Wildlife

Two Stories from Wyoming: Not Shooting Goats from Helicopters, Plus Potential Million Acre Land Purchase

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Map from the Governor’s Office via Wyofiles. For those of you who can’t read county names, yes, parts are in Utah and Colorado
Following up on the Grand Teton Park aerial goat-shooting story here, it appears that the Governor appealed to David Bernhardt the Secretary of the Interior after repeated letters from the head of Wyoming Game and Fish had no impact on the federal decision. Here’s a link to the Cowboy State Daily.

Bernhardt’s order to “stand down” came in a phone call to Gopaul Noojibail, acting Grand Teton Park superintendent late Friday. The call was made after Governor Gordon shared with Bernhardt a strongly-worded letter sent to Noojibail Friday afternoon. In the letter the Governor criticized the Park Service’s choice to “act unilaterally aerially executing mountain goats over the State of Wyoming’s objections.”

Perhaps there must be an interesting backstory there.

In other Wyoming news, state legislators are looking at buying a million acres (yes, a million!) of land.

Here’s a link to a story about it, and a statement by the Governor here (excerpts below) in the Cowboy State Daily:

Wyoming is not looking at this purchase to try to become a developer or a mining company; rather, we see the land grant opportunity as a way for the state to expand the areas where we already have expertise: land and mineral management.

This opportunity is not just about the money. This acquisition has enormous potential benefits for multiple-use that are valuable to all citizens of Wyoming, giving us the opportunity to assemble one of the largest contiguous pieces of public land in the continental United States. One that will benefit wildlife, hunters, fishermen and outdoor recreationists while achieving responsible development of rich natural resources.

Opportunities like this don’t come along very often. The land grant has only changed hands twice in its 150-plus year history. It’s likely that this would be the largest government purchase of private land since the United States purchased Alaska. That’s a big deal.

In this interesting article by Cat Urbiquit (who doesn’t seem to be a fan of the purchase), she talks specifically about how public public lands are in terms of recreation. Apparently Wyoming State Lands may be more restricted in terms of recreation than multiple-use federal lands such as BLM and FS. I think what is also interesting is the difference in terminology between “public” lands “owned by a government entity of some kind” versus “open to the public for various uses or not.” In many discussions people use the word to mean different things, which could contribute to the phenomenon of talking past each other.

State trust lands are to be managed to produce revenue, so they aren’t comparable to federal “public” lands like that of the Bureau of Land Management that are to be managed under a multiple-use mandate. But the State Land Board has adopted rules allowing the “public the privilege of hunting, fishing, and general recreational use on state trust lands.”

Recreational privileges on state trust lands come with sideboards: the lands must be legally accessible, and off-road use, overnight camping, open fires, and anything else that would damage the property are prohibited on state trust lands.

So you can hike, fish, and play on state trust lands by day, but no camping, fire pits, or charcoal grills (except in camping areas established by State Land Board). Cultivated croplands on state trust lands are not open to public use.

The state may issue permits for furbearer trapping and outfitting/guiding on state trust lands, (either exclusive or nonexclusive), and outfitters may be allowed to establish camp sites on exclusive permits.

Some state trust parcels are closed to all public use, while others have seasonal restrictions on public use, or restrictions on the discharge of firearms, hunting, or the use of motorized vehicles.

Bats and bighorns and bears (oh my?)

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Two of these were originally posted as comments related to other posts and the third I would have, but Sharon intimated that they might not get noticed there, so here they are at the top end of a post.

BATS

We were discussing how the wolverine is most affected by climate change, and yet ESA requires mitigation of other less harmful activities that we have more control over. The effect of an introduced disease on bats also came up there.  A federal judge has just overturned a decision by the U.S. Fish and Wildlife Service to protect northern long-eared bats as threatened rather than endangered under the Endangered Species Act.  Here’s the Center for Biodiversity’s read-out of the judge’s opinion (there’s a link to the opinion, but I haven’t read it):

The Service argued that since the species was primarily threatened by disease, there was no need to protect its habitat.  But the court rightly noted that, in combination with disease, habitat destruction and other threats can cumulatively affect the bats, and thus are cause for concern.

