Sage grouse decision draws cheers, legal threats

Source: Phil Taylor and Scott Streater, E&E reporters • Posted: Wednesday, September 23, 2015

Jewell Sage Grouse ceremony

Interior Secretary Sally Jewell, flanked by Colorado Gov. John Hickenlooper (D) to her right, and Wyoming Gov. Matt Mead (R) and Montana Gov. Steve Bullock (D) to her left, announces the greater sage grouse will not be listed for federal protection during a ceremony at the Rocky Mountain Arsenal National Wildlife Refuge outside Denver. Photo by Phil Taylor.

COMMERCE CITY, Colo. — The Interior Department’s long-awaited decision today not to list the greater sage grouse under the Endangered Species Act was hailed as a conservation triumph by many officials and environmentalists but drew immediate threats of lawsuits and a congressional probe.

Interior Secretary Sally Jewell made the announcement here at the Rocky Mountain Arsenal National Wildlife Refuge outside Denver, hailing an “epic conservation effort” that rescued the mottled-brown bird from the brink of extinction.

The Fish and Wildlife Service’s finding that ESA protections are “not warranted” for sage grouse was buttressed by tough new federal land-use plans covering millions of acres that were also finalized today. The department also unveiled a strategy to combat rangeland wildfires and a $750 million investment by the Agriculture Department and partners to preserve grouse habitat on private lands.

“This is truly a historic effort,” Jewell said, “one that represents extraordinary collaboration across the American West.”

Jewell spoke between fluttering American and Interior Department flags with the Denver skyline and Rocky Mountains looming in the distance. Hundreds, including a who’s who list of federal, state and nonprofit officials, attended the ceremony, which took on the air of a victory lap after years of collaborative efforts.

Joining Jewell on the stage were FWS Director Dan Ashe, Agriculture Undersecretary for Natural Resources and Environment Robert Bonnie and governors from four Western states.

“It does mean a brighter future for one scrappy bird that calls the West home,” Jewell said. She emphasized that the effort was far from over — land-use plans must be funded and implemented, wildfire must be more aggressively squelched from the Great Basin and states must continue being active conservation partners.

“Today’s announcement is really the end of the beginning,” Jewell said. “To say it takes a village is a gross understatement.”

To many conservation groups, the decision was proof of ESA’s ability to catalyze sweeping conservation efforts across the sage grouse’s 173 million acres of sage-steppe habitat, which has been roughly halved in size since the 19th century. While some local sage grouse populations may continue to decline, broader conservation efforts will “slow and then stabilize” habitat loss, preserving the species into the future, FWS concluded.

Conservationists also hailed today’s finalization of Bureau of Land Management and Forest Service land-use plans that buffer the grouse’s prime breeding habitats from oil and gas development, hardrock mining, transmission lines and wind turbines.

“They are both the biggest landscape-level conservation effort ever undertaken by the Bureau of Land Management and the largest land protection initiative of the Obama administration,” said Ken Rait, director of U.S. public lands at the Pew Charitable Trusts.

But those plans — which were the primary factor underpinning the Fish and Wildlife Service’s “not warranted” finding — drew howls of protest from oil and gas and mining interests and their backers in Congress.

House Natural Resources Chairman Rob Bishop (R-Utah) labeled today’s decision part of a “cynical ploy” by the Obama administration to cordon off the West to drilling, mining, grazing and motorized recreation. He said the committee would hold a Sept. 30 oversight hearing on the federal grouse plans.

“With the stroke of a pen, the Obama administration’s oppressive land management plan is the same as a listing. Now, successful conservation done at the state level will be in vain,” Bishop said in a statement. “Some Western governors see this for what it is and I will work with them to ensure the rational plans created at the grassroots level that solve the problem will be the way forward to protect this bird.”

While comments from nine Western states were among the more than 200 protests filed this summer challenging all or parts of the BLM plans, standing by Jewell’s side this morning were the Democratic governors of Colorado and Montana and the Republican governors of Wyoming and Nevada, a sign of bipartisan support for the federal government’s sage grouse efforts.

A key question now is whether the not-warranted listing decision and the proposal to amend 98 BLM and Forest Service land-use plans to incorporate greater sage grouse protections will survive challenges in court and in Congress.

A few key environmental groups said they believe the Fish and Wildlife Service made the wrong decision.

Defenders of Wildlife President Jamie Rappaport Clark, who served as FWS director during the Clinton administration, said the plans lack the “regulatory certainty” needed to avoid an ESA listing.

