Save the Gunnison Sage Grouse From the Endangered Species Act

Commentary

Save the Gunnison Sage Grouse From the Endangered Species Act

An important but little-noticed Endangered Species Act milestone is fast approaching. The U.S. Fish and Wildlife Service has a November 12 deadline to decide whether it will list the Gunnison sage grouse under the Act. Colorado, Utah and counties across the grouse’s 938,000-acre range in southwestern Colorado and southeastern Utah have made extraordinary efforts to conserve the bird over the past two decades, including spending upwards of $50 million, in part to keep the grouse off the endangered species list.

If listing occurs, however, it will send a chilling message not only to states and communities in the Gunnison sage grouse’s range that their efforts were for naught, but to all states and communities across the country that are working hard to conserve imperiled species and prevent their listing under the Endangered Species Act. This is especially the case for states and communities throughout the 11 state, 165 million-acre range of the greater sage grouse, which have made enormous efforts and spent tens of millions of dollars on conserving the grouse and preventing listing.

Sadly, if the Gunnison sage grouse is listed the bird will very likely face a bleaker future. It is difficult for most people to understand how this is possible because they live in urbanized areas, and their idea of the Endangered Species Act is a virtuous law that helps the most vulnerable species. Yet the on-the-ground reality in the sage grouse’s range and large portions of rural America, where most endangered species live, is far different from abstract notions of the Act.

A powerful example of this, and how the Endangered Species Act works against species conservation, involves the extraordinary conservation efforts undertaken across the range of the Gunnison sage grouse. Ground zero for these efforts is the appropriately named Gunnison County, Colorado because the Gunnison Basin population of the sage grouse, which exists almost totally in the county of the same name, contains nearly 90% of the bird’s total population and 63% of its habitat (of which 67% is federal land, 30% private, and 3% state). Moreover, private landowners in Gunnison county and rangewide own almost all of the crucially important moist habitat–wet meadows, irrigated pastures, and streamsides–sage grouse adults and chicks depend on in late spring and summer for food, especially high quality forage and insects.

The key point to grasp about conserving the Gunnison sage grouse, and most endangered species for that matter, is that people are the linchpin. Successful endangered species conservation depends on the willing cooperation of landowners who harbor these species, especially because private lands are more important than public lands. Almost 80% of endangered species depend on private land for some or all of their habitat, compared to 50% for federal land. In addition, about two-thirds of endangered species have 81-100% of their habitat on private land, and more than one-third of species have all of their habitat on private land. The crucial role of private lands for endangered species also applies to states and municipalities that have large amounts of federal land, such as those in the range of the Gunnison sage grouse; Colorado (36.2%), Utah (66.5%), and Gunnison County (78%). This is because private landowners in states with large amounts of federal land have most of the well-watered land, which is typically of highest value for wildlife.

Without willing and voluntary help from landowners, endangered species have much diminished prospects. Unfortunately, this situation is all-too-common because of the Endangered Species Act’s penalty-based approach; $100,000 fine and/or one year in jail for harming, for example, one grouse, egg, or even habitat, whether the habitat is occupied or just of a suitable type. As a result, the Act turns species in to financial liabilities, which creates strong incentives for landowners to rid their land of species and habitat, refuse to get involved in endangered species conservation efforts, and simply go silent in the hope regulatory authorities don’t notice they have endangered species or suitable habitat on their land. There is increasing evidence all these things are occurring (as I’ve mentioned here, and here), and is most likely why the ratio of declining to improving species is an abysmal 9:1 on private land, while it’s a much better 1.5:1 on federal land. There is a tragic aspect to all of this because most landowners are good conservationists and happy to chip-in to help wildlife so long as they are not penalized for doing so.

Fortunately for the Gunnison sage grouse, Colorado, Utah, counties, landowners and a wide array of people have made enormous efforts to conserve it, most notably over the past two decades in Gunnison County. As with so many counties across the sage grouse’s range, Gunnison County’s conservation efforts have revolved around getting buy-in from the ranchers who own much of the bird’s habitat, especially the crucially important moist habitat, and creating a big-tent-approach. “We’ve brought everybody to the table who has an inkling of saving this species,” Paula Swenson, chair of the Gunnison County Board of Commissioners, remarked to the Denver Post. “Nobody could do more than we’ve done.” Swenson started her job on the County Commission in January 2005, and “by March it was my number one issue and it still is all these years later.”

