WASHINGTON, Feb. 18, 2015 – The state of Colorado is suing the Fish and Wildlife Service (FWS) over the agency's decision under the Endangered Species Act (ESA) to list the Gunnison sage grouse as a “threatened” species and designate more than 1.4 million acres as critical habitat in Utah and Colorado. The listing could foreshadow the agency’s action on the greater sage grouse, which has a far larger habitat extending across 11 Western states. A decision by FWS, an agency within the Department of the Interior, is expected in September. The animal already has a proposed “threatened” listing in California and Nevada.

The lawsuit, filed Feb.10 by Colorado’s Democrat Governor John Hickenlooper, notes that 45 percent of the 1.4 million acres designated by FWS for Gunnison sage grouse protection in November 2014 is currently unoccupied by the bird.

Hickenlooper also argues that an estimated $40 million has been spent in Colorado to protect the Gunnison sage grouse, including “voluntary conservation programs, land acquisition, research, monitoring activities, habitat treatments, translocations, and predator control.”

“This sends a discouraging message to communities willing to take significant actions to protect species and complicates our good faith efforts to work with local stakeholders on locally driven approaches,” Hickenlooper said.

The Gunnison sage grouse is a minor species of the ground-dwelling game bird, found mainly in southwestern Colorado with some populations in Utah, Arizona and New Mexico. Species of sage grouse are found in 11 states and their habitat encompasses 186 million acres of both federal and private land.

“If these extraordinary and successful conservation efforts on behalf of the Gunnison sage grouse cannot prevent its listing under the Endangered Species Act, then there is greatly diminished hope that other efforts to prevent additional species from being listed in various parts of the country can have any realistic chances of success,” according to the libertarian Reason Foundation.

However, FWS Director Dan Ashe said in a press release that, "while many people hoped that the extraordinary conservation efforts by our partners in Colorado and Utah would resolve all the threats faced by the Gunnison sage-grouse, the best available science indicates that the species still requires the (Endangered Species) Act's protection.”

House Committee on Natural Resources Chairman Rob Bishop, R-Utah, said other governors should take note of the Gunnison sage grouse situation in Colorado. He said the sage grouse listing “is part of a broader radical agenda” where critical habitat designations are increasingly driven by environmental lawsuits and settlement agreements.

In a 2011 lawsuit settlement with environmental groups, including WildEarth Guardians and the Center for Biological Diversity, the FWS agreed to devise a multiyear work plan, in which it must make listing decisions for 250 species, including the Gunnison sage grouse.

The FWS originally proposed to list the species as “endangered” in January 2013, but efforts by Utah and Colorado to conserve the species and its habitat “have helped reduce the threats to the bird sufficiently to give it the more flexibly protected status of ‘threatened,’” according to FWS.

The agency said it attempted to work with environmental plaintiffs to extend the court settlement deadline and allow more time for states’ conservation efforts, but was unsuccessful, and so had no choice but to proceed with the listing and critical habitat designation.

However, Hickenlooper says the decision to designate critical habitat for the Gunnison sage grouse “was arbitrary and capricious” and violated both the National Environmental Policy Act and the Administrative Procedure Act because the agency failed to properly consider alternatives to the critical habitat designation or consider the economic impacts.

FWS completed an Economic Impact Analysis of the proposed critical habitat designation and estimated an annual loss of economic activity in Colorado of $160 million resulting from lost oil and gas production, as well as a $1.5 million annual regional impact from grazing reductions.

“FWS dismissed these impacts as insignificant, and did not explain the inclusion of areas where economic impact is disproportional to benefit of special management considerations,” according to Colorado’s lawsuit.

The Center for Biological Diversity and the Western Watersheds Project filed their own notice of intent to sue on Nov. 20, claiming the FWS didn’t go far enough and should have granted the Gunnison sage grouse the stricter “endangered” listing. “The agency’s less protective designation allows it to craft a rule creating broad exemptions for continued oil and gas development,” the groups said. 

FWS claims the “threatened” listing will have no impact on agricultural landowners who previously entered into agreements known as “Candidate Conservation Agreements with Assurances” with FWS or USDA’s Natural Resources Conservation Service (NRCS) programs.

Because the agency determined that the species is threatened instead of endangered, the ESA provides flexibility to tailor the required conservation measures, FWS noted. The agency said it will propose a rule this year to allow other ranchers, farmers and landowners who practice Gunnison sage-grouse conservation to continue to manage their lands without additional restrictions.

USDA’s Natural Resources Conservation Service (NRCS) last week released the Sage Grouse Initiative Outcomes in Conservation report, which shows the NRCS-led Sage Grouse Initiative, its partners and 1,129 participating ranchers conserved 4.4 million acres for the bird.  In the past five years, NRCS said it invested $296.5 million to restore sage-grouse habitat, and will invest approximately $200 million over the next four years through the 2014 Farm Bill. Additionally, NRCS is using the Conservation Stewardship Program to target 275,000 acres to enhance sage-grouse habitat in 2015. 


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