Forest/BLM planning avoids sage grouse listing; states don’t like that

While the wisdom of Congress prevents the U. S. Fish and Wildlife from saying so, the agency’s draft of the decision to not list the greater sage grouse under ESA states:

“The Federal Plans establish mandatory constraints and were established after notice and comment and review under the National Environmental Policy Act (NEPA).  Therefore, changes to the Federal Plans would require additional notice and comment and further analysis under NEPA. All future management authorizations and actions undertaken within the planning area must conform to the Federal Plans, thereby providing reasonable certainty that the plans will be implemented.”

In 2010, the FWS had found that sage grouse were warranted for listing, in part because of the lack of adequate regulatory mechanisms.  The new draft concludes now that, “regulatory mechanisms provided by Federal and three State plans (those with the greatest regulatory certainty) reduce threats on approximately 90 percent of the breeding habitat across the species’ range.”  This was a determining factor in reaching the “not warranted” conclusion this time.

Success?  Officials in Idaho and Nevada and some mining companies sued the federal government over new restrictions on mining, energy development and grazing that are intended to protect the sage grouse.

Idaho Gov. C.L. “Butch” Otter said Friday that federal officials wrongly ignored local efforts to protect the bird, leading him to sue in U.S. District Court in Washington, D.C.  “We didn’t want a (threatened or endangered) listing, but in many ways these administrative rules are worse,” the Republican governor said in a statement.  A similar lawsuit was filed in Nevada by an attorney for two counties and some mining companies.

If these plaintiffs are successful in rescinding the federal plan amendments, the decision to not list the sage grouse would probably no longer be justified (state plans are much more voluntary), and it shouldn’t take the FWS too long to rewrite their conclusion.  But I guess that is what the commodity interests want.

2 Comments

  1. “But I guess that is what the commodity interests want.” In a lot of ways this demonstrates a wise business decision. The ESA is a known quantity, with predictable results, translating into predictable business expenses. The unknowns of a new regulatory regime would terrify me if I were advising an industry looking out for profit pitfalls (“in many ways these administrative rules are worse.”). Someone wrote about the ESA being the devil we know being better than the devil we don’t (conservation agreements, land management planning, and complex administrative rules), seems like the case here.

  2. It will be interesting to see how the plaintiffs argue the case, and what remedy they ask for. It would sure be news if they actually support listing.

    It’s also interesting that the NFMA requirement to provide habitat for viable populations of sage grouse on national forests hasn’t been in the news. That’s the requirement under the 1982 planning regulations, which govern these forest plan amendments. If I were on the other side, I’d think about intervening to keep the conservation measures in place.

    The Forest Service Records of Decision include a determination that the amendments “will provide
    habitat on NFS lands that will support persistent populations on each involved NFS unit.” If they were to evaluate the no-action alternative, they would probably find that current plans do not meet this requirement.

    The RODs also address the specific question that the current lawsuit seems to raise – the obligation to be consistent with states. While BLM may have different rules, the Forest Service RODs state:

    “Collaborative land management is essential to effectively conserve a species or habitat;
    therefore, the Forest Service works in partnership with States when developing NFS LMPs.
    However, Forest Service LMPs may differ from State plans to meet our viable population
    requirement within each national forest. When this is the case, the Forest Service works with
    our State partners to develop direction that meets our viable population requirement, while
    considering State plan direction.”

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