One indication of Gunnison County’s dedication to sage grouse conservation is that it has what is thought to be the only county-based wildlife biologist in the U.S. working solely on endangered species issues. Around the time Swenson began her tenure, the county hired Jim Cochran, a retired federal and state wildlife biologist, to work on sage grouse conservation. The county initially retained Cochran on a contract basis but soon brought him on board as a fulltime employee. He is paid a yearly salary of $84,000, and this is a lot of money for a small county like Gunnison, which has a population of just over 15,000 people.

Much of Gunnison County’s conservation of the sage grouse has involved three initiatives the U.S. Fish and Wildlife Service and environmental pressure groups advocate, one of which is zoning for endangered species. Jim Cochran has spent a lot of time persuading property owners to alter their land-use practices and plans to conform to the county’s sage grouse-specific land-use regulations, such as moving planned buildings away from important sage grouse habitat. It hasn’t always been easy. “The first year when we were developing those regulations [in 2006] we could fill a room instantly because the landowners thought we were going to ruin them,” Cochran told the Denver Post. But over time Cochran was able to convince landowners that sacrifice up front was a good idea because it would help prevent the sage grouse from being listed down the road. According his remarks to the Post, “I’ve had developers come to me and say, ‘Jim, you cost me a bunch of extra money but at the same time we understand why you did what you did.’ The regulations are aimed at minimizing impacts for the sage grouse.”

A big focus of county and state conservation efforts for the Gunnison sage grouse has been conservation easements to protect habitat. Upwards of $50 million has been spent for the Gunnison sage grouse, mostly from state funds, to secure conservation easements on 64,000 acres. This was also a big sacrifice for Gunnison County because with 78% of it consisting of federal land, reducing the value of and ability to develop private land as a result of conservation easements could have potentially significant economic impacts.

An additional conservation initiative for the Gunnison sage grouse is seasonal road and trail closures. This involves closing miles of trails and roads on public lands during the spring, typically from March 15-May 15, when grouse are very sensitive to disturbance while engaging in courtship. The Gunnison Basin Sage Grouse Strategic Committee, a public-private partnership run by the county to coordinate sage grouse conservation, supplies a well-marked map of the closures. An indication of the civic-mindedness and spirit of cooperation that has been the hallmark of Gunnison County’s sage grouse conservation efforts is the work of Gunnison Trails, a non-profit organization founded in 2006 to collaborate with federal and state agencies on public land trail maintenance, management and education. A big part of Gunnison Trails’ efforts is to help implement and educate the public about seasonal trail closures for the sage grouse.

Yet all of these conservation measures, in addition to a raft of conservation plans and other initiatives (which will be discussed below), were not enough to prevent the U.S. Fish and Wildlife Service from proposing, in January 2013, to list the Gunnison sage grouse under the Endangered Species Act.

After the proposed listing, county officials were very upset and felt deeply betrayed by Fish and Wildlife because of the extraordinary efforts they had made over the preceding nineteen years to conserve the sage grouse and prevent listing. Paula Swenson said she was “furiously frustrated,” according to a story in the Denver Post. And Jonathan Houck, a county commissioner and former mayor of the town of Gunnison, said he felt “cut off at the knees.”

Gunnison County is an eclectic mix of ranchers, outdoorsy types, people affiliated with a branch of the state university system, municipal employees, and ordinary folks, all of whom enjoy the beauty of the region and its relaxed pace of life. So for the normally laid-back people of Gunnison County to be so fired up over the possible listing of the sage grouse is an indication that something is seriously amiss.

Another factor that is galling to Gunnison County, the state of Colorado, and private groups and citizens involved with Gunnison sage grouse conservation is that even though their extraordinary conservation efforts have paid off with a healthy, stable sage grouse population, Fish and Wildlife still proposed to list the bird. Over the past twenty years, the sage grouse’s Gunnison Basin population increased steadily. Starting in 1995, which coincided with the initiation of intensive conservation efforts, the population grew from 1,800 birds, leveled off at around 2,500-3,000 from 1996-2002, declined to approximately 2,000 for two years, shot-up to around 3,700-4,200 from 2005-2007, and then held steady up until the present but this time at a markedly higher population level of between 3,000 and 3,500 birds.

