COMMERCE CITY, Colo. — The Fish and Wildlife Service’s decision this week not to list the greater sage grouse under the Endangered Species Act was supported unanimously within its ranks and was not influenced by political pressure, Director Dan Ashe said.
Ashe said there was no disagreement among his top deputies — all of them career FWS employees — that new regulations implemented by federal lands agencies and Western states had adequately addressed the bird’s top threats, including energy development, wildfire and invasive species.
Those assertions could carry weight if the service’s decision is challenged in federal court.
Ashe on Monday signed a 341-page document explaining the agency’s reasoning for not listing the bird in what many agree was the biggest decision in ESA history.
"This has been the most scientifically rich and transparent listing decision ever made," Ashe said in a speech yesterday at a wildlife refuge outside Denver, where the listing determination was announced.
While some environmental groups — the Center for Biological Diversity, WildEarth Guardians and Defenders of Wildlife, among others — are exploring their legal options, Ashe said FWS is "well positioned" to defend itself.
He noted that 10 project field office supervisors, three assistant regional directors, three regional directors, an assistant director and two deputy directors had all reached the same conclusion about the sage grouse.
"All career employees and public servants," Ashe said, "between them, probably more than 500 years of collective professional experience, all recommending unanimously this ‘not warranted’ determination."
In an interview yesterday, Ashe added that the decision was made wholly within FWS, with no influence from Interior Secretary Sally Jewell.
"I signed the decision yesterday," he said. "Secretary Jewell still has not seen our determination."
While most conservation groups supported the decision — saying the grouse was arguably receiving greater protections through Bureau of Land Management land-use plans — there was also some strong dissent.
"The sage grouse planning effort began with great ideas and sound science, but what came out the other end of the sausage grinder is a weak collection of compromises that will not and cannot conserve the species," said Erik Molvar, a wildlife biologist with WildEarth Guardians. "The Obama administration threw science out the window in favor of political expediency."
That’s a heavy charge to level at FWS, whose mandate under ESA is to make listing decisions "solely on the basis of the best scientific and commercial data available" and regardless of potential economic impacts.
It alludes to past instances of political meddling in ESA decisions.
In December 2008, the Interior Department’s inspector general released a scathing report that found Julie MacDonald, a political appointee who served as deputy assistant secretary for fish and wildlife and parks during the George W. Bush administration, may have exerted undue influence in at least 13 out of 20 endangered species decisions. Tainted decisions included those involving the spotted owl and the marbled murrelet and one reducing the number of streams that would be designated as critical habitat for the endangered bull trout (Greenwire, Dec. 16, 2008).
Ashe acknowledged the sage grouse listing decision was far from black and white, but he said it was made with the utmost professionalism and integrity.
"Science, and especially the application of science to a decision of this complexity, is a human enterprise," he said. "It demands the exercise of good judgment by people of good intent and character, and that is what has happened here."
If the decision is challenged in court, the agency will likely have to explain why it no longer believes, as it did in 2010, that the bird warrants ESA protection due to the loss of its sage-steppe habitat and an absence of regulations that could slow or halt further losses.
FWS’s reasoning: New land-use restrictions developed by BLM, the Forest Service, and Wyoming, Montana and Oregon have reduced threats on roughly 90 percent of sage grouse breeding habitat across the species’s range.
"Undoubtedly, we would be announcing a different decision today if it were not for the groundbreaking planning that has been done by the Bureau of Land Management and the U.S. Forest Service," Ashe said.
But WildEarth said those plans contain "crippling flaws and loopholes rendering them inadequate to address threats from industrial development, livestock grazing and invasive weeds."
Molvar said the plans suffer four major flaws: They exclude some 16 million acres of priority habitats, they leave too many priority habitats open to oil and gas drilling, they lack adequate protections in Wyoming, and they contain too many loopholes and waivers.
Critics also noted that the plans neglect the recommendations of Interior scientists on issues including how far disturbances such as wells and roads should be kept from sage grouse breeding grounds, known as leks.
"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," said Jamie Rappaport Clark, president of Defenders of Wildlife and a former FWS director under the Clinton administration.
Next steps
In at least one instance, conservation groups got a judge to overturn an FWS "not warranted" decision.
In 2007, a federal magistrate judge in Oregon overturned the National Marine Fisheries Service’s decision to withdraw its proposed "threatened" listing for the coho salmon, ruling that the agency’s reliance on a viability assessment by the state of Oregon was "arbitrary, capricious, contrary to the best available evidence, and a violation of the ESA."
Critics of FWS’s listing determination for the sage grouse seem to be making a similar allegation that the agency was off base in concluding that regulations are adequate to stem the bird’s decline.
Those may be minority views among conservation groups, most of which offered praise for yesterday’s decision.
Among them was the American Bird Conservancy, often a critic of the Obama administration’s wildlife decisions. The group yesterday said it supports the listing decision and said the BLM and Forest Service plans need to be given time to work.
"We want to see regular reviews of the species’ population trend to learn if the current long-term decline is reversed," said Steve Holmer, senior policy adviser at ABC. "The plans must be shown to be working, and the extraordinary conservation efforts on private lands continued. If not, the listing issue may have to be revisited in the future."
Patrick Parenteau, an ESA expert who teaches at the Vermont Law School and formerly worked at the National Wildlife Federation, said courts will likely look closely at whether the conservation actions FWS cites in its listing determination are already underway or whether they are "speculative future actions." In addition, they’ll look at whether there’s a "high probability" that crucial sage grouse habitat will be protected, he said.
"How the court will evaluate the adequacy of the plans that have been developed is an open question," Parenteau said.
That will depend in large part on which judge takes the case. Parenteau said challenges would likely be brought in the Washington, D.C., district court, where several judges have overturned FWS listing decisions.
Among them is Judge Beryl Howell, who in December overturned an Obama administration decision from late 2011 to remove ESA protections for wolves in the western Great Lakes.
"That opinion is a blueprint for how to overcome the deference that would ordinarily be given" by courts to FWS, Parenteau said. "In short, the burden will be on FWS to show that the measures agreed to are adequate to remove all of the major threats to the continued existence of the [grouse]."
For now, FWS’s critics are keeping their powder dry.
Mark Salvo, senior director of landscape conservation for Defenders, said the group is still reviewing the BLM plans and is "considering our options."
Molvar said WildEarth is reviewing the "strengths and weaknesses" of the land-use plans from both a scientific and legal perspective, and added, "Stay tuned."
Brett Hartl, endangered species policy coordinator for the Center for Biological Diversity, said the group will be "very deliberative in making a decision" over a legal challenge, and will also need to take a closer look at the BLM plans.
