Seasons – July 2022
From the Plateau Land & Wildlife Management Team
Starting July 3 and ending Aug. 11, those of us in the northern hemisphere will experience a period of particularly hot and humid weather we refer to as the “Dog Days” of summer.
While our first inclination may be to hole up in our houses, trying to do as little as possible outside, binging on our shows and getting cranky, there are lots of management activities that you can do on your property during this timeframe to benefit your wildlife.
In this issue of Seasons, you’ll find articles, blogs and videos about conserving endangered species, a guest feature on a recent Texas Supreme Court decision significant to Texas Landowners, reminders for summer management activities, news for Texas landowners, and more!
We hope you enjoy the read and everything this summer has to offer, and if there’s any way Plateau can help you protect, enhance or better enjoy your land, just give us a call. We’ll be here when you need us.
Until next Seasons,
The Plateau Team
Table of Contents
Protecting and Restoring the Houston Toad
By Nick Fisher, Regional Manager, Plateau Land & Wildlife Management
Concealed in the historic forests of central Texas’ loblolly pines and post oak savannah region, a high-pitched trill of a small toad can be heard calling from ephemeral pools as the months begin to warm. The Houston Toad (Anaxyrus houstonensis) once found throughout the east central region of Texas, is now almost exclusively detected in isolated populations in Bastrop County.
A victim of Texas’ rapid urbanization, these toads hang on the brink of extinction due to habitat loss, introduction of non-native species, and the suppression of natural fire regimes. Known as a habitat-specialist, only nine Texas counties from Bastrop to Leon still contain some of the specialized habitat that the Houston toad once thrived in. In 1970, the Houston toad became one of the first amphibians to be placed on the USFWS Endangered Species list. Today, official estimates are that just 3,000–4,000 adult Houston toads are left in the world.
Non-profits like Ft. Worth Zoo, Dallas Zoo, and the Houston Zoo have aligned in conservation efforts and have played a huge part in “head-starting,” or breeding the toads and introducing them to the wild with a “head start on life”. The “head start” program has been essential to the toad’s survival after the catastrophic fires in the Bastrop area in recent decades, at least for now while populations recover.
Even if all zoos and like-minded non-profits in Texas worked towards this program for the toads, several factors make the road to recovery challenging. The toad’s fate is in the hands of the private landowners in a state that’s 95% privately owned, where urbanization seems to be never-ending. To conserve the Houston Toad, protecting the habitat is more important now than ever.
Conservation Programs and Incentives for Landowners
Beyond protecting such a unique and extraordinary piece of Texas wildlife, why would a landowner want to volunteer for the “red tape” involved with protecting a federally endangered species? Programs like Texas Parks and Wildlife’s Safe Harbor Agreement and the Wildlife Management Tax Valuation offer incentives to private landowners who wish to manage for the toads specifically, or for the habitat that could benefit both toads and other native Texas wildlife.
Some landowners have expressed a valid concern that improving the habitat of a federally endangered species on private land may result in an increased population of the species, and therefore increase the odds of accidentally harming or killing one of the individuals. Safe Harbor Agreements offer landowners legal protection and an assurance that the landowner will NOT be held liable for incidental take (harming individual toads) while conducting habitat improvements on their property. In return, the landowner agrees to provide habitat enhancements for the toads that will assist with the recovery of the species. Landowners will receive free technical guidance from Texas Parks and Wildlife and can even apply for cost-share assistance for habitat improvement practices.
Many of the habitat improvements that are recommended for benefiting the Houston toad align with the activities that can count for compliance with the Wildlife Management Tax Valuation. Invasive red fire ant control, low intensity grazing, fencing off wetland areas from cattle, and even periodic burning can all improve the habitat for Houston toads while satisfying the requirements for maintaining low property taxes for properties that are under the 1-D-1 Open Space tax valuation for Wildlife Management.
How to get started
If you are a landowner within the Post Oak Savannah region, and you are interested in learning more about managing your property to help the Houston Toad, Texas Parks and Wildlife Department is hosting “Wildlife & Woodlands – Post Oak Savannah Landowner Workshops” in Milam and Burelson, Leon, and Robertson Counties in July and August. This is a unique opportunity to hear from TPWD’s Conservation Initiatives Specialist, Elizabeth Bates and our State Herpetologist, Paul Krump as they discuss management techniques and offer guidance for private landowners interested in conservation efforts and habitat enhancements. These workshops are not only for those with an interest in Houston toads. Anyone interested in learning about habitat management in the Post Oak Savanna is sure to benefit.
