Weekly Newsletter | December 7, 2018

Issues

BLM proposes amended sage-grouse plans. This week, the Bureau of Land Management (BLM) released the much-anticipated Final Environmental Impact Statement (EIS) and proposed plan amendments addressing Greater sage-grouse conservation on public land in Colorado, Idaho, Oregon, Nevada, Utah and Wyoming.

The new proposals, which are expected to be finalized next year, would limit sage-grouse habitat to 1.8 million acres and eliminate the requirement that companies pay into the habitat preservation fund, although companies could choose to pay into it voluntarily. In the plan put forth during the Obama administration in 2015, industry development was banned or limited in 10.7 million acres where the bird lives, under a stringent designation known as “sagebrush focal areas.” The new proposals refine previous management plans adopted in 2015 and align BLM resource management plans with state plans for conserving sage-grouse populations.

Heather Feeney, a spokeswoman for BLM, said the new plan would not strip away all protections but rather remove the “sagebrush focal areas” designation from the nine million acres while leaving other conservation measures in place. “Taking away the ‘sagebrush focal area’ protection would be removing just one of multiple layers of protection,” Feeney continued. Buffer zones will continue to ban the destruction of sage-grouse habitat near nests, and drilling and mining companies would have to apply for waivers to develop that habitat.

Reactions to the decision are still unfolding. Nevada Republican Gov. Brian Sandoval says he’s glad the administration incorporated some of the state’s input. Meanwhile, U.S. Senator Catherine Cortez Masto of Nevada claimed the new plan undermines the delicate balance Western states had struck to ensure protection of the grouse and keep it off the U.S. list of threatened species while strengthening economic development across the West.

Deputy Secretary of the Interior David Bernhardt rebuffed the notion that the new plans weren’t adequately balanced with Western state interests, saying, “We know the successful conservation of the Greater Sage-Grouse requires the shared stewardship vision of the states, private citizens, landowners and federal land management agencies including those within the Department of the Interior.” Bernhardt continued, “With today’s action we have leaned forward to address the various states’ issues, while appropriately ensuring that we will continue to be focused on meaningfully addressing the threats to the Greater Sage-Grouse and making efforts to improve its habitat.”

The BLM developed the changes in collaboration with numerous gubernatorial administrations in the west, state wildlife managers, and other concerned organizations and individuals, largely through the Western Governors Association’s Sage-Grouse Task Force.

Publication of the Final EISs and proposed amendments in the Federal Register initiated a 30-day protest period, which will run through January 8, 2019.  The Governors of the affected Western states also have 60 days to review the proposed amendments for consistency with state and local laws and regulations.  The process will conclude with a Record of Decision (ROD) following resolution of any protests received during the 30-day review period.

Review the Final Environmental Impact Statements here: Colorado I Idaho I Oregon I Nevada/California I Utah I Wyoming.

In other grouse news, BLM forges ahead with lease sale despite injunction setback. In September, Chief Magistrate Judge Ronald Bush of the U.S. District Court in Idaho issued a preliminary injunction stating that the Interior Department must hold off on energy leasing in Greater sage-grouse habitat to allow for more public participation. Because of the decision, the Bureau of Land Management (BLM) pulled hundreds of thousands of acres from the oil and gas lease sales totaling more than 1 million acres and spanning six states.

In the meantime, many BLM state offices have indicated they will offer much of the land pulled from this round of lease sales in their spring auctions.  At least one state — Wyoming — is already planning a supplemental sale in February to include the sage-grouse tracts after it fulfills the comment and protest period requirements. The decision reflects public sentiment as recent polling by the Wyoming Wildlife Federation revealed that a majority of Wyomingites believe industry development can occur responsibly in the state without harming wildlife habitats and migration corridors

Regarding the sage-grouse, one out of three Wyomingites polled believe the management plans should accommodate industry development while balancing the flamboyant bird’s conservation and about 58 percent of those polled believe that current plans already do. A final decision on altering the management plans is expected this winter, as is a decision from Chief Magistrate Judge Ronald Bush on the legality of the Trump administration’s full slate of leasing reforms, established in a Jan. 31 instruction memorandum to BLM staff. While the injunction — which requires BLM to allow 30 days for comment and protest on lease sales — applies only to tracts that intersect with sage-grouse planning or habitat management areas, a final ruling could require much broader and more substantive changes.

