Butterfly lands county in legal jam
November 11, 2010
By: Hannah Hoffman, Yamhill News Register
When the Yamhill County commissioners voted 2-1 in May to reject a federal grant to develop a local habitat conservation plan, Commissioner Mary Stern warned, “We just threw away $391,000 that we’ll never get back, and that could have protected us against future liability.”
That warning hit home Tuesday when Scott Black, executive director of the Portland-based Xerces Society, provided the county with the required 60-day notice of intent to sue. Unless remedial action is taken by Jan. 7, he said in a certified letter, the society plans to join the Center for Biological Diversity, Yamhill Watershed Stewardship Fund and three individuals, Laura McMasters, Bill Fender and Dorothy McKey-Fender, in taking the county to federal court for failure to comply with the federal Endangered Species Act.
The species of most concern is the rare and highly localized Fenders blue butterfly, which depends for its survival on an equally unique Kincaid’s lupine. The plan, however, was designed to address a range of species.
Commissioners Leslie Lewis and Kathy George both rejected the grant, catching County Public Works Director John Phelan and other top county officials by surprise. Phelan had already included the county’s matching contribution in his approximately $10 million 2010-11 budget and assured the News-Register just days before the vote that he considered the habitat project a virtual done deal.
They worried that development of a protection plan might create a future financial burden for the county, and possibly some of its private property owners. They said it might limit some owners’ ability to farm their land, should endangered Fenders blue butterflies or habitat be discovered on their holdings.
Lewis and George went on to express concern about the local match commitment, though it constituted less than 10 percent of the overall cost, consisted almost entirely of staff support rather than dollar outlay and was to be shared with the Yamhill Soil & Water Conservation District. They also complained the county hadn’t gotten a full enough accounting from U.S. Fish & Wildlife biologist Mikki Collins when they agreed to submit the grant application in 2008.
Stern argued the county was under a mandate to produce such a plan, and would be badly remiss in turning down a general federal officer to fund the work. She said it amounted to throwing money away.
Unfortunately, the money is, indeed, gone at this point. The county has no means to get it back, even in the face of a potentially protracted and costly round of federal litigation.
The application was developed on the county’s behalf by Tim Stieber, executive director of the conservation district, which had been planning to partner on the project.
When the commissioners opted out, the U.S. Fish & Wildlife Service offered to award the entire amount to the conservation district. However, the work plan was significantly altered in the process, in order to more fully address the district’s mission, and Stieber said there’s no going back now.
Stieber said the district had entered into a binding three-year contract with Fish & Wildlife, and people on board specifically to carry out that contract. He said the county no longer has any legal claim on the resources and they can’t legally be diverted now.
Black said the conservation organizations and the three individuals, associated with the rare butterfly’s original discovery, were not seeking monetary damages. He said they were interested in obtaining a court order forcing the county to cease road and ditch maintenance work in affected habitat unless and until it commits to development of a protection plan.
He said they would be satisfied if the county simply reinstated its original commitment. However, with federal support no longer available, that would be a very costly endeavor.
A habitat conservation plan established strategies to avoid harming or killing an endangered or threatened species and methodology for monitoring compliance. Once in place, it provides legal protection from lawsuits in the event inadvertent damage occurs nonetheless.
The commissioners have not yet had a chance to discuss the threatened legal action. They are expected to do so in executive session, which is allowed under Oregon’s public meetings law.
All three declined comment in the interim.