The other six sites that contain populations of Gunnison sage grouse have the remaining 10-12% of the bird’s population spread among them. As a result of these populations being so small, they tend to fluctuate more than the Gunnison Basin population, and the Fish and Wildlife Service cites this as a reason why listing under the Endangered Species Act is necessary. But given the tenuous nature of these populations, in many ways they require the voluntary cooperation of landowners willing to harbor sage grouse on their property even more than the Gunnison Basin population. Listing under the ESA would bring the Act’s draconian penalties in to play, which would create very strong and in all likelihood overwhelming disincentives for landowners to voluntarily harbor sage grouse on their property. This would be the worst outcome for these small populations.

The other loser if listing occurs, in addition to people across the sage grouse’s range, will be the Gunnison sage grouse because many landowners will be very reluctant to continue making efforts to conserve it. As Gunnison County Commissioner Houck remarked to the Denver Post:

“A listing will have a lot of people saying, ‘I’m done.’ I don’t mean we’re going to purposely bring harm to the bird and the habitat. But if you voluntarily alter how you work your land and that’s not enough, it sends a clear shot across the bow. It says, ‘Why put in the effort, why put in the money, why tax your resources? Because in the end it will never be enough.'”

The Colorado Cattlemen’s Association (CCA), in comments submitted to the Fish and Wildlife Service about the proposed listing, had the following observations about how listing would likely be detrimental to conservation of the sage grouse:

“CCA, along with a broad array of stakeholders, believes the single greatest aspect for not listing the GUSG [Gunnison sage grouse] historically and into the future is the severe limitation such a listing will have on ongoing and additional conservation measures across public and private lands…It is our assertion that by listing the GUSG, landowners, local governments, state agencies and the general citizenry will not continue to enroll and engage in voluntary conservation measures at their historic level. In fact, CCA has anecdotal information that illustrates landowners will dis-enroll from some of the voluntary conservation agreements in which they are currently participating. Unfortunately, this affect will carry over to other conservation efforts currently underway for species such as the Greater Sage Grouse and Gunnison’s Prairie Dog.”

Chris Dickey is another community leader in Gunnison County who has some valuable words of wisdom on the proposed listing of the sage grouse. He is publisher of Gunnison County Publications, which includes the Gunnison Country Times, the weekly newspaper that also has an accompanying website, which folks in the Gunnison region, like so many people in rural America, rely on for their local news and that serves as vital “glue” that holds these communities together. Here’s what Chris had to say about the proposed listing of the sage grouse under the Endangered Species Act:

“The community most impacted – ours – overwhelmingly opposes it. And the efforts working toward a positive outcome will be severely jeopardized by enacting it.

“We think such a designation will backfire; that it will not help this bird in the least; and that it will cause significant hardships to a community – Gunnison – that has gone to extraordinary lengths to do the right thing when it comes to this species. Therefore, we adamantly urge the U.S. Fish and Wildlife Service to, once and for all, remove the Gunnison Sage-grouse from ESA consideration.”

Chris went on to ask “why enact a rather draconian measure like the ESA?” His answer:

“The only answer to that question that passes the straight-face test is this: Outside environmentalists. It’s no secret that WildEarth Guardians has cleverly backed the Fish and Wildlife Service into a legal corner by forcing them to make timely listing determinations on more than 250 species, including the Gunnison Sage-grouse, as part of a settlement reached in 2011. It’s also no secret – we’ve heard it from one of the group’s leaders, Mark Salvo, ourselves – that what WildEarth Guardians is really after is to end public-lands grazing.

While groups are free to pursue whatever radical agenda they want, it’s not the federal government’s obligation to help implement those agendas where they are overwhelmingly unwelcome and when they are legally unjustified. In our estimation, such an action would be nothing less than a travesty.

For more than a decade, the citizens of Gunnison County have come to the table in a good faith effort to protect the Gunnison Sage-grouse. Land use regulations have been enacted and enforced. Volunteer conservation agreements have been put in place. Evidence suggests these efforts are working, and legal precedent (think oil and gas oversight) strongly points to our county government’s masterful ability to seal these protective ethos into law, in perpetuity.

Simply put, there is no way the feds can do a better job of protecting this bird than we have proven capable of. Not only have local efforts resulted in a stronghold population of this species, but given an opportunity, these same efforts can be extended to other jurisdictions – possibly with the help of local leaders. The Gunnison Basin is a model for a community’s conservation-minded response to an imperiled species.

