February 22, 2013
Ms. Kimberly Tamkun
U.S. Fish and Wildlife Service
National Black-Footed Ferret Conservation Center
P.O. Box 190
Wellington, CO 80549–0190
RE: Draft Black-Footed Ferret Programmatic Safe Harbor Agreement and Environmental Assessment
Dear Ms. Tamkun,
Public Lands Council (PLC) and the National Cattlemen’s Beef Association (NCBA) appreciate the opportunity to comment on the U.S. Fish and Wildlife Service’s (FWS) Black-Footed Ferret (ferret) Draft Programmatic Safe Harbor Agreement (DSHA) and Draft Environmental Assessment (DEA). PLC is the sole national organization based in Washington, D.C. representing the roughly 22,000 ranchers operating on federal lands. NCBA is the nation’s oldest and largest trade organization representing American cattlemen and women. Altogether, NCBA represents more than 230,000 cattle breeders, producers and feeders. Both PLC and NCBA work to maintain a stable business environment in which livestock producers can continue to be stewards of the country’s natural resources while they feed the nation and world.
Our members, who operate on private and sometimes public land in the 12 states identified in this DSHA, depend on regulatory certainty as much as they do healthy, vibrant rangelands to stay in business. At issue are not one, but two species: the ferret and the prairie dog (PD) upon which it depends. An honest evaluation of past ferret recovery and PD conservation efforts will uncover chronic problems associated with PD control. While we support the voluntary- and incentive-based nature of the proposed action (Alternative B), our main concern is dependable, long-term control of PDs. Although the presence of PDs serves to benefit several protected species, including the ferret, their presence can have negative impacts on rangelands. PDs also host vectors that carry diseases threatening to humans and other mammals (Lee, 2006).
We feel it is important to express our support for the incentive- and voluntary-based approach taken in Alternative B (the proposed action), the Black-footed Ferret Range-wide Programmatic Safe Harbor Agreement. However, we believe that before FWS finalizes a range-wide plan it must:
  • Complete the Biological Opinion, which has potential to change the nature of impacts on non-participating landowners.
  • Make Endangered Species Act (ESA) 10(j) status designation decisions in states or other geopolitical areas that desire it.
  • Complete an Environmental Impact Statement (EIS). 
  • Notify all state and local governments of its proposed action and proactively invite each affected county to comment on the proposed action, as required by the ESA. These entities have a legal right, both under ESA and National Environmental Policy Act (NEPA), to participate in the federal decision-making process.
Below are the details surrounding our abovementioned recommendations, as well as additional comments and concerns with the proposed action.
We understand that a BO is currently being drafted. Page 19 of the DEA indicates that extension of regulatory assurances to non-participating landowners hinges on the BO’s completion. This seems to conflict with other indications throughout the DSHA and DEA that non-participating landowners will be provided assurances, without contingency.
We challenge the assertion on p. 28 of the DEA that "Only non-federal lands that have occupied prairie dog habitat within the action area may be affected by the implementation of the proposed alternative."
  • While only non-federal lands may qualify to be enrolled in the program, environmental impacts may reasonably be anticipated on adjacent, non-enrolled lands, including federal lands.
  • Expansion of ferrets to federal lands would invoke ESA Section 7 consultation for any activity on said lands.
  • Many of our members operate on federal lands. As such, we recommend that state-or range-wide ESA 10(j) status be provided to affected areas. We believe Alternative B may be implemented in conjunction with 10(j) designations, but that it does not constitute and adequate replacement of 10(j) designations.
We would support other means of providing regulatory assurances to producers on federal lands, should they exist.
We firmly believe that conservation is necessarily a community-driven effort. Individual landowners necessarily impact their neighbors, both environmentally and economically, and this collection of neighbors constitutes a community. Local governments are the most responsive to the environmental and economic needs of their communities. If ferret recovery plans are to have any success, they must have the support of local governments, or at the very least not be in conflict with local laws and management plans.