Have questions about Wildlife Management for Houston Toads? Please contact Nick Fisher at [email protected] or (512) 894-3479.
Guest Feature: Texas Supreme Court Rules in Hlavinka v. HSC Pipeline
By Tiffany Dowell Lashmet, Agricultural Law Specialist for Texas A&M AgriLife Extension Service
Last week, the Texas Supreme Court issued its opinion in Hlavinka v. HSC Pipeline. [Read opinion here.]
Plaintiffs (“Hlavinka”) own four tracts of land totaling 13,000 acres in Brazoria County, Texas. Although the family uses the land for agriculture, Mr. Hlavinka testified his primary purpose for purchasing the property was to sell pipeline easements.
The land has 25 pipeline easements on it. Mr. Hlavinka recently negotiated two such easements in arms’ length, private sales transactions, receiving $3.45 million and $2 million, respectively.
HSC installed the pipeline at issue in this case, a polymer-grade propylene pipeline, across Hlavinka’s property. HSC owns the pipeline. HSC has affiliations with several Enterprise entities, including Enterprise Products OLPGP, which serves as HSC’s sole managing member and Enterprise Products Operating LLC which serves as both the pipeline’s operator and manufactures and sells polymer-grade propylene, which the HSC pipeline transports. Braskem, which is not an Enterprise affiliate, purchases the propylene from Enterprise Products prior to it entering HSC’s pipeline. HSC published a tariff indicating that the pipeline is open to all who desire to ship in the line and meet the terms of the tariff.
After negotiations, Hlavinka rejected HSC’s offer to purchase a 30′ pipeline easement.
When the parties were unable to reach an agreement on the easement, HSC filed a condemnation suit. Hlavinka sought dismissal arguing that HSC did not have the power to exercise eminent domain authority. HSC filed for partial summary judgment seeking a ruling that it did have common-carrier eminent domain authority.
The trial court granted HSC’s motion, finding that it did meet the requirements to exercise eminent domain. The case proceeded to a bench trial. Mr. Hlavinka sought to testify about the private sales values mentioned above and, based on those sales, he would have testified as to a $3.3 million/rod fair market value. HSC moved to exclude his testimony related to the other pipeline sales. The trial court excluded the testimony, leaving the agricultural value as the only remaining testimony. The trial court awarded Hlavinka $132,293.36 compensation. Hlavinka appealed.
The Court of Appeals affirmed the holding that HSC was entitled to eminent domain authority under Business Organizations Code Section 2.105 because polymer-grade propylene constitutes an “oil product” under that statute. The Court of Appeals, however, reversed on two other issues, finding that the contract between HSC and Braskem did not conclusively demonstrate public use and that the court improperly excluded Mr. Hlavinka’s valuation testimony. [Read blog post on opinion here.]
Both parties sought review before the Texas Supreme Court.
Texas Supreme Court Opinion
The Texas Supreme Court essentially addressed two questions: (1) Does HSC have condemnation authority?; and (2) Should Mr. Hlavinka’s valuation testimony have been allowed? [Read Opinion here.]
Does HSC Have condemnation authority?
The Court first addressed whether HSC has eminent domain authority.
Statutory Eminent Domain Authority
The Texas legislature created two sources of condemnation power for pipelines: Business Organizations Code Section 2.105 & Natural Resources Code Chapter 111.
Business Organizations Code Section 2.105 provides: In addition to the powers provided by the other sections of this subchapter, a corporation, general partnership, limited partnership, limited liability company, or other combination of those entities engaged as a common carrier in the pipeline business for the purpose of transporting oil, oil products, gas, carbon dioxide, salt brine, fuller’s earth, sand, clay, liquefied minerals, or other mineral solutions has all the rights and powers conferred on a common carrier by Sections 111.019-111.022, Natural Resources Code.
Hlavinka argued that to qualify for the power, HSC must first qualify as a common carrier under Natural Resources Code Section 111.002 in order to qualify under the Business Organizations Code Section 2.105. In other words, Hlavinka argued these two statutes were not independent grants of authority, but instead that Section 2.105 was subordinate to the Section 111.002.
