Federal Protections Defended for Sage Grouse

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By Alan Kovski

March 28 — The Idaho governor and state Legislature lack legal standing to sue over federal protections for the greater sage grouse because the plaintiffs cannot claim any injury until federal agencies get down to the details of blocking projects or permits, the federal government said in a brief defending its regulations.

Gov. C.L. “Butch” Otter (R) and the State Legislature of Idaho told the U.S. District Court for the District of Columbia that the regulations for the sage grouse also violated state sovereignty. But the regulations apply only to federal lands, making the objection invalid, the federal defendants said in the March 25 brief.

On behalf of Interior Secretary Sally Jewell and the other federal defendants, the Justice Department also told the court the regulations to protect the bird were well within the flexible, broad scope of the Federal Land Policy and Management Act (FLPMA) and complied with the National Environmental Policy Act, contrary to plaintiffs' charges .

The Bureau of Land Management and the U.S. Forest Service issued their package of amendments to land management plans in September to protect the sage grouse, a bird threatened by oil and gas development, mining, wind farms, electric power transmission lines and wildfires, among other things.

Federal and other protections by state and local governments and private parties allowed the U.S. Forest Service to conclude that the bird did not need the stricter, more extensive protections of a listing under the Endangered Species Act.

No Harm Yet, Defendants Say

The federal program to protect the sage grouse involves 98 revised land management plans in 10 states. Idaho challenged the land management regulations for the Idaho and southwestern Montana subregion, covering 25 million acres of the bird's habitat.

“Plaintiffs have asserted a facial challenge to this planning-level document, but have not alleged how they will be specifically harmed by implementation,” the federal defendants told the court in challenging the standing of the plaintiffs.

The essence of the defendants' argument over standing was that a program of land management restrictions did not, in itself, constitute a “justiciable injury-in-fact.” Any such injuries only would occur at a later stage, for example, when the BLM denied a state a right of way to build a road across federal land.

FLPMA Authority Defended

The plaintiffs argued that the BLM violated FLPMA by failing to coordinate the planning with states to the maximum extent practicable while obeying all other laws. The defendants responded that FLPMA gives broad discretion to the BLM, an Interior Department agency, to manage land.

To some degree, the federal attorneys characterized it as a conflict between FLPMA and NEPA. If the federal agencies simply adopted the state plans, it “would render the entire NEPA process meaningless” by conceding the environmental analyses and decision making to the states, the defendants said.

Idaho also said the BLM had no authority to specify a “net conservation gain” in mitigation policies, but the defendants responded that a net conservation gain could be included as a part of FLPMA's provision for actions to improve public land resources.

Some of the changes that were incorporated into the revisions of land management plans and justified with an environmental impact statement should have triggered a supplemental EIS because they went so far beyond what was contemplated in the draft EIS, the plaintiffs said. The sagebrush focal areas, notably, are to get the strictest protections but were not specified before the final plans.

The sagebrush focal areas may not have been clearly designated in the proposed plans and draft EIS, but their strict management measures were in those plans and the draft EIS, the defendants said. The final designations represent a subset or “shifted configuration” of the areas to be given stricter protections, the defendants said.

To contact the reporter on this story: Alan Kovski in Washington at akovski@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The federal brief filed in is available at http://src.bna.com/dD0.