It’s a point of contention these days whether climate change should be a factor in listing decisions when there is little likelihood of reducing its effects, but the law says it’s important to address and potentially mitigate other actions that may harm the species.

BIGHORNS

The Bridger-Teton National Forest is considering a restocking request for returning domestic sheep to two vacated allotments in the Wyoming Range.  It hinges on changing the forest plan to deemphasize protections for the Darby Mountain bighorn sheep herd. This would purportedly be consistent with the State of Wyoming’s bighorn plans.  The Forest is proposing to do a “focused amendment” to their forest plan,  but …

Bighorn advocates and conservationists who have watchdogged the restocking conversations wanted the Forest Service to instead deal with the issue in its forest plan (revision). The years-long revision process was supposedly coming up, though O’Connor said it’s now indefinitely on hold. Wyoming Wild Sheep Foundation Director Steve Kilpatrick said the Darby Mountain Herd deserves the longer, closer look.

I’m not sure the Forest is going to be able to do a “focused amendment” for this issue, since bighorn sheep should be a species of conservation concern under the 2012 Planning Rule, which warrants greater attention. Maybe this is a case where the inability to revise a forest plan is going to cause some problems. Then there is the question of why these allotments were vacant. The permittees were “bought out” through the efforts of the National Wildlife Federation (to protect bighorns?). Would they need to be paid back?

GRIZZLY BEARS

The discussion of reintroducing wolves to Colorado brought up the experience with grizzly bears in the Selway-Bitterroot Wilderness in Montana and Idaho.  A reintroduction proposal was rejected in 2001, but at least two bears have been documented there in recent years.  Here is the recent news about that.  The Fish and Wildlife Service has written to the Forest Service that bears that have made it there are fully protected by the Endangered Species Act (not an experimental population). All four of these forests are revising or will soon revise their forest plans and will have to provide conditions to support grizzly bear recovery.  The Nez Perce-Clearwater is farthest along but has been avoiding doing that.

Now what happens when a new species on a national forest is listed under ESA?

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Once upon a time, when a new species was listed under ESA, the Forest Service was required to reinitiate consultation on its forest plan regarding the effects of the plan on the species.  Projects were often held up while this was occurring.  As a result of the Cottonwood litigation, involving a new designation of critical habitat for Canada lynx, the law was recently changed so that neither new critical habitat nor listings require new consultation on existing forest plans (as discussed here).

The candy darter (CBD photo) was listed as endangered in late 2018 and it is found on the Monongahela National Forest.  The Center for Biological Diversity provided this news release regarding a proposed timber sale in a watershed where the species is found and where critical habitat for it is being considered:

The U.S. Forest Service this week announced it will withdraw a 2,400-acre logging project in West Virginia’s Monongahela National Forest following objections raised by conservation groups about harm to an endangered fish.

The project would likely have caused significant erosion and sent sediment into rivers and streams, threatening the rare fish and other animals.

“Friends of Blackwater and all of our supporters are very pleased that the Monongahela National Forest supervisor has withdrawn the Big Rock Timber Project proposal,” said Judy Rodd, director of Friends of Blackwater. “Hopefully this is a step toward fully protecting the candy darter, a tiny jewel of a fish found in the timbering proposal area, near the world-famous Cranberry Glades.”

The Forest Service announcement said the project would have been the first of its kind to require formal consultation under the Endangered Species Act for the brightly colored candy darter, which was listed as endangered in November 2018. The Fish and Wildlife Service would have had to calculate how many, if any, candy darters could be killed or harmed by the proposed project. The Fish and Wildlife Service also plans to include portions of the logging project area in its final designation of the fish’s critical habitat. Those issues contributed to the decision to pull the project.