“While the final federal sage-grouse plans advance wildlife management on millions of acres of public lands, they failed to adopt key conservation measures identified by the government’s own scientists and sage grouse experts as critical to conserving the bird, such as protecting winter habitat or confronting the growing threat of climate change to the species’ habitat,” she said.

But Steven Williams, a former FWS director during the George W. Bush administration and now president of the Wildlife Management Institute, praised the federal plans and the unprecedented effort from all stakeholders to put safeguards in place to save the bird.

“The work to benefit sage grouse over the last five years has been the greatest landscape-scale conservation effort undertaken in modern times,” Williams said. “The collaboration we’ve seen is unprecedented and extraordinary. It sets forth a model for what I believe to be the future of conservation in America.”

Federal plans key

Indeed, implementation of the federal plans across about 50 million acres of grouse habitat in 10 states was the top reason why FWS decided not to list the bird for protection, senior Interior Department officials said.

Jewell today announced the completion of records of decision (RODs) granting final approval to the plans, outlined in 14 final environmental impact statements released in May.

The plans establish primary habitat management areas and general habitat management areas where new oil and gas drilling, some large transmission line projects, and livestock grazing would be prevented or limited. The goal is to focus conservation measures in specific areas that are most important to the grouse, while still allowing oil and gas and renewables development.

“We will do what we can to try to guide new disturbance to areas outside of those priority habitat areas,” Jim Lyons, Interior’s deputy assistant secretary for land and minerals management, told reporters during a conference call.

FWS in 2010 ruled that the greater sage grouse deserves federal protection but that other species took higher priority amid limited resources and placed the bird on a candidate list of species that may be given protections in the future. The service was under a court mandate to complete a re-evaluation of the bird by Sept. 30.

In determining five years ago that the grouse warranted federal protection, FWS did so in large part because of “the inadequacy of existing regulatory mechanisms” in place to protect the grouse “now and in the foreseeable future,” according to a March 2010 Federal Register notice. Specifically, the service identified the lack of conservation measures in BLM resource management plans.

BLM and the Forest Service manage roughly half the remaining sage grouse habitat across the bird’s 11-state Western range.

But a senior FWS official said the BLM and Forest Service land-use plan amendments sufficiently address the service’s earlier concerns regarding proper regulatory mechanisms being in place to protect the bird’s habitat from destruction or fragmentation.

The federal plans, along with state grouse conservation plans that cover tens of millions of additional acres, “have established regulatory mechanisms that address the primary threat that [the grouse] faced back then, which is the loss and fragmentation of its habitat,” Gary Frazer, FWS’s assistant director of ecological services, said during the conference call with reporters. “We have effectively, through the completed federal land management plans, targeted those protections to the highest populations and highest value habitat that’s on the federal estate and reduced the threat to those populations and habitats dramatically.”

But the federal plans have received some harsh criticism from conservation groups, arguing they won’t provide enough protection for the bird, and from states and the oil and gas and mining industries, saying the plans are onerous and perhaps illegal.

BLM last summer received more than 200 protests to the plans, including from Wyoming Gov. Matt Mead (R) and Democratic Govs. John Hickenlooper in Colorado and Steve Bullock in Montana, who have expressed concerns the plans fail to give states more power to protect the bird within their boundaries (Greenwire, July 2).

All three attended today’s decision announcement ceremony.

Lyons said the concerns raised in the protests are addressed in the RODs approving the federal plans. Interior has not yet released the RODs to the public, so it’s not clear how federal regulators addressed the issues in the formal protests.

What is clear is that the protests did not result in any significant changes to the overall federal grouse plans.

“The final plans will be largely very similar to those that were proposed and all the major elements,” Sarah Greenberger, Jewell’s top counselor, said during the conference call. “We have worked to address some of the concerns in the protests and the governors’ consistency reviews, mostly through clarifications. But there are not any significant changes between the plans as proposed and final.”

Lawsuits ‘a certainty’

Industry groups said today that, although they are pleased with the decision not to list the sage grouse for ESA protection, they have some serious concerns about the federal grouse plans.

“We applaud Secretary Jewell’s decision that a listing of the greater sage grouse is not warranted,” said Kathleen Sgamma, vice president of government and public affairs for the Denver-based Western Energy Alliance, an oil and gas industry trade group representing more than 400 energy companies that account for nearly a quarter of the nation’s natural gas and 21 percent of its oil production.

But the federal grouse plans that allowed FWS to make that decision are almost certain to be challenged in court, industry representatives and conservation leaders say.

