Conservation or cop-out?

by April Reese

Updated 4/13/09

When you visit Chris Brininstool's sprawling ranch in southeastern New Mexico, the first thing you notice isn't her cows, or the endless prairie unfurling toward Texas -- it's the curious white tags along the fences. Brininstool began attaching the tags, which vaguely resemble oversized clothespins, to help lesser prairie chickens avoid fatal collisions with fence wires en route to breeding grounds.

About 60 miles to the north, Marbob Energy Corp. is also watching out for the social, dun-colored birds. The company has pledged to avoid drilling for oil and gas in prairie chicken habitat on lands it leases from the Bureau of Land Management, and it will pay into a fund for habitat improvement projects.

Both these forays into habitat management stem from a pair of voluntary conservation agreements, announced by the U.S. Fish and Wildlife Service and the BLM last December, that aim to bring the prairie chicken and its neighbor, the sand dune lizard, back from the brink.

Oil and gas development, grazing and herbicide spraying have shrunk both species' ranges by around 90 percent. Next year, the Fish and Wildlife Service will likely consider protecting the prairie chicken, which also inhabits Texas, Colorado, Oklahoma and Kansas, under the Endangered Species Act. A proposal is already in the works for the sand dune lizard, which lives only in New Mexico and west Texas in the dunes of the Permian Basin.

A listing could restrict what landowners and companies can do on lands they own or lease. That's enough to nudge them toward conservation, says Benjamin Tuggle, Southwest regional director for Fish and Wildlife. He sees the agreements as "sort of paying it forward. If we get good conservation measures on the ground, in a collaborative spirit, we're further along than we would have been without them."

"We hope to enroll enough participants so that when we sit down and look at the (federal) proposal, we don't have to list the species," adds Brian Millsap, Fish and Wildlife's New Mexico administrator.

Agency brass tout the New Mexico deals -- the first of their kind to protect species across both public and private land -- as models that could be used for other species as well. But with the economy in a tailspin, and a similar effort in Texas already faltering, their success is far from assured.

The New Mexico agreements involve two kinds of deals: "Candidate conservation agreements with assurances," where private landowners who commit to conservation measures are assured they won't have to do more if a species is listed; and "candidate conservation agreements," which give ranchers and energy companies similar, if slightly weaker, guarantees that their public-land operations can continue regardless of listing. There are currently about 120 such agreements, mostly in the West.

Millsap says the agreements actually ask more than the Endangered Species Act does. If species are listed, he explains, landowners and federal lessees have to avoid harming them, but they don't have to improve their habitat.

Still, because the agreements are voluntary, they "don't provide firm legal footing for the species to bounce back," says Nicole Rosmarino of Santa Fe-based WildEarth Guardians. Indeed, some agreements that have been around for years -- including ones covering Colorado's Gunnison sage grouse and Montana's westslope cutthroat trout -- have drawn only one or two participants. And one covering Texas' lesser prairie chickens has yet to draw any.

Tuggle blames the Texas program's stagnation in part on a state policy that prevents federal land managers from accessing information about resources on private lands. "We have to sit down with ranchers or have a rancher sponsor a meeting, and I'll be honest -- we're understaffed. That's really big country with lots of ranchers," he says. Consequently, wildlife managers "probably have not been as aggressive in helping landowners understand what we're trying to accomplish."

Millsap hopes the landscape-scale of the New Mexico program, combined with an energetic outreach effort, will produce better results. But so far, Brininstool and Marbob Energy are the only participants. Of five energy companies contacted by High Country News, only three had heard of the program. And Yates Petroleum, which has BLM leases in prairie chicken habitat, has put off deciding whether to participate due to the recent crash in oil and natural gas prices. The company has had to shut down wells in recent months, says Yates environmental coordinator Jerry Fanning, and is reluctant to spend money on new conservation efforts.

That kind of cautiousness could stymie the program, at least in the short term, worries Doug Burger, manager of BLM's Pecos District in southeastern New Mexico. "With the economic conditions that the oil companies are facing, they're all cutting back."

But Rand French of Marbob Energy says his company believes it makes sense to get ahead of the regulatory curve, despite the tough economy -- or even because of it. "Time is money, and going through the endangered species consultation process can take up to a year," he says.

Tuggle is convinced that the looming shadow of the Endangered Species Act will spur more participants to become voluntary conservationists -- in New Mexico and beyond. "Regulations are funny. If I'm being regulated, I'm going to do the absolute minimum I have to do," he says. "But if I'm doing things to help a species, I will probably do more, because then I'm a steward, a partner. And that's the future of conservation."   

This story was funded by a grant from the McCune Charitable Foundation.

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