WATER GROUP PETITIONS TO DE-LIST PREBLE'S MOUSE

Many have questioned the 1998 listing of the Preble's meadow jumping mouse (the "mouse") under the Endangered Species Act ("ESA") and cited it as an example that the ESA is broken. The listing has cost business millions of dollars, stalled water development in the face of the State's worst drought and threatened long-standing agricultural practices. But a recent genetic study and a petition filed by the Coloradans for Water Conservation and Development (the "CWCD") may lead to delisting and potentially even ESA reform in Congress. Private property owners and local governments have spent tens of millions of dollars attempting to deal with onerous ESA requirements for the mouse. In fact, the U.S. Fish and Wildlife Service estimates that over the next ten years, public and private landowners could be forced to spend up to $171 million for protection and mitigation if the mouse remains listed.

The listing has stalled development as well as efforts to improve and repair existing infrastructure as well efforts to site and construct new water storage facilities along Colorado's Front Range. In June of 2003, the U.S. Fish and Wildlife Service (the "Service") designated 31,000 acres along Colorado's Front Range and Southeastern Wyoming as critical habitat for the mouse. But on December 17, 2003, the CWCD, a non-profit organization formed by Colorado business and agricultural interests to advocate for the responsible conservation and development of water resources filed a petition with the U.S. Department of Interior to de-list the mouse. A similar petition was filed the same day by the State of Wyoming. The CWCD's charter members include: Colorado Concern (an organization of more than 50 CEOs), Denver Metro Chamber of Commerce, Colorado Farm Bureau, Colorado Association of Home Builders, National Association of Industrial and Office Properties, Colorado Apartment Association and a number of individuals who support our objectives.

The Board of Directors voted unanimously to file the petition to de-list. Several other organizations have expressed interest in joining the CWCD on these efforts pending board approvals. The CWCD believes that the PMJM was erroneously listed as threatened under the ESA in 1998. A recent genetic analysis, conducted by Dr. Rob Roy Ramey, II of the Denver Museum of Nature & Science, concluded that PMJM is genetically indistinguishable from the widespread Bear Lodge jumping mouse, which occurs in northeastern Wyoming, Montana and South Dakota. In addition, post-listing surveys show the mouse to be abundant throughout its historic range and beyond. Most of the threats to the species identified at the time of listing are now known to affect only isolated portions of the mouse's range. None of the threats rise to the level of significance that warrants listing.

Now that the petition has been the filed, the Secretary must, to the maximum extent practicable, make a determination within 90 days if there is substantial scientific or commercial information indicating that a status review of the species is warranted. If the Secretary determines a status review is warranted, she has one year from the date of filing the petition to determine whether the PMJM should remain listed. In reviewing the petition, the Secretary is required to consider the "best available science" -- in this case, Dr. Ramey's study. The CWCD has invited Dr. Ramey to make a presentation of his findings to our group. Our petition to de-list the mouse has already attracted national interest. We have been coordinating with Colorado's Congressional Delegation and the appropriate Committees in Congress and are planning a series of meetings in Washington, D.C. within the next several weeks.

On December 22nd, NBC's Nightline reported that efforts to de-list the mouse in Colorado and Wyoming would be the "battleground" over the ESA. The National Endangered Species Act Reform Coalition ("NESARC") has taken great interest in the mouse as a case study for reform. That group has invited us to join its membership and to discuss our petition to de-list and ideas for reform at their next meeting. The CWCD hopes to expand its membership. If you would like more information, or would like to join in our efforts, please contact me at (720) 904-6000 or Jeani Frickey Saito, Executive Director of the CWCD at (303) 813-9290. Kent Holsinger, formerly Assistant Director for Water at the Colorado Department of Natural Resources, is an attorney with Hale Hackstaff Friesen, LLP. He represents the CWCD on its efforts to de-list the mouse and on ESA reform.

