Volume 2, Number 15 - July 11, 2002
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Ferret presence used as bargaining chip
A federal land management agency appears to be using an endangered species as a method to maintain-land use authority in Sublette County, even though the species is not confirmed to currently exist in the county.
A Bureau of Land Management official told the Sublette County Commission last week that the presence of black-footed ferrets is an issue for the county to consider in contesting the Bureau of Land Management's jurisdiction of a road.
Although the BLM has made ferret presence an issue with the county road, these hypothetical critters apparently aren't going to hold up the drilling of a natural gas well in the same area where a ferret skull was found.
If the county insists on challenging the BLM's jurisdiction by pursuing an RS-2477 right-of-way, dealing with this endangered species and a cultural resources issue could take years.
But if the county will agree to obtain a BLM right-of-way, the problems won't be as difficult, commissioners were told, and the ferret issue could be dealt with at a later date.
Rock Springs BLM Field Manager Stan McKee said that black-footed ferrets exist in an area of the Big Sandy, just a few miles from one of the most active natural gas developments in the Northern Rockies, north of Farson in Sublette County.
Officials from the BLM Rock Springs District office attended Tuesday's Sublette County Commission meeting to discuss a jurisdictional conflict with the commission over the road leading across BLM land from Highway 191 to the Erramouspe family ranch. Several more BLM representatives from the agency's state office in Cheyenne also listened in via a telephone conference line.
The BLM claims jurisdiction for the road, but a little over a year ago the commission passed a resolution declaring it a county road pursuant to Revised Statute 2477. This self-executing law, enacted in 1866, declared, "The right of way for the construction of highways over public lands, not reserved for public use, is hereby granted."
Although RS-2477 was repealed with the 1976 enactment of the Federal Land Policy Management Act, it did not invalidate existing rights.
The road has been used to access the John Erramouspe ranch for more than 70 years, but after the BLM caught the family maintaining the road in 1997, the agency pressed the Erramouspes to obtain (apply for and pay for) a BLM right-of-way. Since the family and the general public have used the road since before the BLM was created, the Erramouspes balked and went to the county for help.
Meanwhile, the BLM has refused to resolve a building trespass with the Erramouspes until the road issue is resolved. Some years ago, the Erramouspes had survey work conducted and discovered that a portion of their ranch house (specifically their kitchen), and a second smaller home, is actually located on BLM land. The proposed resolution to the building trespass is a land sale to the Erramouspes, but the BLM won't complete the deal because of the road.
McKee explained at Tuesday's meeting that the BLM had received a letter from Erramouspe attorney Karen Budd-Falen, and that the reason his agency was attending the meeting was to see "what we can do to resolve the issue."
The Erramouspe family was not represented at the meeting.
"We have not trespassed the Erramouspes at this point," McKee said, "for use of the road." He said: "We're willing to help you do anything you want to do ... but I think the main thing is to resolve it before we go into that mode and issue a trespass to the Erramouspes."
Patricia Hamilton of the BLM said other issues make the need for a resolution to the dispute more significant, such as that an oil company wants to use the road and would like to lower a culvert, but the Erramouspes oppose the change. (Although not mentioned by Hamilton, the culvert is built into the dam of a permitted reservoir and has a water-management function, thus the Erramouspes' resistance to lowering the reservoir's holding capacity, John Pierre Erramouspe said in an interview later.) Hamilton also noted that once the road issue is resolved, the sale of the occupancy trespass could then move on to resolution as well.
McKee suggested that to resolve the issue, the BLM would issue the county a Federal Land Planning Management Act right-of-way, free of charge. He said one of the big differences between FLPMA and RS-2477 rights-of-way are that FLPMAs can be done "almost overnight," while it could take years to have the RS-2477 issue resolved.
"We've got endangered species involved in there. We are fairly sure at this particular point that there are black-footed ferrets in the area," McKee said. "We've got cultural resource concerns with the maintenance of the road and that's something we can clear up for you. We have an oil company that's wanting to get a right-of-way for the road to use it.
"It would give this thing a whole new light," McKee said. "The RS-2477 issue is going to have to go back before the Secretary (of the Interior). It would be a long, drawn-out process."
McKee pressed for the commission to choose the FLMPA route, stating that it would be quicker and easier, "then if you wish to pursue the RS-2477 issue, that can still be done."
Commission Chairman Bill Cramer said he recalled that the Erramouspes felt if the county agreed to the FLMPA right-of-way, that would forestall the RS-2477 claim.
"We have told them repeatedly that we as a county, and they as taxpayers of this county, we are not going to do one thing to harm their interests," Cramer said. "Whether that accommodates the BLM, or us or anyone else, they are the main people in this matter and if our RS-2477 is compromised, then I don't think that's something we will pursue."
McKee said his agency will do whatever the county wants it to do, but disagreed about the RS-2477 claim being compromised by the FLMPA right-of-way.
"Their attorneys put us over a little bit of a barrel," McKee said, "so it's time for us to react."
McKee asked the commission to notify him of the county's intentions "because we intend to issue a trespass to them. ... We are going to have to do it and that will hold up their land transfer."
McKee said that advice from the Solicitors Office in Washington D.C., instructed the agency to hold up the land transfer "as long as the road trespass exists."
McKee said his agency is trying to offer to the commission "a way to help us help the Erramouspes."
