North Dakota in the Crosshairs of the Endangered Species Act


North Dakota in the Crosshairs of the Endangered Species Act

With hunting season under way in North Dakota, many of the state’s residents will be surprised to learn that they are in the crosshairs this fall-of America’s most powerful environmental law, the Endangered Species Act. The Act’s ability to target and control otherwise normal and legal uses of land, such as agriculture, home building and energy development, can impose substantial costs on businesses, as well as landowners who harbor endangered species. Not only are people impacted negatively by the Endangered Species Act, but so are the imperiled species the law is supposed to protect because the Act’s penalty-based approach discourages conservation.

All of this will likely come as a surprise to many North Dakotans because until now the Endangered Species Act has had a relatively modest impact on the state. This is due in large part to the fact that over almost the entire Act’s 40-year history only eight species in North Dakota have been listed.

But with the recent listing of two butterflies, the Dakota skipper and the Poweshiek skipperling, North Dakota is entering a new era of Endangered Species Act. The state’s number of endangered species is likely to increase by around 75%, which has the potential for significant negative impacts on the state’s economy, especially the agriculture and energy sectors, as well as conservation efforts for imperiled species. The reason for the new era stems from four factors:

  • A “tidal wave” of over 750 species nationwide that are going to be considered for listing over the next decade or so, which will increase by about 50% the number of species protected under the Act
  • The increasingly aggressive implementation and enforcement of the Act by the federal government
  • Environmental pressure groups that are very willing to use the citizen suit provision of the Act to direct the federal government to make the Act even more onerous
  • Growing evidence that the Act’s punitive approach works directly against species conservation.

For much of its 40-year history, the Endangered Species Act has been thought of as largely a Western issue that has also impacted limited regions of country, such as in Texas and some of the South. But with the tidal wave of species in the process of being listed, huge portions of the country that have been relatively untouched by the Act are going to be heavily impacted, such as the Great Plains, Midwest, Intermountain West, East, as well as much of the South that has thus far escaped the ESA (as I wrote about in a previous post, here).

The tidal wave of species is the result of a 2011 lawsuit settlement between the federal government and the two most aggressive pressure groups-the Center for Biological Diversity and Wild Earth Guardians-under which the U.S. Fish and Wildlife Service is obligated to consider for listing more than 870 species (to date, about 120 of these species have been listed). North Dakota contains six of these lawsuit settlement species, two of which are the just-listed butterflies. In the pipeline are several species that have significantly more potential than the butterflies to cause problems for North Dakota, most notably Sprague’s pipit, a grassland bird that lives in the western three-quarters of the state, including in the oil rich Bakken region.

The just-listed butterflies aptly illustrate two of the main problems with the Endangered Species Act that are now facing North Dakota, one of which is the poor quality of the data upon which species are usually listed and decisions made about restricting land and resource use. North Dakota contains 25% of the known historical U.S. populations and 39% of known current populations of the Dakota skipper. According to the Fish and Wildlife Service, of the 54 known historical populations of Dakota skipper in North Dakota, 16 are extant, 13 extirpated, 11 possibly extirpated, and 14 (26%) are of unknown status. The situation for the Powesheik skipperling is much the same. North Dakota contains 17 (or 6%) of the known historical U.S. populations, and of these 3 are extirpated, 6 possibly extirpated, and 8 (47%) are unknown. Imagine a private sector business trying to make decisions based on no information about 25-50% of its inventory and assets. Furthermore, these butterfly data are very likely incomplete because some landowners, fearful of the Endangered Species Act’s penalties and distrustful of the Fish and Wildlife Service, are probably not revealing that they have butterflies and suitable butterfly habitat on their land. Yet this is business as usual under the Endangered Species Act, which is very problematic because these poor quality data are used by the federal government to restrict land and resource use and by litigious environmental groups to push the feds toward even more restrictions.

