Sandra Goodwin, a private landowner from Boulder, Wyoming, has personally seen the effects of oil and gas development on greater sage-grouse populations near her home. When a gravel mine began hauling an average of 350 semi-truck loads a day on the county road in front of her house, she stopped seeing the birds on her property. “It was after the mating season, and what it did was, we didn’t see a single nesting grouse that whole three months … all the birds just left. There were no hens; there were no babies,” she says. The gravel was destined for nearby oil and gas extraction sites to feed the construction of roads and well pads. And the trucks passed by other sage-grouse nesting and mating sites in addition to Goodwin’s.
While oil and gas development remains the primary threat to the greater sage-grouse and its sagebrush habitat in Colorado and Wyoming, the U.S. Fish and Wildlife Service (USFWS) has until Sept. 30 to decide whether or not to list the bird under the Endangered Species Act (ESA). At the same time, federal agencies, local governments and environmental activists disagree about the level of conservation and development restrictions needed to protect the bird and restore population levels.
Sage-grouse don’t account for jurisdictional boundaries when choosing where to live, and the bird populates federal, state and private lands across 11 states in the West, including California, Colorado, Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah, Washington and Wyoming. Federal agencies, local governments and private landowners have been working tirelessly over the last several years on conservation plans to preclude an endangered listing.
Needless to say, the USFWS team charged with making the listing decision doesn’t have an easy task ahead of them. They have to evaluate the 11 different federal land management plans, state plans and private conservation efforts then cross-evaluate all of those documents to understand how they will work together to protect the greater sage-grouse from continued decline.
More than just a bird
As both an umbrella species and indicator species, the sage-grouse represents far more than itself. The bird is entirely dependent on vast, undisturbed Western sagebrush landscapes for its survival, and therefore protecting the other 350 species that also call the sagebrush home is a natural byproduct of sage-grouse conservation. “If you protect the one you protect them all,” says Erik Molvar, a wildlife biologist with WildEarth Guardians, an environmental advocacy group working on conservation issues throughout the West.
The health of the sage-grouse population also indicates the health of the entire sagebrush ecosystem. Theo Stein, public affairs officer for USFWS says it “would be a very good assumption” to propose that if the sage-grouse weren’t being considered for the ESA, another species in the sagebrush ecosystem would be. For example, mule deer across the same 11 states are not currently meeting their population objectives either, Stein says.
Known for their loud and colorful mating displays, sage-grouse gather at the same lek (breeding) sites year after year. The males use wide-open spaces of short grasses or bare soil to attract females. They strut around the lek each spring, fanning their tail feathers and bobbing their heads, while inflating then deflating the two yellow throat sacs which release short, booming calls that draw sage-grouse hens.
The lek sites are typically surrounded by sagebrush, which females use as nesting and brooding sites throughout the summer and can be anywhere from 2 to 4 miles away from the lek. Therefore, any development around the lek, “is a double whammy for the sage-grouse — they are losing both their breeding sites and their nesting and chick-rearing habitat at the same time,” says Molvar.
The birds are known for habitat loyalty, returning to the same mating and nesting sites throughout their entire 3 to 9 year life span. They are a sensitive species, unable to adapt to changes in their habitat and unlikely to find new sites when disruption occurs.
According to the USFWS, the sage-grouse range on 165 million acres (257,000 square miles) across the U.S. — an estimated 56 percent habitat loss from the historic range.
The current sage-grouse populations are reported at 200,000 to 500,000 throughout the entire U.S. habitat range — down significantly from historic populations between 1.6 and 16 million with an estimated 30 percent decline since 1985 alone, according to the USFWS. Molvar describes early 19th century accounts of hunters filling wagon boxes of sage-grouse in a single hunting expedition and flocks of sage-grouse so large, they darkened the skies.
Counting sage-grouse is one of the major challenges of conservation efforts, as the range in population estimates proves. “We don’t know exactly how many birds there are,” says Stein. “You count only one section of the population — the males on the lek. You don’t know if you got all the leks [and] some leks you can’t reach some years because of snow. You can’t count the females, you can’t count the sub-adults and you can’t count [any] of the birds that don’t show up to the lek. It’s an indexed population estimate.”
