Nevada counties, along with mining and ranching groups, sued the Obama administration, challenging a 2011 settlement between the U.S. Fish and Wildlife Service, the Center for Biological Diversity and WildEarth Guardians concerning a timeline for determining whether the greater sage grouse and more than 200 other species should be placed on the Endangered Species list.
The American Exploration and Mining Association (AEMA), and three other plaintiffs, the Nevada Mineral Resources Alliance, the Nevada Association of Counties, and F.I.M. Corp., a sheep ranching operation in western Nevada and eastern California, claim the settlement unlawfully prohibits Fish and Wildlife (FWS) from carrying out the purposes of the Endangered Species Act.
FWS’s agreement with the environmental groups is an example of sue-and-settle, when a federal agency agrees to a legally binding settlement with a special interest group suing the agency and thereby creates regulations, requirements, and priorities outside the normal rulemaking process.
“The basic complaint appears to be sound. There has been a lot of pushback against the sue-and- settle stance of federal land agencies,” said Nevada journalist and political commentator Thomas Mitchell, commenting on the lawsuit.
Complaints About Settlement
The complaint, filed December 4 in the U.S. District Court for Nevada, claims the settlement unlawfully prohibits Fish and Wildlife from maintaining the greater sage grouse as a candidate species and forces FWS to decide whether to list the species as endangered or threatened by an “arbitrary” date.
Brian Seasholes, director of the endangered species project at the Reason Foundation, said the central question in whether to list the sage grouse is whether the ESA listing would help the species or harm it.
“I think the ESA would harm the grouse because the Act’s penalty-based approach punishes people for conserving the bird and disincentives conservation,” he said.
“The settlement is illegal because it eliminates the congressionally mandated ‘warranted but precluded’ category for the Greater Sage Grouse and the other 289 species included in the settlement, sets arbitrary decision deadlines and frustrates the very purposes of the Endangered Species Act,” said Laura Skaer, executive director of AEMA in a statement.
The settlement covers so many species, FWS has little time to consider whether each species needs listing based on the merits of its situation.
ESA Purpose
Under the ESA, FWS can make one of several determinations when considering listing a species: Listing as threatened or endangered is warranted; listing is not warranted; or listing is warranted but precluded.
Currently, the greater sage grouse is considered a “candidate species,” meaning listing is warranted but precluded by other species with a higher priority for the agency with limited resources.
AEMA said the purpose of the ESA is, in fact, not to list species as threatened or endangered but to keep species from being listed at all.
“The candidate species category is at the very heart of the ESA because it acts as a velvet hammer that encourages states, local governments, landowners, and industry to pursue effective conservation measures,” Skaer said in her statement.
Under the settlement, FWS must decide whether to list the sage grouse as threatened or endangered by September 30, 2015, removing FWS’s ability to manage it as a candidate for ESA protection.
“The key to effective conservation is the willing cooperation of landowners, which the ESA unfortunately works against. Conservation, whether of the sage grouse or many other species, is often difficult, long-term work that relies on relationships of trust between landowners, businesses, and various levels of government. The U.S. Fish and Wildlife Service, wielding the fearsome power of the ESA, destroys these relationships to the detriment of endangered species,” Seasholes said.
Unlawful settlement
The lawsuit contends the settlement unlawfully prevents FWS from basing its listing decision on the conservation measures state and local governments are pursuing collaboratively on the ground instead of forcing an arbitrary listing date.
The lawsuit further claims the best available scientific data isn’t being considered under the settlement. The settlement also subjects four other Nevada species to ESA decisions, species whose habitat covers roughly 1.8 million acres in western Nevada and Western California. According to a recent U.S. Geological Survey study, most of the sage grouse in this area have stable populations, the suit argues.
‘Stifling Economic Activity’
“The mere threat of federal listing of greater sage grouse—which seems all the more likely with every action every day—is already stifling economic activity,” Mitchell said.
Mitchell points out when the Bureau of Land Management attempted to auction off 97 tracts it received no bids on 96 tracts, and only the minimum bid of $2 an acre on a single 473-acre tract, and that was before the price of oil tanked. The reason for the lack of interest from oil and gas drillers is the concern the greater sage grouse will be listed under the ESA, Mitchell said.
“The Endangered Species Act is a wrecking ball for the goal of species conservation, and until the Act’s penalties are removed it will continue to do enormous harm to the imperiled species of this country,” Seasholes said.
According to FWS, a provision in the Cromnibus spending bill passed in December 2014 preventing it from listing the sage grouse as threatened or endangered in 2015, does not affect decisions for the other 289 species subject to the settlement, and it only delays the sage grouse decision by a few months. As a result, FWS will continue to develop habitat conservation plans, or without states’ input.