On page 13 of the DEA, FWS recognizes its requirement for and subsequent initiation of government-to-government consultation with each potentially affected tribe in the action
area. We question why FWs disregarded the requirements for notification of local governments, as found at 16 U.S.C. § 1533(b)(5)(a):
  (5) With respect to any regulation proposed by the Secretary to implement a determination, designation, or revision referred to in subsection (a)(1) or (3) of this section, the Secretary shall—
      (A) not less than 90 days before the effective date of the regulation—
          (i) publish a general notice and the complete text of the proposed regulation in the Federal Register, and
         (ii) give actual notice of the proposed regulation (including the complete text of the regulation) to the State agency in each State in which the species is believed to occur, and to each county, or equivalent jurisdiction in which the species is believed to occur, and invite the comment of such agency, and each such jurisdiction, thereon;
We recommend that the above notification to local governments be made, and that it include recognition that state and local governments, under both ESA (16 U.S.C. §§ 1531 et seq.) and NEPA (42 U.S.C. §§ 4321 et seq.), have the legal right to participate in the federal decision-making process.
While we appreciate FWS’ cooperation with certain stakeholders in developing Alternative B, we are aware that not every affected state or local government was brought to the table. Success of recovery plans hinges on local community buy-in and capability to manage the demands placed upon it. Furthermore, according to Section 1506.2(d) of the CEQ regulations for implementing NEPA, "statements shall discuss any inconsistency of a proposed action with any approved State or local plan and laws (whether or not federally sanctioned)." We are aware of existing inconsistencies with state laws that have were not addressed in the DEA or DSHA.
We believe the completion of an EIS is in order. The proposed action stands to have a significant impact on the human environment, in terms of public health and safety and economic loss to communities due to infrastructure damage, PD control costs and land use changes (e.g., loss of livestock production levels).
We challenge the assertion that the proposed action will not contribute to "the unnecessary and irreversible conversion of farmland to nonagricultural uses" (p. 43, DEA). On overpopulated PD areas (Conservation Zones), agricultural use will be reduced and possibly eliminated. Furthermore, until funding can be secured and guaranteed for PD control on non-enrolled lands, impacts from PDs has potential to harm agricultural uses on those lands and possibly convert them to nonagricultural use.
We also posit that the program, in some cases, will not be "administered in a manner that, to the extent practical, will be compatible with State and local governments and private programs and policies to protect farmland" (p. 43, DEA). As noted in our comments regarding inclusion of state and local governments in the planning process, we do not believe FWS has made a thorough review of state and local laws to ensure compatibility.
Socioeconomic impacts could be substantial. The potential reductions in livestock grazing on qualified lands could have great impacts on local economies dependent on livestock production. ("Approximately 531,516,937 acres (830,495 square miles) of privately owned grazing lands fall within the action area" (p. 29, DEA).) Given that "The total annual value of livestock-based sales in states falling within the action area is more than $52 billion" (p. 29, DEA), the potential for large-scale economic impact is real. We believe that a thorough economic review of potential impacts, as part of an EIS, is in order.
We also challenge the assertion in the DEA that the proposed action will not significantly impact threatened and endangered species or other wildlife populations.
  Inability to control PD populations within Conservation Zones is likely to cause over-population that will harm other species, soil health, and other uses such as livestock grazing.  
  Well-managed livestock grazing is beneficial to wildlife. Although under the proposed alternative, changes to grazing management on enrolled lands will not be "required," changes will nonetheless necessarily occur. Therefore, the proposed alternative does have potential to decrease the benefits of grazing to wildlife.
Cumulative Effects: In light of our concerns outlined above, we disagree that "past, present and reasonably foreseeable future activities in the action area" will not "result in significant adverse cumulative impacts to the human environment" (p. 46, DEA).
As an industry, we have long supported voluntary- and incentive-based means of species recovery. We support FWS’ "promise that conservation measures and restrictions on the use of land, water, or resources additional to those already agreed upon in the Safe Harbor Agreement will not be imposed on landowners enrolled in a Safe Harbor Agreement as a result of their voluntary conservation actions to benefit covered species" (p. 5, DSHA).
  We suggest that, under Section 10.1, an item be added to address the potential for the use of incentives for PD management that may be available through other sources. Incentives to manage PDs will be an important part of ferret recovery in the future.
