Winmill sage grouse rulings help, hurt ranchers

Feb 17, 2012

Western ranchers in the 10 states inhabited by greater sage grouse have had plenty to think about this February thanks to a pair of court rulings that have caused the fortunes of producers affected by this iconic bird to swing from one extreme to the other.

In a decided victory for ranchers and the U.S. Fish and Wildlife Service (FWS),on Feb. 2, Idaho Federal District Judge B. Lynn Winmill rejected a challenge by Haily, ID- based group Western Watersheds Project (WWP) to FWS’ designation of the grouse as “warranted but precluded,” a status which indicates the bird should be listed as endangered, but will not currently be listed due to FWS’ limited resources, which are to be directed at more imperiled species.

In their challenge, WWP took issue with the “precluded” element of the designation, seeking to require FWS to prepare rules for listing the sage grouse as endangered within the next 90 days.

Although Winmill ultimately rejected WWP’s challenge, affirming that FWS was justified in the warranted but precluded determination, he was unsparing in his criticism of FWS, in particular calling out FWS Regional Director Steve Guertin for criticism. Referring to his recommendations as “cavalier,” Winmill rapped Guertin for failing to provide scientific justification for the key finding that threats to the sage grouse were only “moderate,” not “high.” Winmill further suggested that even though scientific evidence was eventually forthcoming, the fact that it was produced only after the designation was made raised a red flag that the determination was politically motivated.

Given the failure of WWP’s challenge, FWS has until 2015 to make a final determination whether the sage grouse should be listed or not, a deadline established in the settlement of a separate lawsuit brought against FWS by the Center for Biological Diversity and WildEarth Guardians.

Despite the loss, WWP’s ongoing campaign to see the sage grouse listed quickly rebounded with a significant legal win on Feb. 6, again in Winmill’s courtroom.

In the second case, WWP successfully challenged the renewal of five Idaho grazing permits overseen by the Owyhee and Bruneau Bureau of Land Management (BLM) field offices.

According to Winmill’s written opinion, the fact that BLM maintained the same season of use and stocking rates on the permits, and did not specify stubble height and utilization restrictions, amounted to a failure of BLM to follow its own land use plan which required treating the sage grouse as a “sensitive” species.

“To the extent livestock and sage grouse conflict, it is grazing that must yield,” Winmill wrote, citing BLM for violations of Federal Land Management Policy Act, National Environmental Policy Act and rangeland health regulations.

Winmill further indicated that BLM had failed to examine the cumulative impact of its actions across a wide expanse of sage grouse habitat, and that actions such as fencing springs to prevent trampling by cattle were unacceptable, since they “ensure(s) that this potential critical habitat cannot be used by sage grouse.”

Interveners in the case include Simplot, Ellison Ranching Co., National Cattlemen’s Beef Association, Public Lands Council and Idaho Cattlemen’s Association.

No decision has yet been reached over how BLM’s failings should be addressed. Yet because Winmill has ruled that the permits are illegal, there will almost certainly be pressure in the remedy phase of the case from WWP to remove the cattle from the permits.

“Because the grazing permits are unlawful,” WWP attorney Todd Tucci was quoted as saying, “BLM has no authority to continue grazing on these allotments.”

The case is particularly noteworthy due to its unprecedented scope. Far from affecting just the five allotments under consideration, this case has the potential to profoundly impact, and potentially void, hundreds of permit renewals across the Great Basin.

WWP had originally challenged some 600 grazing permit renewal decisions, covering over 40 million acres across Idaho and Nevada. To consolidate the case, Winmill elected to hear the challenges only for the Idaho permits, transferring the Nevada challenges to be heard in that state. WWP and BLM then agreed that out of the several hundred challenged permit renewals remaining in Idaho, five would be chosen as “test cases” to “render more manageable” the enormous number of permits being contested.

Now that the challenges to these first five renewals have been successful, the court plans to begin on a “second round” of challenges to permits, which have not yet been selected. Ultimately, hundreds of Idaho permittees may face similar determinations that their permits are illegal.

WWP’s success in this sweeping case is comparable to another recent victory in Winmill’s court in which the anti-grazing group successfully challenged 16 resource management plans (RMPs) across six western states on the grounds that the plans did not adequately provide for the conservation of sage grouse habitat. Two “test case” RMPs, Craters of the Moon, ID, and Pinedale, WY, were heard in the case. Based on WWP’s successful challenges of these two RMPs, potentially 30 million acres of BLM land across the West could be subject to new grazing restrictions, in part dictated by WWP.

All told, it would seem that the score card tends strongly in WWP’s favor. Although WWP was unable to secure an immediate listing of the sage grouse in Winmill’s courtroom, the group, together with legal council provided by nonprofit environmental law group Advocates for the West, has shown extraordinary ingenuity at calling out BLM for failure to satisfy statutory requirements, with Winmill providing a very sympathetic ear. Ultimately, however, it is often the ranchers who suffer when BLM is found wanting. At this point, it remains to be seen whether Winmill will allow grazing to continue through remedy phase, or if WWP will persuade the court that grazing must end immediately.

Andy Rieber, WLJ Correspondent