Franklin County might sue over endangered listing for bladderpod

Tri-City HeraldMay 14, 2013 

Sally Cottrell clutched a photo of several generations of her family, taken at the family farm atop the White Bluffs overlooking the Columbia River in western Franklin County.

She fears what a new endangered species designation for a yellow-flowering plant that grows exclusively in the area could mean for the future, she said.

Cottrell was one of more than 100 people who packed a county commissioners meeting Tuesday to protest possible government restrictions on how they use their land.

“My children grew up around White Bluffs and played on that area,” Cottrell said. “How am I going to sell the property with this thing they are going to put on that? They’re going to tell me what I can and can’t do with it?”

The U.S. Fish and Wildlife Service plans to designate 2,861 acres of land in Franklin County as critical habitat for the White Bluffs bladderpod, a colorful plant that’s part of the cabbage family.

While most of that is on federal property — part of the Hanford Reach National Monument — 419 acres is on private land, including Cottrell’s and other farmers in attendance.

County commissioners voted 3-0 Tuesday to hire outside attorneys to look at the case. They stopped short of announcing a lawsuit, which some in attendance wanted them to do. The county wants Fish and Wildlife to reopen a 60-to-90 day comment period on the endangered species designation, something it says the agency skirted.

Ken Berg, manager of Fish and Wildlife’s state office in Lacey, told the assembled farmers that he was there to “begin a new relationship with Franklin County.”

The relationship appeared on the rocks, at best, as resident after resident told Berg how harmful they feel the regulations could be to farming.

The federal protections for plants are much less stringent than for animals, Berg said. He assured the crowd that the impacts would be small for private property owners, and only people who have significant federal funding for their property need to deal with Fish and Wildlife regulators.

“When the Fish and Wildlife Service lists something, we do it for the benefit of all the American people, but we don’t want to do it in a way that impacts anybody — any group, any county, any constituency, any citizens, anybody that lives on the land,” Berg said. “We don’t want to disproportionately affect those.”

Cottrell blasted the map Fish and Wildlife used, saying it declares land she uses for farming as critical habitat, even though the agency promised not to include land that had been disturbed for farming in the designation.

She also wondered how Fish and Wildlife could determine that her property should be part of the critical habitat unless the agency had researchers trespass on her land.

“With all the property that is owned by the government, why haven’t you done a better job taking care of the plant?” Cottrell asked. “I don’t understand why, with all the property that you have, why my property has to be taken?”

Berg said the aerial map that showed Cottrell’s property as non-agricultural must have been made using an old photo. He also denied coming onto the property, saying researchers used remote photography and have strict orders not to go on private property without permission from the landowner.

Kent McMullen, chairman of the Natural Resources Advisory Committee, which makes recommendations to the county on environmental and agricultural issues, said Fish and Wildlife announced the initial comment period for the bladderpod’s endangered species designation last year by placing notices in the Spokesman-Review newspaper in Spokane and the Federal Registry.

McMullen refuted Fish and Wildlife claims that it couldn’t notify the individual landowners because the agency couldn’t find them.

“That information is available right now on our county tax assessor’s website,” McMullen said.

The Tri-City Herald ran some stories last year about the comment period for the endangered species designation for the bladderpod, as well as another plant called the Umtanum desert buckwheat that grows across the river in Benton County. Commission Chairman Rick Miller said those stories mentioned only that the plants grew on Hanford Reach and said nothing about impacting agriculture.

“It was notice, but it wasn’t directed properly,” he said.

However, Herald archives show a May 24, 2012, story that announced the public comment period. It mentioned that the designation would include 419 acres of private land as well as 42 acres of state land as critical habitat.

Berg, wearing jeans and a blue dress shirt with rolled up sleeves, admitted his agency could have done a better job notifying the public.

“I was not effective in reaching out to you,” he said. “When this many people show up, it’s a big deal, and we should have been talking with you.”

But Berg didn’t have much to say when Commissioner Brad Peck asked whether Fish and Wildlife met the legal requirements for notice to local governments.

“I don’t mean to be evasive, that’s something that lawyers have to deal with,” Berg said. “I’m not paid to come here and give legal opinions when I’m not a lawyer.”

Peck grew tired of Berg’s reluctance to answer his questions.

“With all due respect, you’re not being quite as candid as you promised at the start of the meeting,” Peck said.

Berg dismissed claims of a 1,000-yard “buffer zone” where farming could be restricted around the critical habitat, saying the idea likely came from a misunderstanding of previous designations of critical habitat for salmon. But when Peck questioned him, Berg admitted that the agency does have the authority to make changes in the future that could expand the critical area.

“If we discovered that there were other populations that were central to the recovery of the species, we’d have to look at that ... If we found that, we’d have to reconsider how that affects the whole designation,” Berg said.

Peck said the label “buffer zone” isn’t as critical as the question of whether Fish and Wildlife can expand the area beyond what it now describes.

“What I’m hearing is, ‘Yes, we have the authority to do that, we don’t know that we would,’ ” Peck said.

Berg said he wouldn’t have an immediate response to a letter commissioners sent to his office last week. Instead, he promised a thorough explanation in the coming days.

Miller said filing a lawsuit remains the last resort for the county, and it is hiring an outside attorney only to keep its options open.

The endangered species designation is set to go into effect May 23, but Miller said the county could still take action after that.

Some in the audience are concerned about the May 23 date. Franklin County farmer Steve Cooper, the state Farm Bureau’s vice president for policy development, said the county commissioners should have taken action at their May 8 meeting.

“The time is getting low,” Cooper said. “We’re down to hours, not days.”

Geoff Folsom: 509-582-1543;; Twitter: @GeoffFolsom

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