Editorial: Court should force feds to start over on sage grouse assessment

Nevada Attorney General Adam Laxalt has filed what he is calling his final brief in the lawsuit challenging the Interior Department’s economically crippling land use restrictions under the guise of protecting greater sage grouse, perhaps signaling that the case is nearing culmination.

As with previous filings Laxalt accuses the Fish and Wildlife Service and the Bureau of Land Management, divisions of the Interior Department, of violating the law and ignoring scientific evidence when it concocted a 341-page pronouncement in September that 10 million acres of public land in 16 Western states — nearly a third of that in Nevada — would be taken out of consideration for future mining claims, as well as oil and gas drilling near breeding grounds and that there would be additional reviews on grazing permits. The plan envisions restrictions on grazing, resource development, solar and wind energy, and public access on more than 16 million acres of public land in Nevada altogether. This is being done even though the government declined to list the sage grouse under the Endangered Species Act.

Greater sage grouse (BLM photo)

The legal challenge in federal court is being pressed by the state, nine rural counties, two mining companies and a ranch.

“Along with a majority of Nevada counties, my Office has been pushing back against the federal government’s overreaching sage grouse land plan for almost a year,” Laxalt is quoted as saying in a press release accompanying the court filing. “As our latest brief again demonstrates, the Bureau of Land Management’s rushed, one-size-fits-all sage grouse plan not only violates multiple federal laws, but also the agency’s own regulations. The BLM blatantly disregarded the many Nevada experts and stakeholders, and failed to consider how its plan would impact Nevadans. This approach to regulation is as dismissive to our State as it is illegal, and I remain dedicated to protecting the interests of Nevada and ensuring that agencies follow the law and take the State’s concerns and interests into account.”

In the brief, the state argues that the plaintiffs have standing to bring the suit, a matter disputed by the government, because of the harm that will befall the state and county governments, as well as the private businesses. The BLM’s own Economic Impact Summary, prepared by BLM economist Josh Sidon in 2015, “estimates a loss of $31 million and 493 jobs annually for livestock, oil and gas, geothermal and wind in Nevada, stating that Nevada bore the largest impact from reduced wind energy development, with Elko and White Pine Counties hit the hardest.”

But that low balls the impact because it does not take into account the loss of revenues due to minerals being left in the ground. Laxalt argues that the BLM ignored or misrepresented in its analysis the impact of lost mining claims on 2.8 million acres in Nevada, including the loss of $32 million in investments by one mining company.

A previous brief pointed out that the land use plan jeopardizes development of a mine that could be worth $3 billion — 1.4 million ounces of gold and 21 million ounces of silver.

The current brief notes, “Defendants ignore the importance of discussing how mining claims in the SFA (sagebrush focal areas) will be impacted by the proposed withdrawal. Defendants mischaracterize the emails discussing this very issue,which criticize the agencies’ failure to disclose that half of all U.S. mining claims are located in Nevada: ‘… it is a serious omission not to include mining claim data. How can impacts to locatable minerals be adequately addressed if this data is not known?’” That last quote is from an internal BLM email discussing the failings of their own analysis.

The court should grant the relief sought by the plaintiffs to force the Interior Department to start over with a Supplemental Environmental Impact Statement, one that accurately reflects the economic and scientific facts instead of being crafted to fit a predetermined political agenda.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Court should stop federal public land agencies from usurping our rights

Sometimes you have to fight fire with fire.

The agencies in charge of federal public land have developed a penchant for “sue and settle” — some friendly environmental group files suit to demand protection of some weed, bug, minnow or rodent and the agency compliantly settles.

The U.S. Fish and Wildlife Service did just this in 2011 settling with the WildEarth Guardians and the Center for Biological Diversity and agreeing to set up a schedule for listing or not listing 251 species under the Endangered Species Act (ESA). 

