By Cameron Hinojos*
The Greater Sage-Grouse is a bird that inhabits the sagebrush ecosystem.[i] This ecosystem encompasses much of the intermountain west and parts of Canada.[ii] In 2015, plans (the 2015 plan) were enacted by the Fish and Wildlife Services (FWS) and the Bureau of Land Management (BLM) to protect the Greater Sage-Grouse.[iii] These plans were enacted to keep the Greater Sage-Grouse off of the Endangered Species List of the Endangered Species Act.[iv] Greater Sage-Grouse populations have declined greatly from 16 million presettlement to 200,000 today due to loss, alteration, or fragmentation of their sagebrush habitat.[v] In 2019, the Trump administration led Bureau of Land Management released plans to amend the 2015 plan in order to enhance state involvement and to align actions with state plans.[vi] On October 2019, a federal judge preliminarily enjoined the BLM from enacting the amendments.[vii] The Greater Sage-Grouse is adequately protected by the 2015 plan and does not need to be listed under the Endangered Species Act, but the most recent Trump rollbacks (the 2019 plan) are not adequate to protect the bird, therefore a permanent injunction is in order.
Once a species is listed by the Endangered Species Act as endangered a number of protections are available. First, the species can have their habitat listed as a critical habitat.[viii] And this listing has certain protective measures.[ix] Second, the species can be given a recovery plan.[x] This plan is developed by state, federal, and tribal agencies, academics, NGOs, and private actors.[xi] Third, it allows the federal government to work with states and private individuals to help enact the plans.[xii] This is done by grant programs to fund habitat acquisition, conservation projects, and private conservation measures.[xiii] Fourth, it requires federal agencies to work with the FWS and NOAA Fisheries to mitigate damage done by actions taken by the agencies.[xiv] And Finally, it makes illegal the taking of the animal from its habitat.[xv]
The greater sage-grouse is not listed with the Endangered Species Act because it is protected by the BLM and FWS through what is known as the 2015 plan and the 2019 plan.[xvi] The 2015 plan is based on a report by the National Technical Team, a team created specifically to address the sage grouse problem.[xvii] [xviii] The plan has a number of protections afforded to the sage grouse. First, the plan allocates priority habitats to be managed by the BLM.[xix] Second, the plan limits the man-made and natural surface disturbances of sage grouse habitats.[xx] Third, it aims to improve the sagebrush habitat by actively managing it.[xxi] The NTT plan was considered the gold standard by experts on Sage-Grouse.[xxii]
The Trump Administration’s 2019 plan rolls back protections set in place by the 2015 plan.[xxiii] The Trump administration’s justification for making the changes was to align the federal regulations with state ones.[xxiv] First, the plan opens up 20,000 acres in Oregon to livestock grazing.[xxv] Second, it removes the ban of oil and gas operations within one mile of Sage-Grouse leks (mating sites).[xxvi] [xxvii] Third, it gives exceptions to project noise-level reductions in areas near Sage-Grouse protected habitats.[xxviii] And finally, it opens up priority habitats to mining and exploration.[xxix]
Given that the Trump administration’s stated goal for the plans is the propagation and protection of the Sage Grouse and its habitat, the federal court held that its goal of aligning its restrictions to state regulations was not valid.[xxx] Because a preliminary injunction should only be granted if the party requesting relief is likely to succeed in litigation, the judge is likely to permanently enjoin the action by the Trump Administration.[xxxi] The purpose of the 2015 plan was to keep the Greater Sage-Grouse off of the Endangered Species List and list determinations are made based on solely on the basis of the best scientific and commercial data and since the 2019 plans do not rely on the best scientific data, the judge should read the law to state that the change needs to be based on the best scientific data.[xxxii] [xxxiii] [xxxiv] Because the change was based only on alignment with state laws, the judge should permanently enjoin the change.[xxxv] The intent of both the potential Endangered Species Act listing and the 2015 plan was to stop destruction of the Greater Sage-Grouse’s habitat and to grow the waning population.[xxxvi] Because the new plan does not align with this intent it should be enjoined. There is precedent overturning other illegal rollbacks by the Trump administration and this could be another case of illegal rollbacks.[xxxvii] [xxxviii] [xxxix] Public policy dictates that we should overturn these rollbacks to protect species that are threatened with extinction. Animal species are a public good for the following reasons. First, the health of species represents the health of our environment and if we can protect species, we can protect our environment. Second, species diversity improves science and health. Third, species can be a source of revenue by inviting tourists to come view the wildlife. Fourth, we should protect species from going extinct for the sake of protecting species who have a right to exist. The judge should and is likely to permanently enjoin the Trump administration.
