- - Tuesday, December 1, 2015

Westerners cheered the Obama administration’s September decision not to designate the greater sage-grouse under the Endangered Species Act; listing would have meant more federal land lockups, additional red tape, and further litigation by environmental groups that use the act to make people do what they want. The sigh of relief had barely left western lips before federal officials declared — purportedly to protect the sage-grouse — closure of tens of millions of acres of western land to mining and imposition of a Draconian and illegal rule that kills current and future economic activity. Westerners are fighting back in court, but relief is years away.

The greater sage-grouse (Centrocercus urophasianus) — a large, rounded-winged, ground-dwelling bird, 30 inches long and two feet tall that weighs two to seven pounds, with a long, pointed tail and legs feathered to the base of the toes — is the largest North American grouse species. Its range covers 165 million acres in California, Colorado, Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah, Washington and Wyoming. Sage-grouse depend on contiguous sagebrush habitat — at 4,000- to 9,000-foot elevation — in all seasons for breeding, nesting, brood-rearing and wintering, but its numbers are hard to measure due to its vast and camouflaged habitat.

Beginning in 1999, environmental groups petitioned the U.S. Fish and Wildlife Service to list the sage-grouse as threatened or endangered, which would yield designation of critical habitat and restrictions on federal land use. Meanwhile, the groups sued the Bureau of Land Management and the U.S. Forest Service, arguing that their land management plans did not sufficiently protect the sage-grouse. In early 2010, the U.S. Fish and Wildlife Service determined that listing of the sage-grouse was “warranted, but precluded” by higher listing priorities. That ruling led to unprecedented conservation efforts by states across the West. Westerners feared the sage-grouse would do to ranching, energy development and mining what the northern spotted owl did to logging in the Pacific Northwest. Their undertakings were so successful that on Sept. 22, citing the collaborative conservation efforts, Secretary of the Interior Sally Jewell declared that the sage-grouse no longer warranted listing and would be withdrawn as a candidate species.

That same day, however, the Bureau of Land Management and U.S. Forest Service announced drastic changes in how millions of acres of sage-grouse habitat will be managed. Astonishingly and without prior notice and public comment, the bureau adopted a “net conservation gain” rule whereby any use of federal land that degrades the land, even if by necessity, requires the user to then improve the land. The policy conflicts with federal law, which gives the bureau authority to prevent only “unnecessary or undue,” not any and all, degradation. Worse, the bureau days later ordered the withdrawal from operation of the General Mining Law more than 10 million acres in Idaho, Montana, Nevada, Oregon, Utah and Wyoming — killing current and future mining in these mineral-rich states.

Immediately, Idaho Gov. Butch Otter and the Idaho State Legislature filed a federal lawsuit in Washington, D.C.; they were joined days ago by a 105-year-old mining association. Meanwhile, Nevada’s Elko County, which stands to lose $31 million annually in agriculture, mining and energy development activity, and Eureka County along with two small mining companies, sued in federal district court in Reno. A month after filing, they were joined by Nevada Attorney General Adam Laxalt. Recently, the Wyoming Stock Growers Association sued in federal district court in Cheyenne, contesting the planned limits on grazing.

It is not only western governors’ efforts to balance sage-grouse conservation with the need for economic activity that are being mocked by Obama officials. Decades ago, Congress, fed up with various presidents’ usurpation of its constitutional role in managing federal lands, sharply limited the executive branch’s authority to withdraw public lands, limits that the sage-grouse orders boldly ignore. Westerners are fighting back, but if the past is any indication, Congress will remain feckless, impotent and uninvolved in the face of Obama administration lawlessness.

William Perry Pendley, an attorney, is president of Mountain States Legal Foundation and author of “Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and Why It Matters Today” (Regnery, 2013).

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