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(Liberty Matters News Service)  On June 23, 2021, the U.S. Supreme Court issued a landmark ruling protecting property rights in Cedar Point Nursery v. Hassid.  The court found that a California regulation granting access to private property by Union organizers is unconstitutional, and “constitutes a per se physical taking.”

The case was brought by two California growers, Cedar Point Nursery and Fowler Packing Company, and litigated by the Pacific Legal Foundation. The growers challenged a California regulation that required the landowners to allow Union organizers access to their private property for three hours a day.  The court summarized its ruling as follows: 

“California’s access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking. Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties (here union organizers) the owners’ right to exclude. The right to exclude is “a fundamental element of the property right.” Kaiser Aetna v. United States, 444 U. S. 164, 179–180. The Court’s precedents have thus treated government-authorized physical invasions as takings requiring just compensation. As in previous cases, the government here has appropriated a right of access to private property. Because the regulation appropriates a right to physically invade the growers’ property—to literally “take access”—it constitutes a per se physical taking under the Court’s precedents.” (Cedar Point Nursery v. Hassid, Syllabus, page 2)

The opinion was written by Chief Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett for a 6-3 majority ruling. 

The Court further explained its reasoning:

“The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides: ‘[N]or shall private property be taken for public use, without just compensation.’ The Founders recognized that the protection of private property is indispensable to the promotion of individual freedom. As John Adams tersely put it, ‘[p]roperty must be secured, or liberty cannot exist.’ Discourses on Davila, in 6 Works of John Adams 280 (C. Adams ed. 1851). This Court agrees, having noted that protection of property rights is ‘necessary to preserve freedom’ and ‘empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them.’” (Cedar Point, page 5)

The court notes that the right to exclude others from accessing their property is a necessary right: 

“The right to exclude is ‘one of the most treasured’ rights of property ownership. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 435 (1982). According to Blackstone, the very idea of property entails ‘that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.’ 2 W. Blackstone, Commentaries on the Laws of England 2 (1766). In less exuberant terms, we have stated that the right to exclude is ‘universally held to be a fundamental element of the property right,’ and is ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’” (Cedar Point, page 7)

The ruling could not be more timely as the Biden Administration seeks new ways to use federal programs to control and restrict land use in the names of “protection” and “conservation.”

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(Liberty Matters News Service) In a letter signed by 18 Democrats from the U.S. House Natural Resource Committee, the group encourages the Biden Administration to take meaningful action to implement 30 x 30, and offers their help: “we stand by to leverage our experience and offer our suggestions in support of the America the Beautiful Initiative.”  The letter was not signed by any Republicans on the committee, nor did nine Democrat members add their signature.

The letter states that “While no one bill could encapsulate the full scope of conservation and restoration need, the emphasis on using a variety of actions, from federal designations to voluntary conservation easements, is an important step to ensure that we are advancing conservation in every American community.”  (Emphasis added) It goes on to provide advice to the Administration on actions they should take to implement 30 x 30, which include:

Develop a clear, actionable, and measurable plan for achieving targeted conservation outcomes, and provide Congress with a roadmap of staffing and resource needs to achieve these goals.
Provide additional operational funding and increase staffing at the relevant land and resource management agencies.
Empower Federal agencies and ensure a vested role and direct responsibility to engage with stakeholders.
Fund badly needed land and coastal restoration efforts on public and private lands across the country, with a focus on community climate resilience.
Target Conservation Investments to climate-critical ecosystems.
Support Funding for Environmental Justice communities.
Protect key wildlife corridors and connectivity between protected areas.
Provide additional funding for agency planning.
Provide funding for National Environmental Policy Act (NEPA) reviews, and ensure all communities are heard. 
Fund mapping efforts and improve the utilization of geospatial data in a manner that goes beyond a Conservation and Stewardship Atlas.
Support a U.S. Geological Survey (USGS) led inventory and continual monitoring of land and resource conditions.

One theme prevalent throughout the letter is encouraging the Administration to survey and catalog the state of land use and conservation efforts across the nation.  The last bullet point in the letter is explained as follows:

“To set a meaningful baseline for the America the Beautiful Initiative, USGS could be charged with inventorying the current state of conservation in the United States. This inventory, performed with the help of the Civilian Climate Corps, could provide essential information to help resource managers perform conservation planning and to support conservation and climate benefits on our working lands. Furthermore, with the help of these trained volunteers, USGS could then support the monitoring of ecosystems for adaptive management to ensure that we are achieving the conservation outcomes intend under America the Beautiful.”

