County joining several sage grouse lawsuits against feds

Claims the agency violated federal law 

By Adam Broderick

Gunnison County has formally joined one lawsuit and will formally join two other lawsuits against the U.S. Fish and Wildlife Service (FWS) over its listing of the Gunnison sage grouse as “threatened.”

County officials believe the federal agency 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 also considers violations of the Endangered Species Act (ESA).

The new rules restrict local land use (private and public) to a level that has significant 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.

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.” The county also claims the FWS made certain mistakes and should now answer for them, such as inadequately responding, or not responding at all, to comments from the state and others about the proposed rules before finalizing them. So the county, together with the Gunnison Stockgrowers’ Association (GSA), has carefully examined the formal processes of federal court and determined how to most effectively assert claims against the FWS.

 

The three existing cases include: WildEarth Guardians (WEG) vs. U.S. Fish and Wildlife (FWS); Center for Biological Diversity (CBD) vs. FWS; and State of Colorado vs. FWS. Gunnison County is joining all three lawsuits.

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.”

Gunnison County attorney David Baumgarten says the bird should not be listed as either threatened or endangered. “We intend to say the Forest Service did not make a mistake when they didn’t list [the bird] as endangered. As opposed to threatened, it shouldn’t be listed at all.”

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. The county intends to align itself with that case, plus add complaints. Baumgarten says one particular complaint the county wants to add claims the FWS did not provide timely, adequate or accurate notice to the public about key data upon which the FWS relied. This kept Gunnison County, and the public, from addressing that data.

Many public comments referenced were in accordance with findings from studies that collected data showing less than a one percent chance the Gunnison sage grouse could become extinct in the next decade. Baumgarten says the FWS had a different study in their hands before publishing the draft rule, they didn’t let people comment on it, and they misused it.

“What we’re going to say to the judge is, ‘They had the study, they didn’t share it so public could comment on it, then they cited or misused it over 140 times in the final rule. We think that is a violation of federal law,’” said Baumgarten.

The state of Colorado has similar concerns. According to the state’s notice of intent to sue, “The {Forest} Service has not provided adequate written justification to Colorado for its failure to adopt regulations consistent with the concerns expressed in these comments.”

Also listed in the notice, “the Service failed to respond at all to a number of CPW’s [Colorado Division of Parks and Wildlife] comments,” and, “where it did respond, many of the responses themselves were inadequate.”

Colorado argues that “CPW is uniquely qualified to opine on any proposed listing or critical habitat designation for Gunnison sage grouse; over the past decade, it has taken the lead in monitoring the species, collecting and providing critical data, engaging in species management and habitat treatments, and promoting stakeholders’ efforts to conserve Gunnison sage grouse.”

Colorado also maintains that “Congress intended states to have an important role in the ESA’s implementation,” and, “The [Forest] Service is required to cooperate with the States to the maximum extent practicable,” and, “that State agencies be adequately informed of the basis for any action that is not in agreement with that agency’s recommendation.”

The county filed its motion to intervene in the WEG case on Tuesday, April 28. Baumgarten says he thinks the county will file its motion to intervene in the CBD case by the end of May, and hopefully the state’s case by mid-June.