"There is an easy way to settle this," McKee said, but if the commission wants to go the RS-2477 route and settle the issue at a higher level, "if you need us to trespass you, we'll do it."
McKee said: "There's an easy way to do this and there's a hard way to do this. We can get you to the same place fairly easily and cheaply."
As for the controversy regarding the oil company wanting to make changes to the road that the Erramouspes oppose, Cramer said although it is a county road, maintenance falls under the responsibility of the Erramouspes to perform. The county may decide to work on the road and the BLM "may decide to come spank us," Cramer said.
"I don't think that we're going to come in and spank you," McKee said, but added "if we have an endangered species out there and a cultural issue" then certain restrictions would be implemented.
McKee said with the FLMPA right-of-way, there will probably be restrictions, but those restrictions can be defined after the right-of-way is issued. He suggested something like no blading of the road from June 1 to July 15 to protect ferrets.
"There will probably be stipulations on what can happen," McKee said, adding that if there is a problem with endangered species, it won't be the BLM the commission has to deal with, but the U.S. Fish and Wildlife Service.
When asked if the BLM maintains that there are ferrets in that area currently, McKee answered in the affirmative, adding, "We've had a lot of evidence that there is."
McKee noted that not only has a skull been found in the area ("and it was within a year old. It still had hair on it," he said), but burrowing activity has been discovered, as well as other evidence.
He said more survey efforts for ferrets are about to be conducted. "We should know by the end of July whether ferrets are there," McKee said.
But a U.S. Fish and Wildlife Service official handling the ferret issue made statements contradicting McKee's in an interview with the Examiner, indicating McKee might not quite be in the loop.
Surveys for ferrets will be conducted in August, according to FWS biologist Pat Deibert, but there has been no determination that ferrets currently exist in the area.
"There is evidence suggesting that, possibly, but we can't say they are absolutely for sure there," Deibert said. "We are going to survey in August to try to figure it out."
The discovery of a remnant population of ferrets in western Wyoming would be of international interest, Deibert agreed.
Discovery of a black-footed ferret skull in the area two years ago is the cause of the heightened interest. But four experts examined the skull and dated it anywhere between five to 200 years old. When interviewed a year ago about the issue, Deibert said, "We basically have no idea how old this skull is."
The Big Sandy area skull was actually about two-thirds of the skullcap of an adult female ferret, and did not have hair on it, according to research notes written by one expert who examined it. In fact, the skull was clean, "probably due to dermestid beetle activity," according to Elaine Anderson of the Denver Museum of Nature and Science. While the skull may have been less than five years old, Anderson wrote, "The skull may have been buried in a prairie dog mound and then exposed by burrowing or burrow cleaning by prairie dogs."
Thus, a prairie dog could have recently unearthed the skull, which until that time could have lain underground for years, slowing its aging and deterioration.
Last spring, Wyoming Game and Fish Department non-game biologist Bob Oakleaf of Lander examined the area where the skull was found, to investigate "trenching" activity which is also associated with ferret presence. Previous trenching in the area a few years ago was determined to have been conducted by a badger.
In an interview this week, Oakleaf said: "They look like ferret trenches," but the activity occurs in an area of "incredibly marginal habitat" for ferrets, with limited prairie dog colonies - the ferret's main food source.
"I'm a long way from saying there's ferrets there," Oakleaf said. "There's not enough prairie dogs there," unless there are other colonies his agency isn't aware of (prairie dog colony mapping has been conducted in the area).
Deibert also said that scat found in the area was collected and tested, with the determination that it came from a weasel rather than a ferret.
County must decide
As the meeting with the BLM concluded last week, Commissioner Betty Fear said: "I just don't understand, I guess, how the black-footed ferret cares whether it's FLPMA or RS-2477."
McKee said, "Well, it doesn't," but added that imposing restrictions to protect ferrets is the issue.
"We don't need to fight over this," McKee said. "We're going to have enough of a fight anyway ... so let's keep it above board ... 'cause this ain't personal."
After McKee and the BLM contingent left the meeting, the commission got Budd-Falen on a teleconference call and asked whether agreeing to a FLPMA right-of-way would jeopardize the RS-2477 claim.
Budd-Falen responded that it all depends on how the FLPMA paperwork is worded.
"It depends on the wording of the individual document," she said.
Budd-Falen explained that the last administration in Washington would not allow an RS-2477 claim to go forward if a FLMPA right-of-way was granted, so affected parties had to select which right-of-way to pursue. While the new administration supposedly will allow the RS-2477 claim to go forward, Budd-Falen said the FLPMA right-of-way document needs to very specifically make that statement.
The commission agreed to have the BLM send a proposed FLMPA agreement to the county, which the commission will then have Budd-Falen review. The commission hasn't officially retained Budd-Falen to take on the county-road issue, but did request she conduct this review for the county.
As a follow up to last week's meeting, Fear was asked Monday if she felt that the BLM brought up the ferret issue in attempt to pressure the county to take a certain action (namely the FLMPA right-of-way application). Fear said, "Yes, I really do think that."
Fear questioned, "Why even bring it up unless they know for a fact that they are there?"
Interestingly, the road at issue is more than a mile from where a black-footed ferret skull was discovered a year ago. But the skull was found within a few hundred yards of a proposed natural gas well location. In an interview after the Pinedale meeting, BLM's Pam Lewis said she doesn't anticipate the ferret issue will cause her agency any problems in permitting the well.
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