Landowners can expect to see increased efforts to access and survey their lands for this purpose.  It is important to note that the Supreme Court’s decision in Cedar Point, discussed earlier, reaffirms a key element in the bundle of property rights, is the right to “exclude.”  However, this right is forfeited if the landowner consents to the access, such as through a conservation easement or other conservation programs.

While the Democrats letter fully supports the President’s 30 x 30 initiative, it is also politely critical of the lack of detail and direction offered in the “America the Beautiful” report released by the National Climate Task Force last May.  The Democrats state:

“Starting from this roadmap, you should work with stakeholders and Congress to develop a clear, long-term conservation plan, with actionable and measurable outcomes, to ensure we are providing the essential protections necessary to secure nature and the climate. Once this plan is in place, we would encourage your administration to provide Congress a clear indication of the resources and staffing necessary to achieve this plan.

The 30 x 30 initiative was launched in America by a very small, radical faction of the progressive movement.  Key advocates of this agenda are now installed in critical positions in the new Administration, primarily Vice President Harris and Interior Secretary Haaland. However, as this land grab has been exposed, the Administration has tried to rebrand the agenda, coax landowners into voluntarily signing onto the effort, and claim they cannot determine how to define “conserve,” all while admonishing Americans for destroying habitat.

The small handful of Democrats who signed onto this letter are advocating for the Administration to take a more aggressive stand, guided by a transparent action plan.

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(Liberty Matters News Service) The National Rifle Association (NRA) is all in with the Biden Administration’s radical 30 x 30 land grab.  The organization joined the “Hunt Fish 30 x 30 Initiative,” and committed to support action to implement the program.  The NRA’s press release states:

“As 21st century outdoorsmen and women are aware, the future of wildlife and its diversity hinges on conserving habitat. In standing with hunter-conservationists, the NRA is the latest organization to join a coalition of sportsmen’s groups supporting the “Hunt Fish 30 by 30 (30×30) Initiative,” an international push adopted by the Biden administration (Executive Order No. 14008) to place 30 percent of the world’s lands and waters under protected status by the year 2030.

Specifically, the NRA Hunters’ Leadership Forum and NRA Institute for Legislative Action will work alongside a growing list of more than 60 Hunt Fish 30×30 Initiative signatories representing the hunting, fishing and conservation community. The goal: to advance America’s renown, sustainable-use conservation policy—the North American Model of Wildlife Conservation (NAMWC)—and make sure sportsmen’s interests and contributions are part of the decision-making process when targeting lands and waters for protection. Signatories want to ensure that implementation of any 30×30 measure doesn’t create burdensome restrictions on hunting and fishing access or make vast sections of public lands off limits as access to those lands is critical to their management.”  National Rifle Association, Hunters Leadership Forum, June 24, 2021

The “Hunt Fish 30 x 30” initiative is a full endorsement of the radical environmental agenda, signed onto by the green hunting groups. What you will not find in their position is any mention of respecting private property rights or support for the landowners who have been conserving our lands since our founding.

It is unfortunate that the NRA has selectively determined only the Second Amendment of the U.S. Constitution is worth protecting, forgetting most of all that the right to own and bear arms is also a private property right, entitled to the full protection of the Fifth Amendment, as are land rights, and should not be taken for a public purpose, i.e. the 30 x 30 land grab.

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Governor Pete Ricketts took unprecedented action and signed the “Stop 30 x 30 – Protect our Land and Water,” Executive Order 21-08 on June 24, 2021.

The order directs Nebraska state agencies to take specific steps to prevent the implementation of President Biden’s 30 x 30 initiative launched January 27th, through the federal climate crisis executive order, 14008. Nebraska is the first state to issue such an order, sending a clear message to the Biden Administration that Nebraskans will continue to manage their land without federal intrusion.

“What we’ve asked for from the Biden administration is for more information, because their math doesn’t work,” Ricketts said. “Either they’re going to fail to get to 30% or they’re not telling us something else about how they’re going to get to 30% and that’s what makes us concerned here in Nebraska.” (Nebraska Public Media)

 

The order states the “federal conservation mandates have no constitutional basis, and have great potential to devastate Nebraska’s economy,” and that the “federal 30 percent conservation goal would interfere with the States’ constitutional and traditional power over land and water uses.” It also notes that “the people of Nebraska oppose federal overreach and want to protect our state’s land and water to continue to make them more productive.”

