Wyoming Attorney-Rancher Warns
About Long Reach Of Species Act

CASPER, Wyo. — Paul Kruse believes in enforcement of the law — strict enforcement. It's the only way, he says, that the Endangered Species Act will be changed.

Kruse, a native of Lusk, Wyo., spent 15 years in Washington, D.C. He was on the staff of Sen. Malcolm Wallop of Wyoming, worked for an oil company and was in the first Bush administration. Although a practicing attorney, Kruse is still involved in the family ranch with his father and brother.

"I grew up on a ranch homesteaded by my grandparents," Kruse says. "It was expanded and run by my dad. It's operated by my brother today."

He has dealt with the Endangered Species Act up close.

When the Endangered Species Act, and other such laws, are strictly enforced in all parts of the country, including along the Potomac River in the nation's capitol, then the laws will be revisited and changes will be made, Kruse believes.

Some people in Wyoming, he says, think Endangered Species Act listings are unfair and should be ignored. Others think something should be done, but they aren't quite sure what. Still others think the endangered species debate is overblown and, if ignored, it will go away.

Kruse himself falls into the middle group.

"Something needs to be done," he says.

Kruse has worked on all sides of the endangered species issue over the last 20 years.

"I guess my philosophy is simple," Kruse says. "You have to take advantage of the opportunities the Act offers to carve out a tolerable solution. If that's not possible, then you accurately weigh the litigation option. If you're forced to litigate, pull out all stops."

Litigation is a difficult process, he acknowledges, and the Endangered Species Act is an extremely tough law.

"Legal victories are few and far between," Kruse cautions. "You have to take that into consideration."

There are a variety of issues to explore with litigation, he says.

"Unfortunately, Wyoming has not gone through that stage of it," Kruse says. "Rather, they have taken a 'just say no' approach. We express our opinions and say we're against it, but we haven't done the studies in Wyoming to put us ahead of the decision-making curve on these issues."

Kruse spent two years on the black-tailed prairie dog working group, dealing with a recovery plan.

"Although that plan was shelved, I think our time was well spent on that one," Kruse says. "The issue hasn't gone away. Even if the State of Wyoming chooses not to do anything, there will be another lawsuit, I'm confident, that will mandate action on that."

After a species has been listed or an issue is decided, he says, Wyoming residents complain.

"The state has not brought a single lawsuit," Kruse insists, "that directly challenges any aspect of the Endangered Species Act. Nor has it enacted legislation that could provide any relief."

Last year, he was asked to draft an endangered species act for the state.

"I did, but it wasn't perfect in the eyes of some and it failed," Kruse says. "Yet of those people who argued against it, none have stepped up with their own version of perfection. We remain feckless to oppose the wave of listing this state is facing."

According to the Wyoming Game and Fish Department, there are more than 250 potential candidates for listing in Wyoming.

"All it takes to trigger this process is for anyone, anywhere to file a simple petition," Kruse says. "Once filed, the U.S. Fish and Wildlife Service is forced to act, and it must be within a certain, defined timeframe, just as the Biodiversity Legal Foundation did to start the Preble's mouse process in 1994."

The Preble's meadow jumping mouse was listed in 1998.

"Much has been made about both the inadequacy and the inaccuracy of the science that was used to list the mouse," Kruse says. "I, too, admit that I have my own doubts, but frankly, under the law, it doesn't matter."

The debate, he says, has been like so many thunderstorms in Wyoming this year.

"There's lots of sound and fury, but in the end, nothing happens."

The bottom line, he says, is that the Endangered Species Act does not require perfect science.

"It doesn't even require adequate science," Kruse charges.

The Endangered Species Act is technical and specific, he says.

"It only requires that the U.S. Fish and Wildlife Service use the best scientific and commercial data available to both list the species and make other key decisions, such as the phase we're entering into on critical habitat," Kruse explains. "Therefore, even if it can be established that the studies and other data that the Service used is flawed, they still support the decision. If it's the only data that's available, then that's sufficient."

The Preble's meadow jumping mouse is listed, he points out, and no one has challenged the listing.

"It's time to move on and do what we can under the law," Kruse contends.

The Preble's meadow jumping mouse decision is in the middle phase of the endangered species process, he says — designating critical habitat.

The Act requires that critical habitat be designated unless the Secretary of Interior finds that such a plan will not promote the conservation of the species.

"This was a big opportunity," Kruse says, "but that train has left the station."

Habitat is designated as "critical" if it is within the geographic area occupied by the species at the time it is was listed.

"That is critical for Wyoming," Kruse says.

There are two different requirements, he continues. One is that the designated critical habitat must be essential to the conservation of the species. The other is that the critical habitat may require special management.