  In keeping with our framework regarding local governments’ ability to protect their citizenry, we also suggest adding a clause that clarifies that any agreement must also be in keeping with local and state law.
While we support the voluntary nature of Alternative B, we also recognize the potential for unwanted impacts on neighboring properties, regarding both ferret and PD expansion. We also recognize that recovery efforts hinge on a community’s willingness and ability to absorb the effects of those efforts.
  The true costs of effective PD control are well-documented. Any Agreement must calculate those costs and include adequate funding. Recognizing that no Agreement may absolutely guarantee funding for effective PD control in perpetuity, we believe every Agreement must include a mechanism by which Cooperators and all impacted neighbors return to baseline should partners prove unable to bear those costs. A bonding process, for example, could ensure that funding exists. "Effective PD control" should be defined in coordination with neighbors and local governments. In the event this benchmark of "effective PD control" is not met, regardless the reason, FWS should terminate the Agreement, thereby inducing return to baseline. Should FWS fail to do this, any Cooperator or local government should be able to nullify an Agreement.
  Partners must be realistic about the size of the Management Zone needed to prevent PD impacts on neighbors. PDs can travel underground for miles. Lethal control will thus be necessary at considerable distances from Conservation Zones. As detailed below ("Management Flexibility" section), we also believe that lethal treatment in Conservation Zones may be necessary to ensure optimum populations levels.
  We agree that "Factors such as …the number of adjacent landowners who have concerns of prairie dog expansion and the land uses of those neighbors" should be considered in the enrollment of eligible lands" (p. 15, DSHA).
While we appreciate the option of assurances for non-participating neighbors, we are unclear whether those assurances will exist automatically, or whether it depends on the BO currently underway. We also question whether "non-participating" neighbors will be required to allow access by the federal agency for purposes of ferret or PD control. Such access should only be given explicitly and in-person by the landowner.
Regarding implementation of lethal prairie dog management, according to Alternative B it will "likely be carried out by Wildlife Services and/or other local entities such and weed and pest boards" (p. 21, DSHA). If local entities are or become unable to bear this burden, what assurances are there that PD control will be implemented, so as not to adversely impact participating landowners and their neighbors? Budgets are limited, at all levels of government. A shortage of funding for PD control is not a possibility, but a likelihood.
Again, individual bonding processes may be necessary to provide those assurances.
We would echo NRCS’ concern that Reintroduction Plans may be subject to FOIA (see p. 14, DEA). Cooperators should be made aware at the onset the possibility of their personal data being made available to environmental groups and other members of the public. If elements may be added to the DSHA to protect their private information, our members may be more likely to participate.
We support the inclusion of language that allows ranching activities to continue. "Those activities required to manage a livestock operation. It may or may not be part of a traditional ranch. These include, but are not limited to grazing livestock; driving vehicles and equipment to and from the livestock operations; driving vehicles to and between pastures to move and/or feed livestock or administer medical attention to animals; building and maintaining fences and watering facilities; and treating invasive plants" (emphasis added) (p. 7, DSHA).
  We would emphasize that FWS recognize the importance of the term "not limited to", as ranching calls for a wide variety of management techniques not listed here, including (but not limited to) prescribed fire, invasive plant management, reseeding, fencing, and fertilization.
   Above all, FWS approach Agreements with the recognition that "Ranching can continue with or without prairie dogs, but prairie dogs may need ranching throughout a significant portion of their range in order to persist" (Long, 2006). Whatever management changes take place, ranchers must be able to continue economically viable businesses.
Allowing flexibility with regard to PD management is key, as recognized in the DSHA: "Flexibility in (PD) management will generate more support from landowners to participate in this program and conserve ferrets. The ability to collaborate to purposefully manage prairie dogs in some areas while limiting their expansion to others can help build a strong private land conservation model for the black-footed ferret." (p. 12 DSHA)
   According to Detling (1998), ranching and prairie dogs are most compatible when smaller, younger prairie-dog colonies are scattered over the landscape and not overly dense.