The Nebraska Department of Revenue is directed to host workshops for county officials to understand the tax consequences of conservation easements and the counties’ authority to approve or deny such easements. Nebraska has within their code a requirement that all conservation and preservation easements must receive a special use permit from the County, which can be denied if they conflict with the county’s plan.

Cherry County Commissioner Tanya Storer spoke at the signing and commented on the importance of Counties exercising this authority to protect the tax base and prevent further encroachment of federal ties that can impair the agricultural use of the lands.

Conservation easements are identified by the Biden Administration as a primary tool that will be used to place more private land under the 30 x 30 federal initiative. The Administration has stated that 12 percent of America’s lands are currently permanently protected, and identify areas such as wilderness, national parks and conservation easements in perpetuity on private lands as classifications within this category.

Governor Ricketts’ Order also prohibits all agencies from using discretionary funds or staff support for projects involving perpetual conservation easements.

Additionally, the Governor is placing an 18-month moratorium on adding any new regulations that expand the definition of endangered species, plants, or wildlife pursuant to state statute. At the signing, the Governor explained that the Biden Administration is refusing to address the States’ questions regarding implementation of 30 x 30, while offering conservation contracts to Nebraska’s landowners that include new endangered species restrictions. Therefore, he is placing a hold on endangered species expansion in the State.

The order also designates the Nebraska Agriculture Director as the States’ Coordinator for the Climate Task Force established by the Department of Interior (DOI). The task force is directed to coordinate with the States to “harmonize Federal and non-Federal actions.” (DOI Sec. Order 3399)

The Governor has been holding town hall meetings across Nebraska making sure rural areas are aware of the program and answering Nebraskan’s questions about the federal initiative. As a result, 42 counties in the State have now passed resolutions opposing 30 x 30.

Nebraska Farm Bureau President Mark McHargue, Cherry County Commissioner Tanya Storer and American Stewards Margaret Byfield all spoke at the signing in support of the Governor’s actions.

“Governor Ricketts has been an active leader on this issue as the first Governor in the nation to oppose 30 x 30, leading a letter signed by 15 Governor’s pressing for answers, and today, issuing this order to protect Nebraska from federal overreach,” commented Byfield. “However, his actions go beyond the borders of Nebraska and help every producer in America that provides our food, fiber, energy and minerals by standing up to this federal land grab.”

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(LMNS June 8, 2021) The U.S. Fish and Wildlife Service (Service) placed the Golden-cheeked warbler (GCW) under federal protection in 1990, as an endangered species. The GCW’s habitat covers a wide swath of Texas land that stretches above Fort Worth and down to the Mexican border. The decision was highly controversial as many disputed the Service’s findings as not being supported by science.

 

The Service is preparing a status review of the GCW, along with 22 other species in the southwest region. American Stewards of Liberty (ASL) filed comments last week providing the scientific basis for delisting the species.

 

“ASL finds the results of the Services recent study particularly significant for the following reasons. At the time the GCWA was listed, there were thought to exist only 15,000-17,000 singing males throughout the species range. In the Services 2014 5-year review of the GCWA, the agency acknowledged that a peer-reviewed, published 2012 study by Mathewson, et al. estimated the rangewide population of male GCWAs to be 263,339. The Service discounted these results, however, because ‘others have cautioned that this analysis may have over- predicted density estimates, resulting in inflated population estimates.’ Given the results of the Services more recent study are consistent with the results of Mathewson et al. 2012, ASL suggests that the species is not currently threatened with extinction across all or a significant portion of its range and likely never has been.(ASL GWCA Comments)

 

The Service’s website shows 177 Habitat Conservation Plans and one Safe Harbor Plan in place across the region, an area almost exclusively private property. Substantial amounts of money have been poured into protecting the species. For a bird whose male population is greater than 250,000 with substantial habitat, it seems more than reasonable the Service would determine to remove the species from the endangered list.

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(LMNS June 8, 2021) Nebraska Governor Pete Ricketts has been holding “Stop 30 x 30” town hall meetings across the State to educate landowners on the program and help them identify the conservation vehicles that could be used by the federal agencies to reach the 30 percent goal.

