Feds on brink of make-or-break sage grouse decision

By Phil Taylor | 05/26/2015 01:01 PM EDT

SALT LAKE CITY — In September, the Obama administration will make what is arguably the biggest Endangered Species Act decision in history. An unprecedented conservation push aims to conserve the greater sage grouse without throttling ranchers, farmers and energy producers across the West. But many critics see the choice as a referendum on the 1973 law they want to revamp.

SALT LAKE CITY — In September, the Obama administration will make what is arguably the biggest Endangered Species Act decision in history.

At stake is the survival of an iconic bird whose numbers tumbled in the 20th century after settlers mowed down sagebrush with cows, plows and drill pads.

But listing the greater sage grouse could tie up access to 165 million acres of the West, causing hardship for ranchers, farmers and energy producers.


Few birds have ruffled so many feathers — from the West’s scruffy rangelands to the halls of Congress.

"The greater sage grouse is this year’s northern spotted owl," Chairman Rob Bishop (R-Utah) said at a House Natural Resources Committee hearing last week.

The Fish and Wildlife Service’s decision will be the most scrutinized ESA verdict since 1990, when it listed the owl as threatened in the Pacific Northwest, decimating the region’s timber industry.

The stakes look to be even higher for the grouse, which roams lands more than a dozen times as vast as the owl’s habitat. The grouse — a flashy, boisterous bird whose males strut, pop and spar for attention — shares its sagebrush habitat with more than 300 other species, including mule deer, pronghorn and elk.

The September listing deadline, which the administration agreed to as part of a sweeping settlement four years ago with environmental groups, has spurred an unprecedented push by federal agencies, states and landowners to preserve the West’s vanishing sage-steppe ecosystem.

Sometimes referred to as "the big empty," the lands are a sea of waist-high, fragrant sagebrush, which shelter grouse from eagles and are the bird’s only food source through the bitter winters.

The conservation effort began in earnest in 2011, when FWS Director Dan Ashe ushered Western state wildlife officials to the Washington, D.C., office of then-Bureau of Land Management Director Bob Abbey, whose agency manages about 60 percent of the grouse’s remaining habitat and will be key to the species’ survival.

"We are going to have to mount a planning effort like BLM has never done before," Ashe remembers telling Abbey.

Sage grouse
Sage grouse are the only bird that can consume large quantities of sagebrush. The chemicals that give the plant its fragrant scent are toxic in large quantities for other animals. | Photo courtesy U.S. Forest Service.

Spanning about 50 million acres, BLM’s final conservation plans will be rolled out to the public within a few weeks and will be signed by BLM Director Neil Kornze in August. BLM’s efforts are being matched by an estimated $750 million in federal, state and private investments to preserve ranchlands that provide key habitat for grouse chicks.

"It’s the biggest conservation effort I have been involved in in my entire career," Ashe said in an interview. "It’s rather magnificent in its complexity and its significance for conserving the Western way of life and landscape."

Ashe is urging lawmakers to pull back bills that would delay the listing decision, a move he warned could have unintended consequences.

"We have the real possibility that we could get to a ‘not warranted’ determination," he said, referring to the term government scientists use when species need no federal protection. "My plea is ‘Let this partnership complete its work.’"

The goal is to save grouse — through beefed-up federal land-use plans and healthier, protected private lands — without throttling those who live off the land’s bounty. It’s a referendum on the Endangered Species Act, both for regulation-averse Westerners and lawmakers in Congress who are eyeing sweeping changes to the 1973 law.

"This issue is reputational for the Fish and Wildlife Service," Ashe said.

Steven Williams, who served as FWS director during the George W. Bush administration and is president of the Wildlife Management Institute, a sportsmen-conservation group, said the settlement has put people’s feet to the fire, spurring unprecedented partnerships to avert a listing.

"If we can win this one, it’ll set the stage for a whole new way of envisioning conservation across the country," Williams said.

Regardless of the decision, Fish and Wildlife will likely have to defend it in court.

"I don’t envy Dan at all," Williams said. "He knows he’s going to have enemies and friends, but he doesn’t know who those will be right now."

‘Extinction vortex’

This much is known: Grouse have seen better days.

Century-old reports suggest the bird once darkened the skies, with historical populations ranging from 1.6 million to 16 million birds. The naturalist George Bird Grinnell in 1910 described a flock of grouse during a camping trip to Bates Hole, Wyo., as "a moving mass of gray."

"I have no means whatever of estimating the number of birds which I saw, but there must have been thousands of them," he wrote in "American Game Bird Shooting."

Wes McStay
Wes McStay, a rancher in northwest Colorado, rotates his cows’ grazing areas to preserve grouse habitat and is in discussion with the Nature Conservancy about placing his land in a conservation easement. | Photo by Phil Taylor.