The Supreme Court disagreed with this argument. Instead, it held Section 2.105 explicitly expands condemnation authority to pipeline entities engaged as common carriers for the transport of products beyond those included in the Natural Resources Code. The Court noted that Section 2.105 did not refer to Section 111.002 at all. Instead, it “explicitly expands condemnation authority to pipeline entities engaged as common carriers for the transport of products beyond those included in Section 111.002.” Although both the Section 2.105 provision and the Section 111.002 provisions refer to Section 111.019, the Court found that both “provide alternative paths to obtaining that power.”
Is polymer-grade propylene an “oil product?”
Once the Court determined Section 2.105 conferred eminent domain authority, the question was whether polymer-grade propylene is an “oil product” under Section 2.105.
Section 2.105 does not define the meaning of “oil product.” The Natural Resources Code defines “oil” as “crude petroleum oil” and “petroleum product” to include “any other liquid petroleum product or byproduct derived from crude petroleum oil.” The Railroad Commission defines “product” to include “refined crude oil, . . . processed crude petroleum, residue from crude petroleum, . . . blends or mixtures of petroleum, and/or any and all liquid products or by-products derived from crude petroleum oil or gas, whether hereinabove enumerated or not.”
HSC claimed that polymer-grade propylene is an “oil product” since it can be derived as a byproduct of crude oil. Conversely, Hlavinka claimed it is not an “oil product” because it is not a naturally occurring byproduct of refined petroleum.
The Supreme Court found polymer-grade propylene is an “oil product.” It is a derivative of crude petroleum made by further distilling and deriving product from propane and natural gas, both of which are components of crude petroleum. Enterprise collects the refinery-grade propylene from more than 40 area crude oil refineries before Enterprise further refines it into polymer-grade propylene.
Thus, the Supreme Court affirmed the trial court and court of appeals holding that HSC has the authority to condemn property to build its pipeline.
Does the pipeline serve a public use?
Lastly, the Court determined that the pipeline serves a public use. Both the US and Texas Constitution requires that a pipeline be for a public use in order to exercise eminent domain authority. Section 2.105 incorporates this by requiring a pipeline transporter must be engaged as a common carrier to qualify to exercise eminent domain authority.
The test to determine common carrier status was set forth by the Texas Supreme Court as follows: “A pipeline serves a public use as a matter of law if it is reasonably probable that, in the future, the pipeline will ‘serve even one customer unaffiliated with the pipeline owner.’” It cannot be built solely for the builder’s exclusive use.
The Court found the contract with Braskem to be sufficient proof of common carrier status because “it is an existing transportation contract with an unaffiliated customer, and the pipeline connects to existing pipeline networks, making the transportation network feasible.” Further, the Court stated, “the pipeline has additional capacity and terminates near other potential customers” and “HSC has publicly filed a tariff with the Railroad Commission demonstrating that it offers and markets the pipeline for public hire.”
Hlavinka further argued there should be an additional requirement that the manufacturer of the transported product must have no affiliation with the pipeline owner. Hlavinka argued although Braskem takes title to the product before it enters HSC’s pipeline, they could have just as easily taken title at the other end of the line. The Supreme Court disagreed, refusing to add this additional requirement to the test for common carrier status.
Lastly, the Court re-affirmed its prior ruling that the question of whether a project is for a public use is a question of law for a court to decide, rather than a question of fact for the jury.
Should Mr. Hlavinka’s testimony have been admitted?
Having determined that HSC did have eminent domain authority, the question then became whether Mr. Hlavinka should have been permitted to offer the testimony about other arms’ length sales for pipeline easements across the property.
The Court laid out the general rules related to the admissibility of this testimony. Generally speaking, a property owner may testify about the market value of the property taken so long as their testimony is based on facts that demonstrate the market value, rather than on speculative or intrinsic facts. Arms’ length transactions are appropriate evidence of market value, “provided the sales are voluntary, contemporary, local, and “involve land with similar characteristics.”
