The Woes of the Western Sage Grouse: Weaponizing the Endangered Species Act

The Woes of the Western Sage Grouse (Full Series)
Environmental Canary in the Coal Mine | Party Divisions | Weaponizing the Endangered Species Act | Is Reform on the Way?

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.

The Bistate Sage Grouse

While there’s an argument to be made that the Gunnison sage grouse is a genetically distinct species from the greater sage grouse and has a different feather pattern and mating call, it’s difficult to make that case with the Bi-State sage grouse. But if you’re determined to file lawsuits, you will find a way to make that case.

The Bi-State sage grouse is concentrated along the border of two states: Nevada and California. Biologists estimate that anywhere from 2,500 and 9,000 of these birds inhabit about 4.5 million acres of sagebrush habitat. The Fish and Wildlife Service describes the Bi-State sage grouse as a “Distinct Population Segment” because studies show that it has been separated from the larger greater sage grouse population for thousands of years and that there are “significant genetic differences.”

The bird may be geographically distinct, but the idea that there is a major genetic difference between it and the greater sage grouse is highly questionable and open to debate. Megan Maxwell, an independent policy advisor with a background in biology who is based in Colorado, offered up a few important points of clarification in an email message:

A ‘distinct’ species is not a biological term, it is a mechanism used in listing a species under the ESA . . . For example, it is used when it would be difficult to reach the conclusion that an entire species warrants listing, but certain population segments are under stress that the broader populations lack. When certain criteria are met, the listing agencies can parse out a population and classify it as a ‘distinct population segment.’ In sum, ‘distinct’ should not be confused with a sub species, which is a biological classification. [The] bistate [sage grouse] is a distinct population segment.

In April 2015, Interior Secretary Jewell sent environmental groups into a tailspin during an ostentatious public announcement in Reno, Nevada, where she was joined by state and local officials “to celebrate an extensive and long-term conservation partnership on behalf of the bi-state greater sage-grouse population,” as the exercise was described in a press release. The bi-state sage grouse would not be listed under the Endangered Species Act thanks in large part to a 15-year effort known as Bi-State Action Plan, she explained during the announcement. This conservation plan, which involved state and local partners in both the public and private sector, drew in a total of $75 million in funding for the project. Jewell singled out the Bi-State Local Area Working Group for special praise, which brought in $45 million in funding, according to the release:

Thanks in large part to the extraordinary efforts of all the partners in the working group to address threats to greater sage-grouse and its habitat in the Bi-State area, our biologists have determined that this population no longer needs ESA protection . . . What’s more, the collaborative, science-based efforts in Nevada and California are proof that we can conserve sagebrush habitat across the West while we encourage sustainable economic development.

That didn’t cut it for environmental activists who filed suit under the Endangered Species Act against the Fish and Wildlife Service in March 2016. Western Watersheds Project joined with the Center for Biological Diversity, WildEarth Guardians, Desert Survivors, and the Stanford Law Clinic to file the suit. Once again, these green groups expressed dissatisfaction with the time, effort, and resources invested into state and local conservation. In a press release, Western Watersheds Project said:

In refusing to protect the bird, the Service relied upon new funding for measures in the Bi-State Action Plan. But that would fund activities on a mere 40,000 acres of private lands—less than one percent of the bird’s habitat.

Most of the 4.5 million acres of Bi-State sage-grouse habitat is on public lands, the bulk of which are grazed by livestock. Not a single federal land management plan has been amended to protect Bi-State sage-grouse, and the few proposed amendments will not conserve the bird. Ongoing livestock grazing on public lands will continue to threaten the grouse’s survival—from nest trampling, fenceline deaths, increased predation, vegetation composition changes, increased invasive species proliferation and increased fire risks.

Laxalt, the Nevada attorney general who was at loggerheads with his own Republican governor, Brian Sandoval, when filing suit against the Obama administration, later found common cause with his governor where the Bi-State sage grouse is concerned. Laxalt intervened on behalf of his state, California, and federal officials who joined together to form the Bi-State Action Plan. If the bird species were listed under the Endangered Species Act, Nevada’s authority over the Bi-State sage grouse could be “permanently displaced,” Laxalt argued in his motion:

Nevada has interests outside of wildlife protection that could be affected by the litigation . . . A listing of a species as threatened, or designation of critical habit, can impose strictures that significantly limit state action and impose consultation duties. This might cause disruption to local land use plans, cut off residential development and commercial investment, and harm recreational interests.