Wes McStay, 61, who grazes cattle on his 12,000-acre ranch in northwest Colorado, said that when he was a young boy, grouse used to come to his front doorstep by the hundreds. Farmers would file for damages to the state, claiming grouse were trampling their alfalfa fields, McStay said.

"No more," McStay said. "Nothing like that."

On a chilly morning last month, more than 150 grouse took to McStay’s rye field, where males puffed their white chests and chased each other to draw the attention of hens eyeing them from the brush. The breeding ground, known as a lek, is one of the largest in Colorado, which has an estimated 4 percent of the grouse’s rangewide population.

The bird’s habitat that stretches across 11 states has been drilled, mined, grazed, plowed and burned to roughly half of its historical size. A major study released last month by Edward Garton, a leading sage grouse scientist from Idaho, found that the number of breeding males fell by 56 percent from 2007 to 2013.

State wildlife officials say sage grouse populations have stabilized — they tend to follow 10-year population cycles, and many believe 2013 marked the bottom of a trough. But the fewer than 50,000 males counted in 2013 are an eightfold decline from the late 1960s, the Garton report found.

Threats vary by region. In eastern Wyoming’s Powder River Basin, for example, an estimated 27,000 coalbed methane wells over the past decade have fragmented grouse habitat and created water reservoirs that have bred mosquitos — a vector for grouse-killing West Nile virus. Breeding males in the basin numbered 1,600 at last count, a 76 percent drop from six years earlier, and could be entering an "extinction vortex," according to Garton’s report.

In the Great Basin, wildfires that once struck every 200 to 350 years now occur every 70 to 158 years, fueled by non-native cheatgrass that has invaded vast stretches of Nevada, Idaho, Utah and Oregon, FWS said. About one-fourth of the sage grouse habitat has been lost to fire since 1980, the agency said.

There are myriad other threats: sod busting in northern Montana, intensive grazing, predation from ravens, and the slow march of pinyon and juniper trees — perches for grouse predators — down into Western valleys.

Sage grouse are slow to adapt to these disturbances, and their main winter food source, sagebrush, takes up to 50 years to regenerate once a plant has been destroyed.

"You have a species that does not adapt and a habitat that does not recover," said Pat Deibert, the Fish and Wildlife Service’s national sage grouse coordinator.

A ‘seminal moment’

Fish and Wildlife sees BLM lands as a key bulwark that could prevent the grouse’s demise. BLM’s resource management plans (RMP) will dictate land uses for more than a decade, potential filling what FWS in 2010 warned was a glaring regulatory gap imperiling grouse.

The final plans will focus the highest protections within roughly 16.5 million acres of "sagebrush focal areas," which FWS has identified as having the highest densities of breeding birds, the best sagebrush habitat and a preponderance of federal ownership, according to a BLM fact sheet.

In states that lack an "all lands" strategy for reducing disturbance to grouse, BLM will require "no-surface occupancy" for new federal oil and gas leases in focal areas and most "priority habitat management areas," the fact sheet said. The plans will also establish minimum buffers, as recommended by a recent U.S. Geological Survey study, to shield leks during the mating season, among other steps.

BLM has also redoubled its defenses against rangeland fire, partnering with Western ranchers and local firefighters to focus response resources in high-value habitats that are most susceptible to disturbance. Once sagebrush burns, the lands are tough to defend from invasive species like cheatgrass and medusahead rye, which make the lands even more flammable for the next lightning strike.

Ken Rait, director of U.S. public lands at the Pew Charitable Trusts, who has worked to protect BLM lands for close to three decades, called the BLM planning effort a "seminal moment."

"What’s going on now with the sage grouse is one of the most inspiring things I’ve seen the agency do in the time I’ve been doing advocacy work," he said. "The reality is that less than 10 percent of the BLM-managed sagebrush habitat enjoys any form of durable protection, and that is, plain and simple, not balance."

The effort has led to trepidation in pro-energy camps. BLM’s oil and gas leasing has fallen significantly under the Obama administration, and some believe BLM’s plans will place vast new acres off limits to development.

"The level of federal control in BLM’s sage grouse RMPs will be unprecedented in scale," said Rebecca Watson, who served as Interior assistant secretary overseeing BLM during the George W. Bush administration. "Many on the conservation side will be well-satisfied even if the bird is not listed."

Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) echoed those concerns at a BLM budget hearing earlier this month.

"While the threat of an Endangered Species Act listing looms, there are significant fears that regulations put in place to preserve sage grouse habitat are perhaps even more restrictive and provide less certainty in the permitting process than in an ESA listing," Murkowski said.