Lastly, because the ESA has been, over time, hijacked by extremists on both sides of the ideological spectrum, it’s turned into a lightning rod of controversy. Its enactment here would undeniably transform what’s been a widespread spirit of cooperation into an every-person-for-himself fight.

The final analysis, in our view, clearly shows everyone losing with an ESA listing of the Gunnison Sage-grouse, including the birds themselves. The only winner is an extreme environmental group that has no stake in our community. That is not the ending to a long and arduous struggle that we deserve.”

Sound words, indeed. Meanwhile, Mark Salvo, who is one of the people that petitioned in 2000 to have the Gunnison sage grouse listed, has moved on to Defenders of Wildlife where he is director of federal lands issues and continues to believe the Endangered Species Act is a productive approach to conservation. “I am always surprised to see this claim, that Endangered Species Act listing discourages continued state and local efforts to conserve imperiled species,” he remarked to Greenwire. “The Endangered Species Act does not in any way impede state and local efforts to conserve listed species.” While this assertion does not pass the laugh test, it is reminiscent of a similar one made twenty years ago by John Kostyack of the National Wildlife Federation in a letter to the editor of the Wall Street Journal (May 12, 1994) about the Endangered Species Act: “In fact, the Act has never prevented property owners from developing their land.” There is a terrific 1997 article, available here, by Ike Sugg, a former colleague of mine, on Endangered Species Act proponents making demonstrably false claims about the Act not restricting land use.

Wild Earth Guardians, which is pushing hard for listing the Gunnison sage grouse, excels at filing lawsuits over the Endangered Species Act but not actually conserving the bird. The group is based in Santa Fe, New Mexico and has offices in a number of locations, the closest of which to Gunnison County is 200 miles away in Denver. One would think that, given Wild Earth Guardian’s professed dedication to endangered species conservation, the group would be interested in getting involved in actual conservation efforts for the Gunnison sage grouse. But apparently Wild Earth Guardians is more interested in virtual “paper” conservation from afar. “The best way to pull them [endangered species] back from the brink is to obtain their formal listing under the Endangered Species Act,” the group claims.

Another proponent of the Endangered Species Act and listing the Gunnison sage grouse is John Fitzpatrick, Director of the Cornell Lab Ornithology, a non-profit unit of Cornell University that is one of the nation’s most influential authorities on birds. Fitzpatrick has mischaracterized sage grouse conservation efforts and the politics of listing (as I discussed here). While Fitzpatrick’s views on Gunnison sage grouse might not normally matter much, the influential New York Times published an op-ed by him, which reflects an elitist but widespread view that is totally out of touch with the on-the-ground realities of sage grouse conservation. “Some private landowners and energy companies have protested listing the Gunnison sage grouse as endangered, fearing that will result in federally imposed limits on how they use their land,” Fitzpatrick claims. Absent is any mention of municipal and state objections to listing. “Efforts by state agencies and private landowners to stabilize Gunnison sage grouse populations have failed,” he adds, again failing to acknowledge the crucially important role played by municipal efforts, especially those by Gunnison County that have resulted in 88% of the population being stable. Fitzpatrick urges the sage grouse be listed so a number of conservation actions can be taken, including “moving individuals to promote genetic exchange.”

In fact, according to the January 2013 proposal to list the Gunnison sage grouse, published two months before Fitzpatrick’s op-ed, over the past ten years the Colorado Division of Wildlife has translocated 217 grouse (68 of which were radio-tagged) from the Gunnison Basin to the other six populations. “These experimental translocations were conducted to determine translocations techniques and survivorship in order to increase both size of and the receiving populations and to increase genetic diversity [emphasis added] in the populations outside the Gunnison Basin,” according to the proposed listing. An additional 30 grouse from Gunnison Basin were translocated in 1971 and 1972 and resulted in the successful reestablishment of one of the six smaller populations.

It is these types of errors and dismissiveness from influential elites and organizations, which are transmitted by like-minded media channels and groups, that are very frustrating to rural people who have to live with the realities of the Endangered Species Act. Rural Americans, by dint of being few in number and less wealthy, often feel relatively powerless to have their voices heard, needs addressed and ways of life respected, especially when they are forced to bear the brunt of laws like the Endangered Species Act that many urban and suburban Americans support.

