Endangered Species Law & Policy

On November 12, 2014, the U.S. Fish & Wildlife Service (Service) listed as threatened and designated over 1.4 million acres of critical habitat for Gunnison sage-grouse (Centrocercus minimus), the smaller cousin of the greater sage-grouse (Centrocercus urophasianus).  The Gunnison sage-grouse’s (Gunnison) current range is limited to southwestern Colorado and southeastern Utah.

The regulations came as a blow to the State of Colorado, landowners, and others who have devoted considerable resources to the conservation of the Gunnison Basin population’s sagebrush habitat.  Equally disappointed are members of the environmental community, including the non-profit organization whose litigation prompted the Gunnison listing:  the Service’s threatened listing, rather than the proposed endangered listing (pdf) paves the way to a special rule under Section 4(d) of the Endangered Species Act (ESA) that would exempt specified activities from the ESA’s Section 9 take prohibition.  In a public statement, the Service announced that it plans to publish a special 4(d) rule for public comment that would exempt from the take prohibition a number of ongoing activities, such as ranching and routine agricultural practices.

The 4(d) exemptions may come as cold comfort to Colorado state and local agencies and private landowners who have developed voluntary conservation plans to protect over one-half million acres of Gunnison habitat.  Section 4(d) exemptions do not relieve federal agencies of their Section 7(a)(2) obligations to consult with the Service for any federal agency action (e.g., Natural Resources Conservation Service funding and Bureau of Land Management (BLM) lease agreements) that may affect the species or its designated critical habitat.  However, landowners who have enrolled their property in one of the 40 current or pending Candidate Conservation Agreements with Assurances for Gunnison Sage-grouse will not be required to provide additional conservation measures or additional land, water, or resource restrictions – beyond those voluntarily agreed to – to avoid future take of Gunnison or to protect the species’ habitat on enrolled property.

The Service’s threatened listing of Gunnison may be an attempt to split the baby:  depending on how broadly the Service defines the 4(d) exemptions, the State of Colorado, local agencies, and private landowners, on one hand, will see federal regulatory overreach and environmental organizations, on the other hand, are likely to challenge the exemption as swallowing the rule.  As reported in Greenwire (Nov. 12, 2014), threats of litigation from both sides have already emerged.

The Service is trying to head-off predictions about future greater sage-grouse regulation.  In 2010, the Service found listing the range-wide greater sage-grouse under the ESA warranted, but precluded and placed the species on the candidate list (pdf).  However, in the Gunnison listing Frequently Asked Questions, the Service states, The decision on Gunnison sage-grouse in no way predetermines a decision on the greater sage-grouse.  . . . Because the [Gunnison’s] range is much smaller, and its smaller populations are more vulnerable to extirpation, the threats to [Gunnison] occur throughout a larger portion of the range and are more imminent.

The California-Nevada greater sage-grouse distinct population segment (Bi-state DPS) is currently proposed for listing as threatened; the Service has also proposed a special 4(d) rule and designation of critical habitat for the species.  First proposed on October 28, 2013, the Bi-state DPS listing determination is still under review following two comment-period extensions and one public hearing.  The Service plans to publish its final determination for the Bi-state DPS no later than April 28, 2015. [8/5/14 Fed Red pdf ]