Sage grouse latest win for greens in sweeping listing pact

By Phil Taylor | 07/27/2015 01:03 PM EDT

The Bureau of Land Management has beefed up sage grouse protections on some 50 million acres of the West. The Agriculture Department has spent hundreds of millions of dollars to preserve and enhance the bird’s habitat. Western governors have signed executive orders to prioritize the bird’s welfare.

The Bureau of Land Management has beefed up sage grouse protections on some 50 million acres of the West. The Agriculture Department has spent hundreds of millions of dollars to preserve and enhance the bird’s habitat. Western governors have signed executive orders to prioritize the bird’s welfare.

Such efforts might not have occurred if the Obama administration had not signed a pair of controversial settlements with environmental groups four years ago.

The administration’s 2011 legal pacts with WildEarth Guardians and the Center for Biological Diversity require the Fish and Wildlife Service to decide by the end of September whether to propose federal protections for the mottled-brown bird.


The threat of new restrictions across 11 states — including on oil and gas development, mining and grazing lands — prompted what many experts argue is the government’s largest effort to preserve the West’s sagebrush steppe ecosystem.

Industry officials believe BLM’s land-use plans — designed to preclude a listing — will do more harm to their livelihood than a listing would.

WildEarth and CBD leaders say those protections are among many victories for imperiled species that resulted from the settlements.

"The states, the BLM, the Forest Service, none of them were doing anything to protect sage grouse habitat before the settlement was struck," said Kieran Suckling, executive director of CBD. "That’s the power of the whole listing process. It tends to promote huge amounts of conservation, even when species are not listed."

While both groups said the BLM plans fall short — Suckling said CBD will sue the government if it decides not to list the sage grouse — leaders from the organizations acknowledged that the charismatic bird is already much better off thanks to their legal work.

ESA listings
2015: One listing as of 7/24, 10 more scheduled by 10/31 by listing agreement. | Photo courtesy of the Florida Fish and Wildlife Conservation Commission.

"Things are better off for sage grouse," said John Horning, executive director of WildEarth. "The only reason that’s happened is because of the threat of an Endangered Species Act listing."

But Republicans and industry groups have railed against the settlements, accusing both groups of abusing the ESA by inundating the government with listing petitions and filing costly lawsuits when the government failed to respond to them on time.

Congress is considering legislation that would postpone a sage grouse listing decision for up to a decade.

Under the settlements, approved by a federal judge in September 2011, FWS agreed to issue final listing determinations for all of the roughly 250 "candidate" species over six years and to issue initial findings on hundreds of additional species (E&ENews PM, Sept. 9, 2011).

Candidate species are those that government scientists have deemed in need of ESA protection, but for which protections were deferred due to limited agency resources. Some have been on the candidate list — known as "purgatory" by some environmentalists — for more than a decade. The law does not stipulate when species must be removed from the list.

Under the settlement, WildEarth agreed to limit the number of species it would petition for listing to 10 per year. CBD said it would not limit petitions but agreed to limit deadline lawsuits — which target the agency’s ability to comply with the ESA’s decision time frame — to 10 species per year.

Major uptick in listings

So far, Fish and Wildlife has listed 170 species as endangered or threatened as a result of the settlement agreements, and it is scheduled to issue final listing rules by early fall for a dozen more, including bats, butterflies, snakes and snails, according to WildEarth.

In the coming months and years, the settlements will also require FWS to make politically difficult decisions on the greater sage grouse, Sonoran desert tortoise, Pacific fisher and Pacific walrus — species whose lands are also used by oil and gas companies, solar developers and loggers.

The legal pacts have already been a great success for imperiled wildlife, Horning and Suckling said.

"We are largely quite happy with how the settlement has worked," said Horning. "The listing process was broken. The agency had been so battered under the [George W.] Bush years by political meddling."

Suckling called the settlements "extremely successful on multiple fronts."

"The listing rate is getting back on track," he said.

According to CBD, the Obama administration has listed an average of 41 species per year. While that’s more than five times the rate of the previous administration, it falls short of the administrations of Presidents Clinton (65) and George H.W. Bush (58), according to CBD. The Carter administration listed 38 species per year, and the Reagan administration listed 32 per year.

The Obama administration is also slated to remove more species from the threatened and endangered lists than every other administration combined (Greenwire, May 29).

By the end of September, Fish and Wildlife is obligated to have made decisions — either to propose listing or to remove from the list — on 200 of the 250 species that were on the candidate list in 2011, WildEarth said.

The list of candidate species has been reduced to 147.

"They’ve largely made the right decisions that heed the science and the law," Horning said of FWS.

Among the settlement’s most far-reaching outcomes is FWS’s decision last fall to list as threatened the yellow-billed cuckoo, a migrant bird that breeds along rivers in Arizona, California and New Mexico.

In addition, last summer, FWS decided to list the lesser prairie chicken as threatened in Texas, New Mexico, Oklahoma, Kansas and Colorado. The decision was challenged in court by environmental groups that believe the bird should be listed as endangered, as well as by oil and gas companies and counties that believe the bird needs no federal protection.

