Ground Birds & the Endangered Species Act: The Rising Trends in Conservation Efforts & How the Greater Sage Grouse's Story Compares to Other Recent Upland Game Bird Listing Decisions
The greater sage grouse was perhaps the most hotly anticipated species determination arising out of the 2011 court-approved listing settlements. Endangered Species Act Section 4 Deadline Litig., Misc. Action No. 10-377 (EGS), MDL Docket No. 2165 (D. D.C. 2011) (Listing Settlement). With much of the western U.S. impacted by its decision, on October 2, 2015, the U.S. Fish and Wildlife Service (Service) published its determination that listing the greater sage grouse under the Endangered Species Act (ESA) was not warranted. 80 Fed. Reg. 59858 (Oct. 2, 2015). The Service’s determination was based largely on the collective conservation efforts of the Bureau of Land Management (BLM), U.S. Forest Service (USFS), state agencies, and private landowners.
Greater Sage Grouse: The Conservation Efforts and Fall-out
Preceding the Service’s publication of its finding, a press release from Secretary of the Interior Sally Jewell described the various voluntary conservation efforts as unprecedented. Concurrent with the announcement that listing the greater sage grouse was not warranted, the BLM and USFS announced the finalization of 98 land-use plans designed to conserve greater sage-grouse habitat and avoid disturbance of essential habitat areas on public lands across 11 states (California, Colorado, Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming). These plans place restrictions on land use on more than 35 million acres of land for many activities, including energy development, infrastructure, and ranching. Additionally, several states have issued their own plans aimed at greater sage grouse conservation on lands that are beyond BLM and USFS jurisdiction. Finally, private landowners have developed Conservation Agreements with Assurances ( known as CCAAs) whereby the landowners agree to implement certain conservation measures for the benefit of the species. In return, should the bird ever be listed, the landowners will not be required to implement conservation measures beyond what has already been included in the CCAA. The Service took into account all of these efforts and demonstrated successes since 2010 (when the Service had last made findings on the bird’s status). Shortly after the no-listing announcement, the U.S. Geological Survey and several other agencies announced the issuance of a three-part handbook series focused on sagebrush steppe ecosystems. These handbooks will focus on conservation measures designed to protect the greater sage grouse and the ecosystem as a whole.
Immediately upon the announcement of the listing and the 98 land-use plans, several lawsuits were filed alleging violations of the Administrative Procedure Act, National Environmental Policy Act, and Federal Lands Policy and Management Act. Several Nevada counties and two mining companies (Western Exploration and Quantum Minerals) have jointly filed two complaints – one dealing solely with amendments to federal plans in Nevada and the other addressing amendments to federal plans in all states in the Great Basin region (Idaho, Montana, Nevada, California, Oregon, and Utah). Idaho is also challenging all of the Idaho plan amendments. The general refrain from these lawsuits is that the plans’ restrictions are equally, if not more, onerous than had the Service listed the species under the ESA, and that the restrictions will stifle economic development.
Other Upland Game Birds – How Have They Fared in Comparison?
The Listing Settlement included listing deadlines for other upland game birds and those decisions have been similarly contentious and make an interesting study in comparison. In April 2014, the Service published its decision to list the Lesser Prairie Chicken (LEPC) as a threatened species. 79 Fed. Reg. 19974 (Apr. 10, 2014).1 Concurrent with its announcement of the LEPC listing, the Service also published its final 4(d) rule for the LEPC. The 4(d) rule exempted those potentially take-causing activities conducted by those who participate in the Western Association of Wildlife Agencies’ (WAFWA) LEPC Range-Wide Plan (Plan). The Plan allows participants to offset their potential impacts to LEPC throughout the LEPC range (Colorado, Oklahoma, Texas, Kansas, and New Mexico) through mitigation payments that WAFWA then aggregates and spend on conservation transactions. WAFWA had initially developed the Plan in an effort to stave off listing of the LEPC (e.g. hoping for the same decision as the Service subsequently made with regard to the greater sage grouse). However, the Service instead chose to list the LEPC as threatened and then included the Plan as part of the 4(d) rule.
Industries, states and environmental organizations challenged the Service’s decision to list the LEPC and the accompanying 4(d) rule. Of the several suits filed, the U.S. District Court for the Western District of Texas recently ruled on a lawsuit filed by the Permian Basin Petroleum Association and several counties in New Mexico. On September 1, 2015, the court vacated the Service’s listing of the LEPC on the basis that the Service failed to follow its own guidelines for evaluating existing conservation efforts. Permian Basin Petroleum Ass'n v. Dep't of the Interior, No. MO-14-CV-50, 2015 WL 5192526 (W.D. Tex. Sept. 1, 2015). The court found that the Service gave short shrift to the Plan’s efficacy. The court’s decision was largely based on its finding that the Service’s failed to consider its own Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE Policy) 68 Fed. Reg. 15,100 (Mar. 28, 2003). Under the ESA, the Service is required to take "into account those [conservation] efforts, if any, being made by any State" before making a listing decision. 16 U.S.C. § 1533(b)(1)(A). The PECE allows FWS to consider conservation efforts that have not yet been implemented or demonstrated their effectiveness, so long as FWS evaluates the certainty the conservation effort will be implemented and effective. PECE, 68 Fed. Reg. at 15,114. The court found that the Service did not appropriately evaluate the Plan. The Service has since asked the court to amend its judgment to remand the listing rule rather than vacate it. The court has not yet ruled on this motion though the judge held a hearing on November 12, 2015. Currently, the rule remains vacated and the LEPC is not listed under the ESA.
Another ground bird species included in the Listing Settlement species is the Gunnison sage grouse; a species occurring in Colorado and Utah. In November 2014, the Service announced its decision to list the Gunnison sage grouse as a threatened species. 79 Fed. Reg. 69311 (Nov. 11, 2014). Citing small population size, drought, climate change, and disease, the Service determined that the Gunnison sage grouse would be in danger of extinction in the foreseeable future. In contrast to the greater sage grouse but similar to the LEPC determination, the Service did not find existing conservation efforts sufficient to prevent a listing. The state of Colorado filed a lawsuit against the Service alleging that the Service did not properly evaluate the existing conservation efforts. Conversely, environmental organizations sued the Service alleging that the Service should have listed the species as endangered rather than threatened. The Service did not issue a 4(d) rule concurrent with its listing of the Gunnison sage grouse as it did for the LEPC. However, the Fall 2015 Unified Agenda published by the Office of Information and Regulatory Affairs (a statutory part of the Office of Management and Budget) indicates that the Service will be publishing a proposed 4(d) rule for the Gunnison Sage Grouse as early as January 2016.
At the heart of the disputes regarding the upland game bird species is the extent and efficacy of the conservation efforts in place prior to listing. The results of the lawsuits arising out of these three species’ listing status could have significant impacts on voluntary conservation efforts for other species. The resolution of these challenges could greatly impact the role pre-listing voluntary conservation efforts play in the world of species conservation and regulation.
1 As an aside, listing a species as endangered versus threatened is a matter of the imminence of extinction (facing risk of extinction versus facing risk of extinction in the foreseeable future). Under the ESA the Service has the discretion to issue a 4(d) rule for species listed as threatened. These 4(d) rules delineate activities that, even if they result in take of the species would be exempt from violating ESA Section 9 (which prohibits the take of listed species)