The Greater Sage Grouse is in big trouble. AS WC has written here before, populations of the iconic bird have plummeted from an estimated 16 million to less than half a million. The primary cause of the population crash has been habitat loss. Back in 2015, a painfully negotiated settlement among the stakeholders would have preserved the most important remaining habitat and worked to minimize further fragmentation of the sagebrush steppe. It’s not just the Greater Sage Grouse that’s at risk from habitat loss. There are some 350 species dependent on the sagebrush steppe. The Greater Sage Grouse is just the best known and the most threatened.
The 2015 Sage Grouse Conservation Plan was a classic compromise: it satisfied no one but was better than any of the alternatives. Some state governors, like Idaho’s former Governor Butch Otter, even made disavowal noises after signing it. But the agreement carried the potential to stop the population decline.
And then the Trump Administration threw it all out. In the name of making oil and gas leasing easier. The most egregious part of the Trump Administration’s effort was a Bureau of Land Management Memorandum, called “Instruction Memorandum (“IM”) 2018-034.” The IM not only re-opened lands to oil and gas leasing that had been closed; it also sharply reduced the ability of the public to comment on proposed federal land leasing actions. All in the name of making leasing “easier.” The Trump Administration then promptly issued exploration leases on lands that are critical Greater Sage Grouse habitat.
The Western Watersheds Project and Center for Biological Diversity sued the Trump Administration – specifically, the Bureau of Land Management and the Secretary of the Interior – challenging the IM. There are pretty strict rules on how the Department of Interior is allowed to modify its policies. Zinke, in adopting IM 2018-034, ignored all of them. The plaintiffs asked the federal court to (1) vacate IM 2018-034 and reinstate the rules previously in effect under IM 2010-117 (issued during the prior presidential administration), until BLM changes these procedures through notice-and-comment rulemaking; and (2) vacate the leases and underlying decision documents for those lease sales utilizing IM 2018-034.
On February 27, 2020, Chief U.S. Magistrate Judge Ronald Bush did exactly that. The shortened notice provisions for leasing sage grouse habitat? Thrown out, and the old rules re-imposed. The end runs around the National Environmental Protection Act? Thrown out. And, most importantly, the leases made under the fatally flawed IM 2018-034? Cancelled.
Magistrate judge Bush left open the possibility that a properly adopted IM 2018-034 might be lawful, but as he noted in his decision, it’s going to be difficult to shorten notice intervals by administrative rule-making when the notice intervals are set by statute. Regulations can interpret statutes, but they cannot change them.
The oil and gas industry squealed like a pig whose slops had been taken away. “This decision is so divorced from the rule of law that you would be hard pressed [to find] another judge in the entire federal court system who would say that producing leases should be canceled because of a minor question of process,” Western Energy Alliance President Kathleen Sgamma. The Western Energy Alliance had intervened in the case on the federal government’s side. WC doesn’t think that denying the public a voice in the disposition of public lands is a “minor point of due process.” Neither did Judge Bush. In your dreams, Ms. Sgamma.
WC would describe this as a modest victory for his favorite iconic species. For several reasons. First, a U.S. District Judge will have to sign off – adopt – Magistrate Judge Bush’s decision. The probability is pretty high that will happen. The decision is well-analyzed and well-written, and doesn’t really set any new law. Second, If the Trump Administration takes the time to properly issue something like IM 2018-034, it would be harder to set it aside. Not impossible, by any means, but harder.
But in the meantime, Greater Sage Grouse habitat has been preserved, and that’s key to preserving the species. Any additional fragmentation of the sagebrush steppe risks the loss of Greater Sage Grouse and the other 350 species that are dependent upon it. WC intends to visit a lek this spring, and try again to capture the timeless magic of Greater Sage Grouse courtship. Stay tuned.