Nebraska is 97 percent private land, and the State relies on the tax base and production of the private lands for its robust economy. The Governor is a strong advocate for private property and good conservation, which is why he wants to keep Nebraska’s lands in Nebraskan’s hands without the federal strings. He stated:

“The U.S. News and World Report ranked Nebraska as the sixth-best state in the nation for the quality of our natural environment. By contrast, the State of Delaware—which President Biden represented as a U.S. Senator from 1973 to 2009—was sixth-worst overall, and #47 for pollution. … Why would Nebraskans cede responsibility for our natural resources to leaders of states who’ve done a poor job of managing their own environment?”

Governor Ricketts also led the letter signed by 15 Governors noticing the White House they oppose the program. The letter included specific questions on how the program would be implemented, funded, and authorized, none of which have been addressed by the Biden Administration.

With him at the town hall meetings have been Cherry County Commissioner, Tanya Storer and Nebraska Farm Bureau Vice President, Sherry Vinton, as well as other speakers. Commissioner Storer has been helping Counties understand the specific ways in which conservation restrictions can devalue the land and revenue counties rely on to support their community. Sherry Vinton has been speaking from the landowner’s perspective.

Nebraska has more counties than any other state that have passed resolutions opposing 30 x 30. Their U.S. Representatives and Senators have also taken a stand against the program, as well as their Attorney General, which sent a letter co-signed with the Kansas Attorney General placing the Biden Administration on notice that they will be watching for federal overreach.

Click here for the town hall schedule.

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(LMNS June 8, 2021) The U.S. Fish and Wildlife Service (Service) has issued a new rule proposing to place the Lesser prairie chicken (LPC) on the Endangered Species list, again.

In 2014, they issued a final rule to list the species as threatened, which was immediately challenged by the Permian Basin Petroleum Association and four New Mexico Counties. This case resulted in the United States District Court for the Western District of Texas issuing an order in 2015 vacating the listing, removing it from the federal list. In 2016, WildEarth Guardians, Defenders of Wildlife, and Center for Biological Diversity were back with a new petition to re-list the LPC, leading to the new rule issued June 1, 2021.

The new proposed rule splits the population into two Distinct Population Segments (DPS). The Northern DPS is found in Colorado, Kansas, Oklahoma, and the Texas Panhandle. It is proposed to be listed as threatened. The Southern DPS is found in eastern New Mexico and west Texas, and it is proposed to be listed as endangered.

The Service’s proposed rule makes note of the many local conservation efforts that have been put into place to protect the species, most of them voluntary and at considerable expense to the resource industries. However, because the Service has determined that 97 percent of the population’s habitat is on private lands, which are currently not regulated by the federal agency, it finds it must place the species on the federal protection list.

The conservation programs currently in place are numerous and restrictive, incorporating conservation measures required by the Service. Each of the five states have programs they administer on state lands and for private enrolled lands, and the federal agencies have specific management restrictions on their lands. For instance, in New Mexico the Bureau of Land Management (BLM) established the 57,522-acre Lesser Prairie-Chicken Habitat Preservation Area of Critical Environmental Concern (ACEC) in 2008, where new oil and gas development, roadways, grazing and power line development have been eliminated, and existing uses reduced or phased out. There is also a specific LPC resource management plan for the remaining BLM lands covering the potential habitat areas with targeted restrictions.

Across the five-state region, conservation plans impacting private lands include: the Lesser Prairie-Chicken Rangewide Conservation Plan established by the five-state wildlife agencies; the Lesser Prairie- Chicken Initiative administered by the Natural Resource Conservation Service (NRCS); and the Conservation Reserve Program also administered by NRCS and used to provide habitat. Additionally, the Nature Conservancy holds numerous conservation easements across the states with the conservation purpose and priority of protecting the LPC.

The coverage of conservation programs and money expended to implement the Service’s measures protecting the bird’s habitat is voluminous and costly. Even so, it is not enough.

The Service finds:

“We conclude that existing regulatory mechanisms have minimal influence on the rangewide trends of lesser prairie- chicken habitat loss and fragmentation because 97 percent of the lesser prairie- chicken analysis area occurs on private lands, and the activities affecting lesser prairie-chicken habitat are largely unregulated land use practices and land development.” (Federal Register, Vol. 86, No. 103, Tuesday, June 1, 2021, page 29454)

Note that the reason for listing is primarily because of “habitat loss and fragmentation” and that activities on private lands “are largely unregulated land use practices and land development.” This indicates the Service will not be satisfied until it has full regulatory control across the LPC historical habitat, including private acres.