This methodology makes it almost impossible to estimate how many sage-grouse inhabit sagebrush in Colorado. Jeff Ver Steeg, assistant director for research, policy and planning at Colorado Parks and Wildlife (CPW), says sage-grouse in Colorado comprise 4 percent of the total population. But is that 4 percent of 200,000? Or 4 percent of 500,000?
“I’m very hesitant to throw out estimates of population size… the science on that is not great,” says Ver Steeg.
Sage-grouse populations also naturally fluctuate up and down over a roughly 10-year cycle, which makes measuring recovery even more difficult. Sage-grouse population trends are currently on the rise, but it’s hard to tell if it’s due to conservation efforts or the natural cycle of the bird.
Ver Steeg also points out that USFWS doesn’t specifically use population numbers in their conservation efforts. “You won’t see any numbers goals or objectives for the number of birds. They talk about threats and how those threats have to be mitigated,” he says.
Threats to sage-grouse vary across the 11 state range — from invasive species and wildfires, to agricultural development and urbanization. But in Colorado and Wyoming, USFWS says energy development, specifically oil and gas and the resulting habitat loss and fragmentation, substantially threatens more than 60 percent of the species population. And while only 4 percent of the sage-grouse population is in Colorado, 37 percent is in Wyoming.
Hence, the threat of continued oil and gas development in the West is a major concern.
The protection of the greater sage-grouse and its habitat has been an issue of contention for close to 15 years. In 2002, several petitions were filed with USFWS requesting to list the sage-grouse as part of the ESA. In 2005, after reviewing the petitions, the USFWS determined there was not enough scientific data to warrant a listing. However, the USFWS reconsidered listing the sage-grouse after a federal district court ruled in favor of the Western Watersheds Project’s 2007 complaint that the USFWS’s decision was arbitrary and not based on the available science.
In March 2010, the USFWS announced its consideration of the bird for listing as either an endangered or threatened species due to the “present or threatened destruction, modification, or curtailment of the habitat or range” and the “inadequacy of existing regulatory mechanisms.” This decision included a “warranted but precluded” determination, which allowed the USFWS to consider higher priority species before the sage-grouse. As a result of more litigation, USFWS has until Sept. 30 of this year to make a final decision.
In efforts to preclude an endangered species listing, federal and state land managers, as well as private landowners across the West have been working on collaborative management plans to allay USFWS concerns. On May 28, the Department of Interior (DOI) released 11 different Bureau of Land Management (BLM) Land Use Plan Amendments accompanied by Environmental Impact Studies (LUPA/ EIS), which deal with sage-grouse conservation on BLM and U.S. Forest Service land across the range.
The BLM proposed plans are a huge piece of the conservation puzzle since 64 percent of sage-grouse habitat is on federal lands. BLM regional offices in each state have developed separate plans through a public process, which considers comments from a variety of partners including local governments, special interest groups, hunters, cattlemen, environmental activists and other interested parties. The LUPA/EIS outlines regulations for land use that are meant to balance sage-grouse conservation with the agency’s multiple-use mission allowing for grazing, recreation and energy development.
In Colorado, the BLM manages half (1.7 million acres) of greater sage-grouse habitat in the state, with approximately 500,000 acres of that area currently held by oil and gas leases. The habitat is scattered throughout Northwestern Colorado, primarily in Moffat, Routt, Jackson, Grand, Garfield, Eagle and Rio Blanco counties.
The proposed LUPA/ EIS in Colorado doesn’t explicitly prohibit oil and gas development in sensitive habitat but rather seeks to “limit or eliminate new surface disturbance” in priority habitat and minimize disturbance in general habitat. Several stipulations for oil and gas development are outlined in the plan, including one- to four-mile buffers around lek sites with a 3 percent disturbance cap on surface occupancy and an average of one oil and gas facility every 640 square acres. That means the BLM plan allows for roughly 19 acres of oil and gas development and infrastructure, including roads and pipelines that further fragmentation, every square mile of habitat, which is measured on an average basis across leases allowing for clustered oil and gas development.
Mitch Snow, spokesperson for the BLM Washington office, says the BLM plans for sage-grouse conservation across the range are very “innovative” for the agency, expanding the level of monitoring in sage-grouse habitat to meet the USFWS requirement for increased regulations. “It will be changing the way we do business in a lot of ways,” he says.