Proponents of listing the Gunnison sage grouse under the Endangered Species Act, and of the Act in general, would do well to heed the words of Stephen Edwards of the IUCN (World Conservation Union), one of the world’s foremost experts on wildlife conservation and meshing wildlife and human needs. According to Edwards ((Stephen R. Edwards, “Sustainable Conservation By and For the People,” in Endangered and Other Protected Species: Federal Law and Regulation, ed. Richard Littell, (Washington, D.C.: BNA Books, 1992), pp.vii-viii.)):

“Successful conservation depends on the commitment of the people living with the wild species-not us. Yes, we can give financial and technical support, but in the final analysis it will be those people who will make a difference. Not laws. Not government policies. And not our wishful thinking.”

A closer look at the history of Gunnison sage grouse conservation, with a focus on Gunnison County’s efforts, provides a better sense of the lengths to which the counties across the bird’s range, along with Colorado and Utah, have gone to help the bird. It also provides a much-needed antidote to the distortions, inaccuracies, and views of those in favor of listing.

In 1995 a number of stakeholders formed the Gunnison Basin Sage Grouse Local Working Group comprised of representatives from various levels of government, including municipal (Gunnison County Planning Commission, and Weed Commission), state (Colorado Division of Wildlife), federal (Bureau of Land Management, U.S. Department of Agriculture’s Natural Resource Conservation Service, U.S. Fish and Wildlife Service, U.S. Forest Service, and U.S. National Park Service), the Gunnison County Stockgrowers, non-profit environmental groups (Black Canyon Audubon Society and High Country Citizens’ Alliance), and ordinary citizens. The group’s work culminated in the 1997 publication of the Gunnison Sage Grouse Conservation Plan: Gunnison Basin, Colorado, a comprehensive 113-page document.

Following this, the other five regions in Colorado with Gunnison sage grouse populations also published plans: Crawford Area, 1998 (and updated in 2011); Monticello/Dove Creek in 1998 (and updated in 2003); Pinyon Mesa, 2000; Poncha Pass, 2000; and San Miguel Basin, 2000. In addition, several of these groups have active websites that serve as information clearinghouses; Gunnison Basin, Crawford Area, Monticello/Dove Creek, and San Miguel Basin.

Everything changed, however, in 2000 when the American Ornithologists’ Union (the final authority on U.S. bird taxonomy) recognized the Gunnison sage grouse as a separate species, instead of scattered populations of the greater sage grouse. As a result, the likelihood increased enormously that sage grouse in southwestern Colorado and southeastern Utah could be listed under the Endangered Species Act.

The mid-2000s saw the pace of sage grouse conservation increase. In 2005, Colorado, Utah and various federal agencies published the Rangewide Conservation Plan. The plan, a massive 526-page document, is in many ways the most comprehensive conservation document for the Gunnison sage grouse. The plan is also yet another indication of the serious and credible effort to conserve the Gunnison sage grouse on the part of Colorado and Utah.

2006 was a watershed year for Gunnison sage grouse conservation. In April, the U.S. Fish and Wildlife Service determined the grouse did not warrant protection under the Endangered Species Act. At this point, Colorado, Utah and the counties in the sage grouse’s range, especially Gunnison, could have declared victory and ceased conserving the grouse. Instead, they redoubled their efforts.

The Working Group changed its name in 2006 to the Gunnison Basin Sage-grouse Strategic Committee and is still going strong. The Strategic Committee contains most of the same member organizations as the Working Group, along with a representative of Saguache County, which borders Gunnison County to the south and contains a portion of the Gunnison Basin population of the sage grouse (FYI, the minutes of the Committee’s meetings, which often delve in to great detail on conservation issues, are available here, and are testament to the group’s sophistication, dedication and effectiveness).

In 2006, Colorado Parks & Wildlife and the U.S. Fish and Wildlife Service signed a Candidate Conservation Agreement with Assurances (CCAA). These agreements are one of a number of Endangered Species Act reforms initiated in the 1990s under then-Interior Secretary Bruce Babbitt. CCAAs are touted as giving private landowners the assurance that if they undertake agreed-upon conservation measures, then if the species covered by the plan is listed in the future landowners will not be subjected to additional requirements and land and resource use restrictions under the Endangered Species Act. Currently, 42 landowners who own 97,960 acres have agreed to be part of the CCAA for the Gunnison sage grouse. There are another 5 landowners with a total of 28,500 acres that are going to be part of the CCAA in the next few weeks, which will bring the total to 47 landowners and 126,460 acres.

