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Holsinger Law, LLC
Lands, wildlife and water law
Sage Grouse: Listing Decision,
Land Use Plans and Litigation
Kent Holsinger
An Overview of the
Endangered Species Act
(ESA)
• Established in 1973 to "conserve the
ecosystems upon which threatened or
endangered species depend" and to
conserve and recover listed species
• Nation’s most powerful environmental
law. Applies to all land in the US:
federal, state and private
• Influence largely court driven
• Costs taxpayers, landowners, local
governments and businesses an
estimated $3 billion per year
Section 4 Listings
• Any citizen may petition the FWS to list or delist a species as a
candidate
• Species may be listed as either “threatened” or “endangered”
• Endangered means that a species is in danger of becoming
extinct throughout the entirety or a significant portion of its
range
• Threatened means that a species is likely to become
endangered within the foreseeable future
Listing Factors
• When determining whether a petitioned species
deserves a warranted listing, the agency will
consider the following factors:
– (A) Present or threatened destruction,
modification, or curtailment of habitat or range
– (B) Overutilization for commercial, recreational,
scientific, or educational purposes
– (C) Disease or predation
– (D) Inadequacy of existing regulatory
mechanisms
– (E) Other natural or manmade factors affecting
its continued existence
Cooperation with State and Local
Governments
• Section 4 Listings and Critical Habitat
• Section 4(b)(1)(A) requires the Secretary
to take into account efforts by a state or its
political subdivision to protect species or
its habitat as well as predator control
• Section 4(b)(1)(b)(ii) requires
consideration of state agency designations
(ie state listed)
Potential Outcomes:
Warranted (proposed listing)
Not warranted (final agency action)
Warranted but Precluded
• Petitioned species warrants protection, but more
pressing needs require attention first
• Automatically reconsidered annually
• This annual finding continues until the petition is
found to be warranted or not warranted
Section 7 Consultation on Activities with a Federal
Nexus
• Consultation with FWS is required when any activity authorized,
funded or carried out by the federal government may adversely
affect a listed species or designated critical habitat
• Must utilize best available scientific and commercial data
• Action agency must prepare a biological assessment (“BA”)
for the FWS
• FWS then prepares a biological opinion (“BO”) on the
proposed action’s impact, analyzed in relation to the
environmental baseline (a snapshot in time of all current human
effects upon the given species)
Section 9 “Take”
•
To “take” is defined as “to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture
or collect, or to attempt to engage in any such
conduct”
•
Harm has included habitat modification on
private property
•
Courts apply standards of foreseeability and
proximate cause, thus speculative harm to a
species or habitat does not constitute a taking.
Defenders of Wildlife v. Bernal,
•
Environmental groups may sue for injunctive
relief, or for civil or criminal penalties
•
Most cases are brought against the private
sector, but state and local governments have
been involved in the past
Gunning for attorney fees
• CBD has been a party to 835
lawsuits from 1999 to 2012
• WEG has been a party to 145
lawsuits between 2008 to 2011
• The two groups have brought
more than 1300 cases from 1990
to the present
• Most against DOI and most
raised ESA claims
2011 CBD and WEG Settlement
• +/-1,300 listed species
• WildEarth Guardians and other groups have
petitioned to add another 1,000 species in the
past 4 years. Many have become candidates
• On May 11, 2011, the FWS announced
proposed settlement agreement with WildEarth
Guardians and later with CBD
• Deadlines and expedited listing decisions on
757species
Greater Sage Grouse Listing
Timeline
•
•
•
•
March 5, 2010: Warranted but Precluded
Candidate for listing (LPN 8)
Not warranted decision Sept. 22, 2015
(LEPC listing overturned Sept. 2, 2015)
Greater Sage Grouse
• 165 million-acre range spans 11 Western states
• Approximately 500,000 birds (approximately 200,000
harvested between 2007 and the present)
• Never before has such a wide-ranging and numerous
species been considered for listing under the ESA
• Populations have risen 63% over the past two springs
• Unprecedented and robust conservation efforts (State
and local plans, WGA Report; SWCA Study 700-plus
conservation measures)
• USFWS, however, seems to be unaware of these
proactive efforts
Greater Sage Grouse
2015 Listing Decision
• September 22, 2015-Secretary Jewell announces not
warranted for listing under the ESA
• October 2, 2015-Proposed Rule 80 Fed. Reg. 59858. 12Month (No comment period but DOI will accept new
information)
• FWS will review the listing determination in five years
• Cites Land Use Plan Amendments as well as Wyoming
and Montana Plans
• Public lands roughly half of “remaining” sage grouse
habitat
Land Use Plan Amendments:
Winning the Battle but Losing the War?
