people, or at least ensuring we have oversight of and influence on it. Only environmentalists and crony capitalists who historically, in secrecy, have wielded inordinate power over government policy could be opposed to that. Every other department and agency should adopt similar policies.

A double ban gets a double reversal

Interior Department reverses activist-initiated Obama-era ban on farming activities in refuges

Paul Driessen

I don’t pull my punches over destructive, inhumane or just plain lunatic policies demanded by extreme environmentalists. I criticize them, as well as friends and “good guys,” when I think they got it wrong on energy or environmental issues. I also offer praise when it is deserved.

When Department of the Interior (DOI) Secretary Ryan Zinke – whom I admire greatly – let a last-minute Obama endangered species designation for the “Rusty Patched Bumblebee” (RPB) take effect in March 2017, I faulted the decision (here and here). Now I want to praise his recent decision to reopen certain wildlife refuges to modern farming practices.

The RPB decision did the unthinkable. It gave Interior’s often hyper-activist U.S. Fish and Wildlife Service (FWS) potential veto power over every farm operation, building project and land use decision across 378 million Eastern and Midwestern acres, the RPB’s (possible) erstwhile habitat. That’s equal to Montana, North and South Dakota, Minnesota, Wisconsin, Iowa, Illinois and Indiana combined!

All to “protect” a ground-nesting bee that provides minimal pollinating services, has supposedly been sighted” a number of times since 2000 in 13 states, has long been rare for multiple reasons, and got its “endangered” status due to an collusive sue-and-settle lawsuit between agitators and regulators.

This is the same FWS that told a timber company it had to create “potential” habitat on its land in Louisiana for a “dusky gopher frog” that has not been seen in the state for 33 years and could not survive on the 1,544 acres of company land selected by the FWS, because the chosen area did not offer essential habitat conditions. So Fish and Wildlife ordered the company to convert the land into “suitable” habitat, at company expense – after which the company could never cut trees in the area!

The RPB decision was particularly perilous for farmers because, just a few years earlier, the Service had eagerly negotiated yet another sue-and-settle style agreement with radical greens in the Center for Food Safety, to ban genetically engineered crops (aka GMOs) and neonicotinoid insecticides on the extensive lands the FWS leases to farmers in often enormous U.S. wildlife refuges.

The ban was issued without any public consultation or comment period. Worse, it was wholly at odds with USDA and EPA findings on the environmental safety of both GMOs and neonics. But it was a huge gift to activists who have been campaigning against those technologies for years. It set a dangerous precedent of basing government decisions on “precautionary” criteria, much like Europe’s wholly unscientific regulatory process, which is completely antithetical to the risk-based U.S. system.

The infinitely malleable “precautionary” pseudo-guideline says chemicals and other technologies should be restricted or banned if there is any possibility (or accusation by radical activists) that they could be harmful, even if no evidence-based cause-effect link can be shown.

Even worse, the “Precautionary Principle” only examines (often inflated) risks from using technologies that activists or regulators dislike. It never considers the risks of not using them – or risks that using them could reduce or eliminate. Just as perversely, anti-technology factions ignore or actively suppress evidence of harmful impacts from supposed alternatives – and from any technologies they support.

The European Union has formalize the Precautionary Principle as official policy. Regulators thus have carte blanche authority to take any action, at any time, no matter how arbitrary, based on the claim that sometime in the future, in ways not yet understood, something might possibly have a negative impact on people or the environment. Scientific evidence is not needed.

It’s an open door to regulation by activists who are experts at raising alarms and making claims of impending Armageddon unless a targeted technology is banned. Europe’s embrace of “precaution” in agricultural regulation is a major reason why the continent has become a net importer of food, despite having some of the most fertile land and predictably temperate weather in the world.

If this horrendous refuge precedent had stood, combined with the Endangered Species Act, it could have given a few USFWS activist regulators the power to micro-manage enormous swaths of the American public and private landmass, and large segments of the nation’s agricultural and construction economy.

Its impacts would have been felt almost as widely as the infamous “Waters of the United States” (WOTUS) rule that presidential candidate Donald Trump vowed to kill and which the EPA under Scott Pruitt began to dismantle – or the even more insidious Paris climate treaty, which would have given international and United Nations climate alarmists control over the entire U.S. economy.

I’m therefore happy to note that Mr. Zinke Department has implemented a double reversal of the USFW double ban. In an August 2 memo, Interior again spelled out the need to raise crops in parts of wildlife refuges to provide food for people and forage for ducks, geese and other wildlife – and to note the important role that genetically engineered plants and neonics play in that effort.

Of course, the GMO-neonic ban never made an iota of scientific sense. Hundreds of government and independent studies – and decades of eating and other real-world experience – confirm that GMOs are as safe for human and animal consumption as the almost 100% of crops that have been genetically modified by traditional breeding … or by soaking seeds in harsh chemicals or bombarding them with radiation to cause multiple mutations, some desirable, others unknown, but just fine with organic food promoters.

Equally important, the massively funded environmentalist campaign against neonics was based heavily on the wholly fabricated “bee-pocalypse” scare of several years ago. As most people now know, honeybee populations have been rising the entire time since neonics were first used, and the problems honeybees had for several years were due to due to Varroa destructor mites and an assortment of bee diseases.

Anti-neonic agitation also ran headlong into EPA’s scientific risk assessments. Even amid the regulatory frenzy of the final Obama years, EPA could find no scientific reason to take away the long-standing approvals of these vital crop production tools, which target only insects that actually feed on crop plants.