For his part, Governor Sandoval fixes the blame on “fringe groups” in the environmental movement that he says are working to undermine “unprecedented efforts” that have resulted in successful conservation.

But in May, those “fringe groups” gained ground when a federal judge stepped in to rule in their favor. California Chief Magistrate Judge Joseph Spero described the USFWS 2015 decision to not list the species as “arbitrary and capricious” and said that the agency “failed to adequately explain why it reversed course and denied protection” to the Bi-State population.

Holsinger responded to the ruling in E&E News: “Unfortunately, the lawsuit and the ruling on listed status,” he said, “will only make it more cumbersome and difficult to do on-the-ground conservation work for the benefit of the grouse.”

Reforming the Endangered Species Act

The Western Governor’s Association (WGA), which met this past June in Rapid City, South Dakota, has been focusing attention on potential reforms to the Endangered Species Act that could attract support across party lines. Wyoming Gov. Matt Mead launched the Species Conservation and Endangered Species Act Initiative in 2015 while serving as WGA chairman. Under the present system, the Act “often deters meaningful conservation efforts and divides, rather than unites people,” Mead explains in a special report about the initiative. There’s a palpable sense among WGA members that litigation advanced in the name of endangered species has become costly and counterproductive. That much is made apparent in their comments expressed during recent meetings and in their published reports. Both the greater and the Gunnison sage grouse figure prominently in WGA case studies that suggest excessive litigation has worked to undermine local conservation efforts organized on behalf of the species.

Whether or not the governors prevail upon their Washington, D.C., counterparts to enact reforms is an open question. The suits filed under the Endangered Species Act against both the EPA and the Interior Departments often result in litigation costs, including taxpayer-funded attorneys’ fees being rewarded to green groups as part of the settlement. So-called “sue-and-settle” arrangements built around lawsuits green advocacy groups file against the federal government “almost quintupled” during Barack Obama’s presidency, according to records presented during congressional testimony.

How does this happen?

Last July, Holsinger and other expert witnesses gathered to present testimony before Congress on multiple pieces of legislation that would restructure the Endangered Species Act. Holsinger told members of the House Natural Resources Committee that the Act’s many deficiencies should have been addressed years ago:

The last time the ESA was substantively updated (1988), the Soviet Union was a superpower and Def Leppard topped the pop charts . . . Former Idaho Senator Dirk Kempthorne tried, but ultimately failed, to amend and reauthorize the ESA in 1997. I was intimately involved in those efforts as well as the amendments to the ESA that passed the House in October of 2005.

Holsinger’s firm has produced a memorandum that includes facts and figures on “sue and settle” arrangements. He points to the “citizen suit” provision of the Endangered Species Act and the Equal Access to Justice Act as the two primary areas of the law that create avenues for environmental groups to burden taxpayers with lawsuits without advancing conservation goals.

Holsinger’s memo identifies three major problems with sue-and-settle process. (1) They lack transparency. (2) They reflect collusion between federal agencies and environmental groups. (3) They exclude the public, stakeholders, and states from participating in negotiations that affect agency rules and policy.

In an interview, he explained why “legislative fix” is needed to address some of the more abusive practices:

There are terrible perverse incentives standing behind many of the lawsuits we see . . .Two groups in particular—the Center for Biological Diversity and WildEarth Guardians—have filed more than 1300 lawsuits in the past few decades and most of those suits are raising ESA issues and these green groups are collecting taxpayer-funded attorneys’ fees. This is a vicious cycle of litigation that does nothing for conservation while allowing for the recovery of attorney fees with no caps on hourly rates.

Green advocacy groups will often create the issues they litigate over by overwhelming federal agencies with petitions for listings under the ESA and when those agencies fail to meet a deadline these groups simply file suit. “I think it’s the lowest hanging of low hanging fruit to address abusive litigation practices under both the ESA and the Equal Access to Justice Act,” Holsinger said.

The House Committee on Natural Resources has collected data from the U.S. Department of Justice that demonstrates just how costly green litigation has been. Green groups filed more than 570 ESA lawsuits against the federal government between 2009 and 2012 costing U.S. taxpayers more than $15 million, according to the data. Three of the green groups the House committee cites as being among the “most litigious organizations” (the Center for Biological Diversity, the Western Watersheds Project, and WildEarth Guardians) are involved in lawsuits over the sage grouse.