The deadline for the bi-state sage grouse in Northwestern Nevada was a couple of months ago. The deadline for listing the greater sage grouse, which live in most of the state, is set for September 2015, though a rider on a spending bill by Rep. Mark Amodei may delay that.

Fish and Wildlife listed the bi-state grouse as endangered, but backed off when its scientific data was challenged. Especially telling was that a Fish and Wildlife report found core populations of bi-state grouse had actually increased by between 120 and 144 percent.

A couple of weeks ago a coalition of public and private groups filed their own lawsuit in Nevada’s U.S. District Court challenging the legality of that 2011 court settlement.

The suit was filed by the Nevada Association of Counties, Nevada Mineral Resources Alliance, the American Exploration & Mining Association, and FIM Corp. – a family-owned million-acre sheep ranch in Northern Nevada.

To begin with, the suit points out that Fish and Wildlife agreed in the settlement to either list or not, entirely leaving out a third option required by the ESA — “listing is warranted but precluded because the species at issue has a lower listing priority as compared to other species.”

This error is compounded by the fact Fish and Wildlife has failed to follow the congressional requirement under the ESA that species that are candidates for listing must be re-evaluated once each year using the best scientific and commercial data. The agency in a letter from its regional office reported that it will not be completing this annual review because it is too busy implementing the lawsuit settlements.

The suit claims expensive efforts by the state and local governments to protect sage grouse habitat were ignored.

The lawsuit against Fish and Wildlife also argues that its settlements with the environmental groups violate the Due Process Clause of the Fifth Amendment because they bind nonparticipating third parties, in this case the plaintiff counties and businesses.

“The due process clause of the Fifth Amendment to the Constitution forbids

government practices and policies that violate precepts of fundamental fairness,” the suit says. “Here, FWS’s decision to forego a specific statutory provision, to the detriment of the Plaintiffs, denies Plaintiffs due process and is fundamentally unfair to Plaintiffs.”

The suit further accuses Fish and Wildlife of violating the constitutional requirement of separation of powers by binding the executive branch to settlement that transfers powers of Congress to special interest litigants.

The damages caused by listing of species are not vague and speculative. They are specific and calculable.

The FIM sheep ranch reports that the earlier listing of the Sierra Nevada Bighorn Sheep under the ESA has cost the operation approximately $400,000 per year since 2000, and it believes the listing of the sage grouse will cause similar or greater damage to its bottom line due to grazing prohibitions and other restrictions.

The courts should give this case its urgent attention to curtail further damage to the economy of Nevada.

Newspaper column: How to stop a charging bureaucrat? Take away his credit card

If you can’t get a bill passed in Congress telling a federal agency to stop doing something, just slip some language into the appropriate appropriations bill denying funding for doing it.

That’s what happened with wild horses. Though the law expressly says the secretary of Interior must destroy excess wild horses, for the past several years Congress’ appropriations measures for the department have just as expressly denied funding to do so.

Congressman Mark Amodei, who represents Nevada’s 2nd Congressional District covering most of northern Nevada, is following that game plan when it comes to heading off the economically crippling designation of greater sage grouse as threatened or endangered under the Endangered Species Act, as reported in this week’s newspaper column, available online at The Ely Times, the Elko Daily Free Press and the Mesquite Local News.

He was successful in including language in the 2015 fiscal year Interior, Environment and Related Agencies appropriations bill, delaying any such listing for one year. Not only does it stop the listing of greater sage grouse, but also the bi-state sage grouse that live along the northern border of Nevada and California, as well as Columbia Basin grouse and Gunnison sage grouse.

Mark Amodei (AP photo)

“More time is needed to convince the Department of the Interior, which controls the vast majority of the sage hen habitat, to undertake the necessary work to conserve the resource and prevent the ESA listing,” said Amodei.

Not that the federal agencies have much solid proof that any of those grouse populations are truly threatened with extinction anytime soon.