In a recent online briefing with the Southwest Regional team from U.S. Fish and Wildlife, landowners were again encouraged to enroll in the conservation programs as the Service works to consider comments and finalize its rule over the next twelve months.

Determination of critical habitat will come next, where the Service can draw a line around the potential habitat and look for more ways to regulate the unregulated private lands within. What should be concerning to private landowners is the possibility that a federal nexus occurs on the private lands if there is a program that is authorized, funded, or carried out by a federal agency required to consult with the Service on the impacts to the LPC habitat.

The Endangered Species regulations require “all” federal agencies to consult on Endangered Species Act listings. The proposed LPC listing explains that when a landowner receives funding or needs authorization by a federal agency, that agency will be required to consult with the Service to determine whether the action would impact the critical habitat. This creates the federal nexus to the private lands, indirectly giving the Service the ability to regulate the private land.

“Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement ‘‘reasonable and prudent alternatives’’ to avoid destruction or adverse modification of critical habitat.” (FR Notice, page 29477)

The question to ask is whether this is about conservation or control?

Maybe we should ask the birds. Drawing from the Service’s analysis, it appears the birds prefer private land management over federal restrictions, considering only three percent of the Lesser prairie chickens live in the areas with the federal conservation measures.

The private lands that are not regulated by the Service are tended by individual landowners whose management practices are doing a better job at protecting the LPC, while providing the food, fiber, energy, and minerals we depend on, than the combined efforts of the federal agencies and land trusts.

As we have stated many times before, if the environmentalist were truly concerned with conservation of the land for species habitat, they would help to remove federal restrictions, not seek more.

Landowners should expect to see more ecosystem-wide efforts like this one from the Biden Administration, which will provide them with more opportunities to control large regional areas as they work towards their goal of conserving 30 percent of America’s land.

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Liberty Matters News Service, News

(LMNS May 25, 20201) The Washington Times published an editorial last month entitled “Embracing the GOP’s Conservative Heritage,” that illustrates the naivety of those Republicans that buy into the radical environmental agenda.  The article was written by Craig Shirley, author of four books on President Ronald Reagan, and called on Senators to support the massive Wilderness bill H.R. 803, passed by the U.S. House last February, currently awaiting action in the Senate.  

However, H.R. 803 is not a bill creating new National Parks, as Mr. Shirley described.  It is a Wilderness bill, creating over 1.5 million acres of new Wilderness, led by Democrat Congresswoman DeGette who does not live in nor represent the area where this bill attempts to impose the highly restrictive land designations.

Wilderness areas prohibit all entrance of motorized vehicles and equipment.  This means that only the most athletic of the general public can access the area, including hunters who must pack out their game. These lands are managed to retain the natural state. 

Translation: no management, including fire suppression. Predators dominate, creating a monoculture of wildlife reducing grazing animals. And, without the grazers you also create a monoculture of plants and trees. This turns the lands into a tinder box, and when fire sparks, federal managers follow the “let it burn policy,” nature taking its course. This burns up more than just the land. It kills wildlife, endangered species, destroys habitat, and sterilizes the soil inhibiting natural recovery.

Additionally, the lack of biodiversity created over time in these areas dries up the watershed, reducing the flows into our rivers.

Why is the West wrought by massive wildfires every year? Democrats blame man-made climate change, but those who follow these issues more closely rightfully blame failed federal policies that are destroying our lands, and ill-advised efforts like H.R. 803 that focus on the romanticism of America’s beautiful lands.  They want to convince lawmakers to lock out the producers who provide the essential services that keep our lands pristine.

Take a close look at the map created by Garfield County, Colorado, where Representative DeGette seeks to create more wilderness through her bill.  The map shows the wildfire risk in existing and proposed wilderness areas using data from the U.S. Department of Agriculture.  The areas showing the highest risk for wildfires (shown in deep red), are the areas Rep. DeGette seeks to lock up under the “no management” wilderness designation. 

