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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. Holsinger Law, LLC Section 7 – Consultations (con’t) 59 Holsinger Law, LLC 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]