• BLM and USFS – 15 mega land use plans that amend
98 land management and forest plans:
In essence, FWS adopted the Wyoming and Montana
plans and rejected the Colorado, Idaho, Nevada, and
Utah plans
Federal Government Adds 600,000
Acres To National Forbidden Zone
http://www.theonion.com/article/federal-government-adds-600000-acres-national-forb-51446
Unprecedented Federal Land Grab
• 3.1 mile lek buffers
• Density and disturbance caps – models
based upon models (include private lands)
• No surface occupancy
• FWS veto of exceptions to NSO
• Compensatory Mitigation and Net
Conservation Gain
Federal Land Grab
• No new leases in priority areas – 10 million
acres in 5 states (NV, UT, ID, MT, WY)
• Unsubstantiated noise limitations
• New scrutiny on grazing in focal areas, riparian
areas, and wet meadows
• Transmission lines – “avoid…sage grouse
habitat.” O & M could require mitigation
• Access Restrictions – more road closures (on
top of closed unless signed open)
Land Use Plan Amendments (cont.)
• Sagebrush Focal Areas (“SFA”s)
– Recommended by USFWS
– Eliminate new surface
disturbance on 16.5 million
acres including approximately 7
million acres in Wyoming
• Priority Habitat Management
Areas
– Limit or eliminate new habitat
disturbance
• General Habitat Management
Areas
– Require some special
management
Land Use Plan Amendments
(cont.)
• 1). Minimize new or additional surface disturbance
–
–
–
–
Buffers and Surface Disturbance Caps
ROW Exclusion Areas
Travel Restrictions
Noise Restrictions
• 2). Improve habitat condition
– Mitigation – Net Conservation gain
– Livestock grazing – Monitoring, Evaluation, and Adaptive
Management
• 3). Reduce threat of rangeland fire to sage grouse
and sagebrush habitat
Protests to Land Use Plan
Amendments
• Protests from 283 state and local governments, NGOs,
and individuals
• Nine Governors of the affected western states provided
Consistency Review letters
• Five states appealed the BLM’s responses to their
Consistency Reviews
• BLM Director’s resolution of appeals submitted to the
states and will be published in the Federal Register
Protests to Land Use Plan
Amendments (cont.)
• Ignore local conditions and state and local efforts
• Lack of transparency – underlying data not publicly available
• Costly and ruinous to jobs (some estimates $7.7 billion in cost
and loss of 31,000 jobs)
• NEPA compliance and need for SEIS (new issues raised in
final that were not analyzed in alternatives, i.e., focal areas,
triggers, FWS veto)
• Purpose and need (foregone conclusion)
• “Monoculture management” inconsistent with statutory
authority (FLPMA, NFMA, Mineral Leasing Act, etc.)
• Valid existing rights
Data Quality Act
Challenges
• In 2000, Congress passed the Data
Quality Act (44 U.S.C. § 3516 ) as
an amendment to Section 515 of
the Treasury and General
Government Appropriations Act for
Fiscal Year 2001. Pub. L. 106-554.
• Individual agency guidelines
• OMB Guidelines and Peer Review
Bulletin
• SDWA and NAS Standards
Data Quality Act Challenges (cont.)
• The Act required the Office of Management and Budget
(“OMB”) to develop government-wide standards “for
ensuring and maximizing” the quality of information
disseminated by federal agencies
– Allows any person to challenge data or information a federal
agency distributes or relies upon
– Standards of quality, objectivity, and integrity
– For the first time, any person has the ability to challenge the
information, data, or science used in formulating regulations
rather than only challenging the regulations themselves.
Data Quality Act Challenges (cont.)
• Three key documents cited in the Land
Use Plan Amendments:
– USGS Monograph
– USFWS Conservation Objectives Team
Report
– BLM National Technical Team Report
USGS Monograph
• USGS report entitled “Comprehensive
Review of Ecology and Conservation of
the Greater Sage Grouse: A Landscape
Species and its Habitats
• Four chapters cited 174 times in the 2010
GRSG listing decision
USFWS Conservation Objectives
Team Report
• March, 2013
• Prepared by state and federal employees
• Identifies conservation status of sage-grouse, the nature
of the threats objectives to ensure its long-term
conservation
• Intent to provide state, federal, local and private entities
with permitting or land management authority to support
sage grouse conservation actions
• This might involve modifying or amending regulatory
frameworks ...
National Technical Team Report
• December 21, 2011 Report on sage
grouse conservation measures
• BLM IM No. 2012-044: BLM will consider
all applicable conservation measures of
the NTT Report in at least one alternative
in the NEPA process
Data Quality Act Petitioners
• 20 counties in 4 states:
– Garfield, Grand, Jackson, Mesa, Moffat, and Rio
Blanco Counties in Colorado;
– Carter, Fallon, Fergus, McCone, Musselshell, Phillips,
Prairie, Richland, Toole, and Yellowstone Counties in
Montana;
– Elko and Eureka Counties in Nevada;
– Duchesne and Uintah Counties in Utah.