For instance, the BLM has never used disturbance caps to manage sensitive habitat and the agency is still working to determine the current level of disturbance in Colorado.
David Boyd, from the Northwest Colorado BLM office, says his office has gathered some rough estimates, although it has been challenging. For example, Moffat County currently has an estimated 1.06 to 1.6 percent disturbance area over 556,308 acres of BLM land, both in and outside of sage-grouse habitat, leased to oil and gas companies — only 76,152 acres of which are currently held by production. Plus 200,000 additional acres possessing the potential for oil and gas development are currently being deferred by the BLM until the management plans are finalized and the new stipulations can be applied.
Considering these estimates, the proposed BLM plan leaves room for a near doubling of oil and gas development within sage-grouse habitat in Moffat County while remaining under the 3 percent disturbance cap. Although the plan doesn’t specifically approve any projects, this possibility is significant given roughly 70 percent of sage-grouse habitat in Colorado is in Moffat County.
If the current level of impact is affecting the birds enough to warrant a listing consideration as an endangered species, how does potentially doubling that impact stop the population from declining?
“We’re not saying ‘Hey, yes, get to the top of this cap.’ We’re saying you can’t exceed this cap. As much as we can minimize impact, we’re going to do that,” Boyd defends.
He estimates 70,000 acres of habitat in Moffat County will be completely closed to oil and gas development if the proposed plans are approved.
“And part of having a disturbance cap in there, is it provides incentive for lands to be reclaimed,” Boyd says. The BLM is very specific about what classifies as reclamation outlined in the EIS and “our ecologists are very serious about meeting reclamation objectives and do not call something reclaimed unless it meets the requirements,” he continues.
But it’s hard to know if reclamation, and the return of sage-grouse to previous leks, is even possible. “Once you run a bulldozer over sagebrush to make a road or a well pad it takes up to 125 years for the sagebrush to grow back to the size where it is useful habitat,” says Molvar of WildEarth Guardians. “The idea that sage-grouse will come back after oil and gas development is a theoretical concept at this point given the near permanence of the industry.”
Furthermore, although the stipulations in the LUPA/EIS will restrict some areas of Colorado to oil and gas development, the plans allow for exceptions, modifications or waivers to the regulations in specific cases.
“The federal agencies’ own experts told the agencies that they needed to close the most important sage-grouse habitat to leasing to oil and gas entirely. And yet the new plans leave them open under strong restrictions that have loopholes available to waive them,” criticizes Molvar.
Boyd says the language in the proposed management plan considers the varying landscapes included in sage-grouse habitat. It accounts for the possibility that further research may determine bird populations have become inactive in the areas companies may want to develop, or the landscape includes low gullies where extraction can take place without disturbing the sagebrush plateaus above. In which case, the BLM, USFWS and CPW would all have to agree that permitting a particular project wouldn’t impact the bird. He maintains the language in the plans is strong enough to protect sage-grouse, while allowing oil and gas development in certain cases.
The LUPA/EIS also doesn’t account for a 2012 USFWS recommendation to develop a process to deny drilling permits for sage-grouse purposes if a lease is undeveloped and provide compensation to the lessee.
Jeremy Nichols, climate and energy program director for WildEarth Guardians, challenges the BLM to cancel leases, or at least let leases expire, on lands in sage-grouse habitat without production facilities. “There was no thinking about how might we be able to retire leases and restore land that is currently in the hands of oil and gas industry and return it to the public and give the BLM unlimited flexibility to conserve that area,” he says. (Leases with actively producing wells are protected from scrutiny based on valid and existing rights.)
When asked why certain conservation recommendations provided by a variety of stakeholders weren’t represented in the proposed final LUPA/ EIS, Boyd says, “Again we’re trying to find a balance, we’re trying to conserve greater sage-grouse habitat but still allow the uses that we manage for that are economically important for the communities out here too.”
Although the BLM may be trying to find common ground between competing interests, balance isn’t part of the bottom line for oil and gas companies, according to Nichols. “They mean well, but fundamentally they don’t make money by saving sage-grouse,” he says.