As such, we believe that the Recovery Coordinator and Cooperator should together be able to determine, in consultation with agency biologists if necessary, whether lethal PD management within the Conservation Zone of the enrolled lands (as is currently forbidden in Alternative B) is an appropriate management tool, provided adequate populations remain for ferret consumption.
We agree with the proposal to provide "early adopters" under section 10(a)(1)(A) permits and section 10(j) designations "the opportunity to sign onto the Agreement and receive Safe Harbor assurances for the reintroductions that have already occurred" (p. 17, DSHA), and that those landowners should automatically get a zero-ferret baseline determination, should they choose to participate. However, we disagree with the notion that existing reintroduction efforts under section 10(a)(1)(A) permits and section 10(j) designations do not already provide regulatory assurances.
We agree with the concept that the Cooperator may "take the enrolled lands back to baseline through any legal means" (p. 22, DSHA).
  However, Section 13.0, item D makes this assurance unclear: "The Certificate of Inclusion will convey authorization of incidental take of black-footed ferrets consistent with maintaining the baseline conditions as described in Section 6.0 and identified in a Reintroduction Plan in the following circumstances:…hen a Cooperator is returning the lands to baseline within five years of the expiration of the Reintroduction Plan through otherwise lawful means" (p. 30, DSHA). It is our understanding that lands can be returned to baseline at any time. This item needs to be clarified so potential cooperators will understand their baseline obligations.
  • We would echo the comments of our affiliate, Colorado Cattlemen’s Association (CCA), in asking that Cooperators be given the option of determining a baseline other than zero ferrets (e.g., the amount of suitable PD habitat).
  We feel it is important for prospective Cooperators to be aware of the substantial cost associated with returning to baseline and recovering PD areas:
       As research from Kansas State University indicates, retoring range health can be costly: "Simply exterminating the prairie dog population will not return the range to good productive condition. Additional steps should be taken to rehabilitate evacuated dog towns. The mounds should be leveled with a land plane, blade or an offset disc set just above the ground surface to help the area of mounds re-vegetate faster. To allow the grass and root system to recover, it is beneficial to exclude livestock from the prairie dog town with an electric fence, defer grazing for at least one growing season, and possibly reseed the area with native grasses. By continuing good grazing management practices, the rancher can return the range area to a high level of productivity" (Lee, 2006.)
       According to Schenbeck (1985), "Control of black-tailed prairie dogs on the northern plains generally requires a long-term commitment of funding and manpower because of rapid population recovery after poisoning and slow vegetation recovery due to limited rainfall."
We agree that the landowner should "not be held responsible for events beyond their control (e.g. drought, fire, or plague) that may result in a decrease of the number of ferrets below the agreed upon baseline" (p. 17, DSHA).
   We echo CCA’s concern regarding Section 11.0, "Additional Land Uses". In the event that a change in land use or act of nature results in a loss of habitat on enrolled lands, and contiguous habitat is not available to replace it, we disagree that this should automatically be considered a "changed circumstance" that could not be "reasonably accommodated." This situation should not be automatically considered to be a changed circumstance in all situations. We suggest a case-by-case approach that allows for the continuation of the Agreement under current terms and conditions, or with minor changes.
The definition and management of "Management Zone" is unclear as currently described in the DSHA and DEA.  
  We believe the purpose of the Management Zone should be to prevent the encroachment of PDs to non-participating lands, and that this should be stated in every Agreement.
  Again, any Agreement must attempt to accurately estimate the size of the Management Zone needed to prevent PD impacts on neighbors. Should a Management Zone prove insufficient, its size should be adjusted, including encroaching on Conservation Zone area if necessary.
In addition to the definition for "downlisting" in the Glossary (p. 6 DSHA), the definition for "delisting" should be included. Both terms should be defined in terms of draft ferret recovery goals (e.g., 1,500 adults in free-ranging populations for down-listing).
The DSHA recognizes that "prairie dogs have long been a focus of conflict with agricultural producers (Miller et al. 2007 and 2012) (Davis et al. 2002). The principal
conflict centers on competition between livestock and prairie dogs for forage but also includes concern for livestock safety."
