Tuesday, September 17, 2019

County joins the state in Gunnison sage-grouse lawsuit against U.S. FWS

Claims the federal agency violated the Endangered Species Act

By Adam Broderick

Gunnison County has spent the past several months thoughtfully preparing to join in an existing lawsuit with the state of Colorado against the U.S. Fish and Wildlife Service (FWS) regarding the Gunnison sage grouse.
The county announced on Monday, June 29, that the motion to intervene had finally been filed, along with a memorandum and complaint of the Board of County Commissioners and the Gunnison County Stockgrowers’ Association.
This marks the third of three existing lawsuits against the FWS that the county has joined regarding the sage-grouse. The three cases involve: WildEarth Guardians (WEG) vs. U.S. Fish and Wildlife (FWS); Center for Biological Diversity (CBD) vs. FWS; and this case, the State of Colorado vs. FWS.
County officials maintain that the Fish and Wildlife Service (FWS) inappropriately listed the Gunnison sage-grouse as a “threatened” species last year and improperly designated critical habitat for the bird, actions the state of Colorado considers violations of the Endangered Species Act (ESA).
Both entities believe those decisions were made based on inaccurate information from inadequate studies conducted by the agency in Gunnison Basin.
The rules set forth following the listing and critical habitat designation restricted local private and public land use to a level that would have significant fiscal impacts in the county, and the county has already spent considerable time and money preserving the bird’s habitats and restoring its population in the area.
WEG and CBD are both suing the FWS in separate cases because the FWS listed the bird as “threatened;” both organizations believe it should actually be listed as “endangered.”
The third lawsuit, by the state of Colorado, argues that a listing is “not warranted” and the feds didn’t follow regulated protocol in their listing process.
Gunnison County’s intent is to overturn the current “threatened” listing and to ultimately obtain a determination that a listing is “not warranted,” and that lands need not be identified by the federal government as critical habitat.
As stated in the Motion to Intervene, “Gunnison County and the Gunnison Stockgrowers have substantial economic and other interests that are adversely affected by the decisions of FWS to list the Gunnison sage-grouse as ‘threatened’ rather than ‘not warranted’ and to designate critical habitat under the ESA.”
The Motion also argues that existing parties in the two previous lawsuits (who have little to no experience in Gunnison) do not adequately represent the interests of Gunnison County and the Gunnison Stockgrowers. In the third case, the State of Colorado vs. FWS, the state does have tremendous experience in Gunnison but the county has additional arguments.
According to the Memorandum filed with the Motion to Intervene, “Since 1995, Gunnison County has provided personnel, facilities, financial support in excess of one million dollars, and scientifically based efforts to protect and foster the Gunnison sage-grouse and its habitat. The FWS’s decision to list the Gunnison sage-grouse as a ‘threatened’ species under the ESA rather than find the species ‘not warranted’ for listing, along with FWS’s designation of critical habitat, will negatively impact the citizens and the social, economic and environmental fabric and future of the Gunnison County community and Gunnison County’s sage-grouse conservation program. Consequences may include restrictions to uses of county and private as well as federally managed lands, negative impacts to economic livelihoods of those who depend on use of those lands, curtailment of county efforts, and a ‘chilling’ effect on county programs.”
Also stated in the Memorandum, “The Gunnison County Stockgrowers’ Association was established in 1894 and is comprised of over 100 members of the local ranching community in Gunnison and Saguache Counties, Colorado. This case is germane to the organizational interests of the Association. The objectives and purposes of the Gunnison Stockgrowers’ Association include the protection of range privileges and the promotion and protection of the interests of the stock raising industry.”
County attorney David Baumgarten says the Motion to Intervene, along with the Memorandum and the affidavits of support (from commissioner Paula Swenson and Stockgrowers’ president Burt Guerrieri) included with Monday’s filing “are the product of a close, supportive and thoughtful relationship between our two entities and with the State of Colorado. Jim’s [Cochran, Gunnison County Conservation Coordinator] work with us on these documents has brought him closer to being a lawyer than he would ever want—but has been invaluable.”
Baumgarten explained that Cochran, the county biologist, vetted various drafts of the documents filed Monday and was very careful they had biologic integrity as well as legal integrity.
In an email addressed to county officials on Monday, June 29, Baumgarten said, “Earlier this afternoon we filed—in the State of Colorado’s lawsuit regarding the Gunnison sage-grouse—the Motion to Intervene, Memorandum and Complaint of the Board of County Commissioners and the Gunnison County Stockgrowers’ Association.”
All three cases the county has entered into were filed in the federal district court and the federal judge has consolidated them. All three will be reviewed as one case, and the federal government’s next major step is to put together a record of all associated documents. Baumgarten says it’s hard to say when a decision will be reached because he does not know exactly how the court will work. But once the record of documents is created, all involved parties get to review it and his best guess is that if the record is created by the beginning of next year, the decision of if or how to list the bird will likely not come until early 2017.
“Cases always take longer than anticipated,” Baumgarten said.

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