He criticizes the BLM for straying from its own science reported in the National Technical Team’s 2011 report, which was the LUPA/EIS was eventually based on. “Rather than maintain a hard, firm line on conserving the species, it’s a very blurry, squishy line that really doesn’t provide the assurances we’re looking for that this bird will be able to thrive and recover,” Nichols says.
“If I had to boil it down, we’re just frustrated that [DOI] just refuses to say no,” he continues. “There are many issues where [DOI] is going to have to start saying no to if we’re going to protect clean air, wildlife, water quality. But they’re not there yet. They seem to want to be able to say yes and find a way to justify it … for the Interior Department, which is part of the Obama administration, which is supposedly serious about confronting climate change, for them to bend over backwards to keep the oil and gas industry in business is confusing to say the least.”
Randi Spivak, public lands program director for the Center for Biological Diversity (CBD) agrees. “For decades, the BLM has allowed sage-grouse habitat to be torn up and they basically say yes to every industrial request for degrading public lands,” she says. “We are still seeing levels of development that are likely going to be negative for the sage-grouse and its habitat.”
Over and over again, BLM officials spoke of the “case-by-case” nature of putting these plans into place as new oil and gas development proposals make it into their offices. They weren’t able to answer specific questions regarding possible development scenarios, stating that each potential project in sagegrouse habitat will be evaluated individually.
“These [plans] aren’t just the end all and be all. These set up the overall guidance and the overall policy. Further development [in sage-grouse habitat] is going to have to fit under this guidance,” says Snow from BLM.
Under the LUPA/EIS guidelines, each proposed project will undergo varying levels of environmental review that will consider site-specific characteristics before any new oil and gas development is approved. This approach makes it difficult to understand how the plans will tangibly protect sage-grouse populations.
“You can have a promise in a plan or a goal. But unless the plan actually says how and when it will get implemented on the ground then you have a plan on paper,” says Spivak.
WildEarth Guardians, the CBD and several other conservation groups filed protests to the BLM plans on June 29, asking the federal agency to delineate a clear time-line for practical, onthe-ground conservation measures to begin. The protests also specifically chronicle each aspect of the LUPA/EIS that diverts from scientific data and provide remedies that they believe will make the plan stronger and more likely to withstand the USFWS scrutiny. “We’re not saying stop, we’re saying keep going, there is still important room for improvement,” Spivak says.
Both Spivak and Molvar say their goal isn’t an Endangered Species Act listing per say, but simply protections for sage-grouse that will ensure healthy and thriving populations. The plans, as currently written, don’t provide that, according to Molvar. “The sage-grouse don’t have any hard and fast protections they can count on,” he says.
The BLM plans are currently undergoing a 60-day Governor’s Consistency Review process in which Gov. Hickenlooper can either sign off on the plans or appeal them. In a press release from May 29, the governor said he’s “cautiously optimistic” about the BLM proposed final LUPA/EIS. “Of course, these are significant documents and we need time to carefully read and review them to see how various concerns from cooperating agencies have been addressed,” he said.
Gov. Hickenlooper has until the end of July to release a verdict, but while the fight over the BLM plans continue, the USFWS must also consider the governor’s Colorado Plan when making its decision whether or not to list the bird.
The other half of the equation
“If all the habitat was on federal land this wouldn’t be as difficult as it is,” says John Swartout, senior policy advisor for Gov. Hickenlooper. While BLM manages half of sage-grouse habitat in Northwestern Colorado, the other half is either privately owned or managed by state and local governments, resulting in massive collaborative efforts between the state, the oil and gas industry, ranchers and other private landowners all trying to prevent an ESA listing for the greater sage-grouse.
Swartout says this model is based on former Gov. Roy Romer’s efforts to keep species off the endangered species list through collaborative engagement with local governments and private landowners. “He said, ‘You know they don’t come after the list once they’re on the list … it stops the bleeding but it doesn’t turn it around,’” Swartout says. While serving as Colorado governor between 1987 and 1999, Romer began investing in scientific research conducted by CPW and the state has been continuing that investment ever since.
To date, Colorado has garnered approximately $70 million in both state and private funding for sage-grouse research and conservation, Swartout says. “Show me another state that has made that kind of investment in sage-grouse and sagebrush habitat,” he challenges.
