Dec. 22, 2013

Public Comments Processing
Attn: FWS-R3-ES-2013-0017, FWS-R3-ES-2013-0043
Division of Policy and Directives Management
U.S. Fish and Wildlife Service
4401 N. Fairfax Drive, MS 2042-PDM
Arlington, VA 22203
RE: Proposed critical habitat for the Dakota skipper and Poweshiek skipperling and Proposed listing of the Dakota skipper as a “threatened” species and the Poweshiek skipperling as an “endangered” species under the Endangered Species Act
To Whom It May Concern:
The North Dakota Stockmen’s Association (NDSA) is an 84-year-old trade organization representing approximately 3,000 beef cattle producers in the state. Several of the landowners that would be impacted by the two proposed rules related to the Dakota skipper and Poweshiek skipperling are NDSA members.
Thank you for the opportunity to comment on these proposals. Per the U.S. Fish and Wildlife Service’s (USFWS) media release last week, we understand that the comment period will be reopened in 2014, once the economic impact data is available. Please note that the NDSA intends to submit additional comments at that time, as well.  
The NDSA is generally concerned about the USFWS’s proposals, as they will affect many North Dakota cattle ranching operations and have the potential to impede the management practices and, ultimately, the private property rights of those landowners.
Cattlemen and cattlewomen take great pride in being stewards of their animals, land and other natural resources. The practices they employ on a daily basis enhance the environment and provide habitat for many species. The two butterfly species that are the foci of these proposed rules thrive on high-quality prairie. Those that can be found enjoy these lands, and, from our estimation, are surviving because of forage-enhancing strategies, like grazing and haying, not in spite of them.
The proposals that the USFWS have unveiled would come with private property rights restrictions that have economically significant ramifications for livestock producers particularly. The threat of being subject to additional government requirements could be enough to encourage the conversion of these lands to other land uses – agricultural or otherwise – that are not subject to them. Under that scenario, the beef industry would lose and so would the butterflies that rely upon these lands for habitat.
A much better alternative would be for the USFWS to incentivize landowners to employ voluntary best management practices that would support the rebuilding of the butterfly populations, all while keeping the affected ranches financially intact. The Dakota skipper and Poweshiek skipperling remain only on lands where management has allowed them to survive. These landowners deserve credit for their land stewardship and should be encouraged to continue those practices, not penalized for them.
The North Dakota counties included in the proposals are significant beef-producing counties. According to inventory data from the National Agricultural Statistics Service, the counties posted the following totals for all cattle and calves as of Jan. 1, 2012: Eddy, 20,000 head; McHenry, 72,000 head; McKenzie, 61,000 head; Ransom, 35,500 head; Richland, 31,000 head; Rolette, 25,500 head; Sargent, 20,500 head; Stutsman, 54,000 head; and Wells, 22,000 head. Cattle are dependent on forages, and the lands impacted by the USFWS’s proposed rules are critical components of livestock operations and their business infrastructure. Limiting or prohibiting their use for grazing and/or haying will have serious economic ramifications for the cattle-ranching landowners. Because of the terrain, some of these lands are suited only for livestock grazing. If it cannot be utilized for that purpose, its value will largely be diminished.
Under the USFWS proposals, six significant North Dakota counties are deemed “too sensitive for grazing,” and it appears that grazing will be prohibited there altogether. This, of course, would come with economic ramifications that would have a major trickle-down effect. That’s because, when landowners are affected, so are the rural communities, the state and the nation, which are supported by the tax dollars these farm families contribute. 
The NDSA has identified a litany of other questions and concerns we urge you to address, clarify and/or consider as you proceed. They include the following:
  • On page 6 of the Federal Register notice, first paragraph, under “Supplementary Information – Executive Summary,” it says, “Elsewhere in today’s Federal Register, we propose to list the Dakota skipper (Hesperia dacotae) and Poweshiek skipperling (Oarisma Poweshiek) as endangered species under the Act.” It is our understanding that only the Poweshiek skipperling is being considered to be listed as “endangered,” and that the Dakota skipper is being considered to be listed as “threatened.” We request clarification on what is being proposed, as there are significant differences between the designations.