Presumably the Monongahela has come to a full stop on projects that may affect the darter, while they figure out a strategy for consulting with the Fish and Wildlife Service.  This is pretty close to the same result that would have occurred without the “Cottonwood fix.”  This is a situation where consultation on a forest plan has proven beneficial.  It should result in a species conservation strategy that “fully protects” the species’ habitat on the forest that the FWS supports and that can be included in the forest plan.  The FWS may then rely on the forest plan decisions and their biological opinion for analysis of its overall effects, which would simplify and streamline the consultation process for projects.

Post-Cottonwood, they could now choose instead to proceed on an individual project-by-project basis, but why?

(PS – This looks like an example where the administrative objection process prevented the Forest Service from losing a lawsuit.)

Grand Teton Park Killing “Invasive” Goats to Protect Bighorn Sheep

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Note this photo is of the sheep, not goats.
Since we have gotten on the topic of bighorn sheep protection...here is a link to an AP story about shooting mountain goats in Grand Teton National Park for bighorn protection.

There are two interesting things about this.. first, that species are “invasive” if they expand their ranges since when (pre-European settlement? Do we actually know what their ranges were then? When do we think like this? What about these cutthroat trout.. are they “invasive”- perhaps not because they didn’t get their on their own power?

The second interesting thing is that non-motorized recreation is apparently also not good for bighorns in this case:

The bighorn sheep herd, by contrast, is considered fragile. They have been pushed out of some of their best habitat by backcountry skiing activity, and their existence is threatened by potential disease transmission by the mountain goats.

Does anyone know if the Park is reducing or eliminating backcountry skiing to protect bighorns?

This Denver news story says that

The Grand Teton National Park Foundation called its mountain goats “perhaps the biggest ecological threat to the area in modern history” to the park in 2014.

but the link didn’t work so I couldn’t check.

Here are some local details from the Idaho State Journal:

Because shotguns will be blasting from helicopters to kill mountain goats in Grand Teton National Park during the coming week, a temporary area closure for the public is being implemented in the central part of the park.

The closure is slated for Sunday through Jan. 12 and is bounded on the south by the South, Middle, Grand Teton, Mount Owen and Teewinot Mountain peaks; on the west by the park boundary; on the east by the western shores of Jackson, Leigh, String and Jenny lakes; and on the north by Rolling Thunder Mountain and Eagle Rest peaks.

“No public access will be allowed in the area during this time,” the park said in a news release. “Signs will be posted at main access locations.”

Recent Endangered Species Act news of interest

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These could all have some implications for national forest management (except I think the last one is just about trees – and climate change).

A federal district court ordered the U.S. Fish and Wildlife Service to issue an overdue status report assessing how threatened grizzly bears in the Lower 48 are doing. This resolves one claim in the Center for Biological Diversity’s ongoing lawsuit that challenges the Trump administration’s failure to update the federal recovery plan for grizzly bears.

Environmental groups have sued the U. S. Fish and Wildlife Service for producing an inadequate recovery plan for the threatened species. They have directly implicated national forest planning which must “contribute to recovery” of listed species: “You can see where weaker recovery standards are leading to weaker forest plans,” Montgomery said. “It’s not trickling down but is cascading down. It’s really important for recovery plans to be a road map.”

The U.S. Fish and Wildlife Service proposed Endangered Species Act protections for West Coast populations of the Pacific fisher. The move drew criticism from conservation groups that say loopholes allow for continued logging of the fisher’s habitat.  “The exemptions to their protection are fuzzier than fishers themselves.”

The yellow cedar, a tree native to Southeast Alaska and culturally significant to Alaska Native communities, was denied protected status under the Endangered Species Act. Warmer temperatures are reducing the amount of snow in areas where the cedar grows and that is leaving the tree’s roots exposed to subzero temperatures, which kills the trees.

WildEarth Guardians filed a suit against the U.S. Fish and Wildlife Service, challenging its decision not to list the Joshua tree as a threatened species. They claim climate change is the major reason why the tree should be listed.

