Summary: Partisan disagreement about listing the Bi-State and greater sage grouse in western states as an endangered species sparked costly lawsuits and strained partnerships between local industries, states, and the federal government. This is the latest indicator that Congress needs to act to prevent regulatory overreach by executive agencies and to reform the Endangered Species Act to limit radical environmentalists’ ability to stick taxpayers with bills for expensive and needless litigation.
Objections From the Left
The Western Watersheds Project, which is headquartered in Idaho, has joined with other well-endowed environmental advocacy groups to file suit against the Interior Department’s Bureau of Land Management and U.S. Agriculture Department’s Forest Service. The environmental groups have called on the feds to impose tighter restrictions against fossil fuel development, mining activities, and livestock grazing across more than 70 million acres on public lands in ten western states. This should be done to close off “special interest loopholes” in current land use plans, they contend.
Advocates for the West, a nonprofit public interest law firm based in Boise, Idaho, represents the coalition of environmental litigants, which also includes WildEarth Guardians, based in New Mexico; the Center for Biological Diversity, based in Arizona; and the Prairie Hills Audubon Society, based in South Dakota. Molvar was serving as biologist with WildEarth Guardians when the suit was filed in February 2016. The purpose of the litigation is not to eliminate, but to strengthen the existing land use plans, the environmentalists explain in a press release:
The federal sage-grouse plans are a crazy-quilt of weak protections and politically motivated loopholes that allow many of the most destructive activities to continue . . . agencies turned their backs on the habitat protections recommended by their own scientists, and instead adopted political compromises that can’t—and won’t—prevent further sage-grouse declines.
Because there are “loopholes” that allow for some livestock grazing, oil and gas drilling, transmission lines, and other development across sage grouse habitat the green groups claim that the land use plans do not conform with the requirements of the National Environmental Policy Act, the Federal Land Policy and Management Act, and the National Forest Management Act.
Objections From the Right
Industry groups and state officials who view Obama-era land use regulations as overly burdensome and open-ended are not leaving the field open to environmentalists.
Brian Seasholes, a Washington, D.C. area consultant who favors free market solutions to energy and environmental challenges, has a jaundiced view of the ESA in its current form because he believes it undermines successful local conservation initiatives:
It’s hard to say that the sage grouse should be listed as endangered when the population is approaching a half million or is possibly above a half million . . . If we are going to be serious about conservation we’ve got to be flexible in our approach and responsive to the realities on the ground in each state.
Seasholes is also critical of the role environmental groups have played in the struggles over sage grouse habitat and in the court room:
Ask yourself how much conservation these groups do and the answer is zero. They don’t own any land, they don’t have any skin in the game. They don’t do any conservation. They are just lawsuit mills that want more command and control.
Several lawsuits out of Idaho, Nevada, and Wyoming naming the Interior Department, Agricultural Department, and their sub agencies as defendants were immediately filed in September 2015, when the Obama administration rolled out the land use plans as a substitute for an Endangered Species Act listing. Nevada Attorney General Paul Laxalt has joined with local counties and mining companies in their litigation against the land use restrictions. However, Laxalt’s decision to enter the fray, announced in October 2015, puts him at odds with his own Republican governor, Brian Sandoval, who opposes the litigation against the federal government. Utah State officials followed with their own suit in 2016.
In April 2016, Gov. C.L. “Butch” Otter of Idaho appealed a federal court ruling that dismissed his state’s sage grouse litigation. U.S. District Court Judge Emmet G. Sullivan did not rule on the merits of Otter’s challenge to the land use plans, but insisted the governor lacked standing because he could not prove his state had been injured by the federal plans.
Laxalt is not the only state official who has clashed with members of his own party over the correct approach to sage grouse conservation and litigation. The most dramatic example of intra-party strife flows from the special case of Colorado; there, green activists succeeded in securing an Endangered Species Act listing from the Obama administration.