The funding has been used to conduct site-specific data collection of sage-grouse populations in order to better inform the USFWS decision.
“USFWS doesn’t have science. They really don’t, they just go out and do a study of the science that is out there and a lot of that is driven by specific interest,” Swartout argues. “You have industry who does science, often times looking for an outcome, and you have advocates on the listing side that do science toward an outcome. And then you have science.”
Gov. Hickenlooper is using this CPW scientific research, known as the Colorado Package, in his attempt to allay the USFWS’s concerns. He issued Executive Order D 2015-004 Conserving Greater Sage-Grouse Habitat on May 15, outlining the state’s plan to manage the sagebrush ecosystem in Colorado, while continuing to allow oil and gas development.
“We’re going to have the toughest environmental regulations but we’re not going to be opposed to development. We’re going to find the right balance,” Swartout says.
Gov. Hickenlooper’s plan relies primarily on voluntary buy-in from stakeholders and while some landowners are active in conservation efforts, others are not.
“It’s unclear that the sage-grouse is going to expect science-based protections in terms of industrial development density on private lands in Colorado because even if the plan was strong it is unclear that the governor would be willing to apply that to private lands,” says Molvar with WildEarth Guardians.
Add to that the complexity of oil and mineral rights, and Molvar says there is no guarantee for sage-grouse survival on private lands in Colorado.
The order does direct the Colorado Oil and Gas Conservation Commission (COGCC) to use its full regulatory authority to help mitigate oil and gas development impacts through its 1,200-series rules, while “respecting the ownership rights of federal, local government and private land owners.”
Stein, from USFWS, says that Gov. Hickenlooper’s executive order is a step in the right direction, but still leaves room for questions. The USFWS would like further evaluation of the COGCC regulations that could result in strengthening sage-grouse habitat conservation. USFWS also specifically, “requested to see a commitment with a date certain to implement any changes [the COGCC] review uncovered or identified,” Stein says.
Gov. Hickenlooper’s order also directs CPW to create a database of their consultations with landowners in order to measure effectiveness of suggested management practices. Currently, CPW consults with oil and gas developers about the impacts of their projects but aren’t required to implement their recommendations and are also free to waive consultation. CPW recommendations only become enforceable through the permitting process whereby CPW negotiates with the companies, agreeing on which regulations will be captured in the permit.
Ver Steeg from CPW predicts the new database will entice companies to receive consultation, rather than waive it. “I think companies now will see [the database] and know that it is to their advantage to confer with us as much as they possibly can because we are going to be required to document occasions where we don’t. I don’t think that most of them would want to waive that opportunity,” he says.
And the executive order directs the Department of Natural Resources to work with partners to launch the Colorado Habitat Exchange, which is part of a larger exchange program developed by the Environmental Defense Fund (EDF) uniting the oil and gas industry, private landowners and governors of several western states. It is designed to help mitigate sage-grouse population decline, but can theoretically be used to help conserve a variety of other species in the future.
As part of the Exchange, scientists will meet with landowners and oil and gas developers during a site visit and determine how their activities are impacting the habitat. Then, the scientists will calculate how much in perceived debt they are, based on specific quantification methods, which will then determine how much credit they owe.
“The price of the credit will be determined through negotiations between the buyer and the seller … the market will determine the price,” says Eric Holst, senior director of EDF’s working lands program. Since the Exchange hasn’t been implemented on the ground, Holst was unable to estimate what it might cost for an oil and gas company to develop in sage-grouse habitat, but he did emphasize that the credit sites will have to create larger conservation values than the project impacts.
“Each debit, under the compensatory mitigation system, would have to be offset with higher credit; there’s going to be a net benefit on every debit that occurs,” he says.
“This is a completely unproven system that is likely to permit excessive levels of impact in prime sage-grouse habitat in exchange for speculative levels of improvement in the future,” says Molvar.
According to him, mitigation banks have historically resulted in net-losses to species. For example, $60 million was committed to conservation projects in the Jonah Field and Pinedale Anticline region of western Wyoming to mitigate habitat destruction. “All that money was spent but not a single project was able to register an increase in sage-grouse populations as a result. Meanwhile those gas fields have destroyed some of the richest sage-grouse habitats in the country. That’s what you get with conservation banking,” he says.
While admitting oil and gas companies presumably have “deep pockets” and will be able to easily pay off any amount of impact debt through the Exchange, “I think they also do behave in cost-saving ways,” Holst says.
However, like everything else for private landowners in the executive order, participation in the Colorado Habitat Exchange is voluntary. “There’s no obligation on private or state land to offset your impact. But there’s incentive encouragement to offset your impacts,” says Holst.
“The Governor wants to pin everything on a promise and a promise that they’ll do the right thing, yet with no clear standards, no certainty that the right thing will happen at the end of the day,” says Nichols from WildEarth Guardians. He continues to say that he doesn’t doubt Gov. Hickenlooper’s love of wildlife, but “he loves the oil and gas industry more.”
USFWS’ Stein also raises concerns about the voluntary language in the order. “While we would always applaud voluntary actions, sometimes judges that review our decisions would like to see more certainty that those actions would actually be implemented if we’re going to be basing decisions on them,” he says.
Swartout says the Governor’s hands are tied — local governments have land use control and private landowners have property rights that prevent the state from making any of their recommendations mandatory. While this may be true, the Hickenlooper administration has not shied away from suing local governments claiming the right to regulate land use when it comes to oil and gas drilling.
“You can pass all the Draconian rules and regulations you want but if landowners shut down and stop cooperating, you’re not going to positively affect the direction of this bird,” Swartout says. He assures that a listing will also alienate landowners.
“It’s always an argument that if you list [a species], nobody is going to want to work with you,” says Gina Glenne, a biologist with the USFWS working on Gunnison sage-grouse conservation. The Gunnison grouse, an entirely different species with a population of less than 5,000 birds, 85 percent of which are in Gunnison County, was listed as a threatened species under the ESA in 2014.
“When we listed the bird we heard rumblings of people wanting to pull out of [their conservation agreements],” Glenne says. But the agreements provide assurances that have remained in light of the listing and Glenne hasn’t had any landowners back track. “They can continue to do what they were doing [in terms of conservation] on their property before the listing,” she says.
However, CPW has pulled funding for Gunnison sage-grouse conservation since the listing because “we fundamentally disagreed” with the USFWS decision, says Ver Steeg. The agency spent $42 million in conservation efforts for the Gunnison grouse before the listing. CPW’s main criticism is the lack of a solid recovery plan outlined by USFWS. “We don’t want to spend [funds] in ways that don’t move the needle in terms of recovery. We want to make sure we’re not going off in the wrong direction,” Ver Steeg says. “We can’t afford to just waste our money or our staff time so we would want to know whatever we do moving forward would move us closer to recovery.”
While it’s difficult to imagine how pulling $42 million from Gunnison sage-grouse research and development helps the bird recover, it’s more obvious how pulling the state funds, along with the current lawsuit filed by the Colorado state attorney general’s office against the USFWS listing, benefits the oil and gas industry since the Gunnison sage-grouse’s known and potential habitat extends into oil and gas fields in Northwestern Colorado.
Although CPW is heavily involved in developing the management plan to avoid an ESA listing for the greater sage-grouse, Ver Steeg points out that USFWS will more heavily scrutinize state plans where there are larger bird populations, such as Wyoming. He is also relying on the BLM plans to have a large impact on the decision. “If the BLM plans get it right, they will go a long way of convincing the Service that there are adequate regulatory mechanisms in place to eliminate the need to list,” he says. “What we are talking about here [in terms of the Colorado Package] are things that are on the margin, I would expect them in the larger scale in the range-wide listing to not have a lot of weight.”
Swartout concludes the Colorado Plan, incorporating the CPW’s Colorado Package, Gov. Hickenlooper’s executive order and the BLM LUPA/ EIS creates an “uneasy alliance” between federal land use agencies, the state, counties and private landowners. “We’re all in this together and it isn’t easy … But we’re moving in the right direction,” he says.
But Nichols doesn’t buy the collaboration argument. “Conservation is defined by actual conservation outcomes not by how much collaboration happened or how comprehensive the planning was. We’re focused on metrics that matter and metrics that the robust science has put together,” he says.