Samo-Samo for CASPO

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No Threatened Status for the California Spotted Owl. Current protections remain. The article is a good read, with some of the “usual suspects”.

http://www.calaverasenterprise.com/news/article_a866d476-14d2-11ea-b7e0-7b830918c726.html

Recovery planning for the Gunnison sage-grouse

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The U. S. Fish and Wildlife Service has released a draft recovery plan for the Gunnison sage-grouse in Colorado and Utah.  The Center for Biodiversity doesn’t like it, but more to the point, they like less how the BLM is managing Gunnison sage-grouse.  More to the point because recovery plans are not mandatory, while federal land management plans can be – and plan components must be mandatory to be considered “regulatory” enough to carry much weight in ESA listing and delisting decisions.  As the FWS said, “Establishing durable regulatory mechanisms that are binding and enforceable, such as revised land use planning amendments, will be important for recovery.”

CBD:

The recovery plan comes on the heels of BLM decisions not to designate any Areas of Critical Environmental Concern for Gunnison sage-grouse in the Tres Rios and Uncompahgre Resource management plans, and to adopt inadequate safeguards for the birds’ habitat in recent land-use plans. For example, although the draft recovery plan calls on federal land-management agencies to improve their resource management plans and protect suitable habitat within four miles of breeding sites, the BLM’s August 2019 proposed resource plan for its Uncompahgre Field Office protects only habitats within 0.6 miles of breeding sites. The BLM admits this would “fall short of minimum protection standards to maintain sage-grouse viability.”

“Bringing the Gunnison sage-grouse back from the brink requires decisive and concerted action, but instead we have two federal agencies working against each other,” said Michael Saul, a senior attorney at the Center for Biological Diversity. “The Fish and Wildlife Service is urging federal land managers to improve protections for public-land habitat, but the BLM is moving in the opposite direction. This is a recipe for extinction for this beautiful bird. We’ll do everything possible to keep that from happening.”

The timing is also such that BLM plans were released prior to the draft recovery plan.  That means that the BLM should start taking another look at how their plans address this species and take into account the new information and recommended measures.  The same is true for the 10% of sage-grouse habitat that occurs on national forest lands. BLM is not subject to NFMA, so its obligation to maintain species viability to avoid listing under ESA is not as clear as for the Forest Service.  Forest Service plans must “contribute to recovery” of listed species, so failure to address elements of this recovery plan when it is final should raise serious questions.

In addition to specific conservation measures like the four-mile buffers for breeding leks, the draft recovery plan provides some specific desired conditions that could be included in land management plans:

2. Regulatory mechanisms or other conservation plans or programs, such as land-use management plans, reduce and ameliorate threats associated with habitat loss and degradation in all populations, such that:

A. Habitat in Dove Creek is improved and maintained at a quantity calculated to support a HMC of 30, although this criterion is not measured by achieving the target HMC.

B. Habitat in CSCSM is maintained at a quantity calculated to support a HMC of 7, although this criterion is not measured by achieving the target HMC.

C. Habitat is improved and maintained in Gunnison Basin, San Miguel, Piñon Mesa, Crawford, and Monticello at a quantity calculated to support the target HMCs as listed in Table 1.

At a minimum, the land management agencies will need to explain how these plans contribute to meeting their requirements under ESA to manage their programs to promote recovery of listed species, which should include how they are implementing the final recovery plan.

Forest planning for “sustainable” recreation

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A former Forest Service backcountry specialist talks about ecological integrity and increasing human recreation activities, and tries to answer the question of “what is sustainable recreation?”  The 2012 Planning Rule requires plan components “to provide for: (i) Sustainable recreation; including recreation settings, opportunities, and access; and scenic character.”

What is “Sustainable Recreation”? The Forest Service defines it as “the set of recreation settings and opportunities in the National Forest System that is ecologically, economically, and socially sustainable for present and future generations.”