Candidate Conservation Agreements with Assurances sound great, but there are three huge problems that make them much less secure than commonly portrayed. First, the entire CCAA program has been implemented administratively, not codified into the ESA, which means the federal government has a great deal of latitude to change the agreements. Second, CCAAs are not immune from legal challenge from third parties, such as from lawsuit mills like Wild Earth Guardians. Third, the federal government and groups like Wild Earth Guardians are constantly looking for new species to list under the Endangered Species Act, as well as new populations of species already listed. This is especially the case since a 2011 lawsuit settlement between Fish and Wildlife and two groups, Wild Earth Guardians and the Center for Biological Diversity, under which the federal government is obligated to consider to listing 757 species by 2018, and make final listing decision on 251 of these species. The lawsuit settlement will result in a roughly 50% increase in the number of U.S. species listed under the Endangered Species Act. With so many species in the process of being listed over the next decade or more, it is very plausible that a Candidate Conservation Agreement with Assurances, Candidate Conservation Agreement or other administrative agreement could be rendered worthless or of considerably less value to a landowner by species not covered (i.e., newly-listed species and newly discovered populations of already-listed species). This could well result in unanticipated costs and land and resource use restrictions for landowners, businesses, and states.

Proponents of listing the Gunnison sage grouse were undeterred by the Fish and Wildlife Service’s 2006 decision not to list the bird, and in 2007 filed a lawsuit to try to get the agency to reverse its decision. Curiously, San Miguel County in Colorado led a coalition of the usual suspects–the Center for Biological Diversity, Wild Earth Guardians and fellow travelers-filing the lawsuit. San Miguel County’s participation is explained by the fact that Telluride, the wealthy town filled with armchair conservationists, is the county seat. As a result of a consent decree over the lawsuit, Fish and Wildlife was obligated to reevaluate the status of the Gunnison sage grouse, which resulted in the agency determining in 2010 that the grouse warranted listing but doing so was precluded by other higher priority issues. But after the 2011 lawsuit settlement, a listing proposal became much more likely because the Gunnison sage grouse was one of the 251 species for which the Fish and Wildlife Service was obligated to make a final listing decision. It is ironic that San Miguel County advocates listing, which is opposed by Gunnison County. Yet had it not been for Gunnison County’s outstanding conservation efforts there would not have been sufficient sage grouse available to translocate 47 of the birds from Gunnison County to San Miguel County.

In 2009 the Strategic Committee published the Gunnison Sage-Grouse Conservation Action Plan, the purpose of which was to address the seven objectives in the 2005 Rangewide Conservation Plan and the five factors affecting the grouse cited by the U.S. Fish and Wildlife Services when it determined in 2005 the grouse did not warrant listing under the Endangered Species Act.

More recently, in 2013, a Candidate Conservation Agreement for the sage grouse in the Gunnison Basin, which covers 395,000 acres of public land, was signed by a number of federal agencies (Bureau of Land Management, U.S. Department of Agriculture Natural Resources Conservation Service, National Park Service, U.S. Fish and Wildlife Service, U.S. Forest Service), Colorado Parks and Wildlife, and Gunnison and Saguache Counties. In March 2013, the ten Colorado counties and one Utah county within the range of the Gunnison sage grouse signed a memorandum of understanding to reinforce their commitment to conserving the grouse.

In order to sort out the issues surrounding the proposed listing of the Gunnison sage grouse and gain a broader perspective, I contacted Greg Walcher, Executive Director of the Colorado Department of Natural Resources from 1999-2004, and a fifth generation native of western Colorado, where he and his family own a fruit orchard. Greg’s thoughts on the history of Gunnison sage grouse conservation and the consequences of listing under the Endangered Species Act are well worth a read:

“Listing of the Gunnison sage grouse would represent one of the worst broken promises in the history of conservation. The Gunnison Ranchlands Legacy project started in 1996 and thrived through the Administrations of four governors in both parties. The State of Colorado in 2006 completed an agreement with the federal government that allowed landowners to enroll in a program of protective habitat management, with the assurance that their farming and ranching practices would not get them into trouble if grouse nests are accidentally disturbed. As a result, the species was removed from the “candidate” list, and local participation has surpassed any similar program under the ESA. Massive investment and local participation was made with the clear understanding that the Gunnison sage grouse would not be added to the federal endangered species list.