  • The NDSA has policy supporting the use of sound science in decision-making. It is disappointing that much of the science used to develop these proposals was not peer-reviewed or published, and was largely based on internal documents. The USFWS’s own “Information Standards Under the Endangered Species Act” policy calls for “review of all scientific and other information used by the Services to prepare biological opinions, incidental take statements and biological assessments to ensure that any information used by the Services to implement the Act are reliable, credible and represents the best scientific and commercial data available.” Sound, peer-reviewed science needs to be the foundation of any proposal, but particularly of those with such serious implications for citizens.
  • Page 11 of the Federal Register notice, paragraph 2, indicates “we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of a species.” What kind of expansion can landowners expect over time? What is the process of designating additional habitat? How much time would be given to survey the species in question in order to determine whether an expansion is necessary before more land would be designated?
The USFWS admits on page 11 of the Federal Register notice, paragraph 5, that “habitat is dynamic, and species may move from one to another over time.” If that is the case, how can earmarking specific parcels as critical habitat be an effective strategy to conserve a species? In the following paragraph, the USFWS says, “We recognize that critical habitat at a particular point in time may not include all of the habitat areas that we later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal habitat outside the designated area is unimportant or may not be needed for the recovery of a species.” These statements do not give landowners assurance that these proposals will be effective, and therefore do not encourage their buy-in, especially when the proposals will affect their ability to manage their property as they see fit. 
  • We request clarification on what exactly is being proposed as critical habitat. Is it supposed to be the polygons identified on the maps or the entire county indicated? Eddy and Stutsman Counties are on the list for inclusion as critical habitat, yet no defined area is indicated for either of them. Is the USFWS proposing that the entire county in both of these instances be deemed critical habitat?
  • The proposed rule regarding critical habitat indicates that such a designation “does not require implementation of restoration, recovery or enhancement measures by non-Federal landowners.” However, those that have some federal tie do appear to be subject to some requirements. How is that federal tie to be interpreted? Are those who are enrolled in Conservation Reserve Program, Environmental Quality Incentive Program or other U.S. Department of Agriculture programs subject to special requirements? How about those who have federal crop insurance, have received a federal loan or federal disaster assistance or own property that has some encumbrance from a federal easement? If a landowner is required to seek a consultation before requesting federal funding or authorization for an action that may affect a listed species or critical habitat, what kind of cost will be involved, both in terms of money and time? Will this be reflected in the economic impact analysis the USFWS is preparing? Also, who will determine if a federal action affects a listed species or critical habitat?
  • Throughout the USFWS materials explaining the proposed rules, suggestions of “light,” “limited” and “no” grazing and “late-season haying” are offered to support rebuilding the butterfly populations. However, time-tested range science indicates that such practices will have long-term implications that will actually do the opposite. For instance, limiting or eliminating grazing and haying is likely to promote invasion by exotic grasses, such as smooth brome grass and Kentucky bluegrass, which will compete with the very same native species that the butterflies require for habitat. It would be better for the USFWS to encourage and incentivize grazing and haying approaches – such as rotational grazing – that would support both the economic viability of livestock operations and butterfly population growth.
  • The Federal Register notice includes two charts indicating a decline in Dakota Skipper sites in Minnesota and South Dakota, but there is nothing shown for North Dakota. The 2012 abstract by Royer indicates that “essentially the same proportion of count locations hosted detectable Dakota skipper populations…” in 1996, 1997 and 2012, but that the encounters per hour had decreased. We contend that fewer “encounters per hour” could be the result of many factors, including the very specific conditions necessary to do an accurate sampling. The summary data does not provide the necessary background to determine other factors that could have influenced the “encounters per hour” count.
In summary, the NDSA has serious concerns about the proposed rules regarding the Dakota skipper and the Poweshiek skipperling. We believe that the proposed limits and prohibitions on land uses like grazing and haying will negatively affect the bottomlines of affected livestock producers and that concerns about compliance could actually influence those impacted to convert their grass and haylands to other uses before a final rule is in effect. This would be detrimental to both the beef industry and the butterflies the USFWS is aiming to protect.
The USFWS should reconsider its proposals and instead look at offering incentives for voluntary practices that would benefit livestock production and the butterflies.
Jason Zahn, President