Here’s how it’s done:

The Recreation Opportunity Spectrum can be used in forest planning to define a desired condition for management within each zone. Indicators and standards are meant to define the tipping point beyond which management action must be taken.
 If the standard for a backcountry area (called “semi-primitive non-motorized” in ROS jargon) is that no more than six other parties are encountered on a typical day, when the encounter rate exceeds that number some action is supposed to take place to return to the desired condition.
It’s a neat framework, but doesn’t always play out as intended on the ground. ROS doesn’t differentiate between a semi-primitive area in the back yard of a town like Jackson or Bozeman and one that’s two hours away.
That seems like a major shortcoming, especially if all areas with a SPNM designation must have the same desired level of semi-primitive non-motorized use.  However, the Planning Handbook encourages “new approaches,” including creating “desired recreation opportunity spectrum subclasses” §(23.23a).
The usual sequence of remedial actions begins with non-intrusive measures like visitor education. If the problem isn’t solved, additional actions are considered.
The Bridger-Teton forest plan is typical in its prescribed sequence of actions, this excerpt taken from its direction on wilderness. The following recreational strategies should be used, listed in descending order of preference:
First Action – Efforts are directed towards information and education programs and correction of visible resource damage.
Second Action – If the first action is unsuccessful, restrict activities by regulation (for example, set a minimum distance between a lakeshore and where people can camp).
Third Action – If the first and second actions fail, restrict numbers of visitors.
Fourth Action – If first, second, and third actions are not successful, a zone can be closed to all recreation use until the area is rehabilitated and restored to natural conditions.
In my experience, outside of designated wilderness and other special areas where specific laws apply, the Forest Service keeps circling around the first action, which isn’t a bad strategy given the continuing need for it in communities where resident turnover is high.  It’s an ongoing need regardless of the often unmet requirement to step up restrictions. But restrictions trigger blowback, as when the Shasta-Trinity National Forest tried to set encounter limits for the wilderness that includes Mt. Shasta.
People basically said they don’t care if it’s crowded—they just want to reach the summit, and a judge agreed with them. On the other hand, those who float the Selway River are happy to wait until they get a launch day shared by no one else. Since everyone is going the same direction at about the same speed, everyone can experience a bit of peace and quiet. So the application of sustainable recreation standards depends on who is using the forest and what they will accept.
And those are the questions that forest planning should be designed to answer.  (Note:  the Bridger-Teton plan has not been revised, so may not be the current state-of-the-art.  Also, I couldn’t find the court case referred to.)  And this must be done against the backdrop of a requirement for ecological integrity.
User-built trails and roads are often the opposite of sustainable. They develop incrementally and aren’t designed with soil type, grades and curve radii in mind, or the needs of resident wildlife. The trail system after adoption by the Forest Service usually gets reworked so it doesn’t turn into deep ruts or wash into the creek, but where is the analysis that determines that the trail location is right in the first place?  The trail itself becomes more sustainable, but where do the grouse and elk and owls go?
The adoption of forest plan of components for desired recreational use has effects that must be evaluated during the NEPA process, but rarely does the Forest Service devote much attention to this.
The author describes a common fallacious argument that the Forest Service likes to make about sustainability to avoid controversy:
While the planning rule makes clear that ecological integrity underlies compatible uses in a national forest, the ecological, economical, and social sustainability have since been referred to as a three-legged stool, with all three legs of equal importance.
But if you parse the actual language of the Planning Rule, it is apparent that the ecological leg needs to support more weight (driven by the substantive diversity requirement of NFMA) (my emphasis).
“Plans will guide management of NFS lands so that they ARE ecologically sustainable and CONTRIBUTE TO social and economic sustainability; CONSIST OF ecosystems and watersheds with ecological integrity and diverse plant and animal communities; and HAVE THE CAPACITY TO PROVIDE people and communities with ecosystem services and multiple uses that provide a range of social, economic, and ecological benefits for the present and into the future.

Modeling for Decisions IV. In Practice – Climate Change and the Rio Grande Cutthroat Trout (and Forest Planning)

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It’s fortuitous that we have this recent example of how a court viewed a population model for an at-risk wildlife species that addresses climate change. The court included the usual caveat that, “Deference to the agency “is especially strong where the challenged decisions involve technical or scientific matters within the agency’s area of expertise.”

