CHAPTER 13 THE ROLE OF STATE CONSERVATION EFFORTS UNDER THE ESA

• Jurisdiction: United States

Endangered Species Act
(Nov 2015)
CHAPTER 13
THE ROLE OF STATE CONSERVATION EFFORTS UNDER THE ESA
Ryan M. Lance
Moderator
Counsel
Crowell & Moring LLP
Cheyenne, WY
Bob Budd
Executive Director
Wyoming Wildlife & Natural Resources Trust
Cheyenne, WY
Lisa Reynolds
Assistant Attorney General
State of Colorado
Denver, CO
Bill Van Pelt
Grassland Coordinator
Western Association of Fish & Wildlife Agencies
Phoenix, AZ

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RYAN M. LANCE is counsel in Crowell & Moring's Environment & Natural Resources Group and works out of the firm's Cheyenne, Wyoming office. Prior to joining Crowell & Moring, Ryan served as the director of the Wyoming Office of State Lands and Investments for Wyoming Governor Matthew H. Mead. In that capacity, he administered 3.5 million surface acres and 3.9 million mineral acres of state trust lands on behalf of the Wyoming Board of Land Commissioners. As director, he was responsible for surface and mineral leasing, mineral royalty compliance, easement siting, field inspection, timber management and appraisal operations related to state trust lands in Wyoming. Ryan also served as acting chairman of the Wyoming Oil and Gas Conservation Commission and presided over contested case hearings and rulemaking at the Commission. Ryan was also Governor Mead's representative on the federal Regional Coal Team and Coal Sale Panel and chaired the Governor's Natural Resources and Energy Policy Team, which was charged with developing and implementing the Governor's Energy Policy Initiative. Before his work with Governor Mead, Ryan served as state planning coordinator, deputy chief of staff, policy advisor and Endangered Species Act policy coordinator in the administration of Governor Dave Freudenthal. In these capacities, he directed policy development and implementation related to natural resource matters with Wyoming state agencies, including the Department of Environmental Quality, Game and Fish Department, Department of Agriculture, State Engineer's Office and Water Development Office. Ryan also served as the Governor's policy liaison to federal agencies, including the U.S. Department of the Interior (Bureau of Land Management, National Park Service and Fish and Wildlife Service) and U.S. Department of Agriculture (Forest Service, Animal and Plant Health Inspection Service and Farm Services).

BOB BUDD is the Executive Director of the Wyoming Wildlife and Natural Resource Trust, a program established to enhance wildlife habitats and the natural resource heritage of Wyoming. Prior to helping launch the WWNRT program, Budd was manager of Red Canyon Ranch, and Director of Land Management for The Nature Conservancy in Wyoming. In his work there, he was credited with developing and maintaining large-scale ecological process, while maintaining economic production on a working cattle ranch. Before his tenure with TNC, Bob spent 15 years with the Wyoming Stock Growers Association, ten as Executive Director. Bob has a Master of Science degree in Range Management, and Bachelor of Science degrees in Agricultural Business and Animal Science, all from the University of Wyoming. He is also trained in Holistic Resource Management, and is a Certified Professional in Rangeland Management. He is a past-president of the international Society for Range Management and the Wyoming Chapter of the Wildlife Society. He has facilitated development of management plans for the Big Sandy River, Sage-grouse, and Bighorn Sheep in Wyoming.

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The principal areas of discussion during the hearings and in markup of the legislation centered on the proper role of the state and Federal governments with regard to endangered species programs, and the protection of plants.¹

Defining the appropriate balance between state and federal interests under the Endangered Species Act (ESA or Act)² has been and will continue to be a precarious proposition. This tension is well documented in the respective U.S. House of Representatives and Senate Committee Reports and testimony offered prior to the passage of the ESA. The initial legislative debate was resolved, at least in part, with the inclusion of Section 6³ into the ESA. The public debate regarding the sufficiency of the cooperative conservation envisioned under the ESA generally has yet to be resolved.

I. Cooperation with the States

Section 6 of the ESA is crafted to encourage cooperation while preserving federal control. The legal construct that defines state roles in endangered species conservation is well documented,⁴ as are the various ESA provisions and programs that impact the states' conservation programs and activities.⁵ This regulatory framework attempts to balance several "competing considerations" that are detailed in a U.S. House of Representatives Committee Report offered prior to the passage of the ESA:

[F]irst, protection of endangered species is not a matter that can be handled in the absence of coherent national and international policies: the results of a series of unconnected and disorganized policies and programs by various states might well be confusion compounded. Second, however, the states are far better equipped to handle the problems of day-to-day management and enforcement of laws and regulations for the protection of endangered species than is the Federal government. It is true, and indeed desirable, that there are more fish and game enforcement agents in the state system that there are in the Federal government. Any reasonable and responsible program designed to protect these species must necessarily take account of this fact. ⁶

Boiled down to its elemental components, Section 6 of the ESA provides general guidance to the Secretary of the Interior to cooperate "to the maximum extent practicable" with the states;⁷ a framework for the Secretary to enter into and establish management agreements for

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"any area established for the conservation of endangered species or threatened species";⁸ a detailed description of the process and terms under which the Secretary of the Interior will enter into cooperative agreements "with any State which establishes and maintains an adequate and active program for the conservation of endangered species and threatened species";⁹ provisions for the Secretary of the Interior to "provide financial assistance to any State, through its respective State agency, which has entered into a cooperative agreement...to assist in development of programs for the conservation of endangered or threatened species or to assist in monitoring the status of candidate species";¹⁰ a requirement that actions undertaken by the Secretary of the Interior pursuant to Section 6 be reviewed annually;¹¹ and a pre-emption provision which voids state laws and regulations which conflict with the ESA.¹²

Section 6, in and of itself, contemplates a fairly straightforward proposition: the federal government will engage the states, but only to the extent that such engagement is fully consistent with the ESA and its rigorous requirements to conserve threatened and endangered species. The question that remains is whether the ESA, both as written and as applied, provides sufficient...