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Commissioners open door to joint lawsuit over federal sage grouse listing

“Running uphill with a rucksack on skis”

Gunnison county attorney David Baumgarten stopped short of asking the Board of County Commissioners for permission to initiate litigation against the U.S. Fish and Wildlife Service (FWS) after its decision to list the Gunnison sage grouse as a threatened species under the Endangered Species Act. But he did get several authorizations that could send the county down that road.


During a discussion of the two rules passed down by the FWS last week related to the listing and the designation of critical Gunnison sage grouse habitat, Baumgarten told the commissioners at a meeting on Tuesday, November 18 the rules “are very tightly written with litigation in mind.” The rules should be published in the Federal Register within the next week, he said, making the listing official.
Gunnison County officials and local landowners have been working for years to preclude the need for special ESA protections for the birds, which live in eight distinct populations around southwest Colorado and one county in eastern Utah. With the help of local conservation efforts, the Gunnison Basin population is stable and by far the largest of the populations, with around 4,000 birds, biologists estimate.
Despite evidence of success locally, the FWS announced last week that it would list the birds as threatened, giving rise to fears that local cooperation would fade under federal encroachment.
The reasons the FWS gave for listing the birds were “numerous,” Baumgarten said, and include population size and structure, drought and disease and, to a lesser degree, grazing practices, fences, invasive plants, fire, mineral development, piñon juniper encroachment, development, predation and recreation.
“They carefully considered existing regulatory controls, but concluded ‘individually or collectively these regulatory controls do not address the substantial threats faced by the species,’” Baumgarten told the commissioners. “Despite what we were hearing by way of congratulatory language for the commissioners and the other local governments that have created a full spectrum of regulations, their conclusion is [the regulations] don’t address the substantial threats.”
He said the rule included hints of a recovery plan, with mention of bringing the satellite populations up in numbers to be roughly the size of the Gunnison Basin population, which the FWS still deemed threatened.
Parts of the rule would also restrict surface activities for four miles around a lek; protect areas of between .6 and 4.0 acres around a lek between March 1 and July 15; provide winter habitat protection and summer brood-rearing habitat protection; and provide an increase in occupied habitat.
Altogether, the listing amounts to a major change in the Gunnison Basin with potentially far-reaching consequences. The state attorney general, the county attorney and Gunnison County Stockgrowers are willing to join legal forces to stop it. But of the 2,000-some species that have ever been listed under the ESA, only 55 have been de-listed.
After the listing was announced, two state deputy attorneys general visited independently to talk with stakeholders and local officials about the next steps.
“Both … confirmed to me that [the attorney general] and the governor were committed to litigate, even with the knowledge that litigation of this kind is running uphill,” Baumgarten said. “I’ve heard three metaphors: running uphill, running uphill with a rucksack and running uphill with a rucksack on skis. It’s difficult litigation.”
The first several steps in the process must happen almost concurrently to meet the time restrictions that are in place now that the listing has been announced. First the county is trying to shore up its legal agreements to partner with the state and the stockgrowers in the litigation. Then, within 60 days of the listing, the county and state must draft a letter to the FWS informing them of their intention to sue.
Baumgarten said a joint litigation agreement was an unusual step for the state to take with a county, given that they like their autonomy in legal matters. “In my opinion it’s a strong statement of confidence in our state-county relationship,” he said.
With everyone in agreement that the next steps should be taken, the commissioners voted unanimously to authorize the county attorney’s office to sign joint litigation agreements with the state and the stockgrowers, draft a letter to the FWS informing them of the impending litigation and act on some areas of vulnerability in the Economic and NEPA analysis the FWS used in reaching its listing decision—before it’s too late.

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