It is undisputed that the Service attempted to estimate the effects of climate change by using both “moderate” and “severe” predictions of expected effects, and that for the severe model, it “increased the risk function over time by 20 percent for the 2040 forecast and 40 percent for the 2080 forecast.” 79 Fed. Reg. at 59,147–48. The Plaintiffs take issue with the Service’s observation that the differences in results from the moderate and severe climate change models were “not particularly large.” Disbelieving that this could be a correct conclusion, the Plaintiffs thus suggest that the models “are driven by the Service’s assumption that climate change will have relatively little influence on the threats to individual Trout populations.” (# 76 at 26.)

But the Plaintiffs’ argument begs its own question, assuming that the Service’s models are infected by false preexisting assumptions that climate change effects with be minimal. It is essential to note that the Plaintiffs have not gotten “under the hood” of the Service’s models and pointed out any methodological, programming, or data entry flaws with them. Rather, the Plaintiffs simply argue that the models must be flawed because they produced results with which the Plaintiffs disagree. It may be that the models are flawed, but it may also be that that Plaintiffs’ (and the Service’s as of 2008) expectations about climate change effects are misplaced. Ultimately, it is the Plaintiffs’ burden to demonstrate an error in the Service’s actions, and simply pointing out that two different methodological approaches to calculating the effects of climate change in the far future produced two different results, one of which the Plaintiffs disagree with, does not suffice to carry that burden.

The threatened inquiry takes a longer-term view, asking whether the species might become endangered in a more distant future. But the threatened inquiry is necessarily closed-ended; once the Court has reached the endpoint of the “foreseeable future” (a term found in ESA, and defined recently by regulation) — which the parties here agree is 2080 — the Court’s ability to prognosticate must also come to an end. After 2080, nothing can be foreseen, all is simply speculation. So it is meaningless to ask whether a species will be threatened as of 2080, because it is impossible in 2080 to engage in the long-term future examination that the threatened analysis requires. By 2080, a species must have either reached the level of endangered and be at immediate risk of extinction, or it never will.

As the Plaintiffs observe, it appears that the Trout is on a “slide towards extinction.” (# 76 at 35.) But if the Service’s models are correct — and in the absence of a challenge, the Court must assume that they are — that slide will not be completed as of or immediately following 2080. At that time, there will still be 50 populations of Trout remaining, a number that the Service believes (and the Plaintiffs have not disputed) is enough to ensure the species’ survival through some indeterminate point in the future. What might become of those 50 populations after 2080 is beyond our ability to foresee; the curtain has come down and the movie has ended. We could attempt to speculate about what might happen thereafter — the 50 populations could persist, they could perish, new populations could be discovered, old habitats could become viable again — but speculation is all it would be. Our ability to predict what might happen has come to an end.

This analysis and decision actually has some important implications for forest planning (from the 2013 Rio Grande Cutthroat Trout Conservation Strategy).

Of the total 1,110 km (690 mi) of occupied habitat, 698 km (434 mi) (63 percent) are under Federal jurisdiction, with the majority (59 percent) occurring within National Forests (Alves et al. 2008).

Range-wide, a large proportion of the watershed conditions within the forests that have Rio Grande cutthroat trout are rated as “functioning at risk,” which means that they exhibit moderate geomorphic, hydrologic, and biotic integrity relative to their natural potential condition (USFS 2011)

Land management activities are currently practiced according to the Carson, Santa Fe, and Rio Grande National Forest Land and Resource Management Plans, and BLM Resource Management Plans. During scheduled revisions, the forests and BLM field offices will evaluate the current Land and Resource Management Plans and update as necessary to provide adequate protection for Rio Grande cutthroat trout with current best management practices. Land management activities that would result in the loss of habitat or cause a reduction in long-term habitat quality will be avoided.

 

If the trout is a warranted for listing (even if precluded by higher priorities), it is a “candidate” species under ESA.   The Planning Rule requires that forest plan components conserve candidate species (which under ESA means the same thing as recover). Since this decision that listing is no longer warranted was reversed, that should mean the species is again a candidate species.

