As January draws to a close, it won’t be long until male sage grouse once again strut across their historic breeding grounds in hopes of attracting a mate. A Montana legislator wants biologists to count all those birds, because the species faces an uncertain future as state and federal lawmakers fight the rules created to encourage the bird’s survival.
More than a year ago, the U.S. Fish and Wildlife Service decided the sage grouse did not need Endangered Species Act protection, but the ruling was based on all the management plans created by state and federal agencies to conserve the species. More than half the remaining sage grouse live on national forest and BLM public lands, so federal sage grouse plans are key to the survival of the species.
Now that those plans are moving ahead and certain activities are being curtailed on sagebrush habitat, some groups, perhaps emboldened by what appears to be an anti-environmental Trump administration, are trying to withdraw their support.
In Oregon, for example, the Harney Soil and Water Conservation District sued the Department of the Interior and specifically the Bureau of Land Management on Dec. 7, objecting to BLM requirements to keep cows off grouse breeding grounds or leks in the spring and to allow grass to grow at least 7 inches high.
Citing the BLM’s multiple-use mandate, Harney ranchers say the BLM is favoring the sage grouse over their industry’s economy. That’s in spite of the fact that the U.S. Department of Agriculture gave Oregon a $9-million matching-funds grant to be used over five years.
Harney County recently gained fame for being the location of the Bundy takeover of the Malheur Wildlife Refuge.
The Wyoming Stockgrowers’ Association and the Coalition of Local Governments filed a similar suit in Wyoming.
Meanwhile, the state of Idaho was way ahead of Harney County, filing its lawsuit in September 2015, three days after the USFWS decided against listing the sage grouse. The state and the Idaho Legislature tried to claim that the Forest Service and BLM amendments intended to protect the species put unnecessary restrictions on Idaho farmers and ranchers, sportsmen, recreationists and employers. It would not only restrict livestock grazing on BLM land but would also cause “spillover” effects on state and private lands such as increased risk of wildfires and a loss in revenue to the state from restricted oil and gas leasing on federal lands.
But two weeks ago, U.S. District Judge Emmet Sullivan found that Idaho had no standing to pursue such a lawsuit, because it couldn’t prove that the state or the Legislature had been hurt by the federal plans. All Idaho’s arguments were hypothetical, so the judge threw the case out on Jan. 6.
“Even if there was legal precedent for plaintiffs’ theory of injury to state sovereignty, based on the record before the Court, plaintiffs have failed to meet their burden of demonstrating that they “suffered an injury in fact…” Sullivan wrote.
The ruling may have implications for a lawsuit filed by the state of Utah in February, which claims the BLM went too far in barring mining in sage grouse conservation areas. Depending on Utah’s arguments, the courts may determine that Utah also lacks standing.
If states, miners and ranchers aren’t willing to follow through on their parts of the 10-state sage grouse conservation plan, it could trigger the USFWS to take another look. A review is already scheduled for 2020, but that could be bumped up if too many conservation plans are pulled.
On the other hand, some conservationists argue that the federal-agency plans don’t go far enough and filed their own lawsuit in February against the DOI. They asked the Idaho district court to remand the plans to the BLM and USFS to strengthen protections and close loopholes that they say allow livestock grazing, oil and gas drilling, transmission lines and other development through critical grouse habitat.
As if to underscore the conservationists’ argument, some populations are already showing signs of decline after a few good years. For example, grouse numbers in northern Oregon around Baker County have dropped by 76 percent in the past 13 years, according to the Oregon Department of Fish and Wildlife.
In Montana, Sen. Bradley Hamlett, D-Cascade wants to require Montana Fish, Wildlife & Parks to know how many birds are in the state in case a judge asks. That’s why he sponsored House Bill 211 in committee on Wednesday.
FWP biologists already spend a lot of time watching leks in the spring and estimate the health of the population based upon the number of males per lek.
FWP Administrator Ken McDonald said all states use lek counts because it is difficult and expensive to try to count all birds. Plus, in Montana, a lot of the prime sagebrush habitat is on private property and some landowners don't allow biologists on their ranches.
When pressed for a total, McDonald said Montana has between 60,000 and 100,000 birds. A modeling program is still being developed to provide a total number based upon males per lek.
“We’re more interested in the population trends than the exact number, because populations can fluctuate so much from year to year, depending on several factors,” McDonald said.
But Hamlett wants FWP to go one step further. And because FWP is already doing lek counts, the requirement doesn’t cost anything, according to the associated fiscal report.
“We’ve had numbers for some years and not others. At least it tells us on a yearly basis where we are. That helps us if we ever go to court,” Hamlett said. “We have to keep focused on seeing this all the way through. If the bird is listed, it could affect our economy. This is one of the things we can do.”