Jens Jensen is an associate in the firm’s Denver office. Mr. Jensen has worked on a wide range of matters including complex and international litigation, water disputes, and regulatory compliance matters. Mr. Jensen volunteers as coach for his son's soccer team. During law school, Mr. Jensen worked pro bono for the Acequia Assistance Project at CU ...Law, where he helped acequias in the San Luis valley with corporate and water law issues. Previously, Mr. Jensen was an intern for the Honorable (now Chief) Justice Rice of the Colorado Supreme Court. Prior to moving to Colorado, Mr. Jensen worked at the Embassy of Denmark in London where he dealt with agricultural, renewable energy, security, and judicial reform policies and consular matters. More

Colorado Supreme Court upholds optional liquidated damages provisions

This week the Colorado Supreme Court answered a lingering question about liquidated damages provisions; namely, are they enforceable if the non-breaching party can elect to pursue actual damages instead? The Court said yes. Ravenstar v. One Ski Hill Place, 2017 CO 83.

Liquidated damages are an amount the parties designate in their contract as a reasonable compensation for a specific breach of a contract. To be enforceable, courts typically require that liquidated damage provisions meet three elements: "1) the parties intended to liquidate damages; 2) the amount of liquidated damages, when viewed as of the time the contract was made, was a reasonable estimate of the presumed actual damages that the breach would cause, and 3) when viewed again as of the date of the contract, it was difficult to ascertain the amount of actual damages that would result from a breach.” Id. at ¶ 10 (quotation marks omitted).

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The Complicated Consequences of a Simple Change

Colorado water law provides a simplified procedure to change a water right when the only change is in the point of diversion of a surface water right where there are no intervening diversions or inflows between the old and new locations. C.R.S. § 37-92-305(3.5). This simplified procedure makes it easier to replace old diversion structures by constructing new ones nearby without many of the risks involved in a full change of water rights proceeding.

In Select Energy Servs., LLC v. K-LOW, LLC, 2017 CO 43, 394 P.3d 695, the owner of a water right used the simplified procedure to change its point of diversion from an old ditch to a new pump downstream of the ditch. The water rights owner afterwards quit-claimed its remaining interest, if any, in the old ditch to the defendant. Id., ¶ 8. Because the water rights owner merely had an easement for the old ditch based on its water right and no ownership of the underlying land, the issue was whether it had any interest to convey to defendant after it changed its water right. Id.

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Update to February 11, 2016 Blog Post/Weed and Water - Can Water Be Used for Marijuana Cultivation in Colorado

Last Year, WSMT blogged about whether water could be lawfully appropriated for Marijuana cultivation.  2/11/16 blog post.  We provided three arguments why that would be allowed.

Almost exactly a year later, the Division  water referee agreed In Re High Valley Farms, LLC, 14CW3095 with two of the reasons we set forth in our blog from last year - namely that appropriation of water is controlled by state law, and that the word "lawfully" in the state law definition of beneficial use of water means that the appropriation, not the use of the water, must be lawful.  A copy of the February 17, 2017 order is available here.

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Colorado Supreme Court Limits How Transbasin Water May Be Used and Holds That Unjustified Non-Use of Water Rights Will Count Against Water Users When They Change Their Water Rights

The Colorado Supreme Court recently addressed two previously unsettled issues that will impact other water users in Grand Valley Water Users Ass’n v. Busk-Ivanhoe, Inc., 14SA303 (2016).  First, the Court held that imported transbasin water may not be stored in the basin of import prior to first use unless the decree expressly authorizes it.  The Court reasoned that “just as the right to store water is not an automatic incident of a direct flow right, the right to store water in the basin of import prior to use is not an automatic incident of trans mountain water rights.”  Id. ¶ 49 (citations omitted). Second, the Court held that undecreed uses of the decreed amount of water could count as zero use in historical beneficial use analyses rather than be omitted from the study period.  The Court reasoned that the use of water for an undecreed purpose could be treated as “unjustified non-use” and should not be ignored by excluding it from the study period.  Id. at ¶ 71.  

