Bishop bill lets states block federal protection plans

By Scott Streater | 03/17/2016 07:17 AM EDT

GOP congressional leaders are attempting to block the Obama administration’s sweeping greater sage grouse conservation plans, introducing legislation this week that would allow governors to block any provision in the federal plans that does not conform to state grouse conservation strategies.

GOP congressional leaders are attempting to block the Obama administration’s sweeping greater sage grouse conservation plans, introducing legislation this week that would allow governors to block any provision in the federal plans that does not conform to state grouse conservation strategies.

House Natural Resources Chairman Rob Bishop’s (R-Utah) bill, H.R. 4739, would impair the federal grouse plans, which took years to develop and are generally acknowledged as among the most ambitious and complex conservation initiatives ever undertaken by the Interior and Agriculture departments, spanning nearly 70 million acres of sage grouse habitat across the Rocky Mountain and Great Basin regions.

The federal plans call for amending 98 Bureau of Land Management and Forest Service land-use plans in 10 Western states to incorporate strong grouse protections. The federal plans also propose withdrawing 10 million acres of the most critical grouse habitat from new mining claims. The federal plans were a key factor in the Fish and Wildlife Service’s decision in September not to list the greater sage grouse for protection under the Endangered Species Act.


But Bishop’s bill would give states the option to block those amendments, as well as the proposal to restrict new mining claims in Idaho, Montana, Nevada, Oregon, Utah and Wyoming.

The "Greater Sage Grouse Protection and Recovery Act of 2016" would also forbid the Interior secretary until Sept. 30, 2026, from "making a finding" changing the Fish and Wildlife Service decision last fall not to list the sage grouse for protection under the Endangered Species Act. In essence, "the conservation status" of the sage grouse "shall remain not warranted for listing" for the next decade, the bill says.

The only stipulation is that the governors of each state covered by the federal plan must notify the secretaries of the Interior and Agriculture departments that they have implemented their own sage grouse conservation plans. Once done, neither Interior nor USDA can "amend or otherwise modify any Federal resource management plan applicable to Federal land in the State, in a manner inconsistent with the State management plan for a period … of at least five years beginning on the date of the notification," the bill states.

What’s more, any federal land-use plan amendment involving the management of sage grouse or their habitat that was made "during the three-year period preceding the date of the notification" will be halted if these changes are deemed "inconsistent with the State management plan."

The bill would give governors the final say on the matter.

"Any disagreement regarding whether a withdrawal, or an amendment or other modification of a Federal resource management plan, is inconsistent with a State management plan shall be resolved by the Governor of the affected State," the bill says.

The bill has 14 Republican co-sponsors, most representing states within the grouse’s 11-state Western range. They include Reps. Cynthia Lummis (R-Wyo.), Mark Amodei (R-Nev.), Doug Lamborn (R-Colo.), Chris Stewart (R-Utah) and Cresent Hardy (R-Nev.) — all outspoken critics of the Obama administration’s sage grouse conservation efforts.

But Jessica Kershaw, Interior’s press secretary, said in an email to E&E Daily that Bishop’s bill "undermines plans that are balanced, effective and necessary to the FWS determination that the greater sage grouse doesn’t need the protection of the Endangered Species Act — one of the greatest collaborative conservation successes in our nation’s history."

Kershaw added, "We continue to work with states and stakeholders to implement the plans so that we can collectively protect sagebrush habitat and provide for sustainable development."

Environmental groups ripped the bill, arguing that most provisions in the state plans are far weaker than what Interior and USDA approved last year.

"This preposterous bill is yet another underhanded attempt to undermine our nation’s bedrock environmental protections for our wildlife and wild places and privatize our public lands," said Bethany Cotton, wildlife program director for WildEarth Guardians.

WildEarth Guardians is part of a coalition of environmental groups that last month sued BLM and the Forest Service in an effort to make the sage grouse plans stronger.

Mark Salvo, senior director of landscape conservation for Defenders of Wildlife, said the bill spells trouble for the future survival prospects of the sage grouse.

"This bill delivers a double blow to sage grouse and the American public by abrogating management of federal public lands to western states, while also barring the Fish and Wildlife Service from protecting the grouse under the Endangered Species Act when they begin to decline under state stewardship," Salvo said in an email.

Mounting state frustration

But the bill is more than an attack on a key Obama administration conservation initiative, observers say. It’s a reflection of mounting frustration by Western governors who complain that the administration has discounted or ignored state grouse conservation plans that they say more carefully balance conservation with other uses of public land, such as energy development and recreation.

A number of Western governors have criticized all or parts of the federal grouse plans, including Montana Gov. Steve Bullock (D), who in January announced his formal objection to the proposal to block new mining claims on nearly 1 million acres in his state.

The states of Idaho and Utah have filed federal lawsuits challenging the plans. Utah Gov. Gary Herbert (R) has argued that the Obama administration ignored his state’s 2013 sage grouse plan.

Indeed, the text of Bishop’s bill states that one of the goals is "to demonstrate the efficacy of the State management plans for the protection and recovery of the Greater Sage Grouse." It would require the Interior and Agriculture secretaries each year to submit reports to the House Natural Resources and Senate Energy and Natural Resources committees on the status of the sage grouse on federal lands.

It’s not clear what the bill’s chances are of passage. President Obama would almost certainly veto any legislation proposing to undermine the federal grouse protection plans.

Some observers believe Bishop’s goal is ultimately to have elements of the bill included in broader funding legislation, as he did last year.

The text of Bishop’s bill appears to mirror some of the language he included last spring in the House version of a National Defense Authorization Act package. The language raised concerns that listing the bird for federal protection would undermine the missions of numerous military installations that include, or are near, prime sage grouse habitat.

The Bishop language in the NDAA package also sought to give governors the authority to amend the BLM and Forest Service plans to conform to state-tailored conservation plans.

The Bishop language failed to make the final version of the NDAA package, in large part because Fish and Wildlife had earlier concluded that the sage grouse did not warrant ESA protection.

Though the text of the latest bill does not mention the potential impact of federal grouse protections on military operations, a "Constitutional Authority Statement" accompanying Bishop’s bill addresses both the military and state authority issues.

The statement says the U.S. Constitution gives "authority to Congress to provide for the common Defense and general Welfare of the United States" and to "make provisions and regulations for the military forces of the United States."

Thus, it concludes, "[s]ince proposed Sage Grouse habitat negatively impacts several military installations and training facilities, the Congress has authority under Section 8 [of the Constitution] to act to mitigate those impacts in order to preserve national defense readiness, while at the same time, empowering the States which have conservation plans for preservation and recovery of the Sage Grouse species."

The Department of Defense has questioned whether grouse regulations would affect military operations. DOD issued a statement last year saying that it has already taken voluntary steps to conserve sage grouse habitat at its installations and that an ESA listing would not "affect our mission activities to any great degree" (E&E Daily, April 30, 2015).