Earlier this year, the U.S. Fish and Wildlife Service posted on the Federal Register a proposal to reopen the comment period on its decision to list the bi-state grouse, because their data was getting serious challenges from authoritative sources.

Back in October 2013 Fish and Wildlife reported there were only 5,000 bi-state grouse left.

In its Federal Register posting, FWS said it had found substantial disagreement regarding the interpretation of the best available data on the birds. “Some commenters stated that our science was flawed and that there are more sage-grouse in the Bi-State area today as opposed to the past, whereas other commenters (including peer reviewers) believe there is a declining trend and continuing threats. It is evident in the comment letters received that analysis or interpretation of data vary between state, agency, public, and peer reviewers,” the FWS concedes.

Before listing either the bi-state or the greater sage grouse, someone needs to do some sound scientific studies and realistically look at what truly is a threat to these birds — including the lack of wildfire prevention efforts on federally controlled land.

Read the entire column at Ely, Elko or Mesquite.

A small subset of sage grouse called threatened, can the rest of the species be far behind?

On Friday the U.S. Fish and Wildlife Service proposed to designate as threatened — under the terms of the Endangered Species Act — the bi-state greater sage grouse found along the northern California-Nevada border, supposedly a distinct population segment of about 5,000 remaining birds. Sage grouse are legally hunted in both states.

The service plans to set aside nearly 1.9 million acres in Carson City, Lyon, Douglas, Mineral and Esmeralda counties in Nevada, as well as land in Alpine, Mono and Inyo counties in California, as critical habitat. This could lead to restrictions on mining, grazing, farming, fences, oil and gas exploration, roads, power lines, wind turbines and solar panels, various forms of recreation and more — costing jobs and economic development.

A Mono Basin sage grouse. (National Park Service photo)

After the decision is published in the Federal Register the service will take comments for 60 days.

The Center for Biological Diversity claims the population of this group of grouse has declined by up to 70 percent, though it does not say over what time span.

Though this proposal is only for a specific subset of sage grouse, it does not bode well for economic prospects in the rest of the state or the West — where one estimate of its population as of 2007 was 535,000 — if such a designation is extended to cover all sage grouse habitat.

The Center for Biological Diversity’s Nevada ecologist Rob Mrowka said, “These birds are facing so many threats that Endangered Species Act protection really can’t come too soon. … Because the bi-state sage grouse exists at the periphery of the species’ range and is genetically unique, it contains characteristics that could be critically important to the survival of the greater sage grouse as a whole, particularly in light of climate change.”

Sounds similar to claims about the Northern Spotted Owl, whose designation as endangered devastated the Northwest timber industry, though there are doubts about its uniqueness, as they have been interbreeding with more aggressive barred owls.

The claimed threats to the sage grouse include grazing and invasive species — such as cheatgrass, pinyon and junipers — that crowd out the birds’ preferred sagebrush. Additionally, transmission lines provide a convenient perch for predators such as ravens.

The Fish and Wildlife Service wrote in its proposal Friday that it is preparing “an analysis of the economic impacts of the proposed critical habitat designation and related factors. We will announce the availability of the draft economic analysis as soon as it is completed, at which time we will seek additional public review and comment.”

Why the agency is doing this is unclear, since the Endangered Species Act says economic factors cannot be considered when determining whether to list a species as threatened or endangered, but must be “based solely on the best scientific and commercial data available.”

Of course, pay no heed to the fact that sage grouse were very seldom spotted until European settlers arrived with their sheep and cattle to trample and fertilize the land and develop water resources. The matter of “historic population” depends entirely on what date is picked for a baseline.

The Sagebrush Ecosystem Council, created by the Nevada Legislature this past session, is trying to find ways to convince Fish and Wildlife that sage grouse and its habitat can be protected without resorting to listing under the Endangered Species Act, which creates so many arbitrary restrictions on land use. It has its work cut out for it, and had better redouble its efforts.

The handwriting is on the wall, and the handwringing will soon follow.