- Highest and best use
- HSC argued that the Hlavinka’s current use of the property–agriculture–should be considered the land’s highest and best use. The Hlavinkas argued that given the location of the land, their intent in purchasing, and the number of pipelines already in place, the highest and best use was for pipeline easements and the land should be valued as such. The Court noted that although there was a presumption that the existing use is a property’s highest and best use, that may be rebutted by a landowner. The Court held that the testimony from Mr. Hlavinka about the prior arms’ length pipeline sales offered at least some evidence that the condemned land could have been sold to another pipeline at a significantly higher price than its agricultural value.
- Project Enhancement Rule
- Next, HSC argued that Mr. Hlavinka’s testimony violated the project-enhancement rule by considering enhancement to the land from the pipeline itself, which is not proper. The Court, however, noted that it was not that the HSC pipeline that would make the easement valuable; it is valuable because of purchasers other than HSC who value its geographic qualities. This was not created by HSC’s interest or pipeline, but is based on the value of the easement itself the landowners could sell to another party. The number of pipelines on the property and prices paid to secure those easements is evidence of the value of the land, regardless of HSC’s condemnation.
- Prior Pipeline Sales
- Finally, the Court noted that due to the prior private pipeline sales on the property, this case was unique. This makes it distinguishable from other cases where landowners sought to testify about the “going rate” for pipeline easements in the area, but where there was no indication that such sales had occurred. Ordinarily, there is no credible evidence that the land could be sold as a pipeline easement to another were it not condemned for the same purpose. Again, the prior sales to other pipeline companies and the number of lines on the property provide some evidence that the Hlavinkas could have sold to another company but were instead forced to sell to HSC.
Critically, the Court noted that this case does not stand for the proposition that “any land a pipeline traverses instantly or always becomes a pipeline corridor with a corresponding rise in market value.” Instead, “a landowner must show a ‘reasonable probability’ that the land would ‘likely be needed in the near future for another use by another interested market participant.’” A single pipeline or an ancient pipeline may not be sufficient to show an increase in market value as they may not indicate a current market absent the taking exists. However, in a case like this with “frequent, recent, comparable sales” such evidence should be admitted to show a reasonable probability that the easement condemned by HSC would likely have been sold to another pipeline in the near future. Of course, a jury is free to believe or not believe any evidence in a case.
Finally, the Court summarized as follows: “A condemnation should not be a windfall for a landowner. Nor should it be a windfall for a private condemnor. A condmenor must pay fair price for the value of the land taken. Evidence of fair market sales to secure easements running across the property that precede the taking are admissible to establish the property’s highest and best use, and its market value, at the time of the taking.”
Based on this, the Court held that the trial court committed a harmful error when it excluded Mr. Hlavinka’s testimony. Thus, a new trial as to market value was ordered. The Court noted that HSC is free to challenge any assumption made by Mr. Hlavinka, and the jury is free to adjust the market valuation of the property based on all admissible evidence.
For landowners, it is likely the Court’s third decision–that Mr. Hlavinka may testify as to other recent, arms’ length, easement sales–that is the most important. For landowners who may have this type of evidence of other private pipeline sales on their property, this ruling is important and will allow this type of evidence (assuming it meets the requirements set forth by the Court) in future trials.
Additionally, the Court’s reaffirmation of the way to analyze whether a company qualifies as a common carrier is useful as well. Even where there may be just one unaffiliated contract such as the one with Braskem, that appears sufficient for the Texas Supreme Court.
Tiffany Dowell Lashmet has served as an Agricultural Law Specialist for Texas A&M AgriLife Extension Service since 2013. Tiffany’s work focuses on legal issues impacting Texas landowners and agricultural producers including leases, water law, oil and gas law, pipeline easement negotiation, estate planning, and landowner liability. She travels the state speaking at various meetings and conferences on these issues and has published several law review articles, extension fact sheets, magazine articles, and newspaper articles on these topics. Learn more.
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Activity Reminder: Deer Surveys
By Kameron Bain, Landowner Account Manager
Maintaining a healthy deer herd that is balanced with available habitat does not happen by chance in most of Texas. It requires active management. Part of that proper management may include deer surveys.
While it would be ideal to be able to count every single animal on your property, it is virtually impossible. A survey is only an estimate, not a complete count, and can be higher or lower than the real population. Because of this, it is best to base your decisions on trends from multiple, consecutive years of survey data. Trends are more important than actual numbers from a single year, so plan to conduct surveys on a regular basis.
What options do I have?
