Endangered Species Law & Policy

On June 8^th, 2017, Department of Interior (DOI) Secretary Ryan Zinke signed Secretarial Order 3353, entitled Greater Sage-Grouse Conservation and Cooperation with Western States.  This Order initiates the assessment of both federal and state-led conservation efforts related to the greater sage-grouse and establishes a review panel to undertake the evaluation. The review panel will then recommend (potentially significant) changes to how the bird is managed. The stated purposes of the Order are to 1) enhance cooperation between DOI and the eleven western states comprising the historic range of the greater sage-grouse, 2) to support a federal/state partnership with clearly defined roles and objectives for the management and conservation of the species, and 3) establish a team of federal land managers (e.g. U.S. Fish & Wildlife Service (FWS), Bureau of Land Management (BLM) and U.S. Geological Survey (USGS)) who will review the federal agencies’ prior sage-grouse management plans completed on or before September 2015. Those 2015 finalized plans, which in total cover the habitat management of nearly half the species’ range, included amendments and revisions to 98 BLM and U.S. Forest Service (USFS) land-use plans and were designed to conserve and protect sage-grouse habitat, in order to demonstrate that enough conservation was occurring on the landscape for FWS to avoid listing the bird as threatened or endangered under the Endangered Species Act (ESA).  The Order directs the review team to complete its evaluation within 60 days and then provide the Secretary with a summary and recommendations for any action the department should take.  According to the DOI press release accompanying the Order, the effort is intended to explore[] possible plan modifications, consider local economic growth and job creation, and evaluate whether the federal and state plans and programs are complementary.  It would appear therefore that this is a follow-on to Secretarial Order 3349, entitled American Energy Independence, which in turn implemented Executive Order 13783, Promoting Energy Independence and Economic Growth, executed by the Secretary and President respectively in March of this year.

Critics of the Order contend that all threats to the species and potential management options were considered over a yearslong process culminating in the 2015 plans, and noted that science dictated which were the top species management concerns and what the most potentially successful conservation measures were that could be employed to counter those risks, so a review and reconsideration of these same issues is unwarranted and will not result in a better outcome.  They further note that amending the management plans to allow for additional oil and gas development ignores the fact that most core habitat is not coincident with the highest potential oil and gas plays, is inconsistent with the prior state and federal consensus on the species conservation needs and habitat areas to avoid, and that the conservation plans were created to "include flexibility and an ongoing collaboration with the states."  Supporters laud the effort saying that it is long overdue for the states’ views to be fully considered, and given equal weight to those of the federal government on how to best manage the species, and for restrictions on energy production and other public land uses to be thoroughly evaluated to determine if they are overly burdensome.  However, while commending Secretary Zinke for undertaking the review, House Natural Resource Committee Chairman, Rob Bishop (R-Utah) stated that the review, and any related adjustments that comes out of the process, alone is not enough to solve the problems identified by the administration, as current and future litigation could force plan amendments to revert back to the 2015 versions or be scrapped all together, and therefore legislation is a necessary component of how to address the species’ management.

While the results of the panel’s assessment will not be known for some time, we do know that nothing with respect to this species is definitive and we can expect years of rulemaking and litigation to come.