County debating how best to sue feds

Joining state lawsuit on sage grouse or filing separately?

Within the next few weeks, Gunnison County will make a decision: In addition to its determination to intervene in three existing lawsuits regarding Gunnison sage grouse, how best to bring its own additional claims against the U.S. Fish and Wildlife Service – either in those existing lawsuits or with a new lawsuit. The FWS listed the Gunnison sage grouse as a threatened species last year under the Endangered Species Act. The county contends studies show the bird has actually recovered well in recent years thanks in large part to an expensive and focused public and private effort to preserve the species in the basin.

A “threatened” listing restricts local land use to a level that has significant impacts on the use of both private and public lands in the county. The county has already spent a lot of time and money preserving the bird’s habitats and restoring its population in the area, years of work that would seem wasted if the classification were to be upheld. So the 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”.
According to county attorney David Baumgarten, Gunnison County will participate—together with the Gunnison County Stockgrowers’ Association—in the various lawsuits with the intent to overturn the current listing as “threatened,” 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”. The “how” is complicated by the formal processes in federal court and further complicated by the current existence of three separate lawsuits with potentially more on the horizon and by certain time requirements that have to be fulfilled.
The Gunnison Board of County Commissioners has instructed Baumgarten to request Court permission to “intervene”, or join into, these lawsuits. The county’s documents in the first two lawsuits, one by WildEarth Guardians (WEG) and others, and one by Center for Biological Diversity (CBD) and others, will be filed this week or next. While some theories will be consistent among all of the challengers (such as the FWS didn’t give proper notice or opportunity for the public to be heard), the results sought will be diametrically opposed. WEG and CBD are seeking an “endangered” rather than a “threatened” 
status, while Gunnison County and the Stockgrowers are seeking a “listing is not warranted” as opposed to “threatened”.
The State of Colorado also has filed a lawsuit against the federal agency seeking to overturn the “threatened” determination and a determination that over 1.3 million acres must be protected as “critical habitat”. Gunnison County will request Court permission to intervene in this case as well in support of the state. Baumgarten said the formal processes in federal court are being examined to determine how Gunnison County and the Stockgrowers can most effectively assert additional claims of their own – theories and supporting data not yet brought by any party in the three lawsuits. “Those claims cannot be brought until a certain amount of time has elapsed after each the county and the Stockgrowers’ notices of intent were filed,” he said. “That time will elapse early in March, at which time the county and the Stockgrowers will bring those claims either in the existing cases or a new court filing.” Stay tuned.