- Spotlight Surveys: These are the familiar and “traditional” surveys for counting deer. The concept is simple – drive around at night with a spotlight and count all the deer you see – but there is more to it than that. The most common version is a strip-transect method, which just means you drive a set route and calculate how much land you can see from the vehicle, typically in 1/10th mile increments. If the survey route is set up properly, this method requires minimal training and can easily be conducted by landowners. A newer technique, called distance sampling, can be used on a driving spotlight survey as well. This version requires much more training and experience, but in the right situation it is a better choice for estimating populations.
- Camera Surveys: Inexpensive technology has made trail cameras, aka camera traps, widely available and popular for monitoring wildlife activity. Deployed properly, these cameras can also be used to estimate populations of deer. This method attempts to make an actual census (complete count) of bucks in an area and uses the ratio of males to females and fawns to females to estimate the rest of the population. The pictures make it easier to determine the age structure and quality of bucks. Because this survey requires 1 camera/150 acres of land, it is well suited to smaller properties (<500 acres), where spotlight surveys are often impractical. There is no limit to the size of the property for this method, it just takes a lot more cameras, and a lot more pictures to sort through, on larger properties. The set up and execution is fairly simple, though analyzing the pictures takes some training.
- Helicopter Surveys: These work best on very large properties with limited tall vegetation (South Texas, West Texas, and the Rolling Plains). Helicopter surveys may use distance sampling or strip-transect sampling much like spotlight surveys. In some cases, a complete count is attempted by covering the entire property, with the understanding that some deer will be missed. Obviously, a pilot is required, as is training at varying levels, depending on the technique, so these surveys are typically conducted by professionals.
- Conduct herd composition counts. These estimates can greatly influence harvest recommendations. Doe:Buck ratios (sex ratios) indicate the potential for future population growth. Fawn:Doe numbers indicate the health of the herd, in terms of reproduction. Most survey techniques underestimate fawns as they do not show up on cameras as often as adults and may remain hidden during spotlight surveys. Sex ratios and fawn crops are best determined from incidental observations. Raw counts of bucks, does, and fawns seen during daylight hours while driving or sitting in blinds are an important supplement to spotlight or remote camera surveys as they help more accurately determine herd composition.
- Look at the vegetation on your property. Checking browse pressure on desirable vegetation is an excellent indicator of the deer population. If deer are eating a lot of low quality forage and there are no desirable shrubs to be found, then you have too many deer, regardless of what your surveys indicate.
- Keep harvest records. The condition of deer harvested says a lot about what is happening in your deer herd as well. If it is a lean year for rain but the deer are still heavy with fat, then your population is probably in pretty good shape. Recording field dressed weight, antler size, and body conditions are important. You should also age each deer to one of three categories – young (0.5-1.5), middle-aged (2.5-3.5), and mature (4.5+).
Deer surveys typically start in August and there is a limited window (August-October) in which to get them done and determine harvest recommendations before the general deer season starts.
You don’t have to be perfect at your Wildlife Management activities, but you (or someone you hire) do have to do them. If you need help or have questions please contact us at (512) 894-3479 or [email protected]
For questions about your supplemental water activity, or if interested in purchasing a Plateau Water Table or Wildlife Station contact us at [email protected] or (512) 894-3479
Wildlife Management Q&A for Plateau Clients: Tuesday, August 2, 6:00-7:00 PM
As a part of our landowner family, we want to be available to answer your questions about appropriate Wildlife Management activities, record-keeping strategies, county requirements and expectations, and more. Landowner Account Manager Kameron Bain will be joined by Plateau Biologists and Certified Property Tax consultants for a “Mid Year Check In.” Our expert panel will provide a quick overview of the seven wildlife activity categories, provide examples of common practices, and talk about implementing and documenting your management actives. Be sure to bring your Plateau Wildlife Management Plan, which is your property-specific guidebook for starting your management practices.
Our panel will answer pre-submitted and live questions. Come to the webinar with your questions ready and get answers from a resource you can trust – Plateau Land & Wildlife Management. Already have a question in mind? Submit your question here, and our expert panel will address it during the webinar. Register at: https://us02web.zoom.us/webinar/register/WN_ky57tnTCQPuZJLjeXPx3QA
Hays County Roads & Infrastructure
Property owners of Hays County are invited to join Braun & Gresham Attorneys Patrick L. Reznik and Carly Barton to learn about road and infrastructure improvements planned for Hays County. Patrick and Carly will share the Hays County Master Transportation Plan published in 2021, explain what this means for impacted property owners and real estate values, and what to do if you are facing condemnation.
