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ESA in Colorado: the Preble’s Jumping Mouse

ESA in Colorado: the Preble’s Jumping Mouse. What is the Endangered Species Act for?. What is the ESA ?. Two main stated purposes: Conserve the ecosystems on which endangered and threatened species depend; and Conserve endangered and threatened species. Where did it come from?.

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ESA in Colorado: the Preble’s Jumping Mouse

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  1. ESA in Colorado: the Preble’s Jumping Mouse What is the Endangered Species Act for?

  2. What is the ESA? • Two main stated purposes: • Conserve the ecosystems on which endangered and threatened species depend; and • Conserve endangered and threatened species.

  3. Where did it come from? • The old 1966 Endangered Species Act, which was passed to protect whooping cranes. • This is basically a “direct take” law – it prevented people from killing endangered species. • It did, however, grant a little bit of money to federal agencies to buy habitat for listed species. • The federal land agencies were directed to “protect habitat “insofar as practicable.” • Passed by Nixon, like a lot of the big environmental laws.

  4. What does it do? • Section 9: You can’t “take” endangered species (this is broad and includes “harm” to damage to habitat essential to the species). • Section 4(d): The FWS can also issue rules preventing or regulating the “take” of threatened animals. • Section 7: Federal agencies have to consult with the FWS or NMFS prior to issuing a permit, making a funding decision, etc. • List/De-list species. (Big Issue #1 for today.) • Concurrent with listing a species, designate “critical habitat.” (Big Issue #2 for today.)

  5. And a lot of other stuff • We don’t import endangered animals. • There’s pretty limited protection for plants for some reason. • There are types of agreements to protect activities on private property from disruption by the ESA, like Incidental Take Permits, Safe Harbor Agreements, Candidate Conservation Agreements with Assurances, and more!

  6. The ESA was really hot/exciting in the 70’s. • Snail darter controversy! • God squad! • Tellico Dam! • The ESA was amended to exempt the Snail Darter from the ESA (it never went extinct and was downgraded to threatened).

  7. And again with the Northern Spotted Owl in the 90’s • Listing in 1990. • Critical habitat designated in 1992 enveloped lots of logging lands. • Tree sitting! • No recovery plan has been finalized. • “Safe Harbor Plan” for the effected woods, allowing logging with some restrictions. • Owl is still around.

  8. But now not so much. • Many reasons. • And in particular not in Colorado. • Yes, it’s political (but that’s only part of the story). • But it’s also the story of how we practically address endangered species issues, as well as issues with natural resources generally. • (Which is what I’m really talking to you about.)

  9. Preble’s meadow jumping mouse • Zapus hudsonius preblei • Yes, it jumps (four feet). • Drums its tail to communicate. • Omnivore. • Really not that exciting. • The Zapus hudsonius is not endangered, but rather is widespread.

  10. More importantly • It’s a subspecies of jumping mouse (see issue #1) • It lives along the Front Range of the Rockies in Colorado and Wyoming, which is one of the most rapidly devloping areas of the United States. • Plus it lives in nice riparian areas near creeks and other pleasant places where people also like to live.

  11. Now to the history (very exciting) • First listed as a candidate species in 1991. • Petition for listing as endangered or threatened by Biodiversity Legal Foundation in 1994. • Then listed as “threatened” in 1998 (Remember, “endangered means at the brink of extinction; “threatened” means likely to be at the brink in the near future”). • Critical habitat established in 2003 (31,00 acres along 360 miles of streams in Colorado and Wyoming). • Rule 4(d) special rule for the mouse in 2004 exempting “rodent control activities, ongoing farming, landscaping, existing water uses [my work], weed control and ditch maintenance.”

  12. And then… • A petition to de-list the mouse in 2003 because it wasn’t genetically distinct (actually really just a subpopulation of the Bear Lodge meadow jumping mouse). • And again in 2004. • And again in 2005. • And again in 2006. • And again in 2007. • In short, the FWS found that the mouse had been classified as a subspecies based on a 1954 monograph by a professor emeritus at University of Arizona.

  13. EPIC CLASH BETWEEN DEVLEOPERS AND ENVIROS! • That never really happened. • Developers and some cities cited $100 million in losses due to listing. • FWS hired an independent scientist from USGS to conduct a genetic analysis of the mouse. He concluded it was a distinct subspecies (unfortunately making the FWS guy look like sort of a fool). • Days of testimony. • Some handwringing about the meaning of the ESA (should it protect silly subspecies of mice not particularly awesome or suspected of harboring the cure for cancer?)

  14. Resolved in 2007. I • It’s a valid subspecies “based upon the best commercial and scientific information available.” • Yay mouse!

  15. Unresolved in 2008 • The FWS removed critical habitat in Wyoming, but left the critical habitat in Colorado. • Why? • Well, there was this Memo by Paul Clement… • Allowed FWS to protect endangered species only where they now live, not where they used to live…if they want.

  16. Which of course made no sense • The Solicitor withdrew the Memo in 2011, and the FWS reinstated Wyoming as critical habitat last month. • (This was due to, I think, the only litigation in the Preble’s listing, Center for Native Ecosystems v. Salazar, 09CV01463-AP-JLK (D. Colo. 2011). • Also, in 2010 the Colorado critical habitat was made larger by FWS. • Yay mouse!

  17. So now we’re back basically where we were before. • Which means that many activities are exempt from the 4(d) rule (agriculture, water projects). • And development proceeds on review of construction (usually new buildings bigger than 400 sq. feet near the 100 year floodplain of a bunch of streams) by the FWS. • As far as I know the HCP process is ongoing for numerous communities that will encompass a large part of the critical habitat in Colorado. • There is also no “recovery plan” for the mouse, which should have been done a long time ago. • Also, FWS has issued “block clearance” for large areas where there are no Preble’s mice (including Denver, Colo. Springs, etc.)

  18. So, how’s the mouse doing? • I don’t know – it’s not extinct yet, anyway. • Of the 1,900 listed species, 50 have been de-listed, but only 22 due to recovery, and 23 have been down-listed from endangered to threatened.

  19. Is this what the ESA intended? • It’s not exactly riveting stuff here – a little mouse got listed, and we’re wrangling on how much we’re going to let the mouse effect development. • It’s a long way from Tellico Dam. • (Insert apocryphal story here). • Yes, there’s politics, but that’s sort of the boring, knee-jerk part.

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