In the News

FWS extends review of red wolf management in N.C. E&E News , Sub req’d. Federal authorities say they’ll extend their review of red wolf management in North Carolina after a judge ruled that a plan to shrink the territory of the only wild population of the animals violates endangered species protections. In a statement posted online Thursday, the Fish and Wildlife Service called the additional time an opportunity to evaluate the decision’s implications. A federal judge ruled that the agency also violated the Endangered Species Act by authorizing private landowners to kill the canine predators when they aren’t threatening humans, livestock or pets. The lawsuit by the Red Wolf Coalition, Defenders of Wildlife and the Animal Welfare Institute argued that the government’s neglect allowed the population to decline. About 35 red wolves remain in the wild, down from about 120 a decade ago

The Supreme Court’s latest ruling isn’t just about a frog. E&E News, Sub req’d. Barely 24 hours after the Supreme Court issued a narrow endangered species decision last week, a lawyer stood before a panel of lower court judges and explained why the ruling made his own case stronger. The issues were different. The high court decision dealt with critical habitat and the Endangered Species Act, while the lower court case involved ozone standards and the Clean Air Act. The overlap: disagreement over whether certain agency actions could be litigated. “I would direct this court to the Supreme Court’s decision that actually came out just yesterday in the Weyerhaeuser case,” New York attorney David Frankel told the U.S. Court of Appeals for the District of Columbia Circuit on Wednesday morning. Frankel pushed the D.C. Circuit to rule that EPA couldn’t duck judicial review on an issue, just as the Supreme Court had found that certain Fish and Wildlife Service decisions weren’t insulated from court challenges. It was likely the first of many citations for the fresh Supreme Court precedent. Though narrow in its holdings, the justices’ unanimous opinion Tuesday in Weyerhaeuser Co. v. Fish and Wildlife Service is expected to have ripple effects in federal courts. The ruling — which involved FWS’s disputed habitat protections for an endangered frog — delivered a two-part message. First, lower courts need to define “habitat” to evaluate government plans for protecting areas for rare species.

Justices ask feds to weigh in on groundwater debate. E&E News, Sub req’d. The Supreme Court wants the Trump administration’s views on a critical question about the scope of the Clean Water Act. The high court today invited the solicitor general to weigh in on two closely watched cases involving pollution that moves through groundwater before reaching a surface waterway. The order signals the justices’ interest in the issue. The Supreme Court today also rejected a challenge to President Trump’s border wall and followed up on a recent Endangered Species Act ruling.The question in the groundwater cases: Do pollutants have to move directly from a point source into a federally regulated body of water to trigger the Clean Water Act? Or, as at least two appeals courts have found, does the environmental law also apply to pollutants that move from a point source into groundwater before reaching a waterway? Industry advocates and other opponents of the broader “groundwater conduit theory” argue that applying the Clean Water Act to pollution that heads underground before reaching the surface treads on states’ traditional role of overseeing groundwater. Environmentalists and other proponents say exempting such pollution would amount to a huge loophole in the law. The issue arose in the 9th U.S. Circuit Court of Appeals in a case involving Maui County, Hawaii’s use of wastewater injection wells. The wastewater moved pollutants through groundwater and eventually to the Pacific Ocean, and the 9th Circuit ruled that the county needed permits under the Clean Water Act.

Greens sue over potential Calif. dam raise. E&E News, Sub req’d. Conservationists yesterday pre-emptively sued the Trump administration over salamanders that would be imperiled if the Interior Department moves ahead with a plan to raise Shasta Dam in Northern California. The Center for Biological Diversity petitioned the Fish and Wildlife Service to list the Shasta salamanders under the Endangered Species Act in 2012. FWS did not respond to the petition. Since then, the species has been scientifically split into three distinct species, each of which would face extinction if Shasta Dam — one of the country’s largest impoundments — is enlarged to store more water, according to CBD. “It’s shameful the Trump administration is dragging its feet on protections for these salamanders while plans to raise the dam and flood their habitat are moving forward,” CBD attorney Jenny Loda said in a statement. Agricultural and other water interests have long pushed for raising the more than 600-foot Shasta Dam by about 18.5 feet, adding to the capacity of California’s largest reservoir. Water from Shasta Lake is shuttled south to agricultural and urban areas. Environmentalists believed the proposal was dead then because it may violate state law. Enlarging the lake would flood the McCloud River, a tributary of the Sacramento River, which is protected under the California Wild and Scenic Rivers Act.

Calif. defies Interior with migratory bird protections. E&E News, Sub req’d. California is escalating its challenge to the Interior Department’s controversial limits on the Migratory Bird Treaty Act, in a move that could pose some tricky legal, political and practical questions. Already part of a multistate lawsuit over the Trump administration’s shrinking of the MBTA’s coverage, California officials yesterday declared in a legal advisory that the state can still prohibit the unintentional killing of migratory birds even if Interior says the feds cannot. “California law continues to provide robust protections for birds, including a prohibition on incidental take of migratory birds, notwithstanding the recent reinterpretation of the Migratory Bird Treaty Act,” the advisory states. Produced by the California Department of Fish and Wildlife and California Attorney General Xavier Becerra (D), the advisory cites a “number of provisions” in state law prohibiting the take of migratory birds, which includes hunting, pursuing, capturing and killing. Last December, Interior reversed course from the Obama administration with a new legal opinion that the Migratory Bird Treaty Act covered only the intentional taking of a bird. This is narrower than the Obama administration’s extension of the law to incidental results as well.