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News for Texas Landowners
Article by Erica Proffer for KVUE Austin
AUSTIN, Texas — Ranch life is a big responsibility for Rancher Whit Jones.
Established in 1890, Jones keeps the South Texas land valuable and cattle healthy. His family established the ranch in 1890.
The ranch is more than an income, it’s more than a family legacy — and power companies want a piece.
A deadly winter storm in February 2021 left millions without power. Temperatures stayed in the single digits for days. Hundreds died. Investigations revealed power plants and natural gas lines weren’t properly weatherized…
By Matt Williams Outdoor Writer
The 2022-23 hunting season for white-tailed deer is still months away. Whitetail junkies might be wondering how all the hot weather and lack of moisture across the state is impacting the deer.
It ain’t good. Think of rainfall like fuel for the all-important habitat deer rely on to make a living. Things are good in years when moisture is plentiful and the woods are lush with summer goodies. It’s different in drought years. Prolonged dry spells paired with oppressive temperatures parch the landscape and rob deer of all sorts of valuable food sources. Antler development usually lags. Fawn survival typically takes a dive. And body weights of bucks and does are reduced. This is especially true on properties lacking in some sort of deer management effort…
For 85 years, the Federal Aid in Wildlife Restoration Act, also known as the Pittman-Robertson Act, has raised billions of dollars for wildlife research and habitat acquisition. The bill, which is funded by a 10 to 11 percent excise tax on hunting and fishing gear, including firearms, is arguably the most important source of conservation funding in the United States. With H.R. 8167, Representative Andrew Clyde of Georgia has taken aim at Pittman-Robertson’s current funding in the name of Second Amendment rights. The bill is named the “RETURN (Repealing Excise Tax on Unalienable Rights Now) our Constitutional Rights Act of 2022” It would eliminate the excise tax on guns, ammunition, and archery tackle that fund Pittman-Robertson. He introduced the bill on June 22, 2022, with the support of 53 co-sponsors.
SAN ANTONIO (KXAN) — The San Antonio Zoo said it marked another success in its effort to breed and preserve the state reptile of Texas. The Center for Conservation and Research at the zoo announced Wednesday another successful Texas horned lizard hatching. It said the lizards will be released into the wild in the fall. In a press release, the zoo called the arrival of the 34 hatchlings, a “tremendous step forward” for the Texas Horned Lizard Reintroduction Project. Since launching the project in 2017, the Center for Conservation and Research team has used Geographic Information System (GIS) data, genetics and current knowledge about horned lizard ecology and distribution to release large numbers of captive-born horned lizards into suitable habitats…
Simone Carter, Dallas Observer
It’s a tough time to be a big cat in Texas, but a coalition calling itself Texans for Mountain Lions is trying to change that.
Earlier this month, the organization submitted a petition for rule-making to the Texas Parks and Wildlife Department (TPWD) to demand that the state increase efforts toward mountain lion conservation. The Lone Star State is the only one that permits mountain lion trapping, said Dr. Mark Elbroch, Texans for Mountain Lions coalition member and Puma Program Director for Panthera, the global wild cat conservation organization. “Trapping in West Texas is the leading cause of mortality for all mountain lions studied to date, and the mortality rates are all well beyond thresholds biologists have determined for maintaining sustainable mountain lion populations,” Elbroch said by email.
Article by NPR
A bill to conserve endangered species — from the red-cockaded woodpecker to the snuffbox mussel — was passed by the U.S. House in a 231-to-190 vote on Tuesday. The Recovering America’s Wildlife Act would create an annual fund of more than $1.3 billion, given to states, territories, and tribal nations for wildlife conservation on the ground. While threatened species have been defined and protected under the Endangered Species Act since 1973, that law does not provide robust funding to proactively maintain their numbers. The effort comes as scientists and international organizations sound the alarm about accelerating species decline.
“Too many people don’t realize … that roughly one-third of our wildlife is at increased risk of extinction,” said lead House sponsor Debbie Dingell, a Democrat from Michigan, echoing a recent study about climate change….