The Sage Grouse Isn't Going to Get Endangered Species Protections

The Obama administration's decision not to list the dwindling wild bird as officially endangered aimed to strike a balance between environmentalists and energy interests, but may end up being challenged in court by both.
September 23, 2015, 7:35pm
Photo by Mead Gruver/AP

The announcement Tuesday that the Obama administration decided not to list the sage grouse as an endangered species drew sharp criticism from both environmentalists, who accused the administration of bowing to GOP pressure and energy interests, and from Republicans who are wary of federal jurisdiction over land that could hamper oil and natural gas industry development.

The decision was meant to be a winning compromise between the two positions, and was touted as such by Secretary of the Interior Sally Jewell and an array of federal agency leaders and state governors who emphasized the balance struck between corporate interests and a need to conserve the birds' fragile habitat.

"This is truly a historic effort — one that represents extraordinary collaboration across the American West," Jewell said Tuesday. "The epic conservation effort will benefit westerners and hundreds of species that call this iconic landscape home, while giving states, businesses, and communities the certainty they need to plan for sustainable economic development."

The sage grouse is a wild bird that lives in sage brush across the western United States, with much of its habitat on federal, state, and privately-owned lands having been eroded in recent years by energy development and ranching. The battle over whether to protect it pitted conservationists against energy company interests and big-government watchdogs.

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The announcement outlined how land-use plans that the federal government, states, and private owners will implement to increase the bird's habitat without the federal government imposing the strict regulations of the Endangered Species Act.

"Today's decision reflects the joint efforts by countless ranchers and partners who have worked so hard to conserve wildlife habitat and preserve the Western way of life," US Agriculture Secretary Tom Vilsack said about the announcement. "Together, we have shown that voluntary efforts joining the resources of private landowners, federal and state agencies, and partner organizations can help drive landscape-level conservation that is good for sage-grouse, ranching operations, and rural communities."

The Obama administration made the decision after years of jockeying by energy companies, environmental groups, and politicians at the state and federal levels, according to Eric Washburn, an attorney with Bracewell & Giuliani who represented two groups that participated in negotiations over the sage grouse protections.

Washburn worked for the Environmental Defense Fund, which is in the process of establishing a conservation exchange program in Colorado in which private land owners who conserve habitat will earn credits they can sell to energy companies in a marketplace, and what Washburn described as the sportsmen community in western states.

He described the months leading up to the administration's decision as filled with back-and-forth meetings between the Fish and Wildlife Service (FWS), with its single-minded goal of conservation, and the Bureau of Land Management (BLM), which was trying to appeal to multiple stakeholders including state governors and private landowners. Throughout the negotiations, he said, most of the important players up to and including the White House wanted to avoid listing the sage grouse as endangered because of the possible economic impact on energy development in those states.

"Ranchers, developers, western governors all had expressed a lot of anxiety about that and I think the administration wanted to avoid that," Washburn said. "There were tense but I think successful talks in the Department of the Interior between Fish and Wildlife and BLM about what those plans needed to contain to recommend a 'not warranted' listing. You can imagine the constant tension about how much restriction do you put on development and how the oil and wind and solar and gas companies are going to be affected."

The deal struck eventually included provisions that energy developers could pay private land owners to create or restore sage grouse habitat on their lands in proportion to the habitat that might be damaged by drilling or construction for energy, he said.

"You know, Fish and Wildlife folks have one mandate, to protect and recover these species, but BLM operates under a multi-use mandate, which certainly includes wildlife protection but also development, oil and gas, ranching, and solar power," he said. "So BLM's institutional mentality and planning process is typically toward balancing those interests, where FWS is more monolithic, as in, what do we need to do to save this one species. So it  was a long, drawn-out many months conversation that took place between FWS and BLM."

Washburn said that although the White House made clear its position, it delegated the deal making to the Secretary of the Interior, whose staff frequently brought together all of the key players and "refereed" discussions.

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Some lawmakers criticized the deal, with Oklahoma's Jim Inhofe, chairman of the Senate's environment and Public Works Committee, and Utah Sen. Rob Bishop, a Republican, both saying they would try to use their positions to scale back the authority of federal agencies over land in the West.

"While the Service announced that the sage grouse does not warrant specific protection under the Endangered Species Act, the federal government retains control over the bird's habitat," he said. "The Obama administration has used federal lands as a means to control production of our energy resources and economic development.

Erik Molvar, a wildlife biologist at the environmental group WildEarth Guardians, said that in his view, "somewhere along the way science got pushed to the side and political agendas took over the process" of decision making inside the Department of the Interior. He said his group is looking at the legal ramifications of the new plans, but declined to say if or when a lawsuit might be filed. He said that groups like his will have to be vigilant in "watchdogging" new energy development projects that have been on hold while the Department of the Interior made its decision.

"We're now in chapter one or maybe chapter three of a longer book," Washburn said, noting that the energy industry was unhappy with the level of restrictions outlined in the plans that would likely result in litigation from them as well as environmentalists. Washburn said he expects the "lawsuits will start to fly" in the next year or so as the plans are finalized and funding sources for the conservation efforts are ironed out.

"There's still a lot of drama left on the sage grouse," he said.

Follow Colleen Curry on Twitter: @currycolleen