Did Congress inadvertently close the door on easing the listing of the Gunnison Sage Grouse?
In the Cromnibus (FY 2015 appropriations) Congress in a rider prohibited Interior from writing or issuing any final listing rule under Section 4 of the Endangered Species Act (“ESA”) for several species of grouse. It now looks like that action could result in some unintended consequences for the recently listed Gunnison Sage-grouse, a bird whose habitat is found in southwestern Colorado and eastern Utah. On November 12, 2014, the Gunnison Sage-grouse was listed under the ESA as “threatened.” When a species is listed as threatened rather than “endangered,” the ESA § 4 provides the Fish and Wildlife Service (“FWS”) with significant management flexibility. This regulatory flexibility includes the authority to craft a species-specific rule that can formally recognize state, local and private conservation efforts under ESA § 4(d). At the time of the listing, which was widely criticized in Colorado for failing to give enough credit to the State’s conservation efforts, the FWS kept the door open for future negotiations. FWS Director Ashe stated that FWS would draft and implement a so-called 4(d) rule in early 2015, which would make ESA compliance easier for landowners and industry.
The Cromnibus prohibition of expenditures for ESA § 4 listing actions appears to have inadvertently put a roadblock to the agency’s intent to draft a special rule for the Gunnison Sage-grouse under section 4(d) that could have created exceptions and loosened the default requirements associated with the listing. It appears that Congress may have done so unwittingly, on the basis of language drafted long before the Gunnison Sage-Grouse was listed. Regardless of what Congress intended to do, it did not actually prevent the listing and may have made a bad situation worse. In a December 17, 2014 statement, after acknowledging that the congressional rider will prevent FWS “from finalizing a [4(d)] rule that would provide certainty to landowners,” Interior Secretary Jewell took aim at Congress, “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.”
On December 12, 2014, the State of Colorado filed a notice of intent to sue FWS over the listing of the Gunnison Sage-grouse. The ESA requires that parties planning to sue provide the agency with 60-days’ notice of that intent. In her December 17, 2014 statement, Secretary Jewell indicated the Administration’s commitment to “continue to work with urgency alongside our federal, state and local partners to put conservation measures in place to protect important sagebrush habitat and avert the need to list the Greater sage-grouse. The rider has no effect on our efforts to develop and implement state and federal plans to build partnerships to incentivize conservation.” After Gunnison County issued its intent to sue on December 22, 2014, there are now three levels of government that have to come together to reach a compromise if Secretary Jewell is to avert litigating the listing on two fronts (the other being against the environmental groups who will accept nothing short of a full endangered listing). For more on the county’s suit, see http://www.denverpost.com/editorials/ci_27245393/suing-federal-governm.
Will there be an opportunity in the context of Colorado’s and Gunnison County’s challenges of the Gunnison Sage-grouse listing to find a compromise that could provide management flexibility and recognition of State, local, and private conservation efforts similar to a 4(d) rule? Or will Congress fix this mistake in a 2015 rider?
The listing of the Gunnison Sage Grouse is available at http://www.fws.gov/mountain-prairie/species/birds/gunnisonsagegrouse/GUSGFinalListingRule_11202014.pdf.
Colorado’s notice of intent to sue is available at http://www.lawweekonline.com/wp-content/uploads/2014/12/Colorado-60-day-letter.pdf
For additional information contact: Jens Jensen jjensen@wsmtlaw.com or Rebecca Watson rwatson@wsmtlaw.com