RENO, Nev. – Conservationists say federal rules that allow livestock grazing and oil and gas development across 25 million acres of public land in the West are illegal because they fail to acknowledge the harm being done to sage grouse.
A lawsuit recently filed in federal court accuses the Bureau of Land Management of violating two major environmental laws and its own regulations by allowing commercial activities to continue on those lands in Nevada, Idaho, Montana, Wyoming, Utah and California.
But in a switch in strategy, the environmentalists aren’t asking a judge to immediately halt those operations. They want to talk, and they think they may have a willing listener in the new Obama administration.
“What we are after is finding a way to do things differently than in the past and better manage these public lands into the future,” said Laird Lucas, a lawyer for the Western Watersheds Project, which filed the suit.
“The next 20 years are going to be really critical, not just for sage grouse, but for the whole sagebrush ecosystem,” he said. “Getting an injunction that creates a crisis in the short term doesn’t really serve that role.”
Since taking office, President Obama has distanced himself from several Bush administration policies on the environment and suspended some administrative orders Bush signed in the waning days of his term that could lead to the easing of protections for threatened wildlife on federal land.
The change in administrations prompted the new approach from the Idaho-based environmental group that has spent much of the past eight years in court battling land use rules adopted by the BLM and Forest Service under the Bush administration.
“The Obama White House has a very strong and public commitment to applying science-based decision-making for natural resource issues,” said Jon Marvel, the group’s director.
“We want to show the Obama administration the misdeeds of the Bush administration in the hope they will understand and be interested in correcting those,” he said.
Kendra Barkoff, press secretary for Interior Secretary Ken Salazar, said Friday “we are in the preliminary stages of litigation and as a result can’t comment.”
Ranchers and drillers said the suit is part of an effort to keep livestock, energy development and other commercial activities off an area of the West bigger than the state of Indiana.
The Wyoming Stock Growers Association and the Petroleum Association of Wyoming have joined the government in seeking to dismiss the suit. A hearing on one of those motions is scheduled in Boise on April 16.
“They are trying to tie up 25 million acres and close it down to livestock operators altogether,” said Ronald Opsahl, a lawyer for the Mountain States Legal Foundation, which represents the two Wyoming groups.
“As far as the scope of this case, it has to be unprecedented,” he said. “I’ve never seen one lawsuit challenge 18 resource management plans in six states.”
So far, Justice Department lawyers representing the BLM, have restricted their legal arguments primarily to matters of jurisdiction. Deborah Ferguson, assistant U.S. attorney for Idaho, said each of the 18 plans being challenged should be handled separately in U.S. courts in each of the six states.
The focus of the lawsuit is a chicken-sized game bird — mottled brown, black and white — found on sagebrush plains and high desert from Colorado to California and into southern Canada. The government estimates as many as 16 million sage grouse inhabited the West in the early 1800s when they were first observed by Lewis and Clark. Today their numbers have dwindled as low as 100,000, according to a U.S. Fish and Wildlife Service census in 2005.
Wildfires, development and industry have cut steadily into their habitat, now estimated to be about half of what it once was when the birds ranged from Kansas to Washington and into the Dakotas.
At issue in the lawsuit is the BLM’s National Sage Grouse Habitat Conservation Strategy. The agency adopted it in 2004 as an interim plan to help protect the bird and guide management of federal rangeland while the U.S. Fish and Wildlife Service considered whether to protect the sage grouse under the Endangered Species Act — a move ex-Interior Secretary Gale Norton predicted would have a more significant economic impact on the West than did the listing of the northern spotted owl in the early 1990s.
The wildlife service determined in 2005 not to list the sage grouse as an endangered or threatened species, but a federal judge overturned the decision.
Responding to a suit filed by the Western Watersheds Project, U.S. District Judge B. Lynn Winmill in Boise ruled in December 2007 that the wildlife service’s decision had been tainted by political pressure from an assistant Interior Department secretary who since has resigned. Winmill will preside over the current lawsuit.
While the wildlife service is expected to deliver a new decision on whether to protect the bird this year, the BLM already considers the sage grouse a “sensitive” species.
Therefore, the suit contends, the agency must treat it as if it is protected and make sure it takes no action that could push the bird closer to a federal listing. Environmentalists note the agency already has banned grazing on 220,000 acres of southern Nevada where the threatened desert tortoise lives.
The lawsuit alleges BLM violated the National Environmental Policy Act and the Federal Land Policy Management Act by failing to consider the cumulative impact of the 18 individual resource plans on the sage grouse.
The lawsuit said the BLM refused to consider whether the lands in question are capable of sustaining livestock grazing without causing environmental harm or whether grazing remains a legal suitable use of the lands.
It says the agency also did not weigh the effects of dramatic increases in wildfires, invasive weeds and drought in recent years.
BLM “acted in shocking disregard of the specific sage grouse conservation strategy that BLM itself adopted,” the lawsuit said. It added the existing plans “will certainly drive sage grouse closer to extinction.”
Agency officials disagree.
“BLM does consider impacts to sage grouse in land use plans,” said Jolynn Worley, a spokeswoman for BLM in Nevada. She said the agency does not comment on pending litigation.
Dan Gralian, president of the Nevada Cattlemen’s Association, said the Western Watersheds Project claims to be interested in restoring rangeland but its primary agenda is to get livestock off public lands.
“We cattle and sheep ranchers work hard to manage both our private and public lands for its livestock, wildlife and environmental values and we find such attacks by radical environmental groups counterproductive,” he said.
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