Industry groups suing to overturn the land use plans include the American Exploration and Mining Association based in Spokane, Washington; the Western Energy Alliance based in Denver, Colorado; the North Dakota Petroleum Council; and the Wyoming Stock Growers Association.
Colorado as a Special Case
Colorado is home to the Gunnison sage grouse which, though a close cousin of the greater sage grouse, is considered a unique, distinct species.
For starters, the Gunnison sage grouse is noticeably smaller and much more rare than the greater sage grouse. According to the Fish and Wildlife service, about 5,000 Gunnison sage grouse reside in southwestern Colorado and southeastern Utah. This chubby little bird is about one-third the size of the greater sage grouse. The male species in contrast to the greater sage grouse have what Fish and Wildlife officials describe as a “more distinct, white barring on their tail feathers [and] longer and denser filoplumes on their necks.” The male Gunnison sage grouse also puts on an elaborate, colorful mating display for females that involves much strutting and flapping of wings. The males also puff themselves up during this alarming ritual and emit loud noises. There are seven different Gunnison sage grouse populations in Colorado and Utah with largest population of about 4,000 concentrated in the Gunnison Basin region of Colorado.
For more than 25 years now, Colorado state officials have been working hand-in-glove with local ranchers, farmers, and other private landowners to preserve the sage grouse habitat and to protect the bird population. During this time, state officials have spent more than $40 million on local conservation efforts that by any reasonable metric yielded positive results. According to Colorado state government figures, the main Gunnison Basin population hasn’t just stabilized, but, it has in fact, increased in the past few years. Nevertheless, the Fish and Wildlife Service saw fit to stick Colorado with an Endangered Species Act listing in November 2014.
In a press release announcing the decision, the feds insist that landowners who had previously entered into conservation agreements will be able to continue with those programs. The U.S. Department of Agriculture’s Sage Grouse Initiative held up the voluntary partnerships with ranchers and farmers as an example of a successful federal-state partnership:
While many people hoped that the extraordinary conservation efforts by our partners in Colorado and Utah would resolve all the threats faced by the Gunnison sage-grouse, the best available science indicates that the species still requires the Act’s protection.
But then USFWS director Dan Ashe went on to say:
This is a work in progress, however, and we will continue to join our partners in protecting and restoring the rangelands with the hope that, in the near future, the Gunnison sage-grouse will no longer need additional protection.
Because there is no denying the progress in the Gunnison Basin, USFWS decided to list the species as “threatened” rather than “endangered” so local landowners who participate in conservation efforts could “continue to manage their lands without additional restrictions.
While the listing came as a blow, it could have been worse. When Congress legislated the Endangered Species Act, it created a significant distinction between “threatened” and “endangered.” A listing under “threatened” is meant to be much less restrictive than the designation of “endangered.”
But any listing should be viewed as an insult, according to Kent Holsinger, a natural resources lawyer based in Denver. After investing tens of millions of dollars in conservation efforts that reversed declining grouse population trends, Colorado should have been permitted to proceed forward without federal interference, he argues:
It was a real slap in the face from the Obama administration to list the Gunnison sage grouse. Populations have been rising with state and local entities bending over backwards. But after working incredibly hard to preserve the species, the reward from the feds was congratulations, here’s a listing. So, I can’t tell you how outraged folks in Colorado were, and rightfully so. The bird should not be listed. The results are in and local conservation efforts are more than enough.
The level of outrage across party lines became palpable just a few months after the listing was announced when Colorado Governor John Hickenlooper, a Democrat, against his own party in Washington, D.C., naming Obama’s Interior Department and its Fish and Wildlife division as defendants.
John Swartout, a Republican who is a senior policy advisor to Hickenlooper, blames the “adversarial structure” of the Endangered Species Act for the litigation. He sees a “broad, bi-partisan consensus” emerging on the part of western governors to reform the law to the point where successful conservation efforts can be rewarded by an absence of oppressive federal regulations:
The governor felt like the landowners had done everything we asked them to do and made a superhuman effort . . . They really stepped up and did everything that was necessary. We wanted to let our landowners know that we had their backs after they did everything they could do to protect the sage grouse.