The settlement also resulted in protections for northern long-eared bats across its 37-state range as well as a number of mussels and fish in the Southeast. For candidate species alone, it led to 1.6 million acres of critical habitat designations (some of which overlap with each other) and 6,000 miles of protected waterways, WildEarth estimates.

"The settlement advanced the cause of conservation for a number of species that would have languished in the shadows for a lot, lot longer," said Pat Parenteau, an Endangered Species Act expert who teaches at the Vermont Law School and formerly worked at the National Wildlife Federation.

‘Intentionally overwhelmed’

But the settlement’s biggest impact on U.S. wildlife and lands policy may be the sage grouse. It required FWS to make listing decisions on the Gunnison and greater sage grouse, as well as the bi-state population of greater sage grouse.

Last fall, FWS listed the Gunnison sage grouse in Colorado and Utah as threatened, a move that Colorado Gov. John Hickenlooper (D) is challenging in federal court. This past spring, FWS decided to withdraw proposed protections for the bi-state grouse along the California-Nevada line, but only after the Agriculture and Interior departments committed to spend $32 million in federal funds over the next decade on protections such as conservation easements.

All signs suggest Fish and Wildlife will determine that the greater sage grouse, which roams a much broader territory, no longer needs ESA protections.

But BLM has already taken unprecedented steps to guard the grouse’s habitat from oil and gas wells, mines, transmission lines and wind towers.

A Greenwire review of the BLM plans found they would put 28 million acres off-limits to surface disturbances from oil and gas, roughly 35 million acres off-limits to wind farms, and about 9 million acres off-limits to future hardrock mining claims.

The Natural Resources Conservation Service, a division of the Agriculture Department, in the past five years has also spent $296 million helping landowners protect or restore sage grouse habitat on 4.4 million acres, an area about twice the size of Yellowstone National Park, the agency reported in February.

That’s all to stop FWS from listing the bird.

"While I don’t think [the BLM plans] are sufficient, they’re a hell of a lot better than what was there before," Suckling said.

Said Horning, "Either way, we’re moving the dial on species conservation across the nation, not just across the West."

Yet critics say the settlements have ultimately done more harm than good.

"These two activist groups intentionally overwhelmed a federal agency with listing petitions, abusing the Endangered Species Act and manipulating the government into spending tens of thousands of U.S. taxpayer dollars in legal fees and closed-door settlements in order to compel a listing decision," said Neal Kirby of the Independent Petroleum Association of America. "Holding the government hostage through litigation and political bargaining should never take priority over voluntary efforts in progress and the best available science, when it comes to true species conservation."

The settlements also angered landowners who play key roles in preventing species extinctions, said Brian Seasholes, who directs the endangered species project at the libertarian Reason Foundation, based in Los Angeles.

"The 2011 settlement only created more antagonism and further alienated America’s landowners, which is the worst outcome for endangered and potentially endangered species," he said. "[It] made a bad situation much worse and ultimately has done enormous harm to the conservation of this country’s endangered species."

Seasholes last fall authored a paper arguing that ESA should be scrapped in favor of a "non-punitive" system that rewards landowners who voluntarily conserve and enhance wildlife on their properties. The threat of penalties under the 1973 law can provide a perverse incentive for landowners to ruin habitat that could attract threatened and endangered species — and bring their accompanying regulations, the paper argued.

Suckling called the paper "garbage" and said it relied on false assumptions.

In January, Sen. John Cornyn (R-Texas) introduced S. 293, a bill he said would give local elected officials and landowners "a seat at the table" in ESA settlement negotiations.

"There must be a balance to ensure Washington bureaucrats don’t run roughshod over Texas landowners and job creators," he said in a statement at the time.

The settlements have been challenged in court by groups including the National Association of Home Builders, the state of Oklahoma and the Domestic Energy Producers Alliance, and the American Exploration & Mining Association and Nevada counties and ranchers. But they have survived all the legal assaults.

While the settlements may have fueled ESA’s critics, Horning and Suckling rejected claims that they were an abuse of the law or held the government hostage. FWS Director Dan Ashe has defended the settlements (though Ashe has said he would make changes to ESA’s deadline provisions if given the chance).

"The agreement, by the way, gave Fish and Wildlife Service tremendous flexibility to set its own priorities," Suckling said. "This settlement is putting them in the driver’s seat."

Some settlement decisions have gone against the environmental groups’ wishes.

They include decisions to withdraw proposed "threatened" rules for the bi-state grouse and the wolverine, the latter of which is being challenged in court by CBD, WildEarth and other environmental groups.

Green groups have also criticized FWS’s issuance of special rules for the threatened long-eared bat and lesser prairie chicken. While designed to alleviate the burden of ESA restrictions, the special rules allow continued destruction of habitat, Suckling and Horning said.

"They won’t be putting up the banner ‘mission accomplished,’ because for them the mission will never be accomplished," Parenteau said of CBD and WildEarth. "They aren’t satisfied because the pace of endangerment and extinction continues."