The Court was split on the first issue of storing transbasin water in the basin of import prior to first use.  The dissent argued that the specific decree at issue implicitly permitted such storage.  Id. ¶ 84. It also argued generally that once water is exported it is fully consumed with respect to the basin of export so no further injury can occur there, and no one in the basin of import has any right to the imported water and can therefore not be injured regardless of its use, so the importer can use the water however it sees fit without injuring anyone in either basin.  Id.  ¶ 85.  Thus, the dissent argued, no explicit decree language is needed for storage of imported water.  Id.  

The majority, however, correctly pointed out that undecreed storage of water prior to first use for the decreed purpose makes it possible to enlarge the water right.  Id. ¶ 49.  A direct flow right can be exercised only when there is both water available for diversion and a need for the water for the decreed beneficial use.  If a water user is able to store the water prior to its actual use, the water user can divert at other times when water is available (for example outside of the irrigation season) and then apply it to its actual use later when the water is needed.  Thus, the right to store may greatly expand a water right when there is a disconnect between the timing of need and availability.  This may lead to greater diversions in the basin of export than originally contemplated by a direct flow right even if the volumetric limits of the decree are not exceeded because the ability to put the water to a beneficial use when available is the ultimate measure of the water right regardless of the maximum limits set in the decree.  Thus, junior users in the basin of export may be injured if the Court had allowed storage prior to first use to count in the historical use analysis because the actual water right that had ripened through historical beneficial use in accordance with the decree might have been much smaller than the decreed limits without such storage.  See id. ¶ 44.

One wrinkle not fully addressed by the Court was that the decree at issue permitted some storage within the basin of export.  The case was ultimately remanded, so this issue and the effect it may have on whether junior users have been injured has not yet been fully determined.

The Court used the second issue to distinguish and clarify the scope of its ruling in Burlington Ditch Reservoir & Land Co. v. Metro Wastewater Reclamation Dist., 256 P.3d 645 (Colo. 2011), as modified on denial of reh'g (June 20, 2011), where it held that it was appropriate to exclude undecreed expanded use from the historical use analysis used to determine the scope of the water right. Grand Valley Water Users Ass’n, ¶ 71.  The Court explained that it would be inappropriate to exclude from consideration use of the decreed amount of water for undecreed purposes, as opposed to use of additional amounts of water for the decreed purposes.  Id.  Periods where none of the water was used for decreed purposes should be counted in the historical use analysis as zero use periods rather than be excluded from the analysis – at least to the extent that the non-use was unjustified.  Id.  

The legislature, however, passed Senate Bill 15-183 while this case was pending before the Supreme Court, and it was signed into law a few months prior to oral argument.  At oral argument, the parties agreed that Senate Bill 15-183 did not apply to this case, but they also agreed that it requires that water courts, in other pending and future cases, exclude all years of undecreed use from the study period, contrary to the eventual holding in this case.  It is therefore unclear what effect this decision will have on cases filed after Senate Bill 15-183 was adopted.  Further adding to these uncertainties is the fact, pointed out by counsel during oral argument, that Senate Bill 15-183 may be subject to constitutional challenge as impermissibly retroactive or even an unconstitutional taking of private property. 
The takeaways for other water users from this case are that although transbasin water can be a very flexible source of supply, one still must comply strictly with the terms and authorized uses provided in the decree.  Additionally, the case could have a broader impact in its analysis of undecreed use, and what the Court labeled “unjustified nonuse.”  This part of the holding applies to both transbasin and other, native flow water rights.  While Senate Bill 15-183 may limit this decision’s impact regarding the effect of undecreed uses on historical use analyses, the decision still clearly holds that “unjustified nonuse” can count against a water right holder that seeks to change the water right to a new use.  The court has not provided any guidance as to what constitutes “unjustified nonuse,” however, so it is likely that there will be more litigation in the coming years that wrestles with that question.   

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Supreme Court Grants Operational Flexibility to Owners of Multiple Conditional Water Rights

The Colorado Supreme Court’s recent ruling in Upper Eagle Reg'l Water Authority v. Wolfe, 2016 CO 42 creates opportunities for owners of more than one conditional water right to make those rights absolute in advance of demonstrating the need for both, and the “catch” or court-imposed limitation may not have a practical effect in some situations.

In Upper Eagle, the applicant owned a junior and a senior conditional water right for diversion and use at the same location and for the same purpose. The conditional rights were granted for projected future need. Presently, the applicant needs less than what one of those rights can provide. At a time when both rights were in priority and the applicant diverted what it needed, the applicant chose to attribute the diversion to the junior conditional water right. It thereafter sought to make that part of the junior right absolute.