"But it doesn't stop there," he notes.

Additional areas may be included even though they are outside the geographical area occupied by the species upon a determination that such areas are essential for the conservation of the species.

"This gets into the potential habitat," he says. "Even though you don't have one, the circle is broadening."

Wyoming, Kruse says, is particularly vulnerable with regard to the "historical" determination.

"In determining whether to designate critical habitat," Kruse says, "the Service must look at the historical determination, current range, needs for the species, shelter and feeding. We are swept into this by dismissal, and an either/or argument."

Under the Endangered Species Act, the species is present. Even if landowners can prove that they don't have them, they are in the historic range.

"It's a very difficult thing to overcome," Kruse points out. "However, at this juncture of the process, the decision-maker must consider economic and other relevant impacts."

Areas may be excluded from critical habitat.

"The test is if the benefits of exclusion outweigh the benefits of including them," Kruse says, "as long as the failure to designate does not result in the extinction of the species."

That means, he says, that now for the first time in the process, economics can be considered.

"What will they do to the state's economy?" Kruse says. "What will they do to the local tax rolls? What do they do to individual businesses?"

On the other side, he says, ranchers have to demonstrate that it won't result in the extinction of the species.

"Perhaps, in Wyoming, since we're having difficulty finding them, we have a benefit there," Kruse says. "Traditionally, the Service conducts this analysis, which is usually no more than a pro forma exercise. It normally relies on a national model."

There is one they specifically use.

"I've done research on it," Kruse says, "that indicates that it may have flaws in it when applied to Wyoming and the uniqueness of the state."

The door is open now to fill that void on research, he says.

"We as a state can improve our position by ensuring that the best economic information is available to the Service on the effects of current and future management decisions," Kruse says.

Kruse says it is a myth that the mouse decision will only affect public lands.

Fish and Wildlife officials maintain that critical habitat does not impose a new level of action on lands unless a federal action is contemplated.

"That's correct, but let me expand on what the problem there is," Kruse says. "Critical habitat receives consideration under Section 7. I don't mean to be too technical, but it's a very technical act."

Under that section, critical habitat designation may affect activities on federal land and may affect activities on non-federal lands where a federal nexus exists, he says.

(Editor’s note: That "federal nexus" means any connection with federal money or federal agencies. Such a connection can be established through a state or local entity that accepts federal funds or technical assistance. It can be as simple as the use of a pesticide that must have an EPA registration, and virtually all pesticides meet that qualification. A "federal nexus" can even be established through a government-backed loan; the initials "FDIC" should come to mind. In short, the federal government has at least one tentacle in almost everything that happens in this country, public or private, small-scale or large. And it only takes one tentacle to establish a "nexus". The claim that the ESA affects only federal land is a deliberate falsehood perpetrated to keep the natives quiet and happy until it is their turn to go into the stewpot.)

"That's very important," Kruse insists.

The Act says that critical habitat designation requires federal agencies in consultation with the Fish and Wildlife Service to ensure that their actions are not likely to jeopardize or result in destruction or modification of habitat.

"Now, the endangered species is on federal land," Kruse says. "You have to go then to the Fish and Wildlife Service and ask if a given activity on federal land will have any impact that will jeopardize the species or result in extinction of the species."

Then, the second step is the destruction or adverse modification of habitat.

"Now, you have a little broader circle," Kruse says.

A recent study by the General Accounting Office, the agency that determines the economic effects of laws, indicates that more than 90 percent of listed species have habitat not on federal land.

"When they say it affects only federal land," Kruse says, "you're talking about 10 percent of the habitat. Ninety percent of the habitat is on non-federal land."

Of these species, 73 percent relied on non-federal lands for half of their habitat, and 37 percent were completely dependent on non-federal land, Kruse notes.

"If you look at the species and you say, 'We're protecting its habitat,' where do we go to protect it?" Kruse asks.

Private property accounts for the majority of non-federal land. In the GAO study, 609 listed species had all or part of their habitat on private land.

"They're quick to say that no biologist, federal or otherwise, is authorized to enter private lands for the endangered species without a landowner's consent," Kruse says, "but let me throw out some options: CRP contracts — you sign up; you got it. Any habitat construction that you do, if federal dollars are involved, you have it. If you do a Bureau of Reclamation project, if you do something that triggers a permit under the U.S. Army Corps of Engineers, you have it because they have to go to the Fish and Wildlife Service to get that ESA check-off."

The Wyoming Department of Transportation has been used as a connection because of the federal money involved in highway construction.

There are willing radical environmentalists, Kruse says, who would like to do the planning for Wyoming.

"All it takes is a single person with a single listing decision, and any of the 250-plus potential endangered species is on its way to consideration under the Act," Kruse warns.