Hickenlooper’s suit describes some of the initiatives that were folded into the $40 million conservation effort. They include: intensive habitat treatments, predator control, purchasing and managing land for use as protected habitat, lek (breeding activity) monitoring, research, translocation of birds to augment small populations, enrolling private landowners in, and managing, a conservation agreement approved by federal authorities to protect thousands of acres of privately owned habitat, and captive breeding programs. Hickenlooper’s suit expands further:
In addition, through the cooperative efforts of local government, federal officials, and private landowners, more than four-fifths of occupied Gunnison sage grouse habitat—83 percent—in the Gunnison Basin includes some level of protection for the species . . . These efforts have succeeded. The Gunnison Basin Population has grown to exceed, by over 30 percent, population targets set in 2005 by a team of conservation biologists—including experts from FWS itself.
With more than 80 percent of the population residing in the Gunnison Basin, which cuts through Gunnison County and a small portion of Saguache County, a jittery, opportunistic Molvar warns against “putting all your eggs in one basket” concerning the species. “One major catastrophe like a West Nile virus could wipe out the population and drive it to extinction,” he said in an interview.
Fish and Wildlife officials of the birds reside in the Gunnison Basin with the remaining “satellite populations” spread throughout Colorado and Utah.
The decision to list the species was not based on the “best available science,” Hickenlooper argues in his suit:
The Gunnison Basin Population—which comprises the vast majority of the species—is not presently in danger of extinction, nor is it likely to be at risk of extinction in the foreseeable future. In fact, experts cited in FWS’s Final Listing Rule estimated that the risk of extinction over the next 50 years is no more than 1 percent. Thus, FWS’s decision to list the Gunnison sage-grouse as threatened was arbitrary, capricious, and not in accordance with law.
The Colorado governor was not the only Democrat to challenge his own president and party in Washington, D.C. Gunnison County, which is heavily Democratic just a few weeks after the governor filed suit and announced that it would join in the litigation to overturn the listing.
U.S. Fish and Wildlife officials “did not use sound science” when they made the decision to list the species, Paula Swenson, a former Democratic member of the Gunnison County Board of Commissioners, `said in an interview. She’s frustrated because for at least the past two decades Fish and Wildlife officials acknowledged that the survival of the species is based on the Gunnison Basin population, which has been rising. However, the decision to list the species was based more on the status of the satellite populations, which only amount to about 15 percent of the total population, she explained:
When you listen to reasons Fish and Wildlife give for listing the species they are just not believable . . . They would say that if a disease came to the Gunnison Basin it could wipe out the species. But my personal favorite is their stated concern that a meteor could come in and wipe out the species. The reasons given for the listing are just not believable and they left me and others incredulous.
Swartout, the Republican advisor to the Democratic governor, stands by his state’s conservation efforts and fixes the blame on environmental advocacy groups for misusing and abusing the Endangered Species Act. He’s also critical of federal officials for shifting their focus away from the main bird population.
“We were sold one thing and they moved the goal posts,” Swartout said. “The satellite populations became the central focus and they [federal officials] found protections for the satellite populations less than robust.”
While there was no denying the progress made in the Gunnison Basin, the pressure exerted by environmental groups through the threat of litigation clearly had an impact on the Obama administration’s decision to capitulate and list the Gunnison grouse, Swartout said. He identifies WildEarth Guardians as one of the main culprits:
I do not consider WildEarth Guardians to be good actors in this process . . . Their goal is to use the Act to get rid of what they don’t want. They want to get rid of the coal industry, they want to get rid of oil and gas companies, and they want to get rid of cattle grazing on public lands. But this organization has not put one penny on the ground to benefit the sage grouse and we’ve put down $40 million. Think about it, if our ranchers have sage grouse thriving on their properties, they must be doing something right.
In the next installment of the Woes of the Western Sage Grouse, we’ll take a look how environmental litigators have managed to weaponize the endangered species act for their own ends.