SAGE GROUSE: BLM plans to update Obama-era revisions

Todd Ockert

Moderator
SAGE GROUSE: BLM plans to update Obama-era revisions
Scott Streater, E&E News PM: Wednesday, January 22, 2020

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The Trump administration is revising an analysis used to justify sweeping changes to Obama-era sage grouse protections. Bureau of Land Management/Wikimedia Commons

The Bureau of Land Management is preparing to conduct additional analysis to support broad revisions to Obama-era greater sage grouse protection plans that were blocked last year by a federal court order.

BLM could announce as early as this week that it will conduct supplemental analysis to the six environmental impact statements (EISs) that were used to support revisions to the 2015 grouse protection plans, according to multiple sources with knowledge of the situation.

The revisions prompted a federal lawsuit and subsequent preliminary injunction order by Judge B. Lynn Winmill in the U.S. District Court for the District of Idaho barring BLM from implementing the revisions (Greenwire, Oct. 17, 2019).

The six supplemental EISs would address problems highlighted in Winmill's order, with hopes of persuading the court to allow BLM to implement the revised plans, the sources said.

The move to conduct supplemental EISs would represent a significant move by the Trump administration to advance sage grouse revision efforts begun in 2017 by then-Interior Secretary Ryan Zinke and finalized last March by his successor, David Bernhardt.

Sources told E&E News that representatives with BLM and the Interior Department recently began notifying state wildlife officials of their plans in the seven states where the federal grouse plans were revised: Wyoming, Nevada, California, Idaho, Oregon, Utah and Colorado.

Most of the problems Winmill highlighted dealt with shortcuts in the process devising the plan revisions, undercutting National Environmental Policy Act mandates.

Winmill wrote that the "effect on the ground" of the changes "was to substantially reduce protections for sage grouse without any explanation that the reductions were justified by, say, changes in habitat, improvement in population numbers, or revisions to the best science."

He criticized BLM for not taking a "hard look" at the impacts of the revisions to the grouse as required by NEPA. And although he wrote that it is "well-within the agency's discretion" to tweak the Obama-era plans, that does not absolve the bureau from the hard look mandate required under NEPA.

"Certainly, the BLM is entitled to align its actions with the State plans, but when the BLM substantially reduces protections for sage grouse contrary to the best science and the concerns of other agencies, there must be some analysis and justification — a hard look — in the NEPA documents," Winmill, a Clinton appointee, wrote in the 29-page order.

He concluded, "It is likely that plaintiffs will prevail on their claim that this hard look was not done with respect to all six" final EISs that evaluated the grouse plan revisions and were used to justify their finalization in a record of decision issued in March.

The Justice Department last month filed a notice of appeal on Interior's behalf notifying the court that it planned to challenge Winmill's order to the 9th U.S. Circuit Court of Appeals.

It's not clear whether Interior will follow through on the formal appeal of Winmill's order. DOJ does not have to file any formal briefs until next month. In addition, Idaho and Wyoming have appealed, as have other groups like the Western Energy Alliance and the Public Lands Council.

It's not uncommon for Interior to file a notice of appeal to reserve that option, but to later drop the appeal.

Representatives with BLM and Interior did not respond to a request for comment before publication. Interior typically does not comment publicly on matters related to ongoing litigation.

A Justice Department spokesman also could not be reached for comment.

But BLM plans to move swiftly to correct the NEPA issues noted in Winmill's preliminary injunction, which kept the original plans finalized in 2015 "in effect" until the litigation challenging the revisions is resolved.

BLM would have to publish a formal notice in the Federal Register announcing plans to develop the supplemental EISs, kicking off a public scoping period during which the public could weigh in on what these documents should address.

But an Interior official who asked not to be identified said BLM officials told federal and state officials on a conference call last week that draft documents could come out as soon as February.

"If the court is OK with these changes, then BLM feels it's done its due diligence and can go back to implementing the 2019 revised plans," the official said.

Environmental groups involved in the lawsuit that sparked the preliminary injunction are cautious but don't expect dramatic improvements in the revised plans.

"Obviously, going ahead with the existing and deeply flawed [plan revisions] would be a losing battle, as they have already been identified as defective in multiple ways," said Greta Anderson, deputy director of the Western Watersheds Project, a plaintiff in the case. "Hopefully, the agency will actually seek to improve sage grouse protections rather than just papering over its problems."

Jim Lyons, who helped write the original sage grouse protection plans as Interior's deputy assistant secretary for land and minerals management during the Obama administration, said it's going to be difficult to convince Winmill that the revised blueprint "is going to provide a rangewide remedy for any problems that could lead to the need to list" the grouse for protection under the Endangered Species Act.

Lyons noted sage grouse population survey results last year that found grouse populations are declining in Montana, Oregon, Idaho, Nevada and Wyoming (Greenwire, Sept. 13, 2019).

"Given the decline in population numbers, it makes it even more urgent that BLM can justify, based on sound science, that these revised plans" are not going to push the bird, whose range extends across 11 Western states, toward extinction, he said.

Bob Budd, a sage grouse expert in Wyoming whom Zinke appointed to a panel that reviewed federal and state sage grouse protection plans and made recommendations that ultimately led to the plan revisions, said going back and addressing the problems identified by the court is the right thing to do.

"If the court says you have to do those things and you go back and you do them," Budd said, "that sounds like good government to me."
 
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