Habitat partnerships and management agreements are not unique to Colorado, of course. But no other state/local partnership has ever come close to our level of commitment to such a program. Coloradans have invested well over $50 million of state, local, and private money in conservation easements to preserve ranchlands in the Gunnison Basin, and have preserved over 64,000 acres of open space, ranchlands, and sage grouse habitat. That’s a 20-year legacy, including another $3 million this year, and we are proud of it for many reasons. Besides preserving the historic character of majestic mountain valleys, it is a way to demonstrate that species can be protected without heavy-handed federal regulation, while preserving vital local economies.

Ranchers were understandably skeptical about preserving the sage grouse, and they had one central and difficult question: can we trust the federal government to do what it says? Without that trust, adding a species to the endangered list can actually harm the species, because its habitat is mostly on private land. People in the Gunnison area, and the State of Colorado, relied on that trust for a generation. Today, the Gunnison sage grouse population is strong and growing steadily – it is not in danger of extinction by any measure. Still, some national environmental groups and some federal officials simply will not give up on the regulatory approach. It is pathetic that decisions of this magnitude are sometimes motivated by lawsuits, not conservation. Yet here we are again, facing not only an endangered listing and the broken promise that represents, but a sad and avoidable end to a proud legacy of preservation efforts in the Gunnison Basin. If the goal is to end ranching and stop human activity, efforts to do so will go on endlessly. But if species recovery is the goal, the government and environmental groups are going about it exactly the wrong way.”

It is staggering that after twenty years of successful conservation efforts for the Gunnison sage grouse–which include the expenditure of over $50 million, conservation agreements on more than 126,000 acres of private land, countless hours of hard work by many people, non-profit organizations and various levels of government, and assurances to landowners that self-imposed land-use restrictions would result in the grouse not being listed–the federal government is poised to list it under the Endangered Species Act. Advocates of the Act contend that without the threat of listing most of these efforts for the Gunnison sage grouse, and many other species, would not occur. Perhaps. But advocates underestimate how counterproductive and harmful the Endangered Species Act is to species conservation, both for those species already listed and those that may be listed, because of the Act’s penalty-based approach.

There is still hope, however, the Fish and Wildlife Service will come to its senses and not list the Gunnison sage grouse. In August of this year, the Service decided not to list the Montana grayling, a species of fish, because of the effectiveness of state and local conservation efforts (as I wrote about in a previous post). Hopefully the Service will apply the same logic to the Gunnison sage grouse.

Another possibility is Fish and Wildlife will decline to list because of bi-partisan political pressure. Governor Hickenlooper of Colorado, a Democrat, has been very involved in making the case to the Interior Department, including trying to educate Interior Secretary Sally Jewell, that listing is not necessary and would be counterproductive. “What she’s hearing the first time is from her staff at Fish and Wildlife, and I think she gets a slanted version.” Hickenlooper stated to the Washington Times last November. “My job is to make sure that she gets a balanced version so she hears both sides of the story.”

On April 25, a bipartisan group of three members of Congress from Colorado, Sen. Mark Udall (Democrat), Sen. Michael Bennet (Republican), and Rep. Scott Tipton (Republican), wrote a letter to Dan Ashe, Director of the U.S. Fish and Wildlife Service, requesting an extension of the May 12 deadline imposed by a lawsuit to list the Gunnison sage grouse. On May 5 the Fish and Wildlife Service filed a motion in federal district court to extend the listing deadline by six months to November 12. In response, all three members of Congress expressed their appreciation, and Senator Udall said “Today’s actions are a win for Colorado and everyone working to save this bird.”

Unfortunately, it appears the Fish and Wildlife Service has not used the six month delay to reevaluate the effectiveness of conservation efforts to conserve the sage grouse. Governor Hickenlooper sent a letter on July 2 to Noreen Walsh, Regional Director of the Fish and Wildlife Service, to express his concerns:

“In our letter of April 28, 2014 requesting the delay, we asked that the additional time be used to ‘better understand the conservation currently in place and to evaluate the opportunities for satellite populations.’ Now USFWS have additional time both to review emerging science and to consider the extraordinary conservation efforts already underway in the Gunnison basin.

