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I remember in 3rd grade collecting insects for school. I loaded on all the different things I could find on the farm and had the largest collection to turn in. I lost a couple of points for style (Styrofoam board and handwritten names) over the banker’s kid who had a polished and stained wood slab with wood burned names for the minimum number of insects. I clearly remember the large monarch butterfly on her display. That activity, at least as to monarchs may not only not be a recommended science class project but also potentially violate federal law.

The monarch’s status as protected will be determined by 15 December 2020. The work to make it a protected species has worked through court cases, petitions and federal review. Here is a look at some of the things that might happen more than a feel-good moment if the monarch butterfly receives different designations. The options are endangered, threatened, or non-listing.

“Endangered” Listing

An endangered listing is the strongest protection Endangered species become eligible for designated critical habitat, and federal agencies must ensure that their actions will not put the species in jeopardy of becoming extinct. This is the highest level of protection available. Protections include outlawing take, import and export of the species, possession, and sale. “Take” includes “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct. “harm” is “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”  That means milkweed, the only source of food and its host plant would also get protection. It is possible that any agricultural activity which would cause “take” of the monarch would be a violation its protected status. That includes spraying the milkweed in the ditch.

Endangered species are eligible for critical habitat designation where they live under two ideas. Where they were at the time of the listing and where they might go to keep living. Pretty broad. Remember, monarch is migratory traveling from Canada to Mexico. Nearly every state in the US is has potential monarch butterfly habitat.

Federal agencies must “fund, authorize, or carry out” activities that do not jeopardize the survival of any listed species or adversely modify any designated critical habitat. If an agency concludes that its proposed action “may affect” a listed species, it must consult with FWS to avoid jeopardy or adverse modification. The length of time necessary for the consultation process varies from project to project. It includes studies. That means Corps of Engineer projects consider the butterfly before making dams or draining waterways. That means USDA housing projects consider the butterfly before putting up a new multifamily housing unit. That means new chemicals getting listed for use in ag must consider the butterfly before federal approval is granted.

 “Threatened” Listing.

Threatened species need to have the feds “to provide for the conservation of such species.” It is not the same as endangered. The protections outlined for endangered will only be triggered if a separate rule for the butterfly is issued.

“No Listing”

NO listing does not mean no protection. Sometimes industry, in an attempt to avoid mandatory protections will enter into Candidate Conservation Agreement with Assurances (“CCAA”). The agreements required participants to engage in certain conservation efforts and skip others without the listing. These agreements are in effect in some cases for up to 25 years.

For Ag, a non-Listing will mean no big change in the immediate future. A non-decision doesn’t mean more court cases and reviews aren’t on the horizon, after all, lawyers are involved.

Wednesday, September 30, 2020
  • Patrick B. Dillon
  • Jill Dillon
Dillon Law PC
Patrick B. Dillon enjoys finding solutions to legal issues and catching problems for clients. Pat practices in the Sumner office regularly represents clients in district, associate district and magistrate courts for agricultural, real estate, criminal and collection issues. He drafts wills and trusts, creates estate plans and helps clients through the probate process.
Dillon Law PC
Jill Dillon focuses on family law, estate planning and IRS matters. Jill is a University of Northern Iowa undergraduate (Political Science Cum Laude) and a Drake University Law School graduate. Jill spent extensive time advocating for low income tax payers in front of the IRS and the State of Iowa Department of Revenue while at Drake.

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