A more significant problem is that the Endangered Species Act is used as a powerful land and resource use control tool, which imposes substantial costs on the private sector and works against the goal of conserving imperiled species. The final rule listing the butterflies is filled with ominous language about the threats to the butterflies from farming, ranching, and the oil and gas industry. According to the Fish and Wildlife Service, “prescribed burns, haying before July 16, broadcast herbicide treatments, some insecticide treatments, and permanent conversion of the Dakota skipper’s grassland habitats,” are threats.

At the same time, the Service is also trying to sell the listing of the skipper as not much of a threat to agriculture because the butterfly is listed under the less-imperiled status of “threatened,” and the agency promulgated a 4(d) rule, which presumably provides regulatory flexibility. “The 4(d) rule now exempts take of Dakota skippers caused by grazing on all non-federal lands in the United States,” according to Fish and Wildlife. The Service adds, “take of Dakota skipper caused by haying in transportation rights-of-ways and corridors after July 15 is exempt under the 4(d) rule, as long as it is associated with livestock ranching activities. The 4(d) rule exempts take of Dakota skippers caused by mowing recreational trails, a term that is defined in the rule, even when it is not associated with livestock grazing.”

The problem with this portrayal of the alleged regulatory flexibility made possible by a threatened listing is that the Endangered Species Act is so powerful and federal government’s discretion to implement the law so broad that the difference between species’ status as “threatened” and the more-imperiled status of “endangered” can be rendered effectively meaningless. For example, the northern spotted owl was listed as threatened in 1990, but this still led to massive land use restrictions that had a devastating impact on the timber industry in the Pacific Northwest.

Under the Endangered Species Act, even habitat unoccupied by endangered or threatened species can be regulated. Consider the Fish and Wildlife Service’s view of the potential effects of the oil and gas industry in North Dakota on the two butterfly species (note the highly speculative way in which potential future impacts are phrased):

“Specifically with regard to our evaluation of impacts from oil and gas activities, much of this activity is currently occurring in areas of native prairie overlying the Bakken and Three Forks formations, to the west of known locations for both butterfly species. However, current Bakken oil and gas development is occurring in two counties that have records of Dakota skippers (McKenzie and McLean counties in North Dakota). In those areas, oil and gas development is a stressor to the populations that may be present. Because there are few locations where the butterflies may still be extant, significant stressors to these few populations can be threats to the species as a whole. Furthermore, although oil and gas development is unlikely to occur throughout the entire range of the two butterflies in the foreseeable future, there may be future development or increases in current activities associated with the shale-oil formations (such as the Bakken formation in North Dakota) that may affect butterfly populations in those areas.”

While these two butterfly species pose a challenge to North Dakota because they have habitat in scattered patches across the state, the more serious threat is Sprague’s pipit, the grassland bird, because the state lies at the heart of its U.S. breeding habitat. The Fish and Wildlife Service often focuses on breeding habitat when invoking the Endangered Species Act’s land use control provisions. Under the 2011 lawsuit settlement, the Fish and Wildlife Service must, if warranted, publish a listing proposal for Sprague’s pipit by September 2015. If listing is proposed, then a final listing decision must be made by September 2016.

For a sense of the likely impacts if Sprague’s pipit is listed, as well as the economic activities pressure groups and the federal government would likely target, a good place to start is Wild Earth Guardians’ petition to list Sprague’s pipit. According to the petition:

“The Sprague’s pipit is particularly sensitive to anthropogenic disturbance. The birds avoid roads, for example. Increased oil and gas exploration and extraction have likely increased disturbances throughout the pipit’s range and caused habitat losses as well. Pesticide applications and harassment techniques to prevent crop losses to birds, particularly blackbirds, in the pipit’s migratory corridor may be a growing threat to safe stopover points needed during migration.”

The threat posed to oil and gas development by the two just-listed butterflies is more speculative, but this is not the case for Sprague’s pipit because the bird’s habitat overlaps the entire Bakken region that has made North Dakota the nation’s second-largest oil producing state, with production of about 1 million barrels per day. Wild Earth Guardian’s listing petition provides a road map of how activists and the federal government will likely use the Endangered Species Act to go after the oil and gas industry if Sprague’s pipit is listed. The petition states:

“Oil and gas exploration and extraction is likely a severe threat to Sprague’s pipit habitat. The imposition of infrastructure for oil and gas extraction facilitates the spread of weeds and establishes structures and roads that pipits avoid. Drilling for oil and gas has increased significantly in the past decade.