The Court allowed this, and it held “that where there is no evidence of waste, hoarding, or other mischief, and no injury to the rights of other water users, the owner of a portfolio of water rights is entitled to select which of its different, in-priority conditional water rights it wishes to first divert and make absolute. However, the portfolio owner must live with its choice.” Id. at ¶ 2.

The Court rejected the argument that this would allow owners of several conditional water rights to make all of them absolute before there is a need for, and availability of, the total combined amount of water. The Court stated that the “catch,” when choosing to attribute a diversion to the junior conditional right, is that then the owner can no longer divert pursuant to the senior conditional right without showing a need therefor above and beyond what can be diverted through the junior right. Id. at ¶ 21. The Court seemingly believed that this would effectively prevent the owner from diverting pursuant to the senior right until it has a need for more than the full amount of the junior right.

That is, however, not necessarily the case. As an example, assume that Owner has a junior and a senior water right for 1 c.f.s. each based on a projected future need for 2 c.f.s. For now, Owner’s need is limited to 1 c.f.s. Under the rule announced in this case, Owner can apparently attribute a 1 c.f.s. diversion on a day where both rights are in priority due to extraordinary rainfall to the junior right and thereby make it absolute. The following day, when the rain has stopped and the junior right is out of priority, but the senior right is in priority and needed, the Owner can then make the senior right absolute as well. That is so regardless of the fact that Owner never needed or diverted more than 1 c.f.s.

The Court failed to recognize that changing river conditions can potentially create a legitimate need for the senior right before there is a need for more water than could be diverted pursuant to the junior right had it been in priority. Upper Eagle, therefore, provides an opportunity for those who own several conditional water rights that can be diverted at the same point for the same use to make their rights absolute long before reaching their projected need.

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Weed and Water - Can water be used for marijuana cultivation in Colorado?

The question has become important to marijuana growers after the Colorado Supreme Court’s decision in Coats v. Dish Network, LLC, 303 P.3d 147 (Colo. 2015), where the Court held that an activity is only “lawful” if it violates neither state nor federal law.

The issue has now arisen in the water context before Water Division 5. In Re High Valley Farms, LLC, 14CW3095. In that case, the Division Engineer has demanded that “[t]he applicant must explain how the claim for these conditional water rights [the water is to be used for an indoor marijuana grow facility] can be granted in light of the definition of beneficial use as defined in C.R.S. § 37-92-103(4). Specifically, beneficial use means ‘the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.’”

In Coats v. Dish Network, LLC, 303 P.3d 147 (Colo. 2015), the Colorado Supreme Court held that “lawful,” as used in an employment statute where it was not further defined, should be interpreted based on its ordinary meaning. Id. at 150. The “ordinary meaning of ‘lawful’ is that which is ‘permitted by law.’” Id. So, “for an activity to be ‘lawful in Colorado, it must be permitted by, and not contrary to, both state and federal law.” Id. at 151.

Like the statute in Coats, the statutes governing water rights in Colorado do not define “lawful.” Thus, Coats seemingly dictates that the ordinary meaning of “lawful,” as meaning lawful under both federal and state law, applies. That would mean that growing marijuana is not a beneficial use and therefore not an allowed use of water pursuant to Colorado water law. There are, however, at least three reasons to believe that growing marijuana can be considered a beneficial use despite the broad language in Coats: 1) there is a constitutional right to divert water that cannot be curtailed by statute, 2) the statutory definition of beneficial use does not necessarily prohibit using water for illegal purposes, and 3) policy considerations in the water context, unlike the employment context, weighs in favor of interpreting lawful to mean lawful under state law only.

First, although beneficial use is statutorily defined, the right to divert for beneficial use derives from the Colorado Constitution. Colo. Const., Art. XVI, §§ 5-6. The Colorado Supreme Court has interpreted this to mean that the legislature “cannot prohibit the appropriation or diversion of unappropriated water for useful purposes.” Fox v. Div. Engineer for Water Div. 5, 810 P.2d 644, 646 (Colo. 1991). The Colorado Constitution establishes that marijuana grow is a useful purpose. Colo. Const., Art. XVIII, § 16. It should therefore be possible to appropriate water to grow marijuana, regardless of the statutory definition of beneficial use, because the legislature cannot abrogate the constitutional right to divert water for a purpose that is protected by the constitution.

