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Ignored law a game-changer? Frog case could set precedent

Cattle and Beef Industry News
Aug 11, 2017

— California case over frog habitat could set precedent on habitat designation

The USFWS is currently monitoring the two populations of the Mountain Yellow-Legged frog; the endangered Southern California population found in California and Nevada and all the mountain yellow-legged frogs that occur north of the Tehachapi Mountains in the Sierra Nevada.
USFWS photo by Rick Kuyper

A little-known regulation from 1980 could upend how the Endangered Species Act (ESA) is handled. The possibility—if realized— would be a boon to ranchers.

Three plaintiffs—the California Cattlemen’s Association (CCA), the California Wool Growers Association (CWGA), and the California Farm Bureau Federation—filed suit against the U.S. Fish and Wildlife Service (USFWS) on July 31. The case alleges the USFWS “failed to comply” with the Regulatory Flexibility Act when it designated over 1.8 million acres as critical habitat for the endangered Sierra Nevada yellow-legged frog and the northern distinct population segment of the mountain yellow-legged frog, and the threatened Yosemite toad in 2016.

The critical habitat designation involves 16 counties in northern California, most of which includes public lands managed by the U.S. Forest Service.

CCA’s Director of Government Affairs, Kirk Wilbur, told WLJ he’s unsure how many ranchers are affected by the designation, but that he knows the impact is significant.

“Back when we were opposing the listing of these three amphibian species as well as this designation of critical habitat back in 2014, dozens of ranchers reached out to me. Aside from maybe the listing of the gray wolf as an endangered species here in California, it is one of the issues that I got the most feedback, the most concern from my members about.”

“Most of the folks who have reached out to us in terms of ranchers are folks who have those grazing permits on U.S. Forest Service land within that critical habitat designation,” he added.

According to the complaint document:

“The [USFWS] identified livestock grazing and management as a danger to the species’ habitat and a risk to the conservation of the species that will result in significant reduction or elimination of grazing rights on federal and private lands. The critical habitat designation subjects Association members to substantial regulatory burdens that impose, among other things, study costs, risk assessments, mitigation fees, operational changes, permit fees, and consulting expenses. In some cases, these burdens put the ranchers’ livelihood at risk.”

Erica Sanko, executive director of the CWGA, said that the USFWS “failed to properly account for the impacts on California sheep producers” when it made the 2016 critical habitat designation.

“As a result, grazing permits of many sheep ranchers have been placed under increased burdensome regulations and are in danger of being eliminated. The interests of sheep producers were not recognized nor accounted for by the Service in its decision, nor were the benefits of sheep grazing, as a land and resource management tool,” she said in the Pacific Legal Foundation (PLF) announcement of the case. PLF is representing the trio of agricultural plaintiffs.

Regulatory Flexibility Act

Though topically about critical habitat for frogs, the case’s focus is the Regulatory Flexibility Act (RFA).

“The Regulatory Flexibility Act requires federal agencies to review regulations for their impact on small businesses and consider less burdensome alternatives,” summarizes the U.S. Small Business Administration (SBA).

Simply put, the 1980 federal law requires that agencies consider the economic impact of their regulations on “small entities,” propose different approaches if a regulation negatively affects too many small entities, and try to mitigate unavoidable impacts. Agencies must create Regulatory Flexibility Analyses for their proposed regulations which may be affected.

The USFWS did not create such an analysis. The reason? Because the law doesn’t apply to it, it says.

“The [USFWS] claims it is exempt from providing such an analysis because the ESA imposes regulatory burdens only on federal agencies which are not small entities under the RFA. This is incorrect, both factually and legally,” reads the introduction of the plaintiffs’ complaint.

“The Service relies on a decision from the D.C. Circuit that says the RFA applies to small entities ‘directly regulated.’ But the Service ignores a later D.C. Circuit case that suggested the RFA also applies to small entities ‘directly affected’ by the challenged rule,” Reed Hopper, PLF senior attorney representing the case, explained to WLJ.

“It is our position and that of the SBA that critical habitat not only directly affects ranchers and farmers within the designated area but that it directly regulates them as well. It is the local ranchers and farmers who must get federal approval to use critical habitat to avoid harm to the species and to protect themselves from liability under the ESA. And it is the local ranchers and farmers who bear the direct costs of mitigation.”

Potential precedent

You’re not alone if you’ve never heard of the RFA.

“The RFA has been around since 1980, but it’s relatively unknown and certainly underutilized,” said Hopper. “This is the first RFA challenge we have brought. But this case seemed particularly apt because the Service has misconstrued the case law and because critical habitat designations are so widespread and injurious to small entities, such as ranchers and farmers.”

Wilbur described the RFA as running “under the radar” for many ranchers given USFWS’ claimed exemption. He said that while the immediate hope is for relief for California ranchers regarding the frog critical habitat designation, there is potential for setting precedence for all USFWS critical habitat designation.

“This would essentially be the first case to establish that, yes, the U.S. Fish and Wildlife Service does have to do Regulatory Flexibility Analysis when they designate critical habitat.”

Wilbur also pointed out to WLJ that the National Oceanic and Atmospheric Administration also designates critical habitat, and “they actually go through a Regulatory Flexibility Analysis.”

This detail was also brought up by PLF in one of its summaries of the case.

“So, there’s two federal agencies that designate critical habitat; one of them understands themselves to be bound by the Regulatory Flexibility Act and the other one claims to be exempt,” said Wilbur with a chuckle.

“Obviously, there’s something not jiving there. They can’t both be right.” — Kerry Halladay, WLJ editor

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