Gunnison sage grouse legal action heating up

Congressional restrictions and county moves toward a lawsuit

There was a lot of action this week with the Gunnison sage grouse issue on the local, state and federal level.

The county commissioners are taking steps that will prepare them to potentially join with the state of Colorado to sue the U.S. Fish and Wildlife Service (FWS) over its decision to list the bird as a threatened species under the federal Endangered Species Act. Given action taken over the last two decades in the Gunnison Basin, public and private entities feel the listing was uncalled for especially since the bird population has gotten healthier over the years. The listing could have a heavy impact on public and private lands in the area.
The FWS has admitted that some of the local actions have had a positive impact on the bird and so they went with the “threatened” designation as opposed to the more restrictive “endangered” listing. The idea was that the agency could then craft a special rule known as 4(d) that would give special consideration to areas that have proven that they could help preserve the species.
But on Wednesday, U.S. Secretary of the Interior Sally Jewell issued a statement regarding a rider in the spending bill passed by Congress this week that affects potential Endangered Species Act listing decisions for sage grouse.
“The rider prohibits the agency from writing and issuing rules related to sage grouse. For example, the language impedes the Fish and Wildlife Service’s ability to finalize a 4(d) rule related to the Gunnison Sage-Grouse in Colorado, which was listed as threatened earlier this year,” a press release stated. “The consequence of this rider is that it prevents the Service from finalizing a rule that would provide certainty to landowners, giving them assurance that they can continue economic activities compatible with the conservation of the species, such as properly managed livestock and ranching activities.”
Jewell expressed frustration with the decision by Congress. “It’s disappointing that some members of Congress are more interested in political posturing than finding solutions to conserve the sagebrush landscape and the Western way of life,” she said.
“Rather than helping the communities they profess to benefit, these members will only create uncertainty, encourage conflict and undermine the unprecedented progress that is happening throughout the West. We are more determined than ever to work with the states, ranchers, energy developers and other stakeholders who are putting effective conservation measures in place with the shared goal of reaching a ‘not warranted’ determination by the end of the fiscal year.”
Meanwhile, the Gunnison County Board of Commissioners intends to file a letter of intent by next week to join the state of Colorado in a federal lawsuit against the FWS.
On November 12, the FWS listed the Gunnison sage grouse as a threatened species and designated roughly 1.4 million acres of habitat in Colorado and Utah as critical to the bird. The county vehemently disagrees with that decision.
According to the state’s notice of intent to sue the FWS, filed last Friday afternoon, December 12, the FWS violated the Endangered Species Act (ESA) when it failed to use the best available scientific data in its decision to list the Gunnison sage grouse as threatened. The best available scientific data indicates that the species is not warranted for protection under the ESA because the Gunnison basin bird population is not in danger of extinction now or in the foreseeable future.
The state contends that the FWS also underestimated the level of protection that has been provided already via federal, state, local and private conservation efforts to conserve sagebrush habitat for the Gunnison basin, where 86 percent of the Gunnison sage grouse population lives.
In another violation of the Endangered Species Act, the state said the federal agency also included areas as critical habitats that are not suitable for Gunnison sage grouse.
The notice also said the FWS “failed to consider the economic impacts of the designation.” To date, Colorado has invested close to $40 million in efforts to protect the bird, including voluntary conservation plans, research, buying land, and improving the bird’s habitat.”
By early next week, a common interest agreement should be executed in anticipation of joint participation and litigation with the state of Colorado. In a meeting on Tuesday, December 16, the county commissioners said they would authorize and sign off on the final draft of a letter of intent to sue the FWS for violating the ESA. “We’ll have a final draft of the intent letter by end of day on Friday,” said county attorney David Baumgarten. “I think it could be signed by the end of the week.”
Executing the letter of intent does not initiate litigation. Sixty days notice must be given to the federal government, along with reasons for the legal action. Baumgarten said, “The state filed with FWS a 60-day notice of intent to sue. Gunnison County intends to file its own 60-day notice of intent, probably this upcoming Monday. Gunnison County and the state are executing a joint litigation agreement that allows the state and county to exchange information as privileged information as preparation and litigation, if any moves forward.”
Local and federal agencies have been working to save the bird in the Gunnison basin for two decades now and population numbers indicate the species’ condition is in constant improvement. At a meeting in early November, Gunnison County wildlife coordinator Jim Cochran said, “This county has spent millions of dollars on this program. This is coming up on the twentieth year we’ve been working on this and when the [FWS] is at the table they’ve never said it’s not good enough or told us what we need to do.”
Before Tuesday’s meeting, county commissioner Jonathan Houck said, “I think we need to and should file our 60-day intent letter. At a minimum it will get the ball rolling on giving FWS the opportunity to resolve (if they choose) some of the points we will look to a judge to decide.”
According to the state’s notice of intent to sue the FWS, “The state will forego litigation should the FWS revoke both the threatened listing and the critical habitat designation for the Gunnison sage grouse.”
If the FWS does not meet the state’s demands, the county, state and feds can expect to spend some time in a courtroom.