“Migration routes may be disrupted, feeding and nesting sites may be isolated into parcels too small to use, and the general effect of widespread activity creates noise, emits pollutants, and generally disturbs animal behavior. Specifically, mineral extraction development causes habitat fragmentation that perpetuates and exacerbates degradation.”

The listing petition adds:

“Possible environmental disruption includes, but is not limited to: noise pollution, human intrusion, alteration of vegetation and land and introduction of harmful substances. Habitat alteration, one of the greater threats to Sprague’s pipit, is caused by seismic trail clearing, clearing and grading of right of ways, site development, excavation of storage and mud pits, borrow pit excavation, construction of process, treatment and storage facilities, installation of flow lines, erection of power lines, communication systems development, trenching and pipe installation, pipe burial and backfill, effluent accidents and development of ancillary industry (i.e., boomtowns associated with labor forces).”

In addition to major impacts on the economy, the other aspect of the Endangered Species Act that people in North Dakota will become increasingly familiar with is that the Act’s penalty-based approach harms the very species that are supposed to be protected (as I discuss at length in my recently release study, available here). The reason for this is the Act’s draconian penalties-$100,000 fine and/or 1 year in jail for harming one butterfly, bird, or even their habitat, regardless of whether the habitat is occupied or simply deemed to be of a suitable type-turn species into financial liabilities. In response, landowners harboring endangered and threatened species do what anyone with a financial liability does; they try to eliminate or lower it. This process happens in four ways, the three most damaging of which are:

  • Landowners actively destroy habitat for endangered species
  • Landowners refrain from managing habitat so as to render it unsuitable for species
  • Landowners and others go silent and hope the presence of species and habitat on their land goes unnoticed by regulatory authorities and aggressive environmental pressure groups.

These three responses are so damaging because habitat destruction and degradation are by far the leading causes of species imperilment, and having basic knowledge about species numbers and distribution is essential to successful conservation. The fourth way, which tends to get a lot of attention because it is sensationalistic, is when landowners kill species, otherwise known as shoot, shovel, and shut-up.

In short, the Endangered Species Act goes about achieving its goal of conserving imperiled species in exactly the wrong way. As a result, there is widespread evidence landowners are taking actions to rid their property of species and habitat. And this is also why the ratio of declining to improving species is an abysmal 9 to 1 on private land but a much better 1.5 to 1 on federal land.

Fortunately, there is a much more productive approach to conserving endangered species, which is based on the voluntary cooperation of landowners, that has been pioneered over the past eight years by the Texas Comptroller (as I wrote about here). This approach, which is modeled on the U.S. Department of Agriculture’s Conservation Reserve Program that pays landowners to conserve environmentally sensitive land, will immediately make sense to many North Dakotans because the state has over 13,000 farms and more than 1.6 million acres enrolled in the Conservation Reserve Program. There is a reason why landowners across the country willingly pick up the phone and call their local Department of Agriculture extension office but would not dream of contacting the Fish and Wildlife Service if they have imperiled species on their property. The Department of Agriculture personnel come with the open hand of friendship, while the Fish and Wildlife Service brings the closed fist of regulations.

North Dakota is unfortunately learning that the Endangered Species Act’s penalty-based approach to conservation harms the species the law is supposed to protect, the people who harbor these species and the state’s economy. This lose-lose-lose situation can be turned around if a new, incentive-based approach is used. North Dakotans, like most Americans, are proud, patriotic people who want to conserve their state’s land, water and wildlife so long as they are not punished for doing so. Those serious about endangered species conservation should seek to tap the enormous goodwill, energy and talent of America’s landowners by charting a new course that respects property rights and compensates landowners for the costs incurred conserving endangered species.