Mining organization may sue BLM over sage grouse study

Jun 3, 2013

An organization representing the hard rock mining industry is accusing the Bureau of Land Management (BLM) of ignoring its own sage grouse conservation policies and replacing them with a much more heavy-handed approach on the false pretense that the move was required by the U.S. Fish and Wildlife Service (FWS).

The Northwest Mining Association (NWMA) last week released an extensive report criticizing BLM’s 2011 National Technical Team (NTT) report on sage grouse conservation measures. Widely condemned by natural resource industries for the restrictions it puts on multiple uses, the NTT report calls for human disturbances to affect no more that 3 percent of core sage grouse habitat, which critics say is overkill.

The NTT report was developed as part of BLM’s National Sage– Grouse Planning Strategy, a new agency regime intended to ramp up sage grouse conservation in light of a 2010 finding by FWS that the greater sage grouse was “warranted but precluded,” meaning that although the sage grouse was found to deserve a listing under the Endangered Species Act, its listing was deferred due to other, more threatened species taking priority.

In accordance with a court settlement with environmental groups, FWS is required to issue a final decision on the sage grouse by September 2015. BLM has been rushing to implement its new sage grouse strategy before that date.

To that end, the strict measures prescribed in the NTT report are currently being incorporated into dozens of BLM land use plans across 11 western states as part of a wide-scale program to revise BLM land use plans to include rules for managing sage grouse.

It’s a grand-scale initiative. In the NTT report, BLM’s National Sage–Grouse Planning Strategy is described as “a new paradigm in managing the sagebrush landscape,” in which the NTT report itself is to serve as a “starting point.” The report also explains that the new management paradigm is intended to conserve not only sage grouse, but other species and entire landscapes, as well.

“…Land uses, habitat treatments, and anthropogenic disturbances will need to be managed below thresholds necessary to conserve not only local sage–grouse populations, but sagebrush communities and landscapes as well,” the NTT report states.

NWMA contracted with University of Denver biologist and environmental consultant Megan Maxwell to analyze the legal and scientific soundness of the NTT report. In her findings, Maxwell claims that the NTT report represents an entirely unnecessary reinvention of agency sage grouse policy since BLM already had sage grouse conservation requirements on the books that would have met the FWS’ requirements to prevent a listing.

Maxwell’s report points to the BLM’s Manual 6840, which regulates “special status species management” on BLM lands, including management of the sage grouse. Maxwell also uncovered a 2004 BLM guidance document that specifically addressed management of sagebrush habitats. She claims that although FWS acknowledged that Manual 6840 would, if implemented, provide an adequate regulatory mechanism to prevent listing the sage grouse, BLM did not take that course. Instead, Maxwell suggests, BLM willfully misinterpreted what FWS required, using it as an excuse to invent a new, highly restrictive sagebrush management approach from scratch.

Maxwell concludes that the development of the NTT report was therefore unwarranted, and may constitute an “arbitrary and capricious” redirection of agency sage grouse policy in violation of the Administrative Procedure Act.

Laura Skaer, executive director of NWMA, speculates that the move to reinvent BLM policy was politically motivated.

“[The] sage grouse is the tool to restrict mining, oil and gas, grazing, off-road recreation—whatever multiple use of the public lands that political appointees in this administration don’t like,” said Skaer. “They ignored the tools they had in the toolbox, and created new tools that appear to be policy first, science second.”

BLM has maintained that the NTT report was a necessary response to the 2010 FWS “warranted but precluded” finding. One of the principal reasons the sage grouse is in peril, according to the FWS report in the Federal Register, is a lack of “regulatory mechanisms” protecting the bird from human activities. BLM maintains that the NTT report provides the needed regulatory framework to fill the gap and help prevent a listing.

NWMA’s critique also raised questions whether BLM has broken environmental policy laws in its rush to implement its new sage grouse policy. Maxwell maintains that by failing to even consider following their preexisting sage grouse conservation measures as a “viable alternative” in current land use plan revisions, and by implementing measures from the NTT report prior to release of the final environmental impact statement, BLM is violating the National Environmental Policy Act.

In addition to questioning the legality of the NTT report’s necessity and use, the NWMA critique also examines whether the NTT report represents “best available science,” pointing out a slew of alleged inadequacies.

Since BLM has not finalized any of the land use plans under revision, the matter is not yet ripe for litigation. However, Skaer said that NWMA is “absolutely” looking at suing BLM when those decisions are released. Drafts of many of these plans are expected to come out in September. “If the issue was ripe for litigation today, we would be litigating,” said Skaer. — Andy Rieber, WLJ Correspondent,