PREBLE'S MOUSE ONE STEP CLOSER TO DE-LISTING

by Kent Holsinger, Esq.
Hale Hackstaff Friesen,
April 20, 2004

Thanks to the efforts of the Coloradans for Water Conservation and Development, the U.S. Fish and Wildlife Service (the "Service") recently took the first step towards de-listing the Preble's meadow jumping mouse. On March 24th, the Service announced it will begin a review of the listed status of the species. The announcement was made in response to December 17 petitions to de-list the mouse filed by the Coloradans for Water Conservation and Development (the "CWCD") and the State of Wyoming. A final decision is expected in December 2004. In a March 25 press release, CWCD President Jerry Sonnenberg, a farmer and rancher from Sterling, Colorado said, "We are extremely pleased to see the Department of Interior is willing to take a closer look at what we believe was an erroneous listing." United States Senator Wayne Allard echoed the sentiment in a March 31 statement saying, "This is good news for the many Coloradoans . . . however, this is just the first step towards removing a costly listing that has stymied people, businesses, and government in our state." Federal officials will review the science behind the petition and take public comments on delisting over the next nine months. As part of the review, the Service tasked the Colorado Division of Wildlife (the "DOW") with conducting an independent peer review of Dr. Rob Roy Ramey's genetic study that concluded the Preble's meadow jumping mouse does not exist as a separate subspecies. The CWCD cited Dr. Ramey's work as well as ample evidence that the mouse is far from threatened or endangered in its petition to delist. Peer review is scientific quality control. The success of the CWCD's efforts to de-list the mouse depends upon an impartial review of the science by qualified experts. Unfortunately, of the nine-member peer review team selected by the DOW, only two have a background in population genetics and lack a direct interest in the Preble's listing. Three of the reviewers were directly involved in the peer review of the original listing decision in 1998. Many of the reviewers were put in the awkward position of examining work that directly contradicts their own stated positions and research. To be truly independent, peer reviewers should have no financial interest in the subject matter. According to the U.S. Fish and Wildlife Service, the federal and state governments spent more money on the Preble's meadow jumping mouse in FY 2000 than on the humpback whale!* A March 10, 2004 press release from the U.S. Department of Interior reported that the Colorado Division of Wildlife will receive $1,270,452 for Preble's meadow jumping mouse surveys. The CWCD voiced serious concerns with the peer review process. And on April 5th, Wyoming Governor Dave Freudenthal wrote Secretary of the Interior Gale Norton an extensive letter outlining his "great reservations" about the peer review team and the involvement of the DOW in the process. Thanks to leadership from Representative Greg Brophy from Wray, Colorado and Senator Doug Lamborn from Colorado Springs, and help from CWCD, the Colorado legislature attached a footnote to DOW's budget that prohibits the use of funds on peer reviews unless they are truly independent. Whether the footnote will survive the remaining days of the session, and whether Governor Owens may veto it, are open questions. The CWCD also supports court-ordered compliance with the strict timelines for delisting under the Endangered Species Act. Those efforts were also recently successful in the form of an April 5, 2004 Court Order in Mountain States Legal Foundation v. Norton. The Service must decide whether to de-list by December 2004. In March, Colorado's 9 News aired a story with Jerry Sonnenberg about the CWCD's efforts. The station also interviewed the author and officials from the Parker Water and Sanitation District for another story that may run soon. Parker had to spend in excess of $1 million building "mouse tunnels" and providing other mitigation (such as the acquisition of hay meadows from an unwilling seller) for the mouse. Finally, the U.S. House of Representatives will soon hear directly from Dr. Rob Roy Ramey, II. He has been asked to testify before the House Resources Committee on April 28th regarding his genetic work on the Preble's mouse. A recent report by the Property and Environment Research Center estimates the actual cost of ESA listings could exceed $3.5 billion per year! According to the Service, some of the listed species the government is spending millions on include: 6 suckers, 5 sturgeons, 31 snails, 14 chubs, 4 toads, 11 snakes, 5 squirrels, 3 crows, 1 prairie dog, 10 mice, 7 rats, 9 bats, 12 beetles and 6 spiders. The CWCD needs your help to continue its fight to bring common sense and good science to the Endangered Species Act. For more information on the efforts to de-list the Preble's meadow jumping mouse, or to join the CWCD, please contact Executive Director, Jeani Frickey Saito, at (303) 813-9290 or Kent Holsinger, counsel, at (720) 904-6000.

These summaries exclude land acquisition costs, agency salaries, operations and maintenance costs, and expenses to landowners, businesses, water providers, etc..


*The Three-Year Summary of Federal and State Endangered These summaries exclude land acquisition costs, agency salaries, operations and maintenance costs, and expenses to landowners, businesses, water.