UT Governor Herbert Signs Executive Order on the Greater Sage Grouse to Short Circuit Federal Listing

On Tuesday, February 10, 2015, Utah Governor Gary Herbert signed an executive order directing state agencies to implement additional state-level protection measures aimed heading off a potential federal listing of the sage grouse as “threatened” or “endangered” under the Endangered Species Act. Under a settlement reached in 2012, the U.S. Fish and Wildlife Services have until September 2015 to decide whether the sage grouse should be listed under the ESA. Referring to the consequences of such a designation as potentially “devastating,” Governor Herbert’s executive order requires that all state agencies minimize the impact of activities on sage grouse, consult with the Utah Division of Wildlife Resources on decisions that could affect sage grouse habitat, and incorporate directives from the Utah Conservation Plan into state operations.

While the executive order requires consideration of sage grouse protections in agency decision-making, it does not impose the level of regulation or constraints on private property and federal lands that would be imposed if the sage grouse is listed under the ESA. According to Governor Herbert, "The concern we have here in Utah that in doing so [a federal listing], it will have a significantly devastating impact on our economy," particularly on farmers, ranchers and those involved in natural resource extraction.

The executive order implements a number of proposals contained in the Utah Sage Grouse Conservation Plan, which was completed in April 2013 and contained recommendations for habitat preservation. While many of the recommendations contained in the Conservation Plan have been informally implemented by state agencies, the executive order seeks to make the Plan’s recommendations mandatory. According to Utah’s Public Lands Policy Coordinating Office, informal implementation of the Conservation Plan and other localized habitat preservation efforts have already led to an increase in sage grouse populations throughout the state.

In conjunction with the executive order, Utah lawmakers are seeking a $2 million appropriation to preserve sage grouse habitat. These protections would include projects on state and private lands to improve sage grouse habitat, such as removing pinyon-juniper stands which encroach onto sage brush. According to Senator Kevin Van Tassell, who proposed the appropriation, the executive order and the state habitat preservation projects are intended to show the FWS that state-level management of the species is working and that federal intervention through the ESA is unnecessary.

Governor Herbert’s executive order comes almost five years after former Wyoming Governor Freudenthal’s executive order on Sage Grease Core Area Strategy and is intended to promote the same goal: prevention of an ESA listing. Wyoming has been a leader in this movement, and implementation of its conservation plan—which includes a prohibition on surface disturbing activities in areas designated as core habitat—have proven successful.

It remains to be seen whether these state-level efforts will be sufficient to forestall a federal listing of the Greater sage grouse or whether Utah’s response will prove to be too little too late.

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Interior Will Make Greater Sage-grouse Determination Despite Congressional Rider

In a January 26, 2015 letter responding to the bi-partisan co-chairs of the Western Governors’ Association State-Federal Sage-Grouse Task Force, Interior Secretary Jewell stated that, despite a congressional rider prohibiting the U.S. Fish and Wildlife Service from issuing a listing rule, the Department will make a listing determination for the greater sage-grouse by the court-ordered deadline of September 30, 2015. “In line with that obligation, the [FWS] is on schedule to make a determination by that date, based on revised Bureau of Land Management and U.S. Forest Service land management plans, an enhanced rangeland fire strategy . . . and states’ plans to conserve the greater sage-grouse.”
In a 2011 settlement, FWS committed to making a final listing decision for the greater sage-grouse either as “warranted” (as endangered or threatened) or “not warranted” for listing under Section 4 of the Endangered Species Act September 30th. In December 2014, the appropriations bill signed by the President (H.R. 83) contained language prohibiting the FWS from writing or issuing a rule to list the greater sage-grouse.

Under ESA § 4, if FWS decides to list a species it must be done by notice and comment rulemaking. This process begins with a proposed rule and ends with a final rule between 90 days and 18 months later. The proposed rule must summarize the data upon which it is based, show the relationship of the data to the proposed rule and provide a summary of the factors affecting the species. At least a 60-day comment process is required. Within 12 months of the publication of the proposed rule, FWS must either publish or withdraw the proposed rule or upon a finding of “substantial disagreement regarding the sufficiency or accuracy of the available data” extend the deadline for no more than 6 months. For land users, an important component of a listing rule is the identification of specific activities that will, or will not, likely result in a “take” violation under ESA § 9. This section of the Act prohibits “take” of a listed species anywhere and everywhere – federal, state or fee lands.
With the congressional rider in place, FWS can’t issue a listing determination rule for the greater-sage grouse, or, as in the case of the now-listed as threatened Gunnison sage grouse (see prior post), FWS can’t issue an ESA § 4(d) rule providing for management flexibility. FWS can issue a not-warranted finding, complete the analyses for a listing determination or a ESA 4(d) rule, or issue an emergency listing rule for 240 days under ESA 4(b)(7). The nightmare scenario is that FWS will make a determination in September that the bird should be listed, but because of the rider won’t be able to give guidance in a rule on how the public can avoid “take”. Similarly, the ESA § 7 consultation process for federal actions would grind to a halt as federal agencies comply with the consultation process without any actionable information from FWS.

Over the last several years, the states that would be most affected by a listing have been working on state conservation plans and coordinating with the federal land management agencies in an effort to forestall a listing. On January 16, 2015, Governors Hickenlooper (CO-D) and Mead (WY-R) wrote to the Secretary with two questions, the first concerning the schedule for listing and the second asked “[w]hat funding was provided to support state and federal efforts focused on greater sage-grouse conservation? In particular, how will BLM use the $15 million appropriated to the agency?”
The Secretary’s response to the funding question was not encouraging, “[t]he Department intends to spend the $15 million appropriated . . . to complete the BLM land management plans and implement actions critical to sagebrush conservation and restoration . . . [and] will continue to work with the states to complete our land management plans, solicit their advice in developing our rangeland fire strategy, and prioritize actions on the ground to protect and restore sagebrush landscapes and important habitat.” Emphasis added. Secretary Jewell did conclude her letter by affirming the “shared goal” of getting to a “not warranted” finding.

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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 http://www.fws.gov/mountain-prairie/species/birds/gunnisonsagegrouse/GUSGFinalListingRule_11202014.pdf

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