Of course, national forests where the trout is found have been revising their forest plans after 2014, when listing was no longer considered warranted. Consequently, the Rio Grande cutthroat was considered for inclusion as a species of conservation concern. The Rio Grande National Forest has identified the species as an SCC in its final plan (currently in the objection period). The requirement for forest plans for SCC is for plan components to maintain a viable population.

Logically, a species that is warranted for listing should warrant greater protection than one that is not. So it’s possible that the Rio Grande will need to reconsider plan components in areas that are important to this species, or to at least document why this change doesn’t make a difference.

Which could bring us back to the modeling question – how does the Forest Service show that it is meeting the NFMA requirement to provide ecological conditions necessary for this species?   If there is a working population model for a species, then those factors that may be influenced by national forest management should be examined to determine how they could change as a result of forest plan decisions, and whether or how that could affect the model results.

 

Trump Administration sage-grouse plans stopped

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The district court for Idaho has enjoined the Trump Administration’s attempt to cut back protection of sage-grouse on BLM lands in Idaho, Wyoming, Colorado, Utah, Nevada/Northeastern California, and Oregon from that provided by plan amendments in 2015. (A similar decision has been pending for national forest plans.) The changes made in the 2019 amendments to BLM land management plans can not be implemented, and the provisions in the 2015 amendments will apply (projects must be consistent with the 2015 amendments) until the case is decided on the merits.  (A link to the opinion is included with this news release.)

Moreover, the court telegraphed the merits pretty clearly:

“… the plaintiffs will likely succeed in showing that (1) the 2019 Plan Amendments contained substantial reductions in protections for the sage grouse (compared to the 2015 Plans) without justification; (2) The EISs failed to comply with NEPA’s requirement that reasonable alternatives be considered; (3) The EISs failed to contain a sufficient cumulative impacts analysis as required by NEPA; (4) The EISs failed to take the required “hard look” at the environmental consequences of the 2019 Plan Amendments; and (5) Supplemental Draft EISs should have been issued as required by NEPA when the BLM decided to eliminate mandatory compensatory mitigation.”

(1) “The stated purpose of the 2019 Plan Amendments was to enhance cooperation between the BLM and the States by modifying the BLM’s protections for sage grouse to better align with plans developed by the States. While this is a purpose well-within the agency’s discretion, the effect on the ground was to substantially reduce protections for sage grouse without any explanation that the reductions were justified by, say, changes in habitat, improvement in population numbers, or revisions to the best science contained in the NTT and CTO Reports.” The agencies did not fulfill their duty to explain why they are now making a different decision based on the same facts.

(2) The no-action alternative did not meet the purpose and need, and there was only one action alternative. “Common sense and this record demonstrate that mid-range alternatives were available that would contain more protections for sage grouse than this single proposal.”

(3) The BLM prepared six EISs based on state boundaries, but failed to provide the “robust” cumulative effects analysis this situation required. In particular, “connectivity of habitat – requires a large-scale analysis that transcends the boundaries of any single State.”

(4) “Certainly, the BLM is entitled to align its actions with the State plans, but when the BLM substantially reduces protections for sage grouse contrary to the best science and the concerns of other agencies, there must be some analysis and justification – a hard look – in the NEPA documents.” The court took particular note of the EPA comments that were ignored, and Fish and Wildlife Service endorsement of the 2015 amendments in deciding not to list the species under ESA because they adopted scientific recommendations (see below).

(5) Compensatory mitigation measures were eliminated after the draft EIS, which “appears to constitute both “substantial changes” to its proposed action and “significant new circumstances” requiring a supplemental EIS.

The case provides a good example of how science is considered by a court, which allowed declarations from outside experts to determine if relevant environmental consequences were ignored. The court relied heavily on earlier scientific reports that included normative “recommendations,” but the court focused on their scientific conclusions, such as “surface-disturbing energy or mineral development within priority sage-grouse habitats is not consistent with the goal to maintain or increase populations or distribution,” and “protecting even 75 to >80% of nesting hens would require a 4-mile radius buffer.” The Final EISs stated that there would be no measurable effects or they would be beneficial to sage-grouse, but the BLM either had no analysis or ignored this contrary information.