Butterfly lawsuit continues to flutter around

By: Amanda Newman, Newberg Graphic
January 12th, 2011

The deadline for change, given by the coalition of groups and individuals in their November notice to Yamhill County of intent to sue for violating the Endangered Species Act (ESA), has lapsed without a lawsuit surfacing … but that doesn’t mean it isn’t yet to come.

“We are currently talking to the folks who are, for lack of a better term, representing the butterfly … The deadlines are no longer operable because we are working together on a plan to improve our butterfly protection,” county counsel Rick Sinai said last week.

The invertebrate in question, the Fender’s blue butterfly, is an ESA-protected species found on county lands along with two plants it relies on: Kincaid’s lupine, a threatened species, and the Willamette daisy, also endangered.

A coalition made up of the Xerces Society for Invertebrate Conservation, the Yamhill Watershed Stewardship Fund, the Center for Biological Diversity and three family members of late Fender’s blue butterfly namesake Kenneth Fender referenced all three species in a Nov. 8, 2010, letter to the three county commissioners, notifying them of their intent to sue if the county didn’t come into compliance with federal law.

The groups alleged the county is violating the ESA by “taking” (harming, killing or destroying habitat for) the federally-protected species in the course of road, roadside and park maintenance activities.

Sinai said the county gave the coalition information on the steps it has taken to protect the butterfly, and the groups and individuals involved planned to review the documents and provide feedback. “They were quite pleased to see that (information). They were completely unaware we were taking those measures … and working with Fish and Wildlife,” Sinai said.

But Scott Black, executive director of the Portland-based Xerces Society, who sent the letter on behalf of the coalition, was reluctant to discuss where the issue stands and seemed less inclined than Sinai to imply a soon-to-come happy ending.

“We have met and we are in settlement negotiations,” Black said in an e-mailed statement last week. He went on to reiterate the coalition’s past declarations: “The most immediate need is for the county to develop and implement a comprehensive no-take plan for the butterfly.”

He did not respond directly to queries last week about whether a lawsuit might be forthcoming after the Friday deadline for “corrective action” by the county. But as of Tuesday morning, no lawsuit had been filed.

The coalition’s November notice particular referenced the county’s decision in spring 2010 to refuse a $391,000 U.S. Fish and Wildlife Service (FWS) grant to prepare a habitat conservation plan (HCP). Through an HCP, the county could have developed measures to prevent further loss of the protected species and obtained a permit for incidental losses during road, roadside and park maintenance.

Although all three commissioners voted to submit the grant application in 2008, Kathy George and Leslie Lewis overruled Mary Stern by voting against accepting the grant, partially because of a $130,000 matching contribution that would have been required of the county.

County Road Department Director John Phelan was out of town last week and could not be reached by press time this week to discuss the steps the county has taken, in the past and since receiving the county’s notice, to protect the butterfly and its habitat.

Phelan told the News-Register last month that he temporarily stopped grading, mowing or spraying on gravel roadways in the butterfly’s habitat area (about 1 percent of the 716 miles of roads under the county’s jurisdiction). Phelan has been involved in the talks between Black, Sinai and County Administrator Laura Tschabold and told the News-Register Black hadn’t realized how much the county was already doing to protect the butterfly and the coalition ultimately didn’t want the county to change much.

According to the Xerces Society, the Fender’s blue butterfly is found in 32 small sites, totaling 408 acres, throughout the Willamette Valley. Eighteen are on private land; 14 are on federal, state, county or city lands. The group has not identified how many sites are on Yamhill County lands.

Kenneth Fender discovered the butterfly in the 1930s, but died believing it was extinct, according to his family. The butterfly was rediscovered two years later, in 1989, and designated a federally-protected endangered species in 2000.

The butterfly has made its home in the Willamette Valley prairies for centuries, but over the past 140 years most of its habitat has been turned into farmland or otherwise developed, according to the Xerces Society.

Read the entire article at Newberg Graphic