The national grassland and disappearing biodiversity: can the prairie dog save us from an ecological desert?

I. INTRODUCTION

   The sun, moon and stars would have disappeared long ago had they been
   within the reach of predatory human hands.

      --Havelock Ellis

In 1492 the American prairie was a thriving ecosystem that encompassed one-third of the North American continent.(1) Buffalo roamed in herds that stretched to the horizon, and the prairie dog lived in "towns" covering over 100 million acres of the Great Plains stretching from Canada to Mexico on the eastern side of the Rockies.(2) Five hundred years of European occupation have taken their toll on the grassland ecosystem. The bison are all but gone from the landscape, and many species may not be far behind. As with other ecosystems invaded by human occupation, we have destroyed much of the original fabric before realizing what we have done. Human understanding of the complexity of some of our ecosystems has progressed greatly in the last fifty years. Yet the subtle nature of certain systems prevents the level of understanding needed to stimulate the public outcry that could stop the destruction. It is hard to see the damage done to the prairies of the American West without paying attention to detail. Like fragile wetlands, once considered annoying swamps that should be drained, the prairies appear to the casual observer to be doing fine--one can still look out and see the rolling grasslands. But gone are many of the original occupants as the plains have been carved up by humans eager to exploit them. Bison were hunted to near extinction and cows replaced them, causing stress upon native grasses, beating streams into washed-out gullies, and displacing many other species from their traditional homes.(3)

During the last year, the grassland ecosystem has finally, come to the attention of the general public, carried there by its posterchild, the prairie dog. The prairie dog, considered by many an important indicator of prairie ecosystem health, has graced the cover of National Geographic and has been the subject of numerous news stories.(4) In July 1998 the National Wildlife Federation petitioned the U.S. Fish and Wildlife Service to declare the prairie dog a "threatened" species under the Endangered Species Act (ESA).(5) These developments may lead to both a better understanding of the overall prairie ecosystem and better management of the ecosystem by federal agencies.

One opportunity for better management exists with the United States Forest Service (Forest Service). In mid-1997 the Forest Service announced its intent to prepare an environmental impact statement (Grasslands EIS Notice) as part of its effort to update the management plans of three national forests, which encompass eight National Grasslands.(6) These eight public grasslands make up a significant part of the remaining prairie ecosystem, and, therefore, the Forest Service plan may determine the destiny of this once great national treasure. The Grasslands EIS Notice outlines the preparation, over an eighteen-month period, of a Final Environmental Impact Statement (FEIS) as required under the National Environmental Policy Act (NEPA).(7) This planning process is an excellent time to reflect on past uses of these public lands and to examine the adequacy of present management tools available for preserving what is left of the natural ecosystem, in light of new scientific information about the grassland ecosystem.

This Comment argues that the prairie dog should emerge as a focal point in discussing the viability of the prairie ecosystem because of its interconnectedness with most of the naturally occurring species of the plains. The prairie dog's role is similar to that of coral in aquatic systems and is just as necessary to the continued survival of many species living on the grasslands.(8) In Part II, this Comment traces the history of the prairie ecosystem and discusses some of the management attitudes and practices employed by the government. Part III discusses the critical role the blacktailed prairie dog plays in the grassland habitat and why it should be considered more than a mere "varmint" whose only use is to be shot at for recreation or exterminated to make way for more livestock grazing.(9)

The scoping notice for the Grasslands EIS outlines the statutes and regulations to which planners must adhere in preparing the management strategy of the grasslands for at least the next ten years.(10) Part IV of this Comment examines these requirements in a legal context and discusses their limitations as tools for environmental advocates in the court system. Part V discusses factors the Forest Service should consider not only in preparation of the Grasslands EIS, but also in any management plans involving grassland ecosystems. Part VI presents management practices that should be employed to recover native species such as the prairie dog, the ferret, and the bison, using the current system of statutes and regulations and suggesting other tools that can protext and preserve the grassland ecosystem.

II. WHAT ARE THE NATIONAL GRASSLANDS?

A. Pre-European Ecosystem

The prairie grasslands have a rich history covering millions of years since the days the dinosaurs roamed the range. When Columbus discovered North America in 1492, the grasslands were comprised of a wide variety of plants and animals but shared the common characteristic of a rolling, grassy landscape.(11) The grasslands covered millions of acres of the American West and at one time formed an uninterrupted prairie almost 2500 miles long and 400 miles wide.(12)

The animal species of the grasslands adapted to the unique environment of low rain interspersed with periodic droughts, extreme temperature variations, and wildfires.(13) The prairies used to thrive with a wide variety of species ranging from large herbivore mammals (bison, pronghorn, deer, and elk), to small animals (prairie dogs, ground squirrels, and ferrets), to the predators of the plains (coyotes, foxes, hawks, and eagles).(14)

B. The Taming of the Plains

Starting as a trickle, and later becoming more akin to a flood, pioneers moved onto the plains and attempted to subdue the wild elements. Through grazing of cattle and sheep, and later through the expanding farmland, the prairie was permanently altered.(15) The federal government contributed greatly to this alteration, embarking on an ambitious effort to settle and tame the west during the nineteenth and early twentieth centuries. Through the Land Act of 1796(16) and then the Homestead Act of 1862,(17) settlers were encouraged to venture westward.(18)

Under these Acts, the public domain was distributed in many chunks to private owners.(19) As the ecosystem web deteriorated, the great species of the plains lost a connected ecosystem. This made survival difficult for native species.(20) While the decline and disappearance of the bison from the prairie is infamous, the drastic reduction of other endemic species may not be quite as well known. The black-tailed prairie dog (an important indicator species of prairie health)(21) populated over 100 million acres of the Great Plains across eleven states.(22) There were once as many as five billion prairie dogs in the west.(23) Today, traditional prairie dog habitat has been reduced by as much as ninety-nine percent to as few as 700,000 acres.(24)

Even within the public lands, the range of the prairie dog has been drastically curtailed. For example, in the Fort Pierce and Buffalo Gap National Grasslands, prairie dogs remain only on approximately 10,000 acres of these sprawling 707,000 acres of grasslands.(25) Even though the national grasslands represent 3.1 million acres of potential habitat, they support less than 25,000 acres of prairie dog towns.(26)

One of the main reasons for the reduction of prairie dog populations, as well as other native species, is the influence of the livestock grazing industry. Ranchers decry the prairie dog as harming profits by reducing the available forage for their cattle.(27) Additionally, ranchers claim that the prairie dog holes create hazards to livestock from stepping in the holes and breaking legs.(28) As discussed in Part V.C, these claims are often not backed up by credible scientific evidence.(29)

Today there is very little of the North American prairies remaining, and they have been considered to be as threatened as, or more than, tropical forests,(30) For example, almost the entire tallgrass prairie has been destroyed; midgrass prairies have mostly been turned into farms, and the shortgrass prairies are under heavy assault.(31)

Scientists believe that grassland ecosystems can be resilient when faced with moderate pressure from human activities. However, a concentrated attack, such as we have seen during the last 150 years of American expansion, could destroy the original system forever.(32) Scientists must analyze how the system operates, what impacts are irreparably harming the system, and what steps can be taken to put the grasslands back in good health. The next section examines scientific studies that suggest the prairie dog is a keystone to the natural functions of the prairie ecosystem and may be critical to the survival of many grassland species.

III. THE IMPORTANCE OF THE PRAIRIE DOG

Forest Service regulations for evaluating management options in forest plans require that certain species be selected as "management indicator species." Among other things, these species are valuable as indicators of management effects on other species in the planning area.(33) Certainly, the prairie dog would be a good candidate for management indicator species in the grassland ecosystem.