Second, it is not readily apparent that “lawfully” modifies “the purpose” in the statutory definition of “beneficial use.” Pursuant to the last-antecedent canon of construction, “lawfully” modifies “appropriation” – not “purpose.” Thus, the appropriation must be accomplished lawfully in accordance with Colorado water law, but the water does not necessarily have to be used for a lawful purpose to effect an actual appropriation. In fact, the prior appropriations doctrine arose in the west to administer water rights when miners were using water to illegally mine federal lands prior to the General Mining Act of 1872. Thus, the statutory definition of “beneficial use” does not preclude appropriation of water for an illegal purpose as long as it is diverted in accordance with the law.

Third, Coats involved employment discrimination, an area of extensive federal regulation where policy concerns weighed in favor of allowing employers to discharge employees for violations of federal law. Id. Unlike employment law, water law is uniquely controlled by state law. 43 U.S.C. § 666 (subjecting the U.S. to state law in water rights cases); See also Bureau of Reclamation, Reclamation Manual (Temporary Release): Use of Reclamation Water or Facilities for Activities Prohibited by the Controlled Substances Act of 1970, PEC TRMR-63 (May 16, 2014) (prohibiting the use of BOR water for marijuana grow facilities, while not prohibiting the use of other water passing through BOR facilities for marijuana grow facilities). Further, policy arguments favor interpreting beneficial use as encompassing marijuana grow because the objective of Colorado water law is “the optimum use of water consistent with preservation of the priority system of water rights” C.R.S. § 37-92-501(2)(e). There is no doubt that marijuana grow is optimal in the sense that it can lead to greater revenues both per acre planted and per acre-foot of water used than most other crops grown in this state. Lawful should therefore, for the purpose of water law, be interpreted to relate only to state law.

While marijuana growers in Colorado should prevail against a challenge that their use is not beneficial, the safer course of action may still be to apply for indoor irrigation, commercial, and industrial use, without specifying the type of crop to be grown. That may also allow greater flexibility for future changes in the type of crop grown.

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Lessees and Operators Beware

In Pennaco Energy Inc. v. KD Company LLC, 2015 WL 7758324 (Wyo.) (“Pennaco I”), the Wyoming Supreme Court recently confirmed a precedent that subjects lessees and operators to liability for successors’ acts and failures under surface use agreements. At issue was the continued liability of Pennaco for obligations contained in a surface use agreement (“SUA”) entered into by Pennaco and the lessor. Under the terms of the SUA, Pennaco was obligated to make annual payments to the lessor and to reclaim the surface after wells are plugged and abandoned. Pennaco, having fulfilled all of its obligations while holding the lands subject to the SUA, assigned the lands and rights under the SUA to a successor, who then defaulted on these obligations and ultimately declared bankruptcy. In this suit to impose liability on Pennaco for its successor’s failures, the parties took widely different approaches as to what law should control obligations imposed in a SUA.

Using a colorful analogy, Pennaco likened its obligations to that of a football being passed from the quarterback to the receiver. Once Pennaco, as the quarterback, passed its obligations to its successor, KD Company, the successor held the obligations as the receiver would hold the football. Pennaco grounded its argument in property law, reasoning that its obligations were covenants running with the land, just as the SUA expressly provided that the benefits or rights received by Pennaco were covenants running with the mineral lease. In property law, covenants running with the land are obligations which are connected with an interest in land so that future owners of the interest will also have to fulfill them. Conversely, when an entity no longer owns the interest, that entity also no longer owes the obligation because it is connected with the interest, not the entity. Thus, once Pennaco assigned its lease and SUA interests to KD Company, under well-established property principles, Pennaco was no longer liable for these obligations.

