In a January 26, 2015 letter responding to the bi-partisan co-chairs of the Western Governors’ Association State-Federal Sage-Grouse Task Force, Interior Secretary Jewell stated that, despite a congressional rider prohibiting the U.S. Fish and Wildlife Service from issuing a listing rule, the Department will make a listing determination for the greater sage-grouse by the court-ordered deadline of September 30, 2015. “In line with that obligation, the [FWS] is on schedule to make a determination by that date, based on revised Bureau of Land Management and U.S. Forest Service land management plans, an enhanced rangeland fire strategy . . . and states’ plans to conserve the greater sage-grouse.”
In a 2011 settlement, FWS committed to making a final listing decision for the greater sage-grouse either as “warranted” (as endangered or threatened) or “not warranted” for listing under Section 4 of the Endangered Species Act September 30th. In December 2014, the appropriations bill signed by the President (H.R. 83) contained language prohibiting the FWS from writing or issuing a rule to list the greater sage-grouse.

Under ESA § 4, if FWS decides to list a species it must be done by notice and comment rulemaking. This process begins with a proposed rule and ends with a final rule between 90 days and 18 months later. The proposed rule must summarize the data upon which it is based, show the relationship of the data to the proposed rule and provide a summary of the factors affecting the species. At least a 60-day comment process is required. Within 12 months of the publication of the proposed rule, FWS must either publish or withdraw the proposed rule or upon a finding of “substantial disagreement regarding the sufficiency or accuracy of the available data” extend the deadline for no more than 6 months. For land users, an important component of a listing rule is the identification of specific activities that will, or will not, likely result in a “take” violation under ESA § 9. This section of the Act prohibits “take” of a listed species anywhere and everywhere – federal, state or fee lands.
With the congressional rider in place, FWS can’t issue a listing determination rule for the greater-sage grouse, or, as in the case of the now-listed as threatened Gunnison sage grouse (see prior post), FWS can’t issue an ESA § 4(d) rule providing for management flexibility. FWS can issue a not-warranted finding, complete the analyses for a listing determination or a ESA 4(d) rule, or issue an emergency listing rule for 240 days under ESA 4(b)(7). The nightmare scenario is that FWS will make a determination in September that the bird should be listed, but because of the rider won’t be able to give guidance in a rule on how the public can avoid “take”. Similarly, the ESA § 7 consultation process for federal actions would grind to a halt as federal agencies comply with the consultation process without any actionable information from FWS.

Over the last several years, the states that would be most affected by a listing have been working on state conservation plans and coordinating with the federal land management agencies in an effort to forestall a listing. On January 16, 2015, Governors Hickenlooper (CO-D) and Mead (WY-R) wrote to the Secretary with two questions, the first concerning the schedule for listing and the second asked “[w]hat funding was provided to support state and federal efforts focused on greater sage-grouse conservation? In particular, how will BLM use the $15 million appropriated to the agency?”
The Secretary’s response to the funding question was not encouraging, “[t]he Department intends to spend the $15 million appropriated . . . to complete the BLM land management plans and implement actions critical to sagebrush conservation and restoration . . . [and] will continue to work with the states to complete our land management plans, solicit their advice in developing our rangeland fire strategy, and prioritize actions on the ground to protect and restore sagebrush landscapes and important habitat.” Emphasis added. Secretary Jewell did conclude her letter by affirming the “shared goal” of getting to a “not warranted” finding.