Coordination Shoves Lizard off the ESA List
July 2, 2012
On June 14, 2012, American Stewards of Liberty had a remarkable victory. After a year of working with the oil and gas industry, eight counties in Texas and New Mexico and one soil and water conservation district, we prevented the U.S. Fish and Wildlife Service (Service) from listing a three-inch lizard known as the Dunes Sagebrush Lizard (DSL) as endangered.
Although we have had critical victories fighting the listing of species using the coordination process before (such as the Sonoran Desert Tortoise), last month’s victory was a new milestone. The DSL has been a “candidate” species since 1994, meaning the Service has believed it to be endangered since that time. In 2011 they made the decision to move it to the official “endangered” list, providing it the full protection of federal law. Using the coordination process, local leaders did more than just prevent the listing; they moved it off the list, entirely.
Statewide politicians, universities and government bureaucrats are taking credit for the victory, but it was the four counties of Ward, Gaines, Winkler, and Andrews from Texas, Chaves, Eddy, Lea, and Roosevelt from New Mexico, and the Sandhills Soil and Water Conservation District from Texas who stood firm and backed the Service down.
For us at American Stewards, it all started in April of 2011 when Tim Dunn, president of CrownQuest, an independent oil and gas company located in Midland, Texas, called us to help his industry fight and possibly stop the Service from listing the lizard.
He introduced us to the Ben Shepperd, executive director of the Permian Basin Petroleum Association in Midland, who upon hearing what we did hired us to begin organizing all the counties where over 20 percent of our nation’s oil and gas exploration occurs in a region known as the Permian Basin.
Ben introduced us to all the county judges and commissioners who all agreed to use our coordination strategy against the Service to stop them from listing the DSL. Our first step was to draft all the resolutions that the counties and conservation district adopted stating: 1) they opposed the listing, 2) the science was flawed, and 3) they demanded coordination with the Service. We then drafted the cover letters to the Service and from that point forward, the Service was publicly noticed and legally bound to begin coordinating with the counties and soil and water district.
It was obvious to everyone after we all began reviewing their science that it was totally inadequate and agenda-driven. We knew we had an amazing opportunity to use the Endangered Species Act to prove they didn’t have what was needed to list the DSL.
We then began, with the help of the PBPA, to locate the most credentialed biologists in the country to analyze the science the Service relied upon and to perform studies where data was lacking. As it turned out, we had the brightest biologists in our own backyard in Lubbock, Texas at Texas Tech University. Once they began reviewing the government’s science and our biologists started performing their own studies, all the new data pointed to the same conclusion; the lizard was not endangered.
Under the Endangered Species Act (ESA), the only information the Service can consider in deciding to list a species is the “best scientific and commercial data available.” They are directed to do this after they have taken “into account those efforts…being made by any…political subdivision of a state…to protect such species…”
So, our plan was to organize the counties, demand coordination, hire expert scientists to put together the best scientific data available, and force the Service to take into account the local efforts.
In September of 2011, we had our one and only coordination meeting with the Service where we utilized the language from the ESA and the Information Quality Act forcing the Service to consider our new science and, at the same time, we destroyed the credibility of their science they depended on to make their decision.
It was after this meeting that Wally Murphy, a Field Operation’s Supervisor from the Service’s
Albuquerque office came up to me and very quietly asked: “If we don’t list the lizard, will you defend us in court if we get sued by the environmentalists?”
My answer was a resounding “YES!”
From that point forward, U.S. Fish and Wildlife Service refused to coordinate with any of our other government entities because they knew we had them boxed into a corner. But, that didn’t stop us or the counties. We continued our strategy through correspondence where we presented the Service with new scientific studies and continued to peer-review their science to show how inadequate it actually was.
While all this was going on, we were also working with a brilliant attorney behind the scenes. He and Ben Shepperd on behalf of the PBPA began preparing the case that would be filed in the event the Service actually made a final decision to list the DSL. The Permian Basin was ready to take this challenge to the next level if necessary.
However, we weren’t through with our coordination strategy. Since the Service would no longer meet with our government entities, we decided to draft a joint letter to Ken Salazar, the Secretary of the Interior that was signed by all eight counties and the one soil and water district demanding they issue a “Not Warranted” decision.
This letter was e-mailed on April 13, 2012 and mailed April 18, 2012, two months before the final decision was made on June 15, 2012. The message was clear; list the DSL as endangered and we are fully prepared to prevail in court.
(Click Here to Read the Letter to Salazar)
Two months after we mailed those letters, the Service withdrew their proposal because the science showed the lizard wasn’t as endangered as previously thought and adequate conservation measures had been taken by the state.
Susan Combs and other politicians have taken credit for this victory. Many say it was Combs’ efforts to create what is called the Texas Conservation Plan that caused the Service not to list. Combs has the sole authority in Texas to draft, apply for, and implement incidental take permits and habitat conservation plans for the State. She became known in local circles as “Surrender Susan” because she helped the federal government create a federal plan to control private property thinking that was the only way to divert a listing.
All she did was give the federal government the political cover they needed to claim “sufficient” conservation measures were taking place within the state and because of that, the Endangered Species Act gave them the discretion not to list the lizard.
But that’s all fictitious and I’ll tell you why. The morning the Service made their decision known, they contacted the attorney working for the PBPA who was drafting the petition to file against them if they decided to list and asked the same question asked of me six months earlier: “If we make this announcement today not to list (the lizard), will you defend us in court if the environmentalists sue us? His answer was exactly as mine, a resounding “YES!”
We can honestly say that had it not been for what the eight counties and one soil and water district did using our coordination strategy, the lizard would have been listed. The politicians can take all the credit they want, but we know how this victory was won and who stood firm and it wasn’t Susan Combs or her big major oil and gas company friends.
It was the local elected officials and the Permian Basin Petroleum Association who we owe all our gratitude. We also thank them for trusting us and sticking with the coordination strategy. It simply gave them their strongest defense that turned into a first rate offense that won the battle.
A lizard that had been considered endangered since 1994, is now removed forever from the candidate list thanks to a few brave Americans who believe in private property and the liberty it represents.
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