Mounting scientific evidence suggests that prairie dogs are integral components of the prairie ecosystem. Prairie dog colonies interact with other species on a grand scale through their habitat alterations, creating new opportunities for foraging and nesting.(34) Research has shown that prairie dogs improve plant diversity and productivity through tilling, aerating, and fertilizing the soil.(35) These activities in turn create a more conducive habitat for a wide range of species. One scientific study notes that "[t]heir burrowing activities and feeding habits are directly responsible for creating habitat diversity and thus providing a niche for 134 vertebrate wildlife species and over 36 families of invertebrate[s]."(36) Yet another study points out that at least thirty-six species of mammals, four species of amphibians, eighty-eight species of birds, and six species of reptiles are associated with the black-tailed prairie dog colony ranges.(37)

The enormous number of species associated with prairie dog towns should be considered in making the prairie dog a keystone species of the ecosystem and a management indicator species for Forest Service lands. Included among the animals found to be associated with the prairie dog colonies are several proposed candidate species under the Endangered Species Act (ESA), such as the Mountain Plover (Charadrius montanus), the Ferruginous Hawk (Buteo regalis), and the Swift Fox (Vulpes velox).(38) The listing proposals for these species cite the decline of prairie dog populations as a factor in their own decline, because these species rely on the prairie dog for habitat and as a food supply.(39) Consideration of the prairie dog as a keystone species and subsequent management that maintains viability across the planning area could help these species avoid eventual listing under the ESA.

The United States Fish and Wildlife Service (FWS) also has recognized--though not explicitly--the importance of the prairie dog as a management indicator species. In surveys conducted in Wyoming, examining suitable habitat for reintroduction of the ESA-listed ferret, FWS recorded sixty-four different species present within the prairie dog colonies.(40)

IV. PLANNING REGULATIONS FOR THE NATIONAL GRASSLANDS

Can the prairie dog be considered the keystone of the grasslands? Are current regulations sufficient to return the prairie to its former greatness? The Bureau of Land Management (BLM), in a report regarding blackfooted ferret habitat, notes that BLM prairie dog poisoning campaigns, cultivation efforts on public lands, and land-use practices in general have led to the drastic reduction of prairie dog colonies on public lands.(41) If the government admits this about the management practices on our public lands, what can be done to reverse it? This section examines the statutes and regulations that apply to the prairies that are under Forest Service management to see whether they provide any useful tools for grassland preservation.(42) Several cases illustrate the inadequacy of current regulations to effectively protect native species from the onslaught of livestock operations on public lands.

A. What Law Applies, Anyway?

A generation of environmental activists has decried United States Forest Service policies, which seem to place the economic concerns of the timber industry ahead of wildlife protection. However, much of this fomentation usually surrounds Forest Service activities in national forests. People usually think of the BLM when they think of management of the prairies.(43) It is often forgotten that the same statutes and regulations that shape Forest Service practices relating to timber also apply to practices on the National Grasslands it administers.

Title III of the Bankhead-Jones Farm Tenant Act(44) placed the National Grasslands under the administration of the Forest Service. The Forest Service promulgated regulations for the general management of the Forest Service lands as required by the National Forest Management Act of 1976 (NFMA).(45) Under this statute, the Secretary is directed to prepare management plans for units of the Forest Service lands that "provide for multiple use and sustained yield of the products and services obtained therefrom ... and, in particular, include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness."(46)

NFMA references the "multiple use and sustained yield" policy articulated in the Multiple-Use, Sustained-Yield Act of 1960 (MUSYA).(47) MUSYA sets out the ambitious policy of administering the national forests in a sustainable manner and would provide for "outdoor recreation, range, timber, watershed, and wildlife and fish purposes."(48) Courts have acknowledged that under these statutes, as well as under general principles of public land preservation, "[a] fundamental mission of land stewardship requires that we sustain viable populations of all native vertebrates."(49) However, in the public rangeland context, the multi-use concept often gives way to the interests of the livestock industry.(50) MUSYA unfortunately does not outline specific standards for land managers to apply, resulting in a general deference to agency action, which is difficult to challenge successfully in court.(51)

Other statutes also apply to the public grasslands. For example, the Federal Land Policy and Management Act of 1976 (FLPMA)(52) provides direction to land managers within the Bureau of Land Management. The congressional declaration of policy for FLPMA states that "public lands [must] be managed in a manner that will protect the quality of ... ecological, [and] environmental ... values[ ] that, where appropriate, will preserve and protect certain public lands in their natural condition."(53) Again, this language may be too vague to provide an effective weapon against rangeland mismanagement.

The Forest Service has also promulgated resource management regulations to meet the statutory requirements of NFMA and MUSYA.(54) However, management programs often create situations where the multiple uses of Forest Service land clash, and the wildlife protection use usually loses out to commercial uses.(55) The Forest Service has generated a body of regulations to guide wildlife protection in the planning process.(56) Sections 219.19 and 219.26 are the most critical of the regulations for ecosystem management because they require the Forest Service to maintain viable populations of species in the planning area,(57) select "management indicator species,"(58) and provide for diversity of native species.(59) The following section explores how these regulations have been applied to management practices in the past and how they may be applied to the Grasslands EIS now underway.

B. Application of Forest Service Management Regulations to the Eight National Grasslands

As noted above, little attention has been paid to the Forest Service's management of the National Grasslands. Only one case exists where management of the National Grasslands has even been challenged. In Sharps v. United States Forest Service,(60) the plaintiff, Jon Sharps,(61) argued that the Forest Service violated NFMA and Forest Service regulations by not providing for the maintenance of viable populations of the northern swift fox, a management indicator species of the Nebraska National Forest (NNF).(62)

Sharps argued that the swift fox relied on prairie dog towns for suitable habitat and that reduction in the number of prairie dog colonies would make viable populations of the swift fox unattainable.(63) The court failed to address the issue of whether the Forest Service violated the viable population requirement, and instead held that NFMA and the Forest Service regulations did not apply in the ranger's district plan because it was not a "forest level" planning decision.(64) The court made clear that Forest Service regulations such as section 219.19 (regarding managing for viable populations of vertebrate species) do "not apply to plans adopted below the forest level because it only applies to `planning areas.'"(65) The Ninth Circuit agreed with the Eighth Circuit in the same year, stating that section 1604(g) of NFMA, and its accompanying regulations, "apply solely to the promulgation and management of forest plans."(66)

In dicta in the Sharps case, the court seemed to indicate that even if Sharps was appropriately appealing a forest level plan, he still would not prevail on the issue of planning for viable populations. The court noted that "a decision within the discretion of the Fall River District Ranger ... [that the district plan] would be more beneficial to the northern swift fox" is committed to agency discretion.(67) In other words, the court indicated that if the Forest Service thought that destroying more prairie dog ecosystem was good for the swift fox, then it was good enough for the court. This case indicates that in any judicial challenge to grassland management, deference to the agency would be difficult to overcome, even if the plaintiff succeeded in attacking the planning at the proper level. The court afforded a great deal of deference to the district manager in deciding what constituted actual viability of a species, even in the face of contrary scientific data.(68) The vagueness of the "viability in the planning area" standard makes legal appeals an uphill battle.

Courts generally provide agencies with great discretion in their decision making, in large part because courts do not want to second-guess agency expertise unless an action is egregious.(69) In light of this deference, courts also have determined that NFMA and the accompanying regulations do no more than require the Forest Service to manage the habitat of species in the planning area.(70) In 1998, in Sierra Club v. Martin,(71) the court held that the regulations do not even "impose upon the Forest Service the duty to obtain any particular type or quantum of data before approving a timber sale."(72) If the Forest Service does not even have to survey for particular species, it seems unlikely that any court could find that the agency violated regulations pertaining to the maintenance of viable populations. Given that ninety-eight percent of the prairie dog's historic range has been eliminated, it is stunning that the Forest Service and other federal agencies continue to stick their heads in the sand.

The holdings and dicta of the Sharps, Environment Now!, and Martin cases present real concerns for anyone who might wish to use the agency's viable populations regulation as a stick to force preservation of the grassland ecosystem.(73) First, cases like Martin indicate that maintaining viable populations means whatever the Forest Service wants it to mean. Second, the Sharps court said that the district plan was not governed by Forest Service regulations and could not be challenged; only forest level plans could be challenged.(74) However, the district plan was a direct by-product of both forest-wide planning and a decision by the forest supervisor of the NNF that stated prairie dog colonies should be consolidated for easier management.(75) Amazingly, the Forest Service was required to adhere to NEPA, NFMA, and Forest Service regulations in making this management decision, but apparently the nuts and bolts of actually carrying out this planning policy at the district level can escape such scrutiny. If this is true, then the Forest Service can use more general language in the overall planning to circumvent any scrutiny of diversity requirements that the courts might require, saving the detail for the district plans.

The legal standard for requiring planning for diversity does not fare much better than the viable population standard as a legal tactic to enforce better ecosystem management. In a case involving logging practices, Sierra Club v. Glickman,(76) the Sierra Club argued that the Forest Service violated its regulation requiring diversity management in a national forest. The court agreed that the Forest Service had a duty under applicable regulations to provide adequate monitoring of species diversity, but it found that the regulations were ambiguous enough to defer to agency expertise.(77) Perhaps environmental groups can at least take solace from the fact that the Forest Service was required to actually monitor species diversity, unlike in the Martin case in which no surveys of species abundance were required.(78)

In mid-1998, the U.S. Supreme Court ruled on a case that further muddied the waters and limited judicial review of forest plans and subsequent viable population and diversity requirements. In Ohio Forestry Ass'n v. Sierra Club,(79) the court held that a NFMA claim was not ripe at the forest plan level because the forest plan does not command action or inaction. Thus, there is no hardship to a party of sufficient ripeness as required under constitutional theories for a proper "case or controversy."(80) In this case, the Sierra Club objected to timber harvest quantities provided for in the overall forest plan, arguing that the plan erroneously favored logging and clearcutting.(81) The court found that because no trees were currently being cut, the Sierra Club could always appeal at a later date when a timber sale was actually proposed.(82) This case effectively limits judicial redressability of a forest plan that inappropriately ignores viability and diversity concerns with regard to native species. It is unclear what effect the Ohio Forestry case has on the holdings of the Sharps and the Environment Now! cases from the Eighth and Ninth Circuits. As noted above, those cases held that section 1604(g) of NFMA and regulations requiring diversity and viable populations apply only to forest plans and not district plans,(83) The question now is, if district plans cannot be challenged for violating ecosystem requirements because the laws do not apply at this level, and the overall forest plans cannot be challenged because the harm to the species (and therefore the party in court) is not immediate enough, how can an ecosystem ever be protected under NFMA? The answer may be that it cannot.(84) The National Environmental Policy Act (NEPA)(85) may still provide a procedural challenge to a forest plan, but a party may not have standing to bring a NEPA claim if there is no immediate harm as a result of the forest plan.(86) It appears that the hands of environmental groups have been effectively tied in a catch-22 within the court system.

As if these recent judicial developments were not enough to dishearten environmental advocates, a shift towards true ecosystem management through diversity requirements is further threatened by recent efforts in Congress to dismantle even these meager environmental protections. The focus of this drive is an effort to undo the Forest Service regulations that require managing for viability of a species across a planning area.(87) The Forest Service itself has been working for the last several years on revisions to its regulations that could lead to a watering down of the viable population standard and the biodiversity it encourages.(88) In the last few years, western Republicans in Congress have made attempts to transfer vast tracts of federal lands to the states, invoking images of a Sagebrush Rebellion II.(89) One can hope that these efforts will fall by the wayside. If they do not, they could seriously affect the weak legal tools currently in place to preserve the prairies.

V. SPECIFIC CRITERIA ANALYZED IN THE GRASSLANDS EIS

As the previous section makes clear, legal action to enforce ecosystem protection is suspect at best. If positive change in grassland ecosystem management is going to occur, it will happen in part through education and better science. All of the interested parties, from federal agencies to environmental advocates and the livestock industry using the grasslands, will have to reach a better understanding of what the ecosystem requires for survival and what planning steps agencies should take to meet those requirements. As the Forest Service prepares its EIS for eight of the National Grasslands under its management structure (Grasslands EIS), the Forest Service should plan around a prairie dog ecosystem scheme because science has shown that the prairie dog is vital to the survival of a wide range of grassland species.(90) This section breaks down the planning requirements the Forest Service must adhere to under the EIS process and offers scientific and legal analysis that could shape that process.

A. Biological Diversity

One area that the Grasslands ElS Notice addresses is biological diversity and the effect of land-use practices on "diversity, abundance and distribution of native plants and animals."(91) The Forest Service regulations require the Forest Service to protect and manage for a "diversity of plant and animal communities ... [in] the planning area."(92) This refers to existing vertebrate species in the planning area, including prairie dogs.(93) However, the Forest Service has ignored the enormous decline of the prairie dog and the effect this decline has had on the entire ecosystem. When a species with a demonstrated link to the survival of many other species has been eradicated from ninety-nine percent of its original habitat, there is not much diversity planning occurring. Both the prairie dog and the blackfooted ferret have vertebras and yet the ferret is practically extinct and prairie dog habitat is narrowed more each day. The Forest Service should reevaluate its view of habitat in the context of the grasslands. If the distribution of trees in a forest is indicative of available habitat for forest species, so should the distribution of prairie dog towns be indicative of available habitat for grassland species.

B. The Endangered Species Act and the Black-Footed Ferret Conundrum 

Many species rely on the prairie dog, and the black-footed ferret is one of them. The black-footed ferret is a large weasel that lives on the grasslands. A major component of the ferret's diet is the prairie dog.(94) The Bureau of Land Management notes that "[t]here is a definite and primary association of ferrets with prairie dogs and prairie dog towns. Prairie dog burrows provide protection from inclement weather conditions, and at least some degree of protection from predators. The burrows also provide an environment in which the ferrets may rear their young."(95) Another important fact about the ferret is that it is listed under the ESA as an endangered species.(96) The government acknowledges that one of the main reasons for the decline of the ferret is intensive control of prairie dog populations.(97)

1. ESA as a Bar to Prairie Dog Eradication

Perhaps the strongest attack against current management practices is the dichotomy of efforts to simultaneously restore the black-footed ferret as an endangered species under the ESA and "control" prairie dog populations. The Final EIS for black-footed ferret reintroduction(98) identifies livestock grazing as the dominant use of the grasslands being evaluated for ferret reintroduction.(99) Ranchers on these public lands receive livestock damage control assistance from government animal damage control specialists, who spend money to control damage to livestock caused by "rodents" such as prairie dogs.(100) When large prairie dog colonies are needed for optimal ferret reintroduction under the ESA,(101) or even for maintenance of other species such as the northern swift fox,(102) it becomes hard to justify the reduction of prairie dog colonies on grounds that prairie dogs are somehow interfering with livestock profits.(103) Grazing either should not be allowed in an area where ferret reintroduction is being considered or the animal damage control specialists should not be allowed to shoot and poison prairie dogs. The taxpaying public should be properly outraged to know that in the area of South Dakota being considered for ferret reintroduction, the government is spending approximately $880,000 over five years on the reintroduction program, while simultaneously spending thousands of dollars to kill prairie dogs in the same area.(104)

2. Pest Management Considerations Under the ESA

Forest Service regulations also include integrated pest management, with a guiding principle being that a "choice of strategy is ... ecologically compatible or acceptable."(105) As previously discussed, black-tailed prairie dogs are critical to the survival of not only ferrets, but also many other species. If the Forest Service or BLM is either engaged in mass poisoning or allowing the shooting of prairie dogs on public lands, the agency may be in violation of its own regulations requiring ecological compatibility with the survival of species like the ferret. It is important that the Forest Service reevaluate its pest management strategy in light of the emerging consensus of the prairie dog as a vital component of ferret reintroduction efforts and ecosystem health.

3. Concurrent NFMA and ESA requirements

The Forest Service would be hard pressed to justify its current practices of managing prairie dogs under NFMA regulations in light of its duty under the ESA not to jeopardize a listed species such as the ferret.(106) Section 4 of the ESA prohibits an agency from engaging in an action that would likely jeopardize the continued existence of a species or negatively impact critical habitat for the species.(107) In light of the strong link between prairie dogs and ferrets, the ESA should require the Forest Service to manage prairie dogs in a way that does not jeopardize ferrets. The Forest Service has tried to argue in other instances that NFMA requirements only apply when the ESA requirements do not.(108) But in the Seattle Audubon case, involving management practices for the northern spotted owl, the court held that the requirements of NFMA and the ESA would apply concurrently to management practices.(109) The Forest Service had argued that the NFMA requirements aim to maintain viable populations, while the purpose of the ESA is to bring a species back to the point where it is viable; therefore, only the latter requirement should apply.(110) The court rejected this argument and pointed out that the Forest Service had consistently recognized that the ESA and NFMA concurrently apply to management of endangered species.(111) The Audubon Society successfully claimed that the Forest Service failed to assure the viability of the northern spotted owl under NFMA.(112)

The management argument for prairie dogs and ferrets is actually reversed from the Seattle Audubon case. ESA requirements for the ferret should apply to NFMA management practices for the prairie dog, as opposed to the holding in the Seattle Audubon case that NFMA requirements still applied for a species under ESA protection.(113) It should be no excuse for the Forest Service to say that it has "planned" appropriately for prairie dogs in the NFMA process, thereby relieving the agency of ESA critical habitat requirements for the ferret. The Forest Service cannot ignore one set of requirements by claiming that it is adhering to the other legal requirement.(114) The ferret simply will not be able to recover as a species unless prairie dogs are managed in a way that ensures the future viability of the ferrets.

C. Livestock Grazing and Rangeland Health

The Grasslands EIS Notice identifies as a study criterion a concern that the grasslands be analyzed for their "capacity to provide livestock forage and wildlife food and cover."(115) Assuming for the moment that National Grassland managers can find some way around the dichotomy of the ESA requirements for the ferret and continued extermination of the prairie dog, the planners attempt to justify prairie dog population control through a multi-use argument.(116) According to the Forest Service, livestock grazing is the major industry in the rural grassland areas, and because prairie dogs supposedly harm livestock profits, they can be controlled.(117) This argument can be attacked on the following two grounds: 1) the prairie dog and livestock are not incompatible in management areas; and 2) livestock grazing is not as critical to local economies as it is made out to be.

Coloring the prairie dog as vermin and harmful to the grazing of cattle is an important rationale for the management practices of BLM and the Forest Service. This concept was endorsed by U.S. government biologists who declared at the turn of the century "that prairie dogs reduce grazeable ranch land by up to 75 percent."(118) However, mounting scientific evidence could provide a basis for a legal challenge to these "rational" management practices. For example, one scientific study analyzing the effect prairie dogs have on livestock grazing in the same habitat notes, "[t]he influence of prairie dogs on the herbage crop did not cause a statistically significant reduction in steer weight gains.... The presence of prairie dogs appears to improve herbage quality, thus partially compensating the reduction in herbage available to steers."(119) A study in South Dakota examined the interrelationship between prairie dogs and bison and found that bison actually preferred to graze in habitat used by prairie dogs.(120) These scientific data suggest that cattle may not be impacted to the degree that ranchers have proclaimed for the last 100 years. Ranchers also argue that prairie dog holes are responsible for injuring livestock and for that reason they should be exterminated.(121) But little evidence can be found that such injuries are occurring at a high rate. One rancher could only cite to a single incidence of a cow breaking a leg--which he then had to bring to slaughter--as the rationale for waging war on prairie dogs.(122) Interestingly, the cow presumably would have been brought to slaughter anyway, so it is dubious whether the rancher actually lost money. But when the federal government pays to kill prairie dogs, what rancher would refuse?

In any case, if livestock grazing and prairie dogs are indeed compatible, then our public land managers should take this into consideration when developing a management plan. Under the Multiple-Use, Sustained Yield Act of 1960 (MUSYA), there would no longer be a conflict between economic uses (grazing) and wildlife preservation, thus encouraging an end to poisoning prairie dogs and providing a subsequent benefit to a myriad of other species. If the Forest Service regulations require that managing for diversity be consistent with the overall multiple-use objectives of the planning area,(123) but no conflict exists between prairie dog colonies and livestock grazing, then the Forest Service would have no legal reason to prevent more and larger prairie dog colonies.

The second proposition is that livestock grazing is not as important to local economies as the Forest Service suggests. For example, the EIS for the ferret reintroduction notes that the main use of the Buffalo Gap National Grassland (one of the eight grasslands in the Grasslands EIS Notice) is livestock production.(124) However, the same EIS notes that farming/ ranching makes up only 3.91% of the local economy, as compared to the 4.07% national average.(125) In this light, grazing, as a planning consideration, should be given considerably less weight as an important use of the public rangeland.

D. Plant and Animal Control

Forest Service regulations allow implementation of an "integrated pest management" program as part of the planning process.(126) Is the prairie dog noxious? Private landowners think so under the belief that prairie dogs are harmful to livestock production. The Grasslands EIS Notice identifies reductions to protect private landowners as a legitimate planning concern.(127) Private land owners get rather animated about the spread of prairie dog towns, and for good reasons (as opposed to the misperceptions about reduced grass productivity). Many areas have local ordinances requiring private landowners to poison prairie dogs on their property. If they do not comply, the county can do it and then charge the landowner for the expense.(128)

The Forest Service also identifies "recreation resources" as a planning element of the Grasslands EIS Notice.(129) Amazingly, shooting at prairie dogs has developed into a popular recreational activity on the public lands, and, apparently, these "recreational opportunities" receive as much weight as the protection of biological diversity.(130) Hunting groups have sprung up around the "sport," and often host prairie dog "contests" where a winner is determined by "who killed the most."(131)

Finally, Animal Damage Control spends millions of dollars to remove what it calls pests and predators interfering with agricultural practices.(132) Animals such as prairie dogs are removed from National Grasslands under the rationale of protecting the public, livestock, and wildlife.(133) One has to wonder, if the naturally occurring species of the National Grasslands are not wildlife, what is? Given what federal agencies, like the Forest Service, now know about the vital role that a species such as the prairie dog plays in the grassland ecosystem, it is time that they stop planning for the control of such species.

VI. OPTIONS FOR SURVIVAL

Given the current state of regulation and management of the grasslands, at least under Forest Service control, what can be done to better preserve this ecosystem? One angle that environmentalists use to attack grazing and management practices on public lands is to point to the degradation of streams and riparian areas.(134) While it is true that the Forest Service allows too much grazing on public lands in arid areas of the country and charges insufficient permit fees, there are other, subtler ways of addressing the problem. Degradation of streams is not nearly as big a problem throughout much of the National Grasslands as is the loss of biodiversity. As discussed in Part V above, the prairie dog ecosystem can coexist with cattle grazing. Federal land managers should put an end to animal control policies on all public lands and adopt more flexible grazing plans that allow for prairie dog colonies to be interspersed in grazing areas.

The Cheyenne River Sioux Tribe's "Prairie Management Plan" may provide a useful insight into effective management practices.(135) The Prairie Management Plan calls for the following: 1) implementing grazing management systems with increased water development and fencing to improve cattle distribution, 2) creating habitat set-asides for retaining prairie dog colonies to maintain biodiversity and enhance populations of black-footed ferrets as part of reintroduction and recovery efforts (under the ESA), 3) conducting only limited prairie dog control in appropriate situations, and 4) educating permittees on the benefits of these management techniques.(136)

Applying these management practices would be a good start toward reducing human impacts on the grasslands while stopping short of ending all grazing on public lands. Management similar to that proposed under the Cheyenne River Sioux plan creates habitat more closely resembling the natural habitat and fosters a greater variety of naturally occurring plants and animals. Studies indicate that preservation of biodiversity is critical to the maintenance of stable productivity in the grassland ecosystem.(137)

The Forest Service planners should also pay closer attention to the recommendations of the Council on Environmental Quality (CEQ) regarding biodiversity considerations in the EIS process.(138) One biodiversity goal outlined for the prairies in the national forests urges "no acreage reduction" in total prairie lands.(139) The report also identified some weaknesses in current NEPA practices by agencies including "inadequate consideration of `non-listed' species ... [and] [i]nadequate consideration of `noneconomically important' species."(140) These are both weaknesses that the Forest Service should address in its current planning process. Finally, CEQ recommends that more basic research is needed to determine exactly how ecosystems function and how species interact in them.(141) All of these recommendations would make for a more informed EIS and ultimately better protection for the prairie ecosystem.

While the Forest Service should continue gathering scientific evidence on how the species of the grasslands interact for the purpose of preserving biodiversity, there are legal changes that could improve management practices immediately. One legal change is through the Public Rangelands Improvement Act (PRIA).(142) Congress passed PRIA in 1978 in an attempt to address the degradation of the public range.(143) The Act establishes a national policy of protecting the rangeland resource through inventorying current conditions and planning to improve protection for wildlife habitat.(144) However, Congress specifically exempted all National Grasslands from PRIA.(145) Congress should remove this inexplicable exception.

Another legal move to protect biodiversity would be to list large areas of existing prairie dog colonies as critical habitat for the black-footed ferret, as required under the ESA.(146) Such a move would require that planning managers take seriously the preservation of the prairie dog because of its strong link to the ferret.(147) Under Forest Service planning requirements, planners would be required to "[i]nclude measures for preventing the destruction or adverse modification of critical habitat for threatened and endangered species."(148)

Another simple step planning managers could adopt would be to designate the prairie dog as a management indicator species for the planning area.(149) As discussed earlier, many other species rely on the prairie dog for habitat. Large and numerous prairie dog colonies would be a critical step in stemming the tide against ESA candidate species, like the Mountain Plover, Ferruginous Hawk, and the Swift Fox, hurtling towards extinction.(150)

Certainly one direct approach to the prairie dog ecosystem problem would be to list the prairie dog under the ESA. The National Wildlife Federation petitioned FWS to list the prairie dog as threatened under the ESA.(151) FWS previously rejected the listing proposal from a Colorado nonprofit group.(152) Listing certainly has merit, considering that the prairie dog has been eradicated from ninety-nine percent of its original habitat.(153) Other species have been listed for far less of a decline in population. Hopefully, this time around, FWS will examine all the new scientific evidence pointing both to the precipitous decline of the prairie dog from historic populations and its importance as an umbrella species for many other grassland species.(154)

VII. CONCLUSION

After several centuries of onslaught, the prairie ecosystem sits poised at the brink of total destruction. It may be impossible to return the ecosystem to a state closely approximating its original natural conditions.(155) Certainly bison will never again be seen charging across the plains for as far as the eye can see. But perhaps it is not too late to protect enough of the native ecosystem to preserve the biodiversity of species that currently exist. To date, human intervention has not driven any of the major grassland species into extinction, although we have come precariously close.

There are many planning tools in the arsenal of the Forest Service adequately to address preservation of this ecosystem, if it so chooses. Raising the lowly prairie dog above its current status as a "varmint" would be a step towards realizing that all of the native species of the range have an intrinsic value and interconnectedness. The value of ecosystem management is in recognizing these connections and rationally planning for the species' survival.

This enlightened view, recognizing the value of the natural grassland biosystems, may mean removing livestock grazing from the mix. But then again, conducting this activity more wisely may be adequate to protect the natural ecosystem. Multi-use planning for the grasslands is still a viable management tool, so long as sustainability is worked into the equation. The language for proper management already exists in Forest Service regulations.

The prairie dog, once considered by almost everyone as either a pest or at least an idle curiosity, may hold the key to the salvation of this once great ecosystem. The growing body of scientific evidence reveals the intricate links between prairie dog towns and a thriving, bio-diverse grassland wildlife community. Hopefully the evidence can influence social and political policies and alter our perceptions of what our National Grasslands represent. Additionally, grassland managers may discover that we cannot afford to discount what has been termed the prairie dog "varmint" in planning decisions. While the American prairie will never again stretch seamlessly over the Western plains, it may yet survive for future generations to enjoy.

(1) DAVID F. COSTELLO, THE PRAIRIE WORLD 4 (1969).

(2) Bob Holmes, The Big Importance of Little Towns on the Prairie, NAT'L WILDLIFE, June-July 1996, at 12, 14.

(3) Dan Flores, Making the West Whole Again: Historical Perspective on Restoration, 18 J. LAND RESOURCES & ENTL. L. 17, 18 (1998).

(4) Michael E. Long, The Vanishing Prairie Dog, NAT'L GEOGRAPHIC, Apr. 1998, at 116; Ferrets in the Wild (National Pub. Radio, All Things Considered radio broadcast, Nov. 16, 1998), available in LEXIS, News Library, All news File; Charles Osgood, Campaign Under Way to Save the Prairie Dog, in THE OSGOOD FILE (Oct. 15, 1998), available in LEXIS, News Library, Allnews File.

(5) Tom Webb & Jenny Upchurch, Shoot `Em or Save `Em? Plains Argues About `Varmints,' CINCINNATI ENQUIRER, Aug. 23, 1998, at A24, available in LEXIS, News Library, Allnews File; Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994 & Supp. III 1997).

(6) Revised Land and Resource Management Plans for Some National Forest System Lands in Nebraska, North Dakota, South Dakota, and Wyoming [Grasslands EIS Notice], 62 Fed. Reg. 8680, 8680 (Feb. 26, 1997).

(7) National Environmental Policy Act of 1969, 42 U.S.C. [sections] 4332 (1994 & Supp. II 1996); Grasslands EIS Notice, 62 Fed. Reg. at 8684-85.

(8) See infra Part III.

(9) Ted Williams, No Dogs Allowed; Federal and State Program to Destroy Prairie Dogs on South Dakota Cattle Ranches, AUDUBON, Sept. 1992, at 26.

(10) Grasslands EIS Notice, 62 Fed. Reg. at 8681-83.

(11) COSTELLO, supra note 1, at 4.

(12) J.E. WEAVER & F.W. ALBERTSON, GRASSLANDS OF THE GREAT PLAINS V (1956).

(13) Anthony Joern & Kathleen H. Keeler, Getting the Lay of the Land: Introducing North American Native Grasslands, in THE CHANGING PRAIRIE: NORTH AMERICAN GRASSLANDS 11, 15 (Anthony Joern & Kathleen H. Keeler eds., 1995).

(14) COSTELLO, supra note 1, at 4. For maps depicting the variety and type of grasses on the plains, see Joern & Keeler, supra note 13, at 16-21.

(15) COSTELLO, supra note 1, at 211-14. Not only did the massive herds of bison meet their demise, but so did the Native American nations such as the Cheyenne who were pushed off almost all of their traditional lands. Id. at 210-11.

(16) Land Act of May 18, 1796, ch. 29, 1 Stat. 464, amended by Act of April 24, 1820, ch. 51, 3 Stat. 566 (providing lands for sale at auction for two dollars per acre and creating the system of preemption).

(17) Homestead Act of May 20, 1862, ch. 75, 12 Stat. 392 (formerly codified at 43 U.S.C. [subsections] 161-302 (1982)), repealed by Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, 90 Stat. 2787.

(18) COSTELLO, supra note 1, at 214. For a general history of the development of public land law and the distribution of the public lands, see GEORGE CAMERON COGGINS ET AL., FEDERAL PUBLIC LAND AND RESOURCES LAW 55-135 (3d ed. 1993).

(19) COSTELLO, supra note 1, at 214.

(20) Flores, supra note 3, at 18-19.

(21) Thomas M. Campbell III, Prairie Dog Colony Location Surveys and Black-Footed Ferret Searches in Montana, in THE PRAIRIE DOG ECOSYSTEM: MANAGING FOR BIOLOGICAL DIVERSITY, MONTANA BLM WlLDLIFE TECHNICAL BULLETIN No. 2, 1 (1989).

(22) Chris Roberts & Jerilynn Schumacher, Dwindling Species: In Our Own Back Yards, ORANGE COUNTY REG., Apr. 30, 1996, available in 1996 WL 7025083; Jon C. Sharps & Daniel W. Uresk, Ecological Review of Black-Tailed Prairie Dogs and Associated Species in Western South Dakota, 50 GREAT BASIN NATURALIST 339, 340 (1990).

(23) Long, supra note 4, at 118.

(24) CRAIG J. KNOWLES, FAUNA WEST WILDLIFE CONSULTANTS, A SUMMARY OF BLACK-TAILED PRAIRIE DOG ABUNDANCE AND DISTRIBUTION ON THE CENTRAL AND NORTHERN GREAT PLAINS (1995).

(25) Sharps & Uresk, supra note 22, at 339-40.

(26) KNOWLES, supra note 24, at 3.

(27) Id.

(28) Webb & Upchurch, supra note 5, at A24.

(29) See infra notes 115-20 and accompanying text.

(30) THE CHANGING PRAIRIE: NORTH AMERICAN GRASSLANDS vii (Anthony Joern & Kathleen H. Keeler eds., 1995).

(31) Id.

(32) Joern & Keeler, supra note 13, at 18.

(33) 36 C.F.R. [sections] 219.19(a)(1) (1998).

(34) Richard P. Reading et al., Attributes of Black-Tailed Prairie Dog Colonies in Northcentral Montana, with Management Recommendations for the Conservation of Biodiversity, in MONTANA BLM WILDLIFE TECHNICAL BULLETIN NO. 2, THE PRAIRIE DOG ECOSYSTEM: MANAGING FOR BIOLOGICAL DIVERSITY 13 (1989).

(35) Id.

(36) Sharps & Uresk, supra note 22, at 343.

(37) PREDATOR PROJECT REPORT, CONSERVING PRAIRIE DOG ECOSYSTEMS ON THE NORTHERN PLAINS--LEARNING FROM THE PAST TO INSURE THE PRAIRIE DOG'S FUTURE 4 (1996).

(38) Brian Miller et al., The Prairie Dog and Biotic Diversity, 8 CONSERVATION BIOLOGY 677, 678 (1994).

(39) Id. at 678-79; Sharps & Uresk, supra note 22, at 343.

(40) STEPHEN J. MARTIN & MAX H. SCHROEDER, U.S. FISH & WILDLIFE SERV., FERRET REPORT NO. 2, BLACK-FOOTED FERRET SURVEYS ON SEVEN COAL OCCURRENCE AREAS IN WYOMING 15 (1980).

(41) S.C. FORREST ET AL., WYOMING BLM WILDLIFE TECHNICAL BULLETIN No. 2, BLACK-FOOTED FERRET HABITAT: SOME MANAGEMENT AND REINTRODUCTION CONSIDERATIONS 3(1985).

(42) This Article focuses on Forest Service regulations because they apply to the National Grasslands that are up for planning review. There are differences in the regulations that apply to grasslands under BLM management, but this section will not discuss them. BLM regulations for grassland management can be found at 43 C.F.R. pts. 4140-80 (1997).

(43) See generally Bruce M. Pendery, Reforming Livestock Grazing on the Public Domain: Ecosystem Management-Based Standards and Guidelines Blaze a New Path for Range Management, 27 ENVTL. L. 513 (1997) (providing a good overview of management policies on BLM lands).

(44) 7 U.S.C. [subsections] 1010-1012 (1994 & Supp. III 1997).

(45) 16 U.S.C. [sections] 1604 (1994).

(46) Id. [sections] 1604(e)(1).

(47) 16 U.S.C. [subsections] 528-531 (1996).

(48) Id. [sections] 528.

(49) Seattle Audubon Soc'y, v. Moseley, 798 F. Supp. 1484, 1489 (W.D. Wash. 1992).

(50) See DENZEL FERGUSON & NANCY FERGUSON, SACRED COWS AT THE PUBLIC TROUGH (1983); see generally Michael C. Blumm, Public Choice Theory and the Public Lands: Why "Multiple Use" Failed, 18 HARD. ENVTL. L. REV. 405 (1994) (providing a general assessment of the failure of MUSYA).

(51) Blumm, supra note 50, at 407.

(52) 43 U.S.C. [subsections] 1701-1784 (1994 & Supp. II 1996).

(53) Id. [sections] 1701(a)(8) (1994).

(54) 36 C.F.R. pts. 219-23 (1998).

(55) Michael A. Padilla, The Mouse that Roared: How the National Forest Management Act Diversity of Species Provision Is Changing Public Timber Harvesting, 15 UCLA J. ENVTL. L. & POL'Y 113, 113 (1996).

(56) 36 C.F.R. [subsections] 219.19, 219.26 (1997).

(57) Id. [sections] 219.19.

(58) Id. [sections] 219.19(a)(1).

(59) Id. [subsections] 219.26-.27.

(60) 823 F. Supp. 668 (D.S.D. 1993), enforced, 28 F.3d 851 (8th Cir. 1994).

(61) Jon Sharps is a wildlife biologist who participated in management planning for prairie dog populations on the Nebraska National Forest. 823 F. Supp. at 672-73. 62 Id. at 673, 678.

(63) Id. at 673. As mentioned earlier, many species rely on the prairie dog for suitable habitat. See supra notes 36-40 and accompanying text.

(64) Sharps, 823 F. Supp. at 679.

(65) Id.

(66) Environment Now! v. Espy, 877 F. Supp. 1397, 1420 (E.D. Cal. 1994); see also Blue Mountain Biodiversity Project v. Pence, 22 F. Supp. 2d 1136, 1144-45 (D. Or. 1998) (finding that 36 C.F.R. [sections] 219.19 only applies to forest-wide plans, not the actual project level).

(67) Sharps, 823 F. Supp. at 675. The court gave this deference to the agency in the face of a stack of scientific data compiled by Sharps on swift fox habitat needs. See id. at 673 n.2.

(68) Id. at 673; see also Friends of the Wild Swan, Inc. v. United States Forest Service, 966 F. Supp. 1002, 1007 (D. Or. 1997) (holding that the Forest Service was entitled to rely on reasonable assumptions in its environmental analyses regarding viability of species under regulation [sections] 219.19).

(69) This concept is known as "Chevron" deference, named after the Supreme Court case defining the test for whether an agency action should be upheld. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The test asks first whether the statute is clear as to its intent. If it is not, then the test asks whether the agency's interpretation of the statute was reasonable or permissible. Id. at 842-43.

(70) Sierra Club v. Martin, 992 F. Supp. 1448, 1461 (N.D. Ga. 1998).

(71) Id.

(72) Id.

(73) It is important to note that this viable populations stick is not even available on much of the remaining grasslands of the open prairie because either they are in private hands or are managed by other agencies of the federal government. On BLM lands, environmental groups have resorted to attempts at buying grazing leases to protect habitat. See Public Lands Council v. Babbitt, 929 F. Supp. 1436 (D. Wyo. 1996). These BLM lands are managed with a "use" preference for grazing. Id. at 1440. The court said, "[t]he Taylor Grazing Act does not permit the Secretary to issue permits allowing the permittee to put the land to any use except livestock grazing." Id. at 1444. So, less success at ecosystem protection should be expected on BLM lands versus Forest Service lands.

(74) Sharps v. United States Forest Service, 823 F. Supp. 668, 679 (D.S.D. 1993), enforced, 28 F.3d 851 (8th Cir. 1994).

(75) Sharps, 823 F. Supp. at 671-72.

(76) 974 F. Supp. 905 (E.D. Tex. 1997).

(77) Id. at 923. And there have been other setbacks. See Sierra Club v. Lyng, 694 F. Supp. 1256, 1259 (E.D. Tex. 1988) (refusing to impose an injunction on clearcutting even though the court admitted that the evidence might show that the Red-Cockaded Woodpecker was declining in numbers, bolstering Sierra Club's claim that the Forest Service was violating its own regulations). For a general overview of the use of "diversity" management and its effects on timber harvesting, see generally Padilla, supra note 55.

(78) Sierra Club v. Martin, 992 F. Supp. 1448, 1461 (N.D. Ga. 1998).

(79) 523 U.S. 726, 118 S. Ct. 1665 (1998).

(80) 118 S.Ct. at 1670; see also U.S. CONST. art. III.

(81) 118 S. Ct. at 1669.

(82) Id. at 1670.

(83) Sharps v. United States Forest Service, 823 F. Supp. 668, 679 (D.S.D. 1993), enforced, 28 F.3d 851 (8th Cir. 1994); Environment Now! v. Espy, 877 F. Supp. 1397, 1420 (E.D. Cal. 1994).

(84) See Blue Mountain Biodiversity Project v. Pence, 22 F. Supp. 2d 1136, 114445 (D. Or. 1998) (decided after Ohio Forestry, but still finding that 36 C.F.R. [sections] 219.19 only applies to forest-wide plans, not the actual project level).

(85) National Environmental Policy Act of 1969, 42 U.S.C. [sections] 4331 (1994).

(86) A recent district court opinion out of Kentucky, however, did find a plaintiff's NEPA claim ripe for review even though it threw out the NFMA claim under the new Ohio Forestry test. See Kentucky Heartwood, Inc. v. Worthington, 20 F. Supp. 2d 1076, 1090 (E.D. Ky. 1998). Hopefully, other districts will adopt this approach to the NFMA/NEPA dilemma.

(87) Kathie Durbin, High Noon in the National Forests, AMICUS J., Summer 1996, at 27-29.

(88) Id. at 27.

(89) Id. at 26. The Sagebrush Rebellion was a backlash in western states to the passage of FLPMA in 1976 because FLPMA put an end to the wholesale disposition of federal lands to the states where they are located. See John Leshy, Unraveling the Sagebrush Rebellion: Law, Politics and Federal Lands, 14 U.C. DAVIS L. REV. 317 (1980); Richard D. Clayton, Note, The Sagebrush Rebellion: Who Should Control the Public Lands?, 1980 UTAH L. REV. 505 (1980). Ranching, mining, and other commercial land-use interests resented the federal government taking more control over the use and disposition of federal lands that are located disproportionately in the western United States.

(90) See supra notes 36-40 and accompanying text.

(91) Revised Land and Resource Management Plans for Some National Forest System Lands in Nebraska, North Dakota, South Dakota, and Wyoming [Grasslands EIS Notice], 62 Fed. Reg. 8680, 8682 (Feb. 26, 1997).

(92) Id. [sections] 219.26.

(93) 36 C.F.R. [sections] 219.19 (1997).

(94) BUREAU OF LAND MANAGEMENT, BLACK-FOOTED FERRET: SPECIES RANGE MAP (1983).

(95) Id.

(96) 50 C.F.R. [sections] 17.84(g) (1997).

(97) BUREAU OF LAND MANAGEMENT supra note 94.

(98) U.S. FISH & WILDLIFE SERV., NAT'L PARK SERV. & U.S. FOREST SERV., FINAL ENVIRONENTAL IMPACT STATEMENT FOR BLACK-FOOTED FERRET REINTRODUCTION: CONATA BASIN/BADLANDS, SOUTH DAKOTA (1994) [hereinafter FEIS].

(99) Id. at 64.

(100) Id. at 67.

(101) Notice of Proposed Rule: Establishment of a Nonessential Experimental Population of Black-Footed Ferrets in Northwestern Colorado and Northeastern Utah, 62 Fed. Reg. 23,202,. 23,203 (Apr. 29, 1997); S.C. FORREST ET AL., supra note 41, at 5.

(102) Sharps v. United States Forest Service, 823 F. Supp. 668 (D.S.D. 1993).

(103) FEIS, supra note 98, at 11-14.

(104) Id. at 67, 80-83. The FEIS states that it will not change prairie dog management practices in the reintroduction ares. Id. at 80. The FEIS also discusses the economic benefit of public recreation pursuits on public lands in the reintroduction area. For example, the Department of Agriculture estimates that the local economy receives about $76,000 a year from individuals that come to the area to participate in prairie dog shooting. Id. However, the FEIS also points out that the reintroduction effort will bring upwards of $183,000 each year to the local economy. Id. at 82. A recent Fish and Wildlife Service effort to reintroduce ferrets continues to deny that systematic poisoning and shooting of prairie dogs will affect its reintroduction effort. Endangered and Threatened Wildlife and Plants: Establishment of a Nonessential Experimental Population of Black-Footed Ferrets in Northwestern Colorado and Northeastern Utah, 63 Fed. Reg. 52,824, 52,828 (Oct. 1, 1998) (to be codified at 50 C.F.R. pt. 17).

(105) 36 C.F.R. [sections] 219.3 (1997).

(106) Endangered Species Act of 1973, 16 U.S.C. [sections] 1536(a)(2) (1994).

(107) Id.

(108) Seattle Audubon v. Robertson, Nos. C89-160WD, C89-99(T)WD, 1991 WL 180099, at *6 (W.D. Wash. Mar. 7, 1991); see also, Pyramid Lake Paiute Tribe v. United States Dep't of Navy, 898 F.2d 1410, 1416 (9th Cir. 1990).

(109) Seattle Audubon, 1991 WL 180099, at *7.

(110) Id. at *6.

(111) Id. at *7.

(112) Id. at *1.

(113) See id.

(114) Id.

(115) Revised Land and Resource Management Plans for Some National Forest System Lands in Nebraska, North Dakota, South Dakota, and Wyoming [Grasslands EIS Notice], 62 Fed. Reg. 8680, 8682 (Feb. 26, 1997).

(116) Id.; see also 36 C.F.R. [sections] 219.20 (1997).

(117) Grasslands EIS Notice, 62 Fed. Reg. at 8682.

(118) Osgood, supra note 4.

(119) M.E. O'Meilia et al., Some Consequences of Competition Between Prairie Dogs and Beef Cattle, 35 J. RANGE MGMT. 580, 580 (1982) (emphasis in original).

(120) D.L. Coppock et al., Plant-Herbivore Interactions in a North American Mixed-Grass Prairie, 56 OECOLOGIA 10 (1983). The symbiotic relationship between bison and prairie dogs makes intuitive sense when you consider that they thrived together for thousands of years, blanketing the American prairies before the Europeans came to the continent. For another study that confirms a positive feeding relationship between prairie dogs, bison, and pronghorns, see generally Kirsten Krueger, Feeding Relationships Among Bison, Pronghorn, and Prairie Dogs: An Experimental Analysis, 67 ECOLOGY 760 (1986).

(121) Webb & Upchurch, supra note 5, at A24; Bill Whitaker, Experts: Decline in Prairie Dogs No Cause for Alarm, AUSTIN AMERICAN-STATESMAN, June 3, 1998, at B7, available in LEXIS, News Library, Allnews File.

(122) Webb & Upchurch, supra note 5, at A24.

(123) 36 C.F.R. [sections] 219.27(g) (1997).

(124) FEIS, supra note 98, at 78. The FEIS also notes that mining makes up 36.19% of the local economy, compared with 0.60% nationally. Id. This commercial activity obviously is more important to the local economy than it is to the national economy. Therefore it is probably more worthy of planning consideration than cattle ranching.

(125) Id. at 74.

(126) 36 C.F.R. [sections] 219.27(a)(3) (1998).

(127) Revised Land and Resource Management Plans for Some National Forest System Lands in Nebraska, North Dakota, South Dakota, and Wyoming [Grasslands EIS Notice], 62 Fed. Reg. 8680, 8683 (Feb. 26, 1997).

(128) Williams, supra note 9, at 26.

(129) Grasslands EIS Notice, 62 Fed. Reg. at 8683; 36 C.F.R. [sections] 219.21(1998).

(130) Grasslands EIS Notice, 62 Fed. Reg. at 8683.

(131) Gary Gerhardt, Year-Round Coyote Shooting OK'd, But Prairie Dog Contests Curbed, ROCKY MTN. NEWS, July 12, 1997, at A26. For a more macabre look at this sport, see also Thomas McIntyre, Little Dogs on the Prairie; Techniques and Equipment for Prairie-Dog Shooting, SPOUTS AFIELD, Apr. 1993, at 48 (describing, among other things, which bullets are best for shooting prairie dogs, and taking affront to the idea that ranchers, probably many on public lands, have taken to charging for shooting opportunities).

(132) Robert Stagman, Wild-Horse Slaughter; Cattle-Ranching Industry Has Appropriated Public Lands, SEATTLE TIMES, Jan. 18, 1997, at All, available in 1997 WL 3215542 (letter to the editor).

(133) Grasslands EIS Notice, 62 Fed. Reg. at 8683.

(134) Hearing on Grazing Reduction and Other Issues on BLM Lands: Hearing on H.R. 2493 Before the Subcomm. on Nat'l Parks, Forests, and Lands of the House Resources Comm., 105th Cong. 126 (1997) (statement of Frances A. Hunt, Director, BLM Program, Wilderness Society).

(135) BUREAU OF INDIAN AFFAIRS, FINAL ENVIRONMENTAL IMPACT STATEMENT, LIVESTOCK GRAZING AND PRAIRIE DOG MANAGEMENT FOR THE ROSEBUD AND CHEYENNE RIVER SIOUX RESERVATIONS (1995).

(136) Id. at S-5.

(137) David Tilman & John A. Downing, Biodiversity and Stability in Grasslands, NATURE, Jan. 27, 1994, at 363-35.

(138) See generally COUNCIL ON ENVTL. QUALITY, INCORPORATING BIODIVERSITY CONSIDERATIONS INTO ENVIRONMENTAL IMPACT ANALYSIS UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT (1993).

(139) Id. at 10.

(140) Id. at 18.

(141) Id. at 24.

(142) 43 U.S.C. [subsections] 1901-1908 (1994).

(143) S. REP. No. 95-1237, at 5 (1978), reprinted in 1978 U.S.C.C.A.N. 4069, 4069-70.

(144) 43 U.S.C. [sections] 1901(b) (1994).

(145) Id. [sections] 1907. There is no indication in the legislative history as to why National Grasslands are left out of this piece of legislation. One possible explanation is that the bill evolved out of a Bureau of Land Management report prepared for the Senate Appropriations Committee. S. REP. No. 95-1237, at 5 (1978), reprinted in 1978 U.S.C.C.A.N. 4069, 4069. Perhaps because the National Grasslands are under the jurisdiction of the Forest Service, and not BLM, Congress did not want to include it in this legislation.

(146) 16 U.S.C. [sections] 1533(b)(6)(C) (1994).

(147) FORREST ET AL., supra note 41, at 5.

(148) 36 C.F.R. [sections] 219.27(a)(8) (1998).

(149) Id. [sections] 219.19(a)(1).

(150) Miller et al., supra note 38, at 678-79.

(151) Webb & Upchurch, supra note 5, at A24.

(152) Michael Mansur, Petitioning for Prairie Dogs: The Furry Creatures Need Protection, One Group Says, KAN. CITY STAR, Jan. 22, 1995, at B1, available in 1995 WL 4144575. An added concern leading to the listing petition is that the spread of sylvatic plague has only exacerbated human control activities. Id.

(153) Id.

(154) Long, supra note 4, at 118, 122.

(155) Flores, supra note 3, at 27.

COBY C. DOLAN, Editor in Chief, Animal Law, 1997-99; student, Northwestern School of Law of Lewis & Clark College, J.D. and Certificate in Environmental & Natural Resources Law expected May 1999; B.A. 1989 Duke University. The author recently accepted a position as an associate attorney with Earthjustice (formerly Sierra Club) Legal Defense Fund in its Tallahassee, Florida office. The author wishes to thank Bill Shape, Legal Director at Defenders of Wildlife, for his inspiration in writing this Comment and the staff of Environmental Law for all their hard work.