On December 6, the Bureau of Land Management (BLM) unveiled a plan that will likely be one of the most consequential for landowners and energy developers by the Trump administration thus far. That plan? Reforming the resource management plan for the greater sage grouse.
The Absurd Bird Hurdle Is Cured
The greater sage grouse, a chicken-sized bird with a bizarrely captivating courtship display, lives in the sagebrush steppe that stretches over 11 Western states. In 2005, the Fish and Wildlife Service (FWS) concluded that listing the sage grouse on the endangered or threatened species list was not warranted. In 2010, the agency worried that habitat destruction could potentially threaten the sage grouse and thus set a deadline of 2015 to decide whether to list the species. With the threat of crushing regulation should the sage grouse be listed (endangering landowners and costing the economy more than $5.6 billion per year), the Obama administration brokered conservation plans with states. It also designated 10.7 million acres of federal land as “Sagebrush Focal Areas”—habitat with restrictions that supersede the plans to which states had just approved.
With significant protections finalized, BLM in 2015 concluded that the sage grouse remained “relatively abundant and well-distributed across the species’ 173-million acre range” and thus did not warrant listing. But just a year later, it issued new guidelines adding another layer of restrictions and burying land users in paperwork. The plans were challenged in court by the state of Idaho and a joint suit by the state of Nevada, nine Nevada counties, three mining companies, and a privately owned ranch. The latter suit successfully argued that BLM disregarded the input of Nevada experts and stakeholders in violation of federal law and designated an additional 2.8 million acres of Sagebrush Focal Areas after releasing a draft Environmental Impact Statement without them.
But fortunes may be improving for Western ranchers, energy developers, and the countless communities that depend on them. BLM’s revised plan would limit the area designated Sagebrush Focal Areas to 1.8 million acres, freeing up 9 million acres to potential development. The plan would also give states greater flexibility in granting land-use waivers and crafting their own mitigation strategies, pleasing governors on both sides of the aisle. It will be welcome news to Jack Farris, a third-generation rancher from Colorado whose business was put in jeopardy last year when he was told that the federal sage grouse plan required him to restrict his cattle grazing by 50 percent. Jack staying in business is also great news for the sage grouse because driving out ranchers would have resulted in ranchland subdivisions, increasing fire danger, noxious weeds, predators, non-native vegetation, and other factors harmful to the bird.
The changes were met with the usual outcry by environmental groups that occur whenever any federal wildlife protections are revised (regardless of whether they actually involve endangered species). But the 63 percent increase in the sage grouse population between 2013 and 2015, even before BLM’s agreements with states were finalized, shows that federal regulation is not the only way for a species to recover. In fact, only 2 percent of listed endangered or threatened species have been delisted due to recovery—suggesting that perhaps the federal government is no more competent at protecting wildlife than it is at its other pursuits. Considering the perverse incentives that are caused by punishing owners of critical habitat with uncompensated takings—shoot, shovel, and shut up— allowing local communities that actually live with the sage grouse to take command of conservation efforts is undoubtedly the best outcome for the bird.
Bogged in Frog Slog, Loggers Hope to Break Logjam
The sage grouse reforms are not the only good news about the Endangered Species Act (ESA) to come in time for its 45th anniversary. FWS has proposed revisions to the ESA that would remove its automatic conveyance of endangered species protection for threatened species and clarify standards for species listing, delisting, reclassifying, and critical habitat designation.
Still, these revisions are liable to be once again revised or expansively interpreted upon a future change of leadership. That is why the ESA’s most important development comes from the Supreme Court’s recent ruling in Weyerhaeuser v. Fish and Wildlife Service. In this case, owners of a 1,544-acre timber plantation in Louisiana were prevented from developing their property because the land had been designated a “critical habitat” for the dusky gopher frog. Yet nobody has seen any of the frogs in the land’s vicinity for more than 50 years, and by FWS’s own admission the land is unsuitable for the frog without significant changes.
In a unanimous (8-0) decision, the case was remanded to a lower court to decide the meaning of the word “habitat.” Though the ruling was narrow and the loggers may still lose, the case has significant implications. In requiring that a “critical habitat” actually be a “habitat” for the species, the Court seems to favor a more common sense, dictionary definition of a habitat; that is, a place where a species actually resides or at least is likely to move to. More importantly, the Court strongly affirmed the right of landowners to challenge FWS’s economic analysis in deciding which areas to exclude from habitat designations.
The case signals an evolving thinking on the Court that could have consequences even beyond the ESA. Chief Justice Roberts’ note that courts should be skeptical of agency claims of unreviewable discretion suggests that soon the Court will finally rid itself of Chevron deference. Meanwhile, the Court’s decision to add Kisor v. Wilkie to its docket may spell the end of Auer deference (whereas Chevron deference directs courts to accept agencies’ interpretations of legislation, Auer deference applies to agencies’ interpretations of their own regulation). Such doctrinal changes are sorely needed. For instance, while the Trump administration’s proposed Clean Water Act revisions may come and go as fast as the Obama administration’s, the Supreme Court could have a lasting say by clarifying that EPA cannot interpret every puddle to be “navigable” waters.
We all benefit from a thriving ecosystem, but shutting down millions of acres for an abundant and expanding bird population is plainly unreasonable. Bureaucrats in Washington do not know what is best for the sage grouse or Western communities, so we should cheer BLM’s revisions that decentralize conservation decisions. For more long-standing change, however, we need courts that will check agency expansion. Getting rid of Chevron and Auer deference is critical to reining in bureaucratic power grabs that threaten economic activity and private property rights.
Listen to the Plugged In Podcast episode on this topic: