By Kent Holsinger
Special to the Herald Times
RBC | There are many ruffled feathers about the U.S. Department of the Interior’s efforts to revise land use plan amendments for greater sage-grouse. But critics are telling only part of the story.
Greater sage-grouse inhabit some 165 million acres across 11 Western states. Populations have risen dramatically in recent years due to unprecedented state, local and private conservation efforts and favorable weather patterns (the birds respond well to the wet springs we’ve experienced over the past few years). Never before has such a wide-ranging and numerous species been seriously considered for listing under the Endangered Species Act (ESA).
Ever since the historic U.S. Supreme Court case Geer v. Connecticut in 1896, wildlife management has been the job of the states. By contrast, land use plans govern all activities on federal lands. With nearly 70 percent of the land in the West under federal ownership and control, changes to land use plans have wide-ranging impacts on recreation, access, agriculture, water, energy and the environment. The stated purpose of these amendments was to conserve greater sage-grouse to avoid a listing under the ESA. Ironically, the cure is likely worse than the disease. The Obama Administration’s exhaustive regulatory overreach has radically altered the ability to use and enjoy public lands across the West.
After a three-year process with countless meetings and thousands of hours of efforts and input from the states, local governments and others, the Obama Administration altered the land use plans with eleventh-hour edicts from Washington, D.C. Stakeholders erupted in protests and lawsuits (some 283 protests and nine lawsuits) making this arguably one of the most controversial federal land management actions in U.S. history.
Not surprisingly, a federal court in Nevada has already held these Washington, D.C. mandates were unlawful and ordered the Trump Administration back to the drawing board. Unless settled out of court, similar results are likely to follow in the other lawsuits brought by states, local governments, industry and agriculture.
In addition to the missteps on process, the plan amendments are substantively flawed. Key agency reports behind the amendments, as well as the listing decision for sage grouse, were plagued with conflicts of interest, bias and selective citation. They ignored the most relevant factors to grouse populations (weather, predation and hunter harvest) in favor of draconian restrictions that will cost jobs and harm local communities without corresponding benefits to the species. Detailed Information Quality Act challenges based on these issues were never adequately answered by the previous administration.
Were it not for Interior Secretary Ryan Zinke’s recent actions, these flawed measures could govern public land use in the West for decades. Some environmental groups, predictably, cry wolf and threaten litigation. But litigation does absolutely nothing to further on-the-ground conservation work.
The Center for Biological Diversity and WildEarth Guardians (and its predecessors) are among the most radical litigants. Together, they have been party to more than 1,500 lawsuits against the federal government. Frequently, they file on meaningless deadlines from petitions they themselves submitted. Often, they collect attorney fees at the taxpayers’ expense for their trouble. These groups are creating the very problems upon which they litigate. Irrespective of the land use plan amendments, the environmental litigation industry will file suit on sage-grouse again—and again.
These problems can be fixed. Listing determinations under the ESA should be prioritized with adequate time to solicit information from states and local governments to truly utilize the best available science. The perverse incentives for litigation must be removed. At the same time, efforts to incentivize private conservation should be maximized. Finally, decisions should be based primarily at the state and local government levels—closest to the species and the lands they inhabit. Five bills introduced in the U.S. House of Representatives would help bring the ESA into the modern era (it has not been substantively amended since the Sony Walkman was all the rage) and address these and other issues.
Thanks to Secretary Zinke for seeking to right the previous wrongs on sage grouse and to work collaboratively with the states, local governments and stakeholders. Thanks also to Governor Hickenlooper for standing up for state and local interests. Comments on how best to address these issues (such as through plan amendments) are due to BLM by Nov. 27. Working together, the fundamental flaws with these land use plans can be addressed to preserve multiple uses of our federal lands, our communities and the sage grouse.
Kent Holsinger is an attorney based in Denver. He represents Garfield, Jackson, Moffat and Rio Blanco Counties in sage grouse litigation; but the opinions expressed herein are solely his own.