“Today we write to ask for the USFWS’s focused attention on the evidence thus far presented by Gunnison County and Colorado Parks and Wildlife (CPW). It is our understanding that while the USFWS have received comments and scientific information from them, we have not yet been provided substantive feedback or have had the benefit of meaningful dialogue from the USFWS. Instead, it is our understanding that the USFWS continues to push for the development of a 4(d) rule. Since that rule can only exist in the context of a ‘threatened’ listing, our communities are rightly concerned that the USFWS has effectively come to a final decision without due regard for the information they have submitted. Unfortunately, this is not in keeping with the intended use of a time delay.”

Two months later, on September 3, Noreen Walsh replied. It is interesting that Walsh took so long to reply about such a pressing issue to a governor of the same political party as the administration that employs her, and especially to a governor who is in a very tough reelection battle with a Republican due, in part, to anger about the Obama administration’s use of laws and regulations, such as the Endangered Species Act, to stymie natural resource use and economic development. Furthermore, governors typically receive more prompt responses from Fish and Wildlife, particularly from the eight Regional Directors, but perhaps Walsh felt no need since the Service had already made up its mind to list the Gunnison sage grouse.

The third factor that may dissuade Fish and Wildlife from listing the Gunnison sage grouse is the prospect of a messy and prolonged legal fight. Governor Hickenlooper has threatened to sue if listing occurs. John Swartout, the governor’s point person on sage grouse, stated to the Daily Sentinel (of Grand Junction, Colorado) “she will get sued,” in reference to Colorado’s stance towards Interior Secretary Jewell if the Gunnison sage grouse is listed. “It all comes down to litigation,” Swartout added. “We can win that case.”

At the same time, however, members of Congress, the governors of Colorado and Utah, and their point people on sage grouse have a very good grasp of the bigger picture of the bird’s conservation that the Interior Department leadership appears to lack. “We believe the collaborative and voluntary process our state has undertaken could be used as a model to protect other threatened species within Colorado and across the country,” Colorado Senators Bennett and Udall and Representative Tipton stated. “Given the unique landscapes and natural resources in Colorado, a Colorado-based solution is more practical that one handed down by the federal government,” Governor Hickenlooper said to the Colorado Observer. “No one understands state challenges and demographics better than the people who reside and govern there,” Governor Herbert of Utah told a Congressional committee. “No one is more committed to the most effective use of limited resources for the best possible outcome, for both our lands and our citizens, than those who will directly live with the consequences of those decisions.” When Fish and Wildlife decided in 2010 not to list the grouse, Utah’s point person on sage grouse, John Harja, said in the Salt Lake Tribune “We all appreciate them leaving it in state management.”

John Swartout sees the sage grouse issue in the context of battles that took place twenty years ago over the Clinton administration’s natural resource policies that alienated many ranchers, farmers, and natural resource users. The Colorado governor at the time, Roy Roemer, paved the way for a more collaborative approach between the state, federal government, landowners, natural resource industries, and environmental groups. At the time, Swartout had an up-close view of this when he worked for Colorado Senator Wayne Allard. The key to the more collaborative approach was to build trust among the parties involved, especially between the regulatory authorities and the rural landowners who controlled many of the resources and key wildlife habitat. “It took a long time to develop that trust,” Swartout told USA Today in July 2014, while reflecting on current Endangered Species Act controversies over the lesser prairie chicken and sage grouse and the threat the Act poses to Colorado’s innovative conservation efforts for these and other species. “If this goes south and we lose those partnerships…that will all have been wasted.”

Aldo Leopold, the late author, professor of wildlife management and conservation icon, grasped the need for wildlife conservation efforts to focus on providing incentives to landowners, and for such efforts to be innovative, varied and proactive, instead of laws that are reactive and create conflict. Leopold’s words from his classic 1934 paper, “Conservation Economics,” are a good place to conclude because they ring as true today in the case of the Gunnison sage grouse, and for so many species that are already listed or facing the prospect of listing under the Endangered Species Act, as they did eighty years ago:

“This paper forecasts that conservation will ultimately boil down to rewarding the private landowner who conserves the public interest. It asserts the new premise that if he fails to do so, his neighbors must ultimately pay the bill. It pleads that our jurists and economists anticipate the need for workable vehicles to carry that reward. It challenges the efficacy of single-track laws, and the economy of buying wrecks instead of preventing them. It advances all these things, not with any illusion that they are truth, but out of a profound conviction that the public is at last ready to do something about the land problem, and that we are offering it twenty competing answers instead of one. Perhaps the cerebration induced by a blanket challenge may still enable us to grasp our opportunity.”

Brian Seasholes is a former research fellow with Reason Foundation.