In equally colorful language, KD Company likened the obligation imposed on Pennaco to a communicable disease. Just because Pennaco, the carrier of a disease, passed the disease to KD Company did not mean that Pennaco was cured. KD Company argued that established principles of contract law, rather than property law, controlled the issue. It reasoned that rights can be freely divested absent a contractual provision to the contrary, but a duty or obligation can only be divested with the approval of the party to whom the duty is owed. Thus, Pennaco would only be relieved of its contractual obligations if the SUA expressly released Pennaco from further liability upon assignment, or if Pennaco obtained a “novation” (the substitution of a new agreement for an old agreement, which could be in the form of an agreement with the surface owner to release Pennaco from those obligations). Because Pennaco had no such relief in this case, KD Company argued that Pennaco would still be liable under the SUA pursuant to contract law.

The Wyoming Supreme Court agreed with KD Company’s contract law approach, despite significant evidence that the obligations were intended to be covenants running with the land, including language that these covenants would run with the surface ownership. Instead, the Court reasoned that if the parties intended that the obligations, as well as rights, of the parties were to be covenants running with the land, they should have included language expressly stating that the obligations, like the rights, were also covenants running with the mineral estate. Thus, the Court held that while Pennaco’s rights ended upon assignment, its obligations continued because they were not covenants running with the mineral estate, and there was no express provision in the SUA relieving Pennaco of liability upon assignment.

Interestingly, the Court added a caution in dicta (authoritative language but not binding) in footnote 4, which reads in full: “By this analysis we do not determine that a clause stating Pennaco’s obligations were ‘covenants running with’ its mineral leases would have indicated intent that Pennaco was no longer responsible after assignment of the leases and agreements. An exculpatory clause must expressly terminate the assignor’s obligations upon assignment.” Emphasis added. With this language, the Court cautioned lessees and operators that they should not rely solely on the rules of property law to relieve them of liability in a SUA. Instead, they should insert express exculpatory language in the SUA to make it clear that they will be relieved of future liability after transferring their interest.

The Wyoming Supreme Court heard arguments in a related case on December 16, 2015 (“Pennaco II”). Pennaco has described Pennaco II, in its appellate brief, as presenting “the same/similar issue—under a different surface use agreement—as that presented” in Pennaco I. Prior to the argument in Pennaco II, Pennaco filed a motion for rehearing of Pennaco I. Pennaco therefore focused its oral argument in Pennaco II on why the Court’s decision in Pennaco I was wrong.

In response to questions from the judges, Pennaco also tried to distinguish the two cases by pointing to additional language in the Pennaco II SUA stating that the rights were covenants running with the land. However, one justice pointedly asked whether Pennaco believes that the surface owner knew and intended that Pennaco would be able to develop the minerals but then assign the lease and SUA shortly before the obligation to reclaim came due and thereby pass on the obligation. The facts of the case brought this concern to the forefront because Pennaco had given the surface owner assurances about reclamation in writing three weeks before assigning the lease and SUA to a small company that declared bankruptcy before reclaiming the surface. Thus, it appears likely that the outcome in Pennaco II will be the same as in Pennaco I. Pennaco could not point to any language in this SUA that relieves it of its obligations after the assignment, and the Court did not seem inclined to believe that the surface owner intended the SUA to allow Pennaco to do so.

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Are Draft Expert Reports “Discoverable” in Water Court Proceedings?

     Pretrial discovery (where a party to a legal proceeding can see the evidence the other side will use) has been undergoing big changes in Colorado. One of the most significant recent changes to the Colorado rules of civil procedure is that draft expert reports and communications between experts and attorneys are now protected from discovery under C.R.C.P. 26 as trial preparation materials. For background see

     The question addressed at the annual Water Division One Bench-Bar Meeting, held on August 17, 2015, was whether this change in civil discovery would apply to Water Court proceedings. From the discussions, it appears that there is some uncertainty about whether the new C.R.C.P. 26(b)(4)(D) will protect draft water expert reports in a water court proceeding. For example, some take the position that this rule does not apply in water court proceedings because the official comment to Rule 26 expressly excludes water law from its scope. Others counter that Rule 26 generally applies in water court proceedings because the Uniform Local Rules for All State Water Court Divisions incorporates Rule 26, except as expressly modified by Local Rule 11. Arguably, the new rule protecting draft expert reports from discovery is not in direct conflict with a specific water court rule or the modifications expressed in Local Rule 11 and should therefore apply in water court proceedings.