Critics such as Kent Holsinger, a Denver-based natural resources attorney who represents industry, agriculture and local governments on sage grouse issues, called the plans draconian and said industry litigation is “a certainty.”

Holsinger pointed to surface disturbance caps in grouse habitat outlined in the plans. Specifically, the plans call for total surface disturbance activities within primary habitat management areas of no more than 3 percent in nine of the states covered by the plans and no more than 5 percent in Wyoming.

The new disturbance caps would cover about 35 million acres.

“The RODs are more restrictive than even a listing would be,” he said. “Listings do not come with buffers or disturbance caps, or right-of-way exclusion areas, etc., and these are all based on bad science and data that is not publicly available.”

Dan Naatz, senior vice president of government relations and political affairs for the Independent Petroleum Association of America, did not mention possible legal action in a formal statement. But Naatz said the federal grouse plans “will ultimately result in a far greater economic impact for America’s independent oil and natural gas producers” than a decision to list the bird for ESA protection.

Some conservation groups also are very critical of the plans finalized today, saying they don’t go far enough to protect the grouse or its dwindling habitat.

“It’s not that these plans don’t do anything. The question is do they go far enough on the key conservation measures?” said Randi Spivak, director of the Center for Biological Diversity’s public lands program. “From what we have seen, they do not.”

Spivak said the group will be looking closely at the RODs and the not-warranted listing decision to determine its next course of action.

“We know we have legal options,” she said.

Frazer, the FWS official, said the service is prepared to defend the plans and the decision not to list the bird for ESA protection.

“We’ll face the lawsuits as they come,” Frazer said. “We are confident that we have a decision here that we can defend and will prevail on.”

Without the federal grouse protection plans in place, FWS would almost certainly have listed the bird as endangered or threatened under ESA, Interior’s Greenberger said.

She compared lawsuits challenging the federal plans to the game Jenga, where players carefully remove pieces from a tower of blocks until they fall. Remove the federal plans, she said, and the structure collapses.

“If people want to play that game of knocking out pieces and pulling this all down, that’s disappointing and we think counterproductive,” she said.

Positive reaction

Still, the federal plans and the listing decision drew wide praise from congressional leaders and national conservation groups.

“The decision not to list this unique bird was made because of the proactive conservation of sagebrush habitat agreed upon by the states and federal agencies,” Senate Minority Leader Harry Reid (D-Nev.) said today in a statement. “This process has not been easy and we have a long way to go. But all those involved in this historic process should be proud of the outcome.”

The decision was also praised by the House Natural Resources Committee’s top Democrat, Arizona Rep. Raúl Grijalva, who took a shot at GOP leaders who have ripped the Obama administration’s grouse conservation efforts.

“House Republicans attack the President when he decides to list an endangered species, and they attack him when he decides not to list an endangered species,” Grijalva said in a statement. “They have destroyed their own credibility.”

Sen. Cory Gardner (R-Colo.) said he was pleased by the not-warranted decision but added that the states and local groups should take the lead on land management issues. “I will be closely monitoring the implementation of the federal land-use management plans on our public lands in northwest Colorado and across the West,” he said.

Megan Mueller, senior biologist for Rocky Mountain Wild, which was part of a 2003 petition to list the grouse for ESA protection, said the federal plans “and efforts of state and local governments, private landowners and others, will put the greater sage grouse on the path to recovery.”

“Though it will be important to ensure that the conservation measures in the various plans are implemented effectively, and continue to adjust them if needed as our scientific understanding of greater sage grouse grows, we are confident that this fascinating bird will now have the safeguards it needs without the protection of the Endangered Species Act,” Mueller said.

Collin O’Mara, president and CEO of the National Wildlife Federation, said the decision not to list the bird “illustrates what the Endangered Species Act is supposed to be all about: galvanizing collaborative efforts to save wildlife species before they’re on the brink of extinction.”

David Yarnold, president and CEO of the National Audubon Society, praised the federal grouse conservation plans, calling them the result of “finding a shared path forward” that “beats scaring all the stakeholders into their corners.”

But Jamie Williams, president of the Wilderness Society, cautioned that “the work is not done.”

Williams urged Congress to properly fund BLM and other federal land management agencies so that the grouse plans can be put into place.

“Success will only be achieved when these plans are fully implemented,” Williams said in a statement. “This requires all stakeholders to continue to work together to ensure standards are met, progress is monitored and adjustments are made.

“The plans are in place — now we must let them work,” he said.