Controversy Over Sage-Grouse Threatens Multiple Use Development Across 11 Western States

In 2008, the U.S. Interior Department’s Fish and Wildlife Service will be reconsidering whether to propose listing the greater sage-grouse as an endangered or threatened species under the Endangered Species Act. ESA listing could cause delays and other adverse impacts to mining and oil and gas operations, farming, grazing, construction, utility operations, and other activities in broad areas of sagebrush habitat occupied by sage-grouse in 11 western states. It is no secret that anti-development NGOs for many years have sought to use the legal protections of the ESA to block development activities over vast areas. The issue over the sage-grouse is significant as the current range of this species spans the west including the States of Arizona, Nevada, Colorado, New Mexico, Idaho, Montana and Wyoming. If the species were to be listed under the ESA the adverse economic impacts would be widespread.

The key history on the sage-grouse is as follows. In 2005, FWS made a 12-month finding under ESA § 4(b)(3)(B) that listing of the greater sage-grouse (which is currently hunted lawfully in most western states) is “not warranted.” 70 Fed. Reg. 2244 (Jan. 12, 2005). In late 2007, District Judge Winmill found that FWS’s stated reasoning was arbitrary. He remanded the matter back to FWS for a fresh decision on whether to find that ESA listing is “not warranted” on other grounds (e.g., due to conservation efforts that FWS did not consider in the 2005 finding) or to find that listing “is warranted” (in which case FWS would provide a proposed listing rule for public comment). Western Watersheds Project v. U.S. Forest Service, No. 06-277, 2007 WL 4287476 (D. Idaho decided Dec. 4, 2007). The plaintiffs then moved to compel FWS to make a new 12-month finding by early March 2008.

FWS’s response, dated January 11, 2008, opposes such a rushed schedule due to the need to consider the best available science and to allow additional public comment. FWS proposes to reopen a comment period for 60 days, starting in February 2008, to allow the public to submit additional information for FWS’s consideration during the ESA status review of the greater sage-grouse. FWS proposes to then consider a wealth of studies since the 2005 action and to consider conservation actions, including a Conservation Assessment due in November 2008. Ultimately, FWS proposes to issue a new 12-month finding on whether listing is warranted (which could include a proposed listing rule) by December 4, 2008. The FWS’s court filing also leaves open the possibility that FWS could decide that it needs more time in light of the November 2008 Conservation Assessment, in which case FWS would not make a 12-month finding until June 2009. The district court has not yet decided whether to agree to FWS’s proposed schedule.

Affected businesses should be aware of the sage-grouse developments under the ESA for both long-term and short-term reasons. The greater sage-grouse occupies sagebrush habitats in 11 western states, including large areas valuable for mining, energy development and agriculture, and for placement of powerlines and other linear rights-of-way. See map at 70 Fed. Reg. 2250. Hundreds of thousands of individual sage-grouse are estimated to occupy these areas today. If FWS lists the sage-grouse as at least threatened, it will be because FWS determines the species is imperiled by the loss of habitat and increased competition and predation attributable to those human uses, among other factors. See FWS’s analysis at 70 Fed. Reg. 2254-67. ESA listing of the greater sage-grouse would increase economic costs, delays, and other difficulties for a broad spectrum of businesses. Those businesses would have to: (1) avoid the unlawful “take” of listed wildlife within the meaning of ESA § 9; and (2) comply with ESA § 7 procedures (e.g., consultation) and substantive constraints (e.g., avoiding jeopardy to a listed species) on federally-assisted actions.

Adversely affected businesses should consider developing their best legal, scientific, and policy arguments to convince FWS to not list the greater sage-grouse. These arguments clearly could be presented to FWS in the public comment period that would be provided if FWS decides to propose the sage-grouse for ESA listing.

Moreover, there are opportunities to supply information to FWS in the short term. User groups can provide reasons for a more-supportable FWS finding that ESA listing of the sage-grouse is “not warranted.” The preamble to FWS’s 2005 finding states that “[w]e ask the public to submit to us any new information that becomes available concerning the status or of threats to the species.” 70 Fed. Reg. 2244. And, if not constrained by an order from Judge Winmill, FWS may announce a 60-day comment period in February 2008 to provide such information for FWS’s consideration in the status review and before a 12-month finding is made. Thus, if resource development groups have any pertinent information (e.g., on new sage-grouse conservation or mitigation programs, on a stable population of sage-grouse), you should consider assembling that information now. In addition to sending information to FWS, consider sending it to the Western Association of Fish and Wildlife Agencies, which is conducting the updated Conservation Assessment in 2008.

Crowell & Moring LLP has considerable experience in addressing threatened and endangered species issues as they affect mining, timber harvesting, home building, agricultural, and other land-use interests.