Data Quality Act Petitioners (cont.)
• Agriculture:
– Public Lands Council,
Colorado Wool Growers
Association, and others
• Oil and Gas:
– Western Energy Alliance,
Independent Petroleum
Association of America,
International Association of
Drilling Contractors,
Montana Petroleum
Association, Colorado
Mining Association,
Nevada Mining Association
Data Quality Act Petitioners
(cont.)
• Mining:
– American Exploration and Mining Association,
Colorado Mining Association, Nevada Mining
Association
• Other interests:
– Montana Association of Oil, Gas, and Coal
Counties, Montana Association of State
Grazing Districts, Utah Multiple Use Coalition
Data Quality Act Challenges:
Lack of Scientific Integrity and Transparency
• LUPAs fail to meet basic standards of science,
resulting in misinformed policy that will harm
GRSG and the West
• Scientific method— “principles and procedures
for the systematic pursuit of knowledge involving
the recognition and formulation of a problem, the
collection of data through observation and
experiment , and the formulation and testing of
hypothesis.”
– Nowhere to be found throughout LUPAs
Data Quality Act Challenges:
Lack of Scientific Integrity and Transparency
• LUPAs rely on policy considerations rather than
defensible biological criteria
• No specific cause-and-effect threats to GRSG
• Biased data is selectively presented while
contrary information and the scientific method is
ignored
Data Quality Act Challenges:
Lack of Scientific Integrity and Transparency (cont.)
• LUPAs ignore population
fluctuations
• Human activities such as
energy development, mining,
and ranching are blamed for the
alleged declines
• Actual threats such as
predation and hunting are
ignored
• Fail to recognize significant
conservation efforts by states,
local governments, businesses,
and private landowners
Transparency and Scientific Integrity
• President Obama: “This is the most transparent
administration in history.” –The Hill, February 14,
2013, citing Google+ Fireside Hangout
• Western Energy Alliance filed suit under FOIA to
force agencies to disclose information that
should have already been public
• DOI “science arm” (USGS) is the most secretive
• USGS guidelines conflict with the DQA on peer
review and disclosure of underlying data—
withholds as “deliberative and predecisional.”
Transparency and Scientific Integrity (cont.)
• Transparency “could cause foreseeable and
serious harm to the USGS, the DOI, and the
public.”
• Directs peer reviewers not to disclose their
results or conclusions—could be construed as
incomplete, incorrect, or taken out-of-context;
but certain government, academic, and nonprofit allies have access to such information
• USGS says that the public should accept its
work without questions or reproach
On a Similar Note
• “Shut Up—Or We’ll Shut You Down”
– Wall Street Journal Opinion (Oct. 11, 2015)
• Climate change advocates urge Obama
Administration to investigate and punish those
that disagree with their views
• George Mason Professor Jagadish Shukla and
19 others wrote President Obama, Attorney
General Loretta Lynch, and White House
Science Advisor John Holdren.
On a Similar Note (cont.)
• Shukla’s nonprofit Global Environment and
Society (IES), which also employs his wife and
daughter, have taken in $25 million in federal
grants since 2008 in addition to his +/- $314,000
per year salary from the university
• Senator Sheldon Whitehouse from D-RI
suggests criminalizing climate dissent with laws
designed to prosecute the mafia (Racketeer
Influence and Corrupt Organizations (RICO)).
DOI Ignores Predation
• High predation = low numbers
• Approximately 82% of nest failure
Gunnison sage grouse
• Gunnison Christmas bird count: 1974
(+/- 4 ravens) versus 2014 (+/- 400
ravens)
• Changes in state and federal law—
trapping bans, poison control
Common Raven Most Abundant and
Greatest Threat
• Raven populations
have increased an
estimated 300% in
the past 27 years
• 1,500% increases
within a 25-year
period in some areas
Key Assertions Biased and in Error
• Frequently repeated but erroneous
assumption, that a temporary decrease in
lek counts adjacent to development
equivalent to population decline
• Reports fail to represent the current reality
of oil and natural gas development, i.e.,
horizontal drilling, hydraulic fracturing,
remote-sensing, pipelines versus trucks,
etc.
Key Assertions Biased and in Error
(cont.)
• Recommendations rely on older research
in areas such as the Jonas gas field in
Wyoming, which was developed before
current improved technologies
• Sophisticated mitigation and reclamation
Disturbance Does not Equal Decline
• Agencies habitually equate energy
development population declines—
but data paints a different picture
• Pinedale Study:
http://biorxiv.org/content/early/2015
/10/04/028274
• Climate, i.e., the Pacific Decadal
Oscillation, is the primary driver of
sage grouse population dynamics
across Wyoming—which explains
63% to 73% of the population
variance
Disturbance Does not Equal
Decline
• Oil and gas development was not a
significant driver—3% or less of the
variance
• Both the data and computer code are
public
• Results are fully reproducible (with the
exception of lek locations at Wyoming’s
Request)
Populations Naturally Fluctuate
• “Studies will disclose whether it is weather,
grazing disease, food or predators which causes
fluctuations in the crop of sage grouse.”
