UT Governor Herbert Signs Executive Order on the Greater Sage Grouse to Short Circuit Federal Listing

On Tuesday, February 10, 2015, Utah Governor Gary Herbert signed an executive order directing state agencies to implement additional state-level protection measures aimed heading off a potential federal listing of the sage grouse as “threatened” or “endangered” under the Endangered Species Act. Under a settlement reached in 2012, the U.S. Fish and Wildlife Services have until September 2015 to decide whether the sage grouse should be listed under the ESA. Referring to the consequences of such a designation as potentially “devastating,” Governor Herbert’s executive order requires that all state agencies minimize the impact of activities on sage grouse, consult with the Utah Division of Wildlife Resources on decisions that could affect sage grouse habitat, and incorporate directives from the Utah Conservation Plan into state operations.

While the executive order requires consideration of sage grouse protections in agency decision-making, it does not impose the level of regulation or constraints on private property and federal lands that would be imposed if the sage grouse is listed under the ESA. According to Governor Herbert, “The concern we have here in Utah that in doing so [a federal listing], it will have a significantly devastating impact on our economy,” particularly on farmers, ranchers and those involved in natural resource extraction.

The executive order implements a number of proposals contained in the Utah Sage Grouse Conservation Plan, which was completed in April 2013 and contained recommendations for habitat preservation. While many of the recommendations contained in the Conservation Plan have been informally implemented by state agencies, the executive order seeks to make the Plan’s recommendations mandatory. According to Utah’s Public Lands Policy Coordinating Office, informal implementation of the Conservation Plan and other localized habitat preservation efforts have already led to an increase in sage grouse populations throughout the state.

In conjunction with the executive order, Utah lawmakers are seeking a $2 million appropriation to preserve sage grouse habitat. These protections would include projects on state and private lands to improve sage grouse habitat, such as removing pinyon-juniper stands which encroach onto sage brush. According to Senator Kevin Van Tassell, who proposed the appropriation, the executive order and the state habitat preservation projects are intended to show the FWS that state-level management of the species is working and that federal intervention through the ESA is unnecessary.

Governor Herbert’s executive order comes almost five years after former Wyoming Governor Freudenthal’s executive order on Sage Grease Core Area Strategy and is intended to promote the same goal: prevention of an ESA listing. Wyoming has been a leader in this movement, and implementation of its conservation plan—which includes a prohibition on surface disturbing activities in areas designated as core habitat—have proven successful.

It remains to be seen whether these state-level efforts will be sufficient to forestall a federal listing of the Greater sage grouse or whether Utah’s response will prove to be too little too late.