Federal Overreach, the Gunnison Sage Grouse, a Lawsuit, and Politics

Commentary

Federal Overreach, the Gunnison Sage Grouse, a Lawsuit, and Politics

Last week Colorado made good on Governor Hickenlooper’s pledge to sue the federal government to rescind the November 12 decision to list the Gunnison sage grouse under the Endangered Species Act.

Colorado’s notice of intent to sue is notable for a couple reasons, one of which is politics. The federal government has so badly overreached by listing the Gunnison sage grouse that Gov. Hickenlooper, a loyal Democrat, feels he has no recourse but to sue and engage in a very public fight that could damage the Obama administration and Democrats in general. The Gunnison sage grouse lawsuit has significance that reaches far beyond the borders of Colorado.

Colorado is a “purple” state, which means that it is one of a handful of swing, or battleground, states in presidential elections. Gov. Hickenlooper made it clear months ago that he would sue if the Gunnison sage grouse was listed. So it is astounding the Obama administration went ahead and knowingly did something-listing the grouse-that would put Democrats in an unfavorable light and give Republicans political ammunition. While the Interior Department’s decisions to list species under the Endangered Species Act are technically insulated from political considerations, the reality is the White House could have pressured Interior Secretary Sally Jewell and U.S. Fish and Wildlife Service Director Dan Ashe, both political appointees, not to list the grouse.

In 2012, Obama won 51.5% of Colorado’s popular vote, to Romney’s 46.13%. Following the 2014 federal and state elections, Colorado became even purpler. At the federal level, Cory Gardner (R) beat incumbent Mark Udall (D) by a margin of 48% to 46% for the contested U.S. Senate seat, Colorado’s other Senator, Michael Bennet, is a Democrat, and the state’s Representatives continue to be split 4-3 in favor of Republicans. In the 2014 state elections, Republicans also gained ground, picking up one Senate seat, thereby achieving an 18-17 majority, and picking up three House seats, which narrowed Democrats’ majority to 34-31.

Colorado’s Gunnison sage grouse lawsuit may drag on for much of 2015 and perhaps in to 2016, which will be a constant reminder to many voters, both in Colorado and elsewhere, that the Obama administration, and by association Democrats (especially those seeking federal office), are out of touch with state and local priorities.

With the 2016 presidential election cycle fast approaching, a couple of factors involved with the Gunnison sage grouse are going to be in play. Democrats are worried that the legacy of an increasingly unpopular president will damage them, especially in the all-important swing states. Colorado’s Gunnison sage grouse lawsuit will serve as a reminder of this, especially because it was filed at the behest of a Democrat governor.

Also, in the 2016 federal elections the environment is going to be an issue Democrats use to hammer Republicans by portraying them as out of touch with American values, corporate shills, mean-spirited and backward-looking. Yet by listing the Gunnison sage grouse the Obama administration has handed Republicans an enormous gift for the 2016 election cycle that they can use to portray Democrats as out of touch, eager to rely on heavy-handed, one-size-fits-all solutions from an imperious and distant federal government, dismissive of state and private approaches that are a better fit for many issues, and, if Republicans take environmental issues seriously, as anti-environment.

More broadly, Republicans can use the lawsuit, the looming possibility of the greater sage grouse being listed across 11 western states and 165 million acres, and conservation in general to demonstrate that they are pro-environment, forward-looking, and in favor of innovative state-based and private solutions to many environmental issues that are superior to inflexible and insensitive dictates from Washington, D.C. Democrats figured out long ago that conservation is an effective political issue and fundraising tool because its outstanding visual and public relations values elicit sympathy from a broad spectrum of voters, and because Republicans have ceded the field to them. Perhaps with issues like the Gunnison sage grouse this will begin change.

The second reason Colorado’s notice of intent to sue over the Gunnison sage grouse’s listing is remarkable is its substance, which paints a damning picture of the federal government, especially the Fish and Wildlife Service, or FWS as its referred to in much of the notice (In a previous post, here, I detailed Colorado’s extraordinary conservation efforts for Gunnison sage grouse conservation, which were undertaken with the understanding the federal government would not list the grouse). The notice of intent to sue states:

“In making the listing decision, FWS improperly analyzed the required factors to make its determination that the Gunnison sage-grouse is threatened; failed to rely on the best available science; and failed to give adequate weight to the extensive conservation efforts undertaken by state and local governments and private landowners. In designating critical habitat for the Gunnison sage-grouse, FWS failed to consider economic impacts of the designation and failed to demonstrate that currently unsuitable habitat included in the designation is essential to the conservation of the species.”

The notice of intent to sue then provides details about conservation efforts, most notably in the Gunnison Basin, located in Gunnison County, Colorado that “comprises approximately 86% of the population and covers almost two-thirds (63%) of the occupied habitat of the species.” According to notice:

“With the exception of federally listed species and migratory birds, Colorado has exclusive jurisdiction over wildlife within its boundaries. To date, the State has invested close to $40 million in voluntary conservation programs, land acquisition, research, monitoring activities, habitat treatments, translocation, and predator control programs aimed at conservation of Gunnison sage-grouse and its habitat. State and county-led voluntary conservation programs have resulted in protection of over 140,000 acres of privately owned habitat. In combination with areas of habitat that are federally-owned and managed, approximately 75% of occupied habitat has some level of protection.”

