On Tuesday, Idaho U.S. District Judge Lynn Winmill issued a decision in
Western Watersheds Project v. U.S. Forest Service invalidating the Fish
and Wildlife Service's January 2005 "12-month finding," under 16 U.S.C.
1533(b)(6) and implementing regulations, that the petitioned listing of
the greater sage-grouse is "not warranted."
Judge Winmill found the Service's finding was arbitrary and capricious
for four reasons:
1. Contrary to 16 U.S.C. 1533(b)(1)(a), the service failed to base its
decision "solely on the basis of the best scientific and commercial data
available." In what the court deemed an "odd process," the Service
convened a seven-member expert panel to assist in its listing decision--
the court found that the"best science" in the process was represented by
this expert panel, but the Service failed to prepare a transcript or
written report of its deliberations and conclusions, failed to preserve
the "best science for the record," and excluded the expert panel from
substantively recommending whether or not the species should be listed.
Also, it is worth noting that while the court did not specifically
mandate a probability-of-extinction standard for listing, it was quite
critical of the Service's decision that (what the court found to be the
panel's finding of) a 36% chance of (range-wide) extinction within 100
years did not constitue a "likelihood" of "danger of
extinction"--suggesting, but not ruling, that a 20% likelihood on
extinction within 100 years was significant enough for a "threatened"
listing.
Of particular relevance to developments in Wyoming may be the court's
characterization of the expert panel as finding that the risk of
extinction in the eastern portion of the species' range--where the
principal threat is energy development--was 52%.
2. Second, the court rejected the Service's finding because of its
conclusions that "service biologists determined the principal
habitat-related threats are not proceeding at a rate that will threaten
the continued existence of the species within the foreseeable future."
The court found this conclusion flawed because it was based not on the
expert panel's (unrecorded) discussions, but rather off-the record
meetings by the Service Director. Of particular interest, the opinion
also notes with concern the 2004 WAFWA Conservation Assessment and its
finding that rapid energy development is the principal threat to the
species in its eastern region, and finds that the Service failed to
explain why it departed from the Conservation Assessment's conclusions.
3. Third, the court found that the Service had failed to "coherently"
consider the adequacy of existing regulatory mechanisms. With regard to
energy development on BLM land, the Service had concluded that it had no
information on (1) how many leases lacked protective stipulations, (2)
how often stipulations are waived, and (3) whether BLM Best Management
Practices work. This, the court found, didn't justify a finding that
conservation efforts will moderate the rate and extent of habitat loss.
4. Most colorfully, the court also denounced the interference of the
notorious Jule MacDonald in the listing process, in particular her
deletion from Service staff analysis of conclusions regarding the lack
of data on effectiveness of BLM regulatory measures.
So, what does all of this mean in practice? Well, it's important to
note that Judge Winmill did not (indeed cannot) order the species
listed. Rather, he remanded the decision to the agency for further
consideration. A couple of things could happen now. First, the United
States could appeal and may seek a stay of the order pending appeal. If
that doesn't happen, the Service has to prepare a new 12-month finding.
Presumably, there will be further motions and/or negotiation leading to
the Court setting a deadline for when this has to happen.
It's worth noting that the new listing decision is going to be informed
by the new Pinedale and Powder River studies which one would assume will
bolster concerns about habitat loss and adequacy of existing regulatory
mechanisms for the eastern portion of the species' range (i.e., Wyoming,
Montana, and Colorado). Depending on how you count the votes of the
expert panel, it's arguable that if this information changes one vote,
there'd have been a majority of expert views predicting extinction
within 100 years. The new decision will surely also be informed by the
BLM's, the States', and others' claims about the status of existing or
potential conservation efforts, so I think it's safe to say that if
States are interested in avoiding listing from the new process, the
stakes are raised for their conservation plans.