  We would add that landowners are also concerned with impacts such as soil erosion, water quality, invasive species, and other results of dense PD populations.  
  The agencies should present landowners with a thorough review of the short- and long-term environmental impact of PD towns established on rangelands.
        Especially during periods of drought, PDs are likely to contribute to overgrazing and to expand to new areas in search of forage (Detling, 2006). The longer term impacts of continued high levels of disturbance on this plant community suggest that vegetation composition shifts do occur eventually (Id.)Land managers may need to decrease stocking rate as prairie dogs increase in order to compensate for reductions in livestock weight gains and to reduce grazing pressure and overuse of unoccupied areas within pastures (Id.)
As noted on page 32 of the DEA, "protection and management of enrolled lands…ill provide habitat not only for ferrets but other threatened, endangered and candidate (ESA) species." Landowners should be notified that the regulatory and take assurances under this SHA do not apply to species other than the ferret. The same could apply to non-participating neighbors who, by allowing access to their property for ferret management, may find themselves in jeopardy should other protected species be discovered.
The FWS may revoke a permit if an activity would "directly or indirectly alter designated critical habitat such that it appreciably diminishes the value of that critical habitat for both the survival and recovery of a listed species." (DSHA, p. 32). How is "appreciably diminishes" determined, and what are the consequences to a landowner if the permit is revoked? Is it simply a nullification of the Agreement and return to baseline?
We are also concerned with the implications regarding land purchase by FWS on p. 32 of the DSHA: "Before revoking a permit …the FWS, with the consent of the permittee, will pursue all appropriate options to avoid permit revocation. These options may include, but are not limited to: …purchasing an easement or fee simple interest in the property, or arranging for a third party acquisition of an interest in the property." We disagree with and strongly oppose the notion of FWS purchasing land. The answer to conserving species does not lie in the Federal Government acquiring land.
SPLIT ESTATE CONSIDERATIONS:  Many properties are "split estates" with multiple owners (for example, surface rights versus mineral rights.) We question what protocol will be when this situation exists. Will both property owners be included in the Agreement? No property owner’s use rights should be compromised without his permission.
As stated on p. 18 of the DEA, efforts will be "carried out in a strategic manner in cooperation with a number of recovery partners, including Wildlife Services, State wildlife agencies and non-governmental organizations." We suggest changing the language so that only NGOs mutually agreed upon by the Cooperator and Service may participate.
Thank you for your consideration of our comments on this proposed action, which stands impact many of our members and their communities. Healthy rangelands and ecosystems are essential to the success of our members’ businesses, so we believe long-term, insured PD control to be of critical importance.
American Sheep Industry Association
Association of National Grasslands
National Cattlemen’s Beef Association
Public Lands Council
Arizona Cattle Growers’ Association
Montana Stockgrowers Association
Montana Public Lands Council
Montana Association of State Grazing Districts
Montana Wool Growers Association
Nebraska Cattlemen’s Association
North Dakota Stockmen’s Association
South Dakota Cattlemen’s Association
Utah Cattlemen’s Association
Wyoming Stock Growers Association
Detling, J. K. 2006. Do prairie dogs compete with livestock? In: J. L. Hoogland [ED.] Conservation of the Black-Tailed Prairie Dog: Saving North America’s Western Grasslands. Island: Washington, DC, USA.
Detling, J.K. 1998. Mammalian herbivores: ecosystem-level effects in two grassland national parks. Wildlife Society Bulletin. 26:438-448.
Lee, Charles. 2006. Prairie Dog Management. Kansas State University. http://www.ksre.ksu.edu/bookstore/pubs/MF2702.pdf.
Long, Dustin and Truett, Joe. 2006. Ranching and Prairie Dogs. Journal of Range Management, fs.fed.us.
Schenbeck, Greg L. 1985. Black-tailed Prairie Dog Management on the Northern Great Plains: New Challenges and Opportunities. Great Plains Wildlife Damage Control Workshop Proceedings
. Paper 318. http://digitalcommons.unl.edu/gpwdcwp/318