Rocky Barker: Otter's peppergrass victory will wilt in sun

rbarker@idahostatesman.comMay 20, 2013 

Gov. Butch Otter declared victory when the Obama administration dropped its appeal of a federal judge's decision to negate the listing of slickspot peppergrass as a threatened species.

Chief U.S. Magistrate Candy Dale refused in December to reconsider her ruling from the previous August that the U.S. Fish and Wildlife Service's process for listing the plant under the Endangered Species Act was flawed. The Obama administration appealed her decision to the 9th U.S. Circuit Court of Appeals, but May 14 it asked the appellate court to dismiss that appeal.

So was it really a victory for Otter and the ranchers who fear the plant's listing?

Dale tossed the listing because Otter's very smart attorneys said its flaw was that the Service failed to adequately define "foreseeable future" as it applied to the threat to the plant. The Service defined "foreseeable future" as the "time period over which events can reasonably be anticipated," which Dale found as too generic. She remanded the case back to the Service with the order to define "foreseeable future" on a species-by-species basis.

That may sound like legalese to you. To Todd Tucci, senior attorney for Advocates for the West, that sounds like victory.

Otter made the same argument that Tucci used when Tucci sued the service on behalf of the Western Watersheds Project for not listing slickspot peppergrass in 2004. Tucci won then and the government had to go back to the drawing board. It came out with the decision to list the plant in 2009 that Otter challenged.

"Advocates for the West welcomes Gov. Otter's strict application of the Endangered Species Act," Tucci said last week.

Scientists have concluded that grazing on public lands is low on the list of threats to the annual flowering bush that grows in wet areas of southwest Idaho's sagebrush steppe desert. Yet its listing would have more impact on ranchers on public lands than any other group.

Fire and the spread of cheatgrass has done more to place the Lepidium papilliferum on the threatened species list, but these two threats are now more tied to the effects of changing climate. What the U.S. Fish and Wildlife Service determined is that when it's wet and there are more "slick spots," the number of plants rise. When it's dry, and the number of slick spots drop, so do the number of plants. But overall the numbers are declining, and the trend suggests that will continue.

Idaho and Gov. Butch Otter disagree, and they have challenged the scientific view of the future of slickspot peppergrass since 2003 with both their political might, and now, using Western Watershed's main tool, the law. Idaho developed a conservation plan in 2003 along with ranchers in Owyhee County who organized their neighbors to take a series of actions so their cattle would not disturb the plant in the spring when it is flowering and going to seed.

But remember, cattle really are not a major factor in the downward trend of the plant. Unless Owyhee County gets wetter, the slickspot peppergrass is going to get scarcer.

Even though Otter's Office of Species Conservation found a flaw in the listing procedure, Dale didn't buy any of their scientific arguments. The fate of the species hasn't changed.

In his press release Tuesday, Otter ignored Western Watersheds and aimed at the U.S. Fish and Wildlife Service and the Obama administration.

"It took a while, but the feds apparently have figured out that collaborating and finding common ground is more effective than forcing a wrongheaded listing down our throats," Otter said. "The 'critical habitat' designations that would have followed a threatened species listing could have been devastating for farmers, ranchers and recreational land users in southwestern Idaho."

He's criticizing the same Fish and Wildlife Service that Otter and other Idaho officials are holding up as an example of flexibility and wisdom because of their positive response to Otter's proposed sage grouse conservation plan. And Dale has placed the peppergrass decision back in its hands.

Otter hopes that the combination of political pressure and cajoling can keep the service from listing the plant again.

"We remain committed to our management plan that focuses on protecting both the plant and the people," Otter said.

As for Tucci, he has already used Dale's decision and Otter's argument to strengthen his case for listing pygmy rabbits as an endangered species.

Rocky Barker: 377-6484

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