While federal land protections will be a huge factor in the September listing decision, private lands will play a key role as well.

Although private lands represent roughly 30 percent of the grouse’s habitat, they contain about 80 percent of the grouse’s "wet habitats" — typically spring-fed meadows and irrigated fields — that provide critical flowering forbs (broad-leaved plants) and insects that help feed growing chicks after they hatch, according to a study released last fall by government and university scientists.

The Natural Resources Conservation Service, a division of the Agriculture Department, in the past five years has spent $296 million helping landowners protect or restore grouse habitat on 4.4 million acres, an area about twice the size of Yellowstone National Park, the agency reported in February. NRCS, through its Sage Grouse Initiative, plans to spend an additional $200 million over the next four years, said Tim Griffiths, who leads the agency’s sage grouse program.

The spending blitz, paid for under the farm bill and leveraged by $128 million in matching funds, is helping ranchers develop pro-grouse grazing practices that maintain nesting cover, remove pinyon and juniper trees, and make fences more visible to reduce sage grouse collisions, among other steps.

More than half of the federal funding has been used to place 450,000 acres of private lands into conservation easements, permanently preventing their conversion to subdivisions or industrial sites. More than one-third of those acres are in the Wyoming Basin, centered in Pinedale, an area that’s highly valued by grouse and housing developers, Griffiths said.

‘We bare our teeth’

Albert Sommers, 55, is a third-generation rancher who owns 2,000 acres near Pinedale with his sister, Jonita, along the Green River at the foot of the scenic Wind River Range.

After their mom’s death in 2006, the Sommerses, who have no children, decided they wanted their ranch retained for wildlife and recreation. They joined a neighbor to their north, Maggie Miller of Grindstone Cattle Co., to form the 19,000-acre Sommers-Grindstone ranch easement project, which is within the state-designated Daniel Sage Grouse Core Area.

The $20 million project, funded in part by gas companies, NRCS, the state, the Wyoming Stock Growers Agricultural Land Trust and other partners, protected key habitat for sage grouse as well as wintering grounds for mule deer.

Grouse was the first species Albert bagged after getting a hunting license at age 12. At that time, the birds were so numerous they got run over by his family’s farm machinery, he said.

"I developed a love and respect for that bird," Sommers said last month during a presentation to reporters at a public library in Pinedale. "It really is an icon of sagebrush country."

But the decision to stay on the land is not easy for area ranchers, he said.

"We work seven days a week, we work long hours," Sommers said. Kids "can go get a college education, get a degree and then get a weekend off … so there’s a great attraction to sell the place."

Some ranchers are naturally repelled by the restrictions that come with a conservation easement, he said. And many prefer not to work with the federal government at all.

That libertarian mindset poses risks to Fish and Wildlife should it decide to list the bird, he said.

Landowners and energy companies are voluntarily conserving grouse habitat, believing their efforts will be enough to avert a listing. Likewise, Western governors including Wyoming’s Gov. Matt Mead (R) have signed executive orders setting aside high-value grouse habitat. They argue state-tailored plans are stronger and more effective than "one size fits all" restrictions that accompany a federal listing.

But the tenor of collaboration would change if the bird gets listed, Sommers said.

"Old ranching families are kind of like a badger," Sommers said. "You ever see a badger after someone gets after a badger? A badger backs down its hole and bares its teeth, and that’s pretty much what ranchers do. When we start to get pushed, we back down our hole and we bare our teeth. And that is not a productive state to be in."

McStay, the rancher from northwest Colorado, said a federal listing would "tie everybody’s hands" and could cause unintended harm.

Sagebrush, shown here on a reclaimed gas well pad near Pinedale, Wyo., take decades to regenerate once they are destroyed, complicating efforts to conserve grouse. | Photo by Phil Taylor.

McStay lets state wildlife biologists capture grouse on his ranch to study the birds’ behavior. He also manipulates sagebrush by dragging a steel pipe across the land to bend the gnarly plants, which he said causes an explosion of lateral growth, kills the decadent brush and allows new grasses, forbs and brush to flourish.

McStay said he’s worried those activities would need permits if the bird is listed.

Ranchers need to maintain their livelihoods to continue stewarding the land and resist offers to sell, McStay said.

"If money was all I was after, you could subdivide it in 35-acre housing tracts, which I think is one of the worst things for wildlife," he said. "If I just wanted forage [for cattle], you could spray herbicide to kill sagebrush and focus on grasses, but I like the wildlife."

In making the listing determination, Ashe will have to assess the current biological threats facing the grouse. But he will also have to consider non-biological threats. Namely, would a grouse listing cause FWS partners to jump ship? Would Wyoming abandon protections for its core sage grouse areas? Would a listing do more harm than good?

