The U.S. Fish and Wildlife Service (FWS) ignored the best available science and has to reconsider its decision not to list the greater sage grouse under the federal Endangered Species Act (ESA), an Idaho district judge ruled last week. If ultimately listed under the ESA, the bird's status could slow development, impact grazing rules and curb oil and natural gas drilling in parts of the U.S. West.
In his ruling to overturn the FWS's 2005 decision not to place the bird on the ESA, U.S. District Judge B. Lynn Winmill criticized the "inexcusable conduct" of former Deputy Assistant Interior Secretary Julie MacDonald, who resigned in May.
"Her tactics included everything from editing scientific conclusions to intimidating [FWS] staffers," Winmill wrote in his 35-page decision. "Her extensive involvement in the sage grouse listing decision process taints the...decision and requires a reconsideration without her involvement." MacDonald's intervention in the ESA listing process was "to ensure that the 'best science' supported a decision not to list the species."
Winmill wrote that the bird faces "accelerating threats" from oil and gas development, invasive weeds, fires and livestock grazing. He noted that the FWS had received three petitions in 2002 and 2003 to list the greater sage grouse as an endangered species, but in January 2005 the FWS said the population did not warrant a listing. The judge said the FWS had erred when it consulted with experts but did not include that information in its decision.
"What an odd process," Winmill wrote. "Right at the moment where the 'best science' was most needed, it was locked out of the room."
Several environmental groups led by Idaho-based Western Watersheds Project filed a lawsuit against the FWS over its sage grouse decision. The states of Wyoming, Colorado and Idaho sided with the FWS, arguing that they had spent time and money to create grouse conservation plans, and the protection efforts were working. The Pacific Legal Foundation, which represented ranching, livestock and farming interests in Idaho, Wyoming, Oregon and Nevada, also sided with the FWS. Listing the bird could have "harsh economic consequences," the foundation stated.
However, the ruling is considered a victory for environmentalists that argued that all types of species and habitat decisions should be reconsidered because of MacDonald's role. The FWS agreed earlier this year to reconsider seven of MacDonald's most contentious decisions, which affect 17 species. MacDonald apparently presided over about 200 species and habitat decisions during her tenure.
MacDonald, a Bush appointee, had been accused of overriding scientists' recommendations in order to make decisions beneficial to industry and detrimental to endangered species. In July the Interior Department, which oversees the FWS, said it would review and probably overturn eight decisions on wildlife and land-use issues that MacDonald had presided over before resigning on May 1.
Following an internal review, MacDonald was found to have violated federal rules by giving government documents to lobbyists for industry. The Interior Department's inspector general also found several instances in which MacDonald "browbeat" department biologists and habitat specialists and overruled their recommendations to protect several rare and threatened species.
The FWS re-reviews, which may only be conducted if there is available federal funding, including critical habitat decisions for the white-tailed prairie dog, Canada lynx, the arroyo toad, California red-legged frog, 12 species of Hawaiian picture-wing flies, the Southwestern willow flycatcher and the Preble's meadow jumping mouse. The extent of Rocky Mountain habitat protection for the jumping mouse also is being reviewed.
The sage grouse population has been on the decline across the West, and the states with sage grouse habitat have stepped up to search for a way for development to coexist with the bird. In June Colorado released a draft statewide plan aimed at preserving the sage grouse population (see NGI, June 25). And on the federal side, the U.S. Bureau of Land Management (BLM) office in Montana in July put on hold its plans to offer acreage in part of that state for oil and gas leasing because of sage grouse concerns (see NGI, July 23).
The BLM also has undertaken other steps to help protect the bird (see NGI, Sept. 3). In October BLM's Utah state office canceled an oil and natural gas lease sale, which had been scheduled for November, so it could take a closer look at the possible impact drilling on the sale properties might have on wildlife habitat (see NGI, Oct. 15). It was the first time in more than 20 years that the BLM canceled a quarterly oil and gas lease auction in Utah. Drilling on the 140,000 acres in central and north Utah, which were to be offered in the November auction, potentially could affect the habitat of a host of species, including sage grouse, deer, elk, pygmy rabbits and prairie dogs.
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