Friday, Sept. 22, 2023 | 2 a.m.
Despite assertions that rancher Cliven Bundy’s cattle are largely to blame for habitat destruction threatening desert tortoises near Gold Butte National Monument, it’s unlikely that a judge would rule to confiscate the cattle, according to a law professor who studies conservation and public lands law.
The Idaho-based environmental conservation nonprofit Western Watersheds Project last week filed a 29-page complaint in the U.S. District Court in the District of Columbia alleging that Clark County and several federal agencies have failed to protect the Mojave desert tortoise and other native species subject to a 2001 agreement that allowed the county to expand outward into federal territory in exchange for heightened protections of the tortoises and 77 other “rare” native species.
UNLV law professor Bret Birdsong, who served as deputy solicitor for land resources at the Department of the Interior during the Obama administration, told the Sun the most likely outcome of the lawsuit would entail some form of revising the Multiple Species Habitat Conservation Plan (MSHCP).
“The lawsuit poses some really ... significant questions and important questions,” Birdsong said. “Whether or not that means it will lead to a positive result for them, I can’t say.”
The MSHCP is the 2001 agreement between Clark County and the Bureau of Land Management, the U.S. Fish and Wildlife Service and National Park Service that allowed the development of roughly 170,000 acres on the outskirts of Las Vegas in exchange for more stringent wildlife protections. The Western Watersheds Project alleges that decades of unchecked trespass livestock grazing in protected territory has thrown the tortoise population into “long-term decline” and potential extinction that could be further exacerbated by proposed solar projects spanning more than 13,000 acres in the tortoises’ habitat.
The MSHCP is “an absolutely essential document that a lot of people don’t know about, but it really controls a lot of what goes on in the valley around development,” Birdsong said.
“The end of the road is in sight,” Birdsong said of the total land developed under the current MSHCP. “I think it has been a concern for pro-growth advocates and for folks that are concerned about the availability of private land.”
The MSHCP ensures Clark County and local municipalities remain in compliance with the federal Endangered Species Act (ESA), with the goal of stabilizing or increasing wildlife species listed under the ESA. The desert tortoise is considered “threatened” under ESA guidelines, though the Western Watersheds Project alleges in its suit it should be considered endangered, allowing for even more stringent conservation policies.
The MSHCP further allows for the accidental “take” of listed species by issuing incidental take permits, defined as any unintentional disruption of habitat or killing of animals listed under the ESA, Birdsong said. And if the agreement were revoked, outward expansion of the valley would have to cease immediately.
Western Watersheds Project Executive Director Erik Molvar did not respond to a request for comment in time for publication of this article. The Department of the Interior, BLM and Clark County all declined comment, citing the pending litigation.
But essentially, according to Birdsong, the Western Watershed Project’s argument can be summed up this way:
“We’ve got this habitat conservation plan,” Birdsong said. “It’s 20 years old, and it was approved based on the understanding that certain things were going to happen, including the removal of cattle and the retirement of grazing in an area that Clark County itself had designated or identified as an area where they would undertake actions to preserve tortoise habitat. But what they didn’t know is that 20 years later, even though the grazing has been retired under the law, that there would still be cows out there because of trespass grazing.
“So essentially what they’re saying is, there’s this long-term agreement, but now there’s stuff that’s happened that no one knew was going to happen, and it undermines important assumptions around conservation that was supposed to be ensured by the Habitat Conservation Plan.”
In a statement announcing the lawsuit, Molvar slammed Bundy — the rancher central to the 2014 armed standoff between militia groups and federal agents who were attempting to confiscate Bundy’s cattle due to decades of unpaid grazing fees. He also criticized federal agents who “failed to deliver” habitat protection for the imperiled tortoises.
“Between the impacts of Cliven Bundy’s 30 years of trespass livestock grazing in Gold Butte National Monument and the conversion of ungrazed desert habitats to solar farms, the desert tortoise and other species are getting cheated out of their side of the Habitat Conservation Plan bargain,” Molvar said in the Sept. 13 news release.
Bundy told the Sun he blames Clark County for failing to protect the tortoises.
“If I owed any type of grazing fee or fine or anything, I would pay it to Clark County,” Bundy said, emphasizing his long-held belief that the federal government has no jurisdiction over his property or Clark County land. “I wouldn’t pay it to a foreign government like the federal government.”
Bundy further asserted that Clark County has raised “hundreds of millions” since the MSHCP was first implemented through fees associated with building permits that are supposed to fund initiatives to protect the tortoises.
According to the Clark County Department of Environment and Sustainability, the county collects a $550 “mitigation fee” for each acre of land developed in accordance to the MSHCP. The fee allows developers to streamline the permitting process and cuts red tape on other project-by-project consultations with the Fish and Wildlife Service, which administers the MSHCP.
Funds from the fee help implement the MSHCP and provides habitat mitigation and conservation for the protected species, including the tortoise. Records show that two environmental groups work with federal and local partners as it relates to desert tortoise mitigation being the Great Basin Institute, and Bio Logical LLC.
It’s unclear what the balance of the account funding the MSHCP is. Officials overseeing the MSHCP did not respond in time to calls and voicemails seeking comment.
“It’s all just sort of a moneymaking project for the government and the environmental community,” Bundy said.
Bundy said he’d be willing to house the tortoise population on his ranch, located about 80 miles northeast of Las Vegas, outside Bunkerville.
“I have plenty room here on Bundy Ranch for those tortoises, and I would welcome taking care of them and share my ranch with them,” Bundy said. “Those tortoises and my cattle are eating green grass. And they’re just fine.”
Bundy also said he would resist any attempt to round up his cattle again.
“I don’t know what this will amount to, but we’re ranchers, we’re producers, and we’re going to stay here and ranch as long as we got some breath in our life,” Bundy said. “I guess we’re going to continue to have to fight this battle.”
A hearing for Western Watershed’s case, which also names Interior Secretary Deb Haaland and Agriculture Secretary Tom Vilsack, has not yet been scheduled, according to federal court records.
But whatever the outcome, UNLV’s Birdsong said it’s way more likely the defendants in the lawsuit would expand designations for the tortoises’ protected habitat, rather than an injunction ordering the grazing to stop.
“I think that’s an unrealistic expectation,” Birdsong said of a potential cattle roundup. “(The case) is not set up so a judge will rule that this trespass grazing has to stop.”
It could also force the county and federal partners to get creative.
“It could incentivize Clark County to try to get better conservation in the Gold Butte area or designate other areas for conservation because the conservation benefits that were foreseen in Gold Butte are being undermined by continued cattle (grazing.)”
[email protected] / 702-990-2681 / @Casey_Harrison1