Not surprisingly, though, once the honeybee-pocalypse was debunked, activists immediately switched gears to the equally fraudulent claim that wild bees are on the path to extinction – because of neonics, of course. However, wild bee problems are also almost entirely due to disease and long-term habitat loss.

The vast majority of wild bee species are “doing just fine,” prominent U.S. Geological Survey wild bee expert Sam Droege has noted. Even more telling, a recent global study of wild bees found that those which pollinate crops and thus come into most frequent contact with neonics are flourishing.

Greens have already announced they will sue to block the refuge decision, but that’s par for the course.

Secretary Zinke deserves high praise for starting to rein in USFWS’s regulatory power grab. However, it’s only a start. There’s much more left to do: at Interior, Agriculture, Energy and of course EPA.

Next up should be the Fish and Wildlife Service’s role in implementing the Endangered Species Act. Even if congressional attempts to rein in some of the worst abuses of the ESA finally succeed, after years of futility resulting from environmentalist intransigence, agency activists will find ways around them.

Mr. Zinke also deserves major kudos for pushing back on the nonsensical claim that 129 million dead trees in California, repeated conflagrations that completely wipe out wildlife habitats and species, over 700,000 once-Golden State acres burned so far this summer (Rhode Island plus Washington, DC), and 57 Californians killed by forest fires in two years – are due to that all-purpose villain: climate change.

As the Secretary makes clear, this horrific destruction is the result of near-criminal mismanagement of that state’s forests, at the behest of rabid greens who refuse to allow any timber harvesting anywhere. 

There’s an old saying that “personnel is policy.” Secretary Zinke next needs to replace DOI zealots with permanent, career service land and resource managers who can keep the eco-power-grabbers under control, by honestly, dispassionately and transparently applying evidence-based science to rulemaking.

Paul Driessen is senior policy analyst for the Committee For A Constructive Tomorrow and author of Eco-Imperialism: Green power - Black death and other books and articles on energy, climate change, economic development and human rights.

 

Trump’s Interior Department seeks to end abuse of migratory bird treaty Act

January 23, 2018 by Bonner Cohen, Ph. D., 1 Comment

Continuing its systematic rollback of Obama-era policies and regulations that centralized power in the hands of Washington bureaucrats and their political allies, the Trump administration is moving to bring much-needed clarity to a century-old bird-protection statute whose enforcement has vexed courts and government officials for decades.

The original Migratory Bird Treaty Act (MBTA) of 1918 was enacted to implement the 1916 Convention with Great Britain (for Canada) for the protection of migratory birds whose flyways traverse international borders. Through amendments over the years, the MBTA now covers implementation of similar treaties between the U.S. and Mexico, the U.S. and Japan, and the U.S. and the Soviet Union (now Russia).

Administered by the Interior Department’s Fish & Wildlife Service (FWS), the law makes it illegal to “pursue, hunt, take, [or] capture” any migratory bird “by any means whatever [and] at any time or any manner.”...........To Read More.....

More Coprolite Anyone?

By Rich Kozlovich

Yesterday I linked an article about Daryl Hannah being arrested for protesting the Keystone XL pipeline delivering crude oil from Canada. Now we find that the radicals on the government’s payroll in the State Department, U.S. Fish and Wildlife Service, and the Bureau of Oceans have taken up this issue because of some endangered beetle, apparently as a way of stopping this pipeline. But take hope…..they have an 81 page ‘recovery plan’ for this beetle.

Interestingly, the cause of this beetle’s decline isn't clearly understood, and yet they could still come up with an 81 page ‘recovery plan’. How can anyone possibly develop a ‘recovery’ plan without that basic piece of information? For all they know their ‘plan’ could kill the rest off if they don’t know what is causing the decline in the first place.

That’s just like medieval doctors telling everyone how to cure the Black Death when they didn’t have a clue as to what it was or how it was contracted. I bet they had whole books on the subject. And they have the chutspah to claim that this decision is a "scientific" decision and not a "policy" decision. 

George Washington’s doctors decided he had a serious case of quinsy, which means “to strangle a dog” in Greek. They used really creative verbiage in those days, and did so probably because they didn’t have clue about what they were talking about.  But they needed to sound like they really knew what they were talking about.

Their treatments included burning the back of his neck, bleeding him of five pints of blood (the average person only has about 10 pints), and feeding him some kind of mercury compound as a purgative. 

And all of this was for a serious sore throat, but whether this was serious and life threatening or not, would any of this voodoo medicine helped? No, and in fact, I think it is perfectly reasonable to believe that every bit of this witch doctoring hastened his demise at the age of 67!

Allegedly he even asked them to bleed him the last time and thanked them for their efforts. Why? Because they were "educated professionals". “Eventually Washington ordered his doctors to cease their barbarisms and let him go in peace”. Among his final words were; “Doctor, I die hard, but I am not afraid to go” At this point he was probably in so much misery he couldn’t wait to go.

When you don’t know what you are dealing with how can you come up with an 81 page recovery plan?   And if you don’t know what you are dealing with how do you know that you aren’t making the problem worse and hastening their demise?   And is it reasonable that all economic activity should be stopped until they do know what they are talking about? All this for a beetle!

At this point I think it is resonable to question the "science" versus "policy" aspect of this decision.  At this point I think it would be interesting to recap the Word of the Day from August 26. Coprolite - Fossilized excrement.