In the special case of Colorado, all three groups are calling on the Fish and Wildlife Service to elevate the listing of the Gunnison sage grouse from “threatened” to “endangered.” Apparently, only the most restrictive and costly listing will satisfy environmentalists. WildEarth Guardians has joined with Clait Braun, a retired sage grouse researcher with the Colorado Division of Wildlife, to file suit while The Center for Biological Diversity and the Western Watersheds Project have partnered in separate, but related litigation calling for an endangerment listing. True to form, the environmental activists who are unsatisfied with the less restrictive “threatened” listing are dismissive and condescending toward state-level conservation. Amy Atwood, endangered species legal director with the Center for Biological Diversity, said in a press release:

Full protection is needed in order to save this charismatic bird, and that’s why we’re taking this to court . . . We certainly appreciate the efforts of counties and others to take action to protect habitat for the Gunnison sage grouse, but there’s no reason these activities could not have continued with the endangered designation the grouse clearly warrants.

But there’s some breaking news regarding the Gunnison sage grouse: As of April, the Fish and Wildlife Service and environmental groups have all agreed to put their litigation on hold for the next 30 months so that Fish and Wildlife officials can complete a recovery plan for the bird. The Center for Biological Diversity, the Western Watersheds Project, WildEarth Guardians, and Clait Braun are all parties to the agreement. Its several requirements include a “species status assessment” that highlights the bird’s population status. The plan must also identify all the threats to the bird and its habitat.

What about Industry and Development?

While press coverage of sage grouse litigation tends to focus on the arguments advanced by environmental groups, American industry has its own list of concerns, which are often ignored by the coverage. The Western Energy Alliance, the Denver-based group that represents the oil and gas industry partnered with the North Dakota Petroleum Council in a lawsuit filed against President Obama’s Interior and Agricultural Departments that seeks to overturn the land use plans, which impact roughly 165 million acres of land.

The lawsuit reads:

In promulgating these plans, the Federal Defendants designated a variety of habitat levels and imposed corresponding restrictions and prohibitions on new oil and gas leasing, and on development of valid existing leases.

These restrictions impact all of the oil and gas producing western states with greater sage grouse habitat, the suit argues:

North Dakota, for example, has the highest percentage of existing oil and gas leased acreage within these newly designated priority habitat areas and corresponding leasing and development restrictions of any other state in the West. Yet, unlike other states that also have these new plans, the applicable federal land use plan in North Dakota does not provide for an adaptive management strategy to provide flexibility to future oil and gas development and operations based upon changed circumstances.

Rather than the top-down approach taken by BLM and USFS, federal land use plans should be guided by state and local conservation plans and supported by local science . . . State and local efforts provide a more sensible and adaptive approach to GrSG [greater sage grouse] management while balancing future economic growth that is lacking from a federal one-size-fits-all approach.

The Western Energy Alliance also cites figures from the Western Association of Fish & Wildlife Agencies compiled in 2015 that point to a 63 percent increase in the greater sage grouse population over the preceding two years. The evidence on the ground clearly weighs in favor of decentralized efforts that brings together a broad cross-section of government officials, private landowners, genuine conservationists, and industry people. The population trends for the birds have been moving in the right direction. That’s true for both the greater sage grouse and the Gunnison sage grouse. So why is there reflexive opposition on the part of green groups to local and state efforts that can point to tangible results?

Seasholes, the Washington, D.C. area consultant who favors free market solutions to energy and environmental challenges, has some insight:

Conservation is not a quick fix and it can take years, even decades. If you want to do it right, private lands are the key because about 60 percent of the land in this country is privately owned. This is the land that has the most ecological value and if you want a sustainable environment you must have sustainable relationships. But there is now a divide in this country about how we do conservation. There’s the old approach where you work with landowners and share the costs. But beginning with the modern environmental movement in the late 1960s and into the 1970s this command and control approach emerged that harms landowners. The land use regulations with the sage grouse fits this narrative as does the Endangered Species Act, which is the ultimate expression of a coercive, one-size fits all approach out of Washington, D.C., that is highly counterproductive.

In the conclusion of The Woes of the Western Sage Grouse, learn about the legislative possibilities that exist to reduce the regulatory burden caused by litigious environmental groups.