H.R. 803 is more than just a Wilderness bill, however.  It also seeks to permanently withdraw 1.2 million acres from mineral development, in an area of our nation that is home to the essential rare earth minerals we need for high tech devices, batteries, and our national defense.  We currently import over 80% of these minerals from Europe and China.  That fact alone should give Senators good reason to reject this bill, on both sides of the aisle.

It is well past time that our nation reconsider our federal land management policies, such as Wilderness designations. The conversation needs to begin with the people who live in and care for the areas directly impacted.  Before we trust the management of more of our lands to the environmental elites — and endanger more lives — we should discard the romantic rhetoric, persuasive polling of those not directly connected to the land and listen to the people whose livelihoods depend on improving the natural resources Americans treasure.

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Liberty Matters News Service, News

Landowners Derail 49-County National Heritage Area

(LMNS May 25, 2012) A group of educators and students from the University of Nebraska initiated an idea that developed into an effort to designate 49 counties in Nebraska and Kansas as a National Heritage Area, to preserve the legacy of author Willa Cather.  

The Heritage Area Designation would require a management plan to be developed under the National Park Service (NPS), through which federal funding would be distributed to preserve the historical sites.  A non-profit board was formed, and a feasibility study was being planned, as required by the NPS, before landowners, counties and others directly impacted by the designation had been alerted. It is their land and their communities that would fall under the new federal designation.

Spearheaded by Angel Cushing, a series of landowner educational meetings across the 49 counties was initiated with the help of Nebraska farmer and radio host Trent Loos, as well as Colorado landowner, Norman Kincade, who had successfully fought off a similar designation in his area.  As landowners became educated, they opposed the designation, and many of the counties passed resolutions officially stating their opposition.

Proponents of the NHA commented that the timing of the project was unfortunate as it became linked with the Biden Administrations 30 x 30 plan.

Four board members for the non-profit group set to seek the designation have resigned.  The Project lead, architectural professor Kim Wilson, noted that the group will be taking a pause as they re-group.  “This has really worn out the board and we don’t have the capacity to deal with this head-on,” she said. “So hopefully in the next six months — people won’t forget it, but maybe it won’t have the same front-page emphasis that it has right now.” (“How A Plan To Boost Kansas-Nebraska Tourism Got Wrapped Up In Fears Of A 30×30 ‘Land-Grab’,” Missouri Independent)

Although the white flag being waived by NHA proponents may be temporary, the landowners across the 49-county region are better educated and prepared to resist the designation. For those counties in the region who have not yet passed the resolution opposing the NHA, you can get a copy here.

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Liberty Matters News Service, News

(LMNS May 25, 2021) A Nebraska landowner received a new contract last week to re-enroll a portion of his lands into the Conservation Reserve Program (CRP) offered through the U.S. Department of Agriculture Natural Resource Conservation Service. Specifically, the contract is for “re-enrolling current CRP into another CRP contract to provide wildlife habitat and soil erosion control.”  

This new contract, under the Biden Administration, came with a new restriction.  Re-enrollment into the program now requires the landowner to provide habitat for the “Swift fox.” While the fox is not on the federal endangered species list, it is listed on the Nebraska endangered species list, and protection for the species habitat is being encouraged by conservation groups such as the World Wildlife Fund.

Under this contract, if the landowner re-enrolls to help provide habitat for the species, he will be required to: (1) “plant native herbaceous species suitable for the site,” and (2) “survey for dens according to protocol prior to ground disturbing activities.”

The U.S. Fish and Wildlife Service endangered species website shows the known range for the habitat to be the eastern edge of Colorado and southwestern edge of Nebraska.  Other known locations are in Canada, where The Nature Conservancy Canada has been active in efforts to protect the fox’s habitat.

A concern for landowners considering enrolling in the CRP program, or similar conservation programs, should include the possible restrictions on their lands and businesses if the species is placed on the federal candidate, threatened, or endangered list while their lands are enrolled in the program.  As reported in the April 27th edition of LMNS, “The Endangered Species Act requires all federal agencies to consult with the U.S. Fish and Wildlife Service when there are potential species’ impacts or modification of habitat as a result of the agency’s authorization, funding or carrying out of an action. (See ESA USDA Directives)”

Prior Administrations may not have required the full measure of this provision to be enforced. However, given the priority the Biden Administration has placed on controlling 30 percent of America’s lands under some form of conservation effort — which they refuse to define — landowners should be very careful and make the most informed decision when considering enrolling in the offered programs.