The logical question is: what more could Colorado and Gunnison County have done to prevent the grouse’s listing and what benefit does listing under the Endangered Species Act provide?

In its notice of intent to sue, Colorado alleges the U.S. Fish and Wildlife Service violated the Endangered Species Act by listing the Gunnison sage grouse because the agency “failed to consider sufficiently the best science and impacts of conservation efforts.” The notice provides the following examples that give a sense of how incorrect and out of touch with reality the Service is, and which strongly suggest the Service was less interested in an objective evaluation of the data than in reaching a predetermined decision to list the grouse:

  • “The Service accorded little weight to indications that the Gunnison based population is stable and thriving, including the fact that the current population now exceeds the targets set in the Rangewide Conservation Plan and that the Gunnison basin lek counts are at an all-time high.”
  • “The Service misinterpreted or ignored population viability analysis showing a very low probability (less than one percent) that the species will go extinct within the next fifty years. Current estimated male counts in the Gunnison basin are more than 50% higher than they were when two of the models were developed”
  • “The service acknowledged that current residential development is a threat of ‘low magnitude to the Gunnison based birds at the population level,’ but concluded that residential development elsewhere, in some of the satellite populations, poses a threat to the species range wide, included the Gunnison basin and that future development in Gunnison County continues to pose a threat.” (This assertion by FWS is particularly telling of the agency’s willingness to use false information to support listing because Gunnison County enacted very restrictive sage grouse-specific zoning ordinances and hired the nation’s only county-based endangered species biologist to help implement the ordinances.)
  • “The Service accorded little or no weight to scientific evidence submitted by CPW [Colorado Parks & Wildlife] regarding the degree of threat to the Gunnison based population posed by disease, drought, fire, and climate change.”
  • “In determining that the Gunnison basin population could not likely survive if the satellite populations were extirpated, FWS engaged in speculation that is unsupported by the best available data.””In evaluating threats to sagebrush habitat in the Gunnison based, FWS misinterpreted the best available science regarding the historical range and distribution of the species. The Service overestimated the extent of historical range and relied on an improper understanding of habitat fragmentation as applied to the Gunnison sage-grouse.”

In sum, according to Colorado’s notice of intent to sue:

“The Service underestimated the level of protection that has been provided via federal, state, local and private conservation efforts to conserve sagebrush habitat in the Gunnison basin. The Gunnison basin area has met or exceeded the Rangewide Conservation Plan target for conservation and protection of seasonally important habitat on private lands.” (This is the critically important moist habitat-meadows, wetlands streamsides-that adults and chicks depend on for high quality forage and insects in the summer, when the sagebrush uplands become dry and contain little palatable food)

“Federal and state agencies responsible for management of publicly owned habitat have entered in to a formal agreement [sic] to protect sage-grouse habitat on their lands, and other federal programs have also resulted in the protection, improvement and restoration of habitat in the Gunnison basin. [Federal and state agencies have entered into two such agreements, a Candidate Conservation Agreement with Assurances, or CCAA, that covers private land, and a Candidate Conservation Agreement, or CCA, that covers federal land]. The Service’s conference opinions on the CCAA and the CCA found that the implementation of the programs would provide a long-term, net benefit for the Gunnison sage-grouse on a landscape level. FWS acknowledged the effectiveness of these efforts and noted that they have had the most impact in the Gunnison basin, but did not adequately weigh them in the listing decision.”

“In addition, FWS engaged in a formal analysis of conservation efforts under its PECE (Policy for Evaluation of Conservation Efforts), but never released a draft or final version of the analysis [to] the public for review. Accordingly, the State is unable to evaluate whether the analysis was reasonable and gave sufficient weight to the many ongoing conservation programs.”

Last is the issue of how the Fish and Wildlife Service designated critical habitat. According to Colorado’s notice of intent to sue:

“The ESA requires the [Interior] Secretary to consider economic impacts in designating critical habitat…The Service had an economic analysis prepared, but did not take the results into account when designating critical habitat. Further, the Service included areas as critical habitat that are not suitable for Gunnison sage-grouse, and failed to demonstrate that inclusion of currently unsuitable habitat was essential to the conservation of the species. FWS also determined that all currently occupied areas are essential for the persistence and conservation of the Gunnison sage-grouse, even though under the ESA…barring unusual circumstances, critical habitat should not include the entire geographical area which can be occupied by the species.”

Given all this, it is no wonder Colorado is suing to rescind the listing of the Gunnison sage grouse and return management to the state. It will be interesting to see how this case, and the larger issues on which it touches, shake out.

Brian Seasholes is a former research fellow with Reason Foundation.