"If they list the species, then all these partnerships go away," said John Swartout, an aide to Colorado Gov. John Hickenlooper (D). States would pull back funding, and research efforts — which depend heavily on accommodations from private landowners — would also suffer, he said.

"No one is going to want to admit they have leks on their property," Swartout said.

Ashe said a listing proposal could cause a "temporary depression" in voluntary conservation work, but partnerships will stay strong regardless. If anything, a listing proposal and the specter of ESA restrictions would give landowners added incentives to enroll in programs that could exempt them from those restrictions, he said.

"There’s no evidence that a listing of species causes an evaporation of voluntary dedicated conservation," he said.

Enter Congress

The listing decision is further muddled by Congress.

The House this month approved a defense authorization bill with language from House Natural Resources Chairman Bishop that would forbid Fish and Wildlife from issuing an ESA finding for sage grouse for the next decade. It would also, at the request of a governor, retroactively roll back BLM and Forest Service land-use plans that do not conform with state conservation plans.

President Obama would likely veto such a proposal by itself, but packing it inside the National Defense Authorization Act, which authorizes funding for the nation’s military and is considered a must-pass bill, would change the White House’s political calculus.

The White House threatened to veto the House bill, citing objections to the grouse language and numerous other provisions related to funding levels and Guantanamo Bay.

The Senate’s defense authorization bill does not contain the grouse language, but it’s possible a similar proposal could be added on the chamber floor. The big question is whether such a provision will remain once the two bills are reconciled and sent to the president.

Bishop has argued a listing would threaten military readiness, given the overlap between grouse habitat and a handful of installations in the West. But the Defense Department, which is exempt from ESA restrictions if they threaten national security, has officially said a listing would not affect its ability to defend the country.

"Sage grouse restrictions, based on dubious or outdated science, are currently costing the Department of Defense millions of dollars and impacting critical training and support activities at numerous installations across the country," Bishop said late last month in a statement. "If the Obama administration lists the bird under ESA, the needs of our military will be subordinate to an extreme environmental agenda. Our military personnel, who we ask so much of, deserve better."

Bishop’s proposal is backed by some former military officials, but it has encountered blowback from conservation and sportsmen’s groups.

Critics of Bishop’s provision say it would strip ESA of its teeth — the threat of regulations — and thus eliminate the incentive for landowners and states to make meaningful, pre-emptive sacrifices.

"A delay in my mind is going to stop the momentum," said Williams, the Bush-era FWS director. "Sometimes it takes almost an ultimatum to get people to do things."

The Bishop language poses a unique dilemma for Fish and Wildlife.

The BLM plans are the linchpin of the government’s sage grouse conservation strategy and will be a key determinant in FWS’s listing decision. If Congress blocks the plans, the agency will have no choice but to list, according to one Fish and Wildlife official.

"This would be snatching defeat from the jaws of victory," the official said.

The NDAA does not typically pass until the end of the year, months after Ashe is set to make his decision.

Ashe said he has met with dozens of members of Congress, including Bishop, urging them to stand down.

"If this is a marathon, we’re in the last 100 meters," he said. "For Congress to come in at that stage and try to change the rules of the game is disheartening."

Ashe’s past listing decisions offer few hints as to how he’ll rule.

Last month, amid great fanfare, Interior Secretary Sally Jewell announced that FWS would withdraw a proposed ESA listing for a unique population of sage grouse along the Nevada-California border thanks to tens of millions of federal dollars spent to conserve its sage-steppe habitat.

Ashe in June 2012 also withdrew a proposed endangered listing for the dunes sagebrush lizard after oil companies in Texas enrolled in a voluntary conservation plan that environmental groups blasted as overly secretive.

However, other plans failed to avert ESA action.

Aggressive, state-led plans to conserve habitat for the lesser prairie chicken, which roams five states in the southern Great Plains, and Gunnison sage grouse in Colorado and Utah still resulted in listings for those birds.

"We called it like we saw it," Ashe said. "The No. 1 lesson is we’ll make a decision that is driven by the science."

But the call, should it be in favor of a listing, won’t carry the force of law.

Congress last December temporarily barred FWS from preparing an actual listing rule that would trigger protections. The ban expires in October, but Congress is expected to extend it. Even if a listing rule is allowed to go forward, a final listing rule would not be issued for at least another year.

Ashe said it’s important FWS be given the chance to reach a not warranted decision, which would essentially put the issue to bed.

"The notion of delay is anathema," he said. "The sage grouse cannot handle delay."

Some reporting for this story was done on a field trip sponsored by the Institute for Journalism and Natural Resources, a nonpartisan organization that draws funding from federal agencies, including the U.S. Fish and Wildlife Service, corporations, industry groups, and charitable foundations.