*Cameron Hinojos is a Junior Editor on MJEAL. They can be reached via email at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] Greater Sage-Grouse Life History,All About Birds, https://www.allaboutbirds.org/guide/Greater_Sage-Grouse/lifehistory (last visited Dec. 4, 2019).
[ii] Sagebrush Steppe, National Park Service, https://www.nps.gov/crmo/learn/nature/sagebrush-steppe.htm (last updated Dec. 8, 2017).
[iii] W. Watersheds Project, Wildearth Guardians, Ctr. for Biological Diversity, and Prairie Hill Audubon Soc’y v. Janice Schneider, Bureau of Land Mgmt., and U.S. Forest Serv., No. 1:16-cv-00083-BLW, slip op. at 7 (D. Idaho Oct. 16, 2019).
[iv] Western Watersheds Project, slip op. at 5.
[v] All About Birds, supra note i.
[vi] Western Watersheds Project, slip op. at 9.
[vii] Western Watersheds Project, slip op. at 1.
[viii] Sarah Matsumoto, Cara Pike, Tom Turner & Ray Wan, Citizens’ Guide to the Endangered Species Act 20 (2003).
[x] Id. at 22.
[xi] Id. at 24.
[xii] Id. at 28.
[xiv] Id. at 29.
[xv] Id. at 32.
[xvi] Western Watersheds Project, slip op. at 7-8.
[xvii] Western Watersheds Project, slip op. at 5.
[xviii] Western Watersheds Project, slip op. at 7.
[xix] Western Watersheds Project, slip op. at 7-8.
[xx] Bureau of Land Mgmt., DOI-BLM-WO-WO2100-2018-0004-RMP-EIS, Wyoming Greater Sage-Grouse RMPA-EIS 12 (Mar. 2019).
[xxii] See, Western Watersheds Project, slip op. at 17.
[xxiii] Western Watersheds Project, slip op. at 10.
[xxiv] Western Watersheds Project, slip op. at 9.
[xxv] Bureau of Land Mgmt., DOI-BLM-WO-WO2100-2018-0002-RMP-EIS, Oregon Greater Sage Grouse RMP-EIS 1-3 (Mar. 2019).
[xxvi] Bureau of Land Mgmt., DOI-BLM-WO-WO2100-2018-0005-RMP-EIS, NW Colorado Greater Sage-Grouse RMP Amendment 2-3 (Mar. 2019).
[xxvii] Bureau of Land Mgmt., DOI-BLM-WO-WO2100-2018-0006-RMP-EIS, Idaho Greater Sage Grouse RMPA-EIS 2-2 (Mar. 2019).
[xxviii] Bureau of Land Mgmt., supra note xx, at 16.
[xxix] Bureau of Land Mgmt., supra note xx, at 18.
[xxx] Western Watersheds Project, slip op. at 20.
[xxxi] Western Watersheds Project, slip op. at 13.
[xxxii] Western Watersheds Project, slip op. at page 5.
[xxxiii] Western Watersheds Project, slip op. at page 17.
[xxxiv] Sarah Matsumoto Et Al., supra note viii, at page 15.
[xxxv] Western Watersheds Project, slip op. at 9.
[xxxvi] Western Watersheds Project, slip op. at 5.
[xxxvii] See, In Re Ozone Designation Litigation, No. 4:17-cv-06900-HSG, (N.D. Cal. Mar. 12, 2018).
[xxxviii] See, Air Alliance Houston v. Environmental Protection Agency, No. 17-1155 (D.C. Cir. Aug. 17, 2018).
[xxxix] See, League of United Latin American Citizens v. State of New York, No. 17-71636 (9th Cir. Aug. 9, 2018).