March 2014

Exceptions will prove the rule is bad

No, the Montezuma County commissioners are not really trying to make you get rid of your French poodles, Irish wolfhounds or Yorkies.

Nor are they wanting you to no longer plant Walla Walla onions, wisteria or weeping figs.

But the literal interpretation and enforcement of a recently proposed county law – which would have made it illegal to “introduce, move, place, or transport any non-native species into the exterior boundaries of Montezuma County” – would have had just that effect.

Understandably, the first draft of this proposal, which is intended to keep the Gunnison sage grouse from being reintroduced here by the U. S. Fish and Wildlife Service, drew scoffs and jeers from some residents. (It’s nice to see people are paying attention!)

In a letter to the Cortez Journal, Mancos resident Loraleigh Porter observed that upon perusing her garden catalogue, she discovered, “I was planning to knowingly introduce non-native species and establish them in protected areas on private land. Fines! Imprisonment!”

And in another letter, author Chuck Greaves, himself a transplant from California, also mocked the proposal, noting, “I took a walk recently here in McElmo Canyon and saw cows, horses, dogs, alfalfa hay, fruit trees, row crops and numerous other non-native species. Also, I think my neighbor is a Canadian. Send help immediately.”

Even the very conservative Colorado Farm Bureau expressed concerns about the ordinance’s unintended effects.

The commissioners had rushed to publish this first draft so it could be set for a public hearing and adopted before the wildlife agency reveals its intentions regarding the Gunnison sage grouse in May.

But then either their own better sense and/or the ridicule being heaped upon the over-broad measure made them pause for breath while asking their attorney to rewrite it.

One obvious way to do this would be to include a long list of exceptions. The problem is, such a list could extend ad infinitum when you consider all the “non-native species” that are currently desired, utilized, supported or cultivated by human beings here. There would have to be exceptions for domestic pets, sheep dogs (and llamas), crops, livestock, flowers and grasses utilized in landscaping, and non-native species brought in for beneficial purposes, such as tamarisk beetles, thistle weevils, bindweed mites, and even a new type of bacterium that may be used to combat invasive zebra mussels.

That’s probably only the tip of the iceberg. In fact, it would be so difficult to craft the ordinance and include all the necessary exceptions (and their definitions) that it might be better to write it more directly, with the intended purpose stated plainly. In other words, “Montezuma County forbids the state or federal government from reintroducing any species such as sage grouse or endangered fish without our blessing.”

As of press time, the revised version was not available. But John Baxter, the commissioners’ attorney, told the Free Press the new version would apply only to animal species and would allow non-natives to be kept on private property as long as they were confined there. (In other words, it would be aimed at public lands.)

But no matter how the final product is worded and no matter how finely tuned, it isn’t likely to accomplish its intended goal.

For one thing, there would need to be a very peculiar definition of “non-native” in order to suit the commissioners’ purposes. Because the sage grouse isn’t a non-native species. It was undoubtedly present some time in the past, unless one believes all the grouse in Dolores County stopped at the county line. Maybe the first thing the board ought to do is pass a resolution changing the name of the “Sage Hen” camping area if they’re going to try to maintain the fiction that those birds were never here.

So unless “non-native” is defined in some fashion that includes species that were probably present in the past but aren’t here now, this broad net won’t catch the prey the commissioners intended.

And even if the ordinance is rewritten to make this clear, there’s little chance that federal or state agencies will abide by it.

That’s the other question that needs to be addressed — what actual effect this ordinance might have on reintroduction efforts.

In its original version, the ordinance included language that made it illegal for anyone to “knowingly or recklessly [huh??] designate habitat, protected areas, or other similar designations, on private lands without express written approval from both Montezuma County, and the private landowner.”

We understand the concern about potential endangered-species listings and the possibility of critical-habitat designations in local areas. But, frankly, if stopping the federal government from declaring critical habitat for endangered species were as easy as passing a county ordinance, a lot of other counties probably would have done it by now.

And keep in mind that the feds’ decision about what constitutes “critical habitat” won’t rest solely on whether any of the creatures are present on any specific lands at any given time. According to the U.S. Fish and Wildlife Service, it’s based on a plethora of factors such as these (taken from the service’s web site): space for population growth and for normal behavior; cover or shelter; food, water, and other nutritional or physiological requirements; sites for breeding and rearing offspring; and habitats that are protected from disturbances or are representative of the historic geographical and ecological distributions of a species.

The web site also contains this key statement: “Critical habitat may include an area that is not currently occupied by the species but that will be needed for its recovery.” (italics ours.)

An appendix called “Guidance for Critical Habitat Analysis” on the web site of the USDA’s Animal and Plant Health Inspection Service echoes that point:

“It is important to note that critical habitat is not limited to the geographical area occupied by the species at the time of listing, but may include other areas if determined to be essential for the conservation of the species. Critical habitat may be unoccupied for a number of reasons including the extirpation of the species from this portion of the range. Critical habitat may be in areas unsuitable for the species, but may be restored to suitability with proper management.”

The proposed ordinance is consistent with the commissioners’ view that state and federal agencies are required to “coordinate” with (have permission from, in their view) the county before they take any action, whether it be closing a road or stocking a stream.

However, this interpretation is inconsistent with the reality of court decisions. And we doubt the county has the resources or legal muscle to successfully fight the battles that would inevitably ensue from adopting such a law and trying to enforce it.

The commissioners have said they hope this ordinance would give them additional leverage in dealing with federal and state agencies, but there’s no reason to think it would. Instead, it would likely prove to be a costly, futile effort that ultimately would not be enforceable.

How many wildlife officials does the county really expect to arrest and jail for trying to do their jobs?

And how long would it be before some court issued an injunction to quash such efforts?

Bad law is worse than no law, and this one could prove “exceptionally” bad.