• “The Department will then be in a position to make
intelligent attack on rectifying conditions
detrimental to the production of this superb game
bird and bring back ample crops for hunting in
future years.”
--Jackson County Star article, April 1940
Status of Data Quality
Act Challenges
• Team of scientists reviewed key
documents
• Three challenges filed in March of
2015: Some 600 pages of flaws
and issues
• DOI issues 4-page “answer” on
July 24, 2015
• Appeals filed on August 12 and
August 20, 2015
• Manier et. al. 2014 Challenge
(Buffers) filed September 14, 2015
Lawsuits against Land Use Plan
Amendments
• Western Exploration, LLC v. U.S. Department of the Interior,
No. 3:15-cv-00491 (D. Nev. Filed Sept. 23, 2015)
– Complaint for Declaratory and Injunctive Relief
– Seeks to enjoin implementation of the Record of Decision
(RODs) and RMP Amendments for the Great Basin
including Idaho and Southwestern Montana, Nevada, and
Northeastern California, Oregon, and Utah
– Prevents Defendants from taking any action to interfere
with continued access to all lands that were open to
mineral entry prior to the RODs or otherwise prohibiting
multiple uses of those lands
State of Idaho
• September 25, 2015 – State of Idaho sues DOI
• Governor “Butch” Otter and the legislature sue federal
government for failing to provide a transparent process
in setting new public land-use restrictions
• Federal government has wrongly ignored Idaho’s
efforts
• Idaho created an “innovative strategy” that would allow
for predictable levels of land use for the state while
addressing the primary threats to sage grouse—
wildfire, invasive species, and habitat fragmentation
caused by development
Other Lawsuits
• Wyoming Stock
Growers Association
• And many more…
The winding road: regulatory
compliance on listed, candidate and
special status species
Regulating as if it is
listed?
• BLM IMs and RMP Amendments
– 1,751 pages
– 5 pages of acronyms and
abbreviations
– 44 pages of new stipulations
– NSOs increase tenfold
– CSU constraints double
– TLs on 520,200 acres
March 18, 2015 DQA Challenges
•
•
•
•
•
•
•
Conflicts of interest
Peer review
Reviewer comments
Bias
Selective citation
Preconceptions
Omission of real threats
State and Local Plans
• Some states are crafting alternatives to BLM RMPs
• June 24, 2003, Wyoming Plan: core area concept
• April 24, 2013, Utah Plan: voluntary prescriptions on
private land; development in grouse habitat may
continue so long as it is restored elsewhere
• Idaho plan: in progress
• 2008 Colorado Plan: statewide plan with local working
groups. Submitted as an appendix to BLM RMP
• Garfield County Mapping and Conservation Plan
State regulation of Sensitive Species
Jackson Pollack Painting
Gunnison sage-grouse
• November 20, 2014 – final rule
listing GUSG as threatened (79 FR
69192) with 1,429,551 acres of
critical habitat (79 FR 69312)
Holsinger Law, LLC
• January 11, 2013 – proposed rule
to list Gunnison sage- grouse as
endangered throughout its range
(78 FR 2486) with 1.7 million acres
critical habitat (78 FR 2540).
• Coming Soon - 4(d) Rule
• Litigation
57
Credits: AP (left)
Gunnison sage-grouse listing
• “Inadequate” local, state, and federal regulatory
mechanisms
• Despite: Rangewide Conservation Plan; local working
groups that developed conservation plans for all 7
populations; conservation agreements and easements;
NRCS Sage Grouse Initiative
• Altogether, if all deadlines are met, the full Section 7
Consultation process can take 10.5 months.
• However, the FWS frequently seeks extensions of
the deadlines and the full consultation process
frequently extends over one year, especially if the
proposed action is complex.
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Section 7 – Consultations (con’t)
59
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GUSG Critical Habitat
60
Light at the
end of the
tunnel?
Congressional Action
•
•
•
•
•
Limits on rules for sage grouse in 2015
But federal fiscal year
But 4(d) Rule GUSG
Current House and Senate legislation
9/29/15 blocks to sage grouse listing and
land use plans removed from defense
authorization bill (same with LEPC)
Opportunities for
Improvement
• End the litigation abuses
• Listings apply to full species rather
than subspecies and DPSs
• Best available science and Data
Quality with teeth
• Remove impediments to real, onthe-ground conservation work
• Change the debate
Holsinger Law, LLC
lands, wildlife and water law
1800 Glenarm Place, Suite 500
Denver, CO 80202
(303) 722-2828
[email protected]