Bird Trouble: Trump Administration Plans for Greater Sage Grouse Shot Down by Federal Court; States Take a Shot Too

by John W. Andrews

The greater sage-grouse is a chicken-like bird that is currently found in 11 western states. For more than 25 years, there has been considerable controversy concerning whether to list the greater sage-grouse for protection under the federal Endangered Species Act (ESA).  Because the sage grouse is widespread among sagebrush steppe habitat, federal species restrictions to protect the grouse could substantially limit both fossil fuel and renewable energy development across large swaths of the interior west.  Efforts by the Trump administration to loosen restrictive federal land use plans enacted by the Obama administration to protect the sage grouse have now been decisively rejected by a federal court.

On October 16, 2019, Judge Lynn Winmill of the U.S. District Court for the District of Idaho, in Western Watersheds Project v. Schneider,[1] enjoined the U.S. Bureau of Land Management (BLM) and the U.S. Forest Service (USFS) from implementing the two agencies’ 2019 Sage-Grouse Plan Amendments.  Those amendments (the “2019 Amendments”) were intended to streamline prior land use plan amendments enacted by the Obama administration (the “2015 Amendments”) that the current administration, and many western states, found overbroad and arbitrary.

The current litigation is the culmination of years of prior federal litigation brought by environmental organizations, and countervailing litigation by states and industry groups.  There is no question that sage grouse populations have been declining across the west for years, but little agreement otherwise exists on primary causes for the decline. Predation, climate change, destruction of sagebrush habitat by wildfire, oil and gas development, and livestock grazing have all been hotly debated, with much energy spent on legal efforts to either place federal public lands off-limits to significant development in the name of the grouse, or to open those lands for greater use.

In 2010, the U.S. Fish and Wildlife Service made a preliminary determination that threats to the greater sage grouse were sufficiently severe that listing of the species as threatened under the ESA was warranted.  A listing under the ESA would impose significant federal regulatory controls on all development in grouse habitat – over 134,000 square miles spread across the interior western states.  Faced with a regulatory and economic train wreck, multiple western governors convened state-level task forces to improve state management of sage grouse, in hopes of arresting population declines and improving habitat without an ESA listing.

At the same time, BLM and the U.S. Forest Service undertook revisions of their governing land use plans to provide protections for the sage grouse on federal public lands.  The federal land agencies generally took a different approach from state plans.  Rather than identifying a single class of sage grouse habitat, BLM identified a top tier of habitat called sagebrush focal areas (SFAs), a middle tier of priority habitat areas (PHMAs), and a lower tier of habitat called general habitat management areas (GHMAs).

When the 2015 Amendments incorporating these concepts were released, states and industry groups identified a number of significant legal and factual flaws in the plans, including incorporation of huge areas with no actual sage grouse in protected areas, lack of incorporation of state planning in the federal plans, overly onerous compensatory mitigation requirements, and mapping of habitat areas that was based on outdated and inaccurate data.  Utah filed litigation challenging the 2015 Amendments in federal district court in Salt Lake City.  Other states and industry groups filed similar challenges in other courts.

After the 2016 federal election, BLM and USFS changed course.  After a two year planning process, the agencies released the 2019 Amendments, substantially revising the approach taken by the Obama administration.  The 2019 Amendments condensed Sagebrush Focal Areas (SFAs) into Priority Habitat Management Areas (PHMAs), which generally coincide with State sage grouse management areas (SGMAs).  The federal category of general habitat management areas (GHMAs) was done away with in its entirety, since BLM recognized that although GHMAs are large in size, almost no actual sage grouse are in fact located in these areas.  Other common sense changes included considering that not all lands in PHMAs are in fact actual habitat; allowing site-specific modifications to development restrictions based on on-the-ground conditions; and relying to the extent possible on state wildlife managers data and expertise.

The current decision from the U.S. District Court in Idaho entirely rejects the 2019 Amendments, finding that the BLM’s analysis failed to consider evidence that suggested that negative habitat modification from energy development and other activities was continuing to take a toll on grouse populations, in violation of the provisions of the National Environmental Policy Act (NEPA).  Notably, although NEPA reviews are typically conducted based on the administrative record compiled by the federal agency, Judge Winmill based his opinion in substantial part on declarations concerning scientific matters submitted by the environmental plaintiffs that were not part of the administrative record.

The upshot of the Western Watersheds decision is that the more restrictive 2015 Amendments have been reinstated as the governing land use plans for activities on BLM and Forest Service lands.  Industry parties that may be contemplating permitting of new projects in potential sage grouse habitat will need to carefully consult federal habitat mapping and consider the possibility that avoidance or substantial compensatory mitigation may be required for any impacts to mapped habitat.  The 2015 Amendments also largely disregard state conservation efforts taken by some western states, rendering state conservation plans largely superfluous in permitting matters on federal lands, despite significant efforts and investment taken by the states in habitat protection and restoration.  Given the substantial disagreement between states, industry, and environmental NGOs concerning these matters, the sage grouse is likely to remain an object of controversy for years to come.

[1] Case No. 1:16-CV -83-BLW

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