Vermont Law Top 10 Environmental Watch List 2016

Sage Grouse *Not* Listed as an Endangered Species

How will the sage grouse fare under the U.S. Fish and Wildlife Service’s voluntary conservation approach?

The U.S. Fish and Wildlife Service’s much-anticipated decision in September 2015 not to list the greater sage grouse under the Endangered Species Act appears to result from a new agency initiative; one that, it claims, favors incentives and partnerships over regulations. According to the service, conserving plants and animals before they require federal protection provides more flexibility and is more cost-effective than doing nothing while the species’ numbers initially drop, and then having to eventually list them. Fish and Wildlife Service Director Dan Ashe explains the new direction as an effort to “catalyze conservation, not command it.” And the service contends the new approach is better for at-risk species, attracting resources and conservation commitments that would not be offered via the listing route.

U.S. Fish & Wildlife Service

U.S. Fish & Wildlife Service image

The sage grouse is one of the highest-profile Endangered Species Act decisions the service has made in years, at a time when the agency’s funding is under intense threats from Congress. Since 2013, 13 senators, led by James Inhofe, R-Okla., have conducted a multifaceted campaign to weaken the act and defund the service. Meanwhile, surveys estimate the greater sage grouse population is less than 500,000 today, down from 16 million historically. In 2010, the service recognized the greater sage grouse was edging toward extinction and determined that the bird required listing under the Endangered Species Act. However, the service concluded it did not have the resources to list the species, and gave the greater sage grouse no special protection other than naming it a candidate for listing.

Sage grouse advocates continued to press for listing. In the five-year interim leading up to the Fish and Wildlife Service’s 2015 decision, the service pursued a range of conservation plans, incentive programs, and partnerships that it believed would change the grouse’s trajectory. Among those efforts are new oil and gas technologies that reduce the footprint of future development; new federal land-use plans protecting sage grouse habitat on millions of acres; a federal strategy to combat rangeland wildfires; and a $750 million investment by the U.S. Department of Agriculture and others to preserve grouse habitat on 6,000 acres of private lands across 11 western states. According to the service, other wildlife will also benefit, including elk, pronghorn, golden eagles and mule deer.

Moreover, in addition to the sage grouse, the service this year cited voluntary conservation measures as support for its decisions not to list the New England cottontail, dunes sagebrush lizard, and Sonoran desert tortoise. In all, the service has signed candidate conservation agreements in lieu of listing 130 species. Under these agreements, landowners commit to take specific protective measures for an imperiled species in return for a guarantee from the service that they will not have to do more if the species is eventually listed. Such regulatory certainty has motivated federal agencies, states, and landowners to conserve species in the hopes of getting the “sage grouse result”: a decision not to list.

Yet, skeptics are concerned the decision not to list the sage grouse is about more than conservation. Several national environmental organizations cite concerns that not listing the species will allow continued oil, gas, and urban development to flourish across the Intermountain West and Great Basin states, posing even greater threats to sage grouse habitat. The flamboyant western bird, described by John James Audubon as the “cock of the plain,” shares its sagebrush habitat with prime oil, gas, and coal reserves.

It remains to be seen how the Fish and Wildlife Service’s voluntary conservation approach compares to a listing decision for the sage grouse. Although Secretary of the Interior Sally Jewell hailed the 2015 decision as the “biggest win in conservation history,” it hasn’t truly been tested yet. Perhaps it is laudable in theory, but none of the service’s initiatives pack the legal punch of a listing decision under the Endangered Species Act. Once a species is listed under the act, both government agencies and private parties face criminal and civil liability for any actions that result in the death of a species or adverse modification of its habitat that leads to injury, or even any actions that harass the species. Under the service’s new direction, it is unclear what liability, if any, states and private parties will face if their actions violate the agreements. It’s also unclear if several parties—namely states, private parties, and conservation organizations—working with different goals, and under different types of agreements, will be able to ensure the sage grouse’s recovery to the degree that the service could under its Endangered Species Act mandate.