Over the past 5 years, one of the West's emblematic birds, the greater sage grouse, has been batted like a shuttlecock between environmentalists and the U.S. Fish and Wildlife Service. At issue is whether the chicken-sized bird, once found in sagebrush plains from Canada to Arizona, should be listed as threatened or endangered. If the grouse garners a listing, the resulting restrictions could hit energy development, home-building, and agriculture in the Interior West as hard as the spotted owl once hit logging in the Northwest.
Now, under a judge’s order, the Fish and Wildlife Service is once again considering whether to protect the grouse – even as it backpedals on an agreement it made in late January to consider a “critically important” scientific report. It’s also trying to shorten the timeline for making the decision, unusual for an agency noted more for procrastination. The Service originally agreed to decide if a listing was warranted by May 2009, five months after the Bush administration leaves office; now it wants to move the decision up to Dec. 4, 2008.
Critics charge that once again the Department of Interior is playing politics with the fate of an imperiled species, worried about the possible economic fallout and the impact on oil and gas production. A December deadline gives the Bush administration another shot at stopping the listing. It also lets the Service evade the grouse conservation report due out in November, says Laird Lucas, the attorney who filed the lawsuit that forced the agency to revisit its decision. The report, from sage grouse experts at the Western Association of Fish and Wildlife Agencies, will contain new data about the many severe threats facing the bird, data that conservationists say will make a listing just about unavoidable. “Back in 2004 (when the report was last updated), people were not really talking about what global warming will do. Millions of acres of habitat have burned since then,” Lucas says. “And we’ve had the energy onslaught in Wyoming, Montana, Colorado and Utah. And then there’s West Nile.”
The troubled saga of the grouse stretches back to the last century. Greater sage grouse have been in decline for decades, as energy development, urbanization and drought have devastated their habitat. When settlers arrived in the West, the grouse population was probably around 2 million. In 2005, the Fish and Wildlife Service estimated that only between 100,000 and 500,000 grouse remained, but nonetheless decided that a listing was not warranted.
Then it came to light that several of the agency’s listing decisions, including the one on the grouse, had been tainted by the meddling of former Deputy Assistant Secretary of Interior Julie MacDonald, who red-penned biologists' reports. The Western Watersheds Project sued the Service to force it to reconsider, and in December 2007, Idaho federal district court Judge B. Lynn Winmill overturned the decision not to list the bird.
In ensuing discussions, the agency repeatedly suggested an 18-month timetable for the listing determination. The plaintiffs originally requested a 90-day deadline, but the agency responded that it would need much more time because the decision would be one of the most complicated it had ever made. Bryan Arroyo, the Service’s assistant director for endangered species, cited the bird’s 11-state range, the many federal and local agencies with relevant data, and the hundreds of scientific papers and reports that must be reviewed. “Paramount” among those reports, he wrote, will be an updated assessment of the bird’s status from the experts at the Western Association of Fish and Wildlife Agencies: “This assessment will contain data and interpretation that will be critically important to the Service’s status review for the new finding.” Because a 12-month deadline wouldn’t allow sufficient time to consider the November report and take public comment, a six-month extension would probably be needed, Arroyo wrote. “The Service believes that if we are not granted 18 months, or at a very minimum 12 months, to compete this very complex review, the quality of the review ... and ongoing conservation actions for the sage grouse will be affected.”
Robert Williams, Fish and Wildlife’s attorney, and Laird Lucas hashed out an agreement that would require the agency to take public comment on the report once it was released, then issue its final determination six months later. Even an 18-month schedule would be tight, Williams wrote: “It will take an extraordinary effort on the Service’s part to meet this deadline ...” On Jan. 30, he informed Lucas that he had “received final approval from my management. You may file the stipulation as we had agreed,” with the May 2009 deadline.
But just one week later, the Service filed a motion asking to be released from that agreement, which it now claimed to have entered into “inadvertently.” Although the agreement had been reviewed by Arroyo’s staff, the agency staff responsible for the new listing decision, and an attorney from the regional solicitor’s office, Arroyo wrote that he had never approved it. Furthermore, the agency could now meet a 12-month deadline, he wrote, since it had just learned that it could get early access to some of the information that would come out in the November conservation assessment. And the Service wanted to retain discretion so that it could decide later whether to extend the 12-month deadline, and whether to allow public comment on the report, rather than being obligated to do both.
Now it’s up to a federal judge to determine if the agency can back out of its agreement with Western Watersheds Project. The hearing is set for Feb. 29, and because the legal proceedings are still going on, Fish and Wildlife spokeswoman Diane Katzenberger would not comment.
Meanwhile, the sagebrush states, wary of the development shutdown that a listing could bring, have been pressing ahead with voluntary conservation efforts. State biologists in Wyoming, Colorado and Montana recently released a report saying that the Bureau of Land Management needs to put more constraints on oil and gas production in order to keep grouse off the endangered list. Perhaps, in the end, the mere threat of the Endangered Species Act, rather than the protections it bestows, will suffice to save the West’s sage grouse.