     The water court has not had the opportunity to express its opinion on this issue yet. At the meeting, it was noted that where the general rules of civil procedure are discretionary in water court proceedings, the court would apply them unless it is convinced by the facts of a particular case that the general rule should not apply. This approach is consistent with either interpretation of the applicability of Rule 26. The comment to Rule 26 regarding its scope, which provides that a water court may use those rules, suggests that the rules are discretionary. Local Rule 12, which provides that a water court may modify the local rules on a case-by-case basis “to avoid substantial injustice or great hardship,” suggests that the local rules and those general rules, incorporated through the local rules and not independently applicable, are subject to modification on a case-by-case basis by the court. Thus, even if applicable, the new rule is subject to modification by the court.

     At the meeting, the question was asked whether the attorneys present were for or against applying this rule in water court proceedings. A number of attorneys expressed their support for the rule protecting draft expert reports from discovery, and no one expressed opposition to the rule. Thus, there may not be many challenges to the position that draft expert reports will be protected from discovery in water court proceedings, but there is room for a contrary interpretation.

     Experts and attorneys should be aware of this possibility for disclosure in water court proceedings and take some steps to ensure their draft reports and communications are protected. Given the strong support expressed by water lawyers at the Division One Bench-Bar Meeting for this protection from discovery, it may be possible for experts and attorneys to protect themselves against this uncertainty by getting all parties to stipulate that Rule 26(b)(4)(D) will apply to their case.

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The Muddy Waters Surround the FWS's Listing of the Gunnison Sage-Grouse

In the 2015 Appropriations Bill (Cromnibus), via a rider, Congress prohibited Interior from writing or issuing any final listing rule under Section 4 of the Endangered Species Act (“ESA”) for several species of grouse. It now looks like that action could result in some unintended consequences for the recently listed Gunnison Sage-Grouse, a bird whose habitat is found in southwestern Colorado and eastern Utah. On November 12, 2014, the Gunnison Sage-Grouse was listed under the ESA as “threatened.” When a species is listed as threatened rather than “endangered,” the ESA § 4 provides the Fish and Wildlife Service (“FWS”) with significant management flexibility. This regulatory flexibility includes the authority to craft a species-specific rule that can formally recognize state, local and private conservation efforts under ESA § 4(d). At the time of the listing, which was widely criticized in Colorado and Utah for failing to give enough credit to the State’s conservation efforts, the FWS kept the door open for future negotiations. FWS Director Ashe stated that FWS would draft and implement a so-called 4(d) rule in early 2015, which would make ESA compliance easier for landowners and industry.

The Cromnibus prohibition of expenditures for ESA § 4 listing actions appears to have inadvertently put a roadblock to the agency’s intent to draft a special rule for the Gunnison Sage-Grouse under section 4(d) that could have created exceptions and loosened the default requirements associated with the listing. It appears that Congress may have done so unwittingly, on the basis of language drafted long before the Gunnison Sage-Grouse was listed. Regardless of what Congress intended to do, it did not actually prevent the listing and may have made a bad situation worse.

Further muddying the waters on the listing is the fact that, on December 12, 2014, the State of Colorado filed a notice of intent to sue FWS over the listing of the Gunnison Sage-Grouse. The ESA requires that parties planning to sue provide the agency with 60-days’ notice of that intent, and the Colorado Attorney General has indicated that Colorado will file the lawsuit when this period expires. Gunnison County has also filed a notice of intent to sue the FWS over the listing. Similarly, on January 20, 2015, John Harja of Utah's Public Lands Policy Coordination Office announced that his office had filed a notice of intent to sue to challenge the listing. It has yet to be decided whether the State of Utah will file its own litigation or join the State of Colorado’s suit.

Also on January 20, 2015, the Western Watersheds Project and the Center for Biological Diversity filed a complaint in Federal District Court in Colorado arguing that the Gunnison Sage Grouse should have been listed as endangered, rather than threatened under the ESA. In the litigation, the groups are asking the court to remand the final rule listing the bird as threatened to the FWS for “an adequate finding that complies with all requirements of the ESA and the[Administrative Procedure Act.” In the meantime, the groups ask that the threatened listing remains in place.

The question remains whether, in the midst of these competing challenges and the federal governments’ self-inflicted prohibition on monetary expenditures, there will be an opportunity to find a compromise that could provide management flexibility and recognition of State, local, and private conservation efforts.

The listing of the Gunnison Sage-Grouse is available at

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