Judge turns back Idaho challenge to sage-grouse plan

By Stephen Davies

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WASHINGTON, Jan. 6, 2017 - Idaho's challenge to a federal land-use plan designed to protect greater sage-grouse has been rejected by a federal judge, who said the state could not demonstrate legal standing.

The state and the Idaho Legislature sued the Interior and Agriculture departments over the federal land-use plan for Idaho and southwestern Montana - as well as the environmental analysis behind it.

The Bureau of Land Management (BLM), Forest Service and Fish and Wildlife Service (FWS) worked with 11 Western states to develop land-use plans including a variety of measures to protect the bird while avoiding having to list it under the Endangered Species Act. That decision was announced Sept. 22.

But that effort, which was repeatedly hailed as “unprecedented” by supporters, including some Western governors and environmental groups, riled others. Idaho Gov. C.L. “Butch” Otter, the lead plaintiff in the lawsuit that was found wanting Thursday, said Sept. 25, 2015, when Idaho filed its lawsuit, “We didn't want an ESA listing, but in many ways these administrative rules are worse.”

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Governor Otter and other Idaho stakeholders contend the process behind amendments to federal land-use plans aimed at protecting the birds imposed unprecedented and unnecessary restrictions on Idaho farmers and ranchers, sportsmen, recreationists, employers and others,” the state said.

U.S. District Judge Emmet Sullivan, however, said in his opinion that the state could not demonstrate “injury-in-fact,” one of the requirements to establish standing.

“The three declarations plaintiffs cite to demonstrate injury-in-fact to Governor Otter's ability to carry out his constitutional responsibilities merely speculate about various injuries that may result from the implementation of the (Idaho and southwestern Montana, or IDMT) plan,” Sullivan said in his opinion. “None provide factual support demonstrating any concrete and particularized, and actual or imminent injury.” Sullivan is a district court judge in the District of Columbia. 

In one of those affidavits, Celia Gould, director of the Idaho State Department of Agriculture, took aim at the establishment of “Sagebrush Focal Areas” (SFAs) in the IDMT plan.

“BLM's decision to designate over 3.6 million acres as SFAs with their associated management actions has the potential to dramatically impact Idaho's livestock industries and local economies,” Gould said, adding that the plan “strongly suggests that grazing allotments within the SFAs will be prioritized for heavy restrictions or cancelation upon their review. Yet BLM provides no real analysis of this last-minute change.”

The BLM plan and its accompanying environmental analysis “has elevated livestock grazing to a primary threat despite the thorough analysis and scientific support” in Idaho's own alternative, which was proposed to the bureau, Gould said. She said a 1.2-mile buffer around sage-grouse leks - where the birds gather to breed - “appears to arbitrarily double the 0.6 mile buffer” proposed by Idaho.

But in Sullivan's view, the plaintiffs did not “set forth any specific facts to demonstrate an injury-in-fact as a result of the binding standards and self-implementing aspects of the IDMT plan.”

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The state also had argued that the sage-grouse plan would result in “spillover” effects onto state and private lands such as an increase in the risk of wildfires and a loss in revenue to the state from restricted oil and gas leasing on federal lands.

Otter said in a statement he was extremely disappointed" with the judge's decision.

"The state of Idaho was a partner in the development of a collaborative, state-based plan to conserve sage-grouse on federal lands," he said. "At the last minute, federal bureaucrats in D.C. pulled the rug out from under us and decided to implement their unilateral 'top-down' plan that ignored local input and science. Now, the courts are telling Idaho and other Western states that we have no recourse to this top-down approach - either administratively or through the judicial system.
We are still weighing our options moving forward, one of which is an appeal of the district court's decision. I'm also looking forward to working with the new administration that will hopefully recognize the value of state sovereignty and our ability to effectively manage wildlife within our borders.” 

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