And the sage-grouse issue begs a much larger question in Nichols’ estimation: “Is it time to start saying no? Is it time to just accept the fact that oil and gas is just not going to happen in some places and accept that as the reality?” he says. “When you layer the climate realities over the sage-grouse realities, then it becomes pretty clear that’s exactly where we need to go. But we’re a long ways from getting responsible officials to embrace that truth.”
In addition to the protests to the BLM plans filed by various groups, as well as the unanswered questions in the state plans, several legislative measures in Washington threaten to further delay definitive sage-grouse conservation.
First of all, the Consolidated and Further Continuing Appropriations Act, 2015 determining federal funding includes a rider preventing the USFWS from spending any money on a listing decision. “If our status review brought us to a point where we felt the bird was still warranted [for a listing] then we could not move forward and spend any money to decide whether it was threatened or endangered until the rider is removed from the funding bill,” Stein says.
However, the USFWS is operating on a “new business model” according to Stein, one that spends its resources on pre-listing conservation efforts to improve the condition of sage-grouse populations throughout the West before the Sept. 30 deadline.
“The bureaucratic landscape of our decision space is constrained by this rider, but in the practical conservation landscape we can continue to do all of the things that we have been doing and support all of the partners who are working so hard to try and fix this problem before it ends up in a listing situation,” he concludes.
To further complicate matters, Colorado Senator Cory Gardner introduced the Sage-Grouse Conservation and Protection Act (S.1036) on April 22, 2015. The bill proposes to transfer sage-grouse management and conservation plans from federal agencies on federal lands to the Western states’ plans. The federal agencies would still collaborate with the states in terms of scientific data collection, but under the proposed law, the federal agencies would be subject to the state plans for the implementation of conservation measures on federal lands.
Players on all sides of the argument don’t support the Act, saying it will only delay the planning process and sage-grouse conservation even longer. “The Governor’s take on it is that we’re working together right now within this process to reach an outcome. We’re not supportive of the legislation because we think we should finish this effort,” says Swartout. The Act could delay a USFWS decision up to six years and doing so “doesn’t create any certainty for people to make long-term financial investments,” Swartout says.
Irrespective of Washington’s antics, Stein says the USFWS is proceeding with the status review of the various federal and state plans, including current data about the overall health of the sage-grouse species, with every intention of rendering a decision by the deadline.
Who will win the tug of war?
With conservation groups fighting for stricter land management plans, oil and gas industry and other interests pushing for more oil and gas development, federal agencies and states promoting a more collaborative approach based on compromise and Washington restricting USFWS funding, it’s impossible to say whether or not the greater sage-grouse and its crucial sagebrush habitat will survive.
Regardless of what the USFWS ultimately decides, everyone, from Swartout, to CPW, to conservation scientists and even USFWS, expect the sage-grouse to end up in front of a federal judge.
“We fully anticipate that this [decision] will be litigated like the last decision and the one before that,” Stein says. “It’s all just part of the process … an essential piece of the checks and balance system to make sure that these decisions are well thought out and defensible within the bounds of the statute.”
At that point, it will be up to the courts to decide the status of the greater sage-grouse and the entire Western sagebrush ecosystem, as it continues to battle threats of anthropogenic degradation.
Sandra Goodwin for one doesn’t have much hope for the birds. Although she has seen sage-grouse return to her lek in Wyoming, it’s in fewer numbers than she saw previous to the nearby oil and gas operations. Plus, after the gravel mine finished hauling its allotted limits in front of Goodwin’s house several years ago, the company applied for a small mine permit to further gravel excavation. Wyoming Game and Fish Department approved the project after meeting with oil and gas developers three different times to figure out the level of disturbance.
“If Game and Fish hadn’t juggled the land designation, that mine would have been over the allowed percentage of disturbance. It’s core habitat and the mine is within 4 miles of the lek,” Goodwin says. “The core area stuff is just lip service. … That’s what they’re going to do is they are going to meet with Game and Fish and juggle stuff around so industry can get in and do what they want to do.”
This is a difficult observation considering the fate of the greater sage-grouse, and the West as we know it, may be at stake.