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Western Governors to Examine Species Law Reform at Boise Workshop by Rocky Barker Idaho Statesman, January 18, 2016

If federal officials decided the sage grouse was not worthy of threatened status under the Endangered Species Act, then why did they rewrite land management plans to increase protection for the grouse?

Idaho Gov. Butch Otter posed this rhetorical question to reporters early this month as he talked about the suit he's filing against the plan revisions of the Bureau of Land Management and the U.S. Forest Service, saying the feds strayed from the collaborative draft based on his Idaho task force's recommendations.

But federal officials say the changes they made in 98 plans that cover 173 million acres of sage grouse habitat -- including a proposal to withdraw 10 million acres from oil and gas and mineral development -- are the very reason Fish and Wildlife Service Director Dan Ashe was able to declare listing of the iconic bird as unnecessary.

Listing the bird would have imposed new regulatory requirements and potentially restricted grazing, roads and energy development on public lands across the West.

"This is truly a historic effort -- one that represents extraordinary collaboration across the American West," Jewell said when the listing decision was made last fall. "It demonstrates that the Endangered Species Act is an effective and flexible tool and a critical catalyst for conservation -- ensuring that future generations can enjoy the diversity of wildlife that we do today."

On Tuesday, Otter will get his chance to make the case that the 42-year-old law needs reforming. He hosts a workshop Tuesday at the Riverside Hotel in Garden City from 8 a.m. to 5 p.m., sponsored by the Western Governor's Association, examining ways that can make the law work better.

'GOT PEOPLE WORKING'

The Endangered Species Act was passed by Congress and signed by President Richard Nixon in 1973.

Today 1,568 animal and plant species are listed as threatened or endangered in the U.S., and another 653 around the world, for a total of 2,221. Since the law's inception, 30 species have been recovered and 19 delisted as not needing protection, due to errors in the original data.

WGA Chairman Matt Mead, a Republican from Wyoming, leads the governors' initiative to examine the act and hosted the first of five forums in Cody, Wyo., in November.

At Tuesday's Boise workshop, experts like Owyhee County rancher Brenda Richards and Nature Conservancy of Idaho public affairs director Will Whelan will share best practices and case studies on species management.

The information collected at the forums will become part of a report that will guide legislative, regulatory or legal actions to improve the effectiveness and efficiency of the ESA.

Despite the lawsuits from Idaho and several counties, the sage grouse conservation plan has been viewed as a success. Unlike earlier plans that came after the listings of such species as spotted owls and Pacific salmon, work in advance of listing by businesses, developers, farmers and ranchers ensured they didn't face the most onerous section of the law. That section, Section 7, requires formal consultations on any activities connected to federal lands, river management and other actions.

"That part of the act is powerful," said John Freemuth, a fellow at the Andrus Center for Public Policy who will moderate Tuesday's workshop. "The threat of listing got people working. It built some relationships and they avoided listing."

FRUSTRATION, SKEPTICISM

But many Westerners are frustrated that so much effort is focused on listing species under the act and so little on removing them from the list. States also are frustrated that federal agencies often issue decisions before they adequately consult with the states and before getting them involved in solving the problems.

"The governors are looking for more meaningful consultation with the agencies when it comes to land-use planning, rule-making and when they set other directives and regulations," said Laura Chartrand, a WGA policy adviser.

Mead laid out an ambitious policy agenda when he spoke at the November workshop in Cody.

"We need to get to a place where the Endangered Species Act can provide predictability for species, our citizens and for industry," Mead said. "If we're going to make improvements to the ESA, we collectively have to have the courage and the faith that people with good intentions can work together and put together something to present not only to WGA, but at the national level and Congress."

One of the skeptics is Todd Tucci, an attorney with the Boise's Advocates for the West, whose lawsuits led to the sage grouse status review and who most expect to challenge in court the decision to not list the sage grouse.

"I expect they will come up with new and creative ways to avoid following the law," Tucci said.

One of the workshop's topics is how to provide incentives to private landowners to do more to protect species before they become endangered. In the case of the sage grouse, $424 million in federal, state and private projects are proposed for 1,129 ranches involving 4.4 million acres across 11 states.

PREVENTING 'HOLY WAR'

The challenge of the Endangered Species Act, Freemuth said, is that it is complicated environmental law implemented in a "complex political ecosystem." He's doubtful Mead will find the universal common ground that would be necessary to get Congress to make changes to the law.

But he's hopeful the forums will identify new ways for the states, the federal government and individuals to more effectively advance species conservation without putting people out of business.

"I would hope they would look at what's working well and what has gone off in different directions and what would make it work better," Freemuth said.

A lot of the issue is communication, he said. He can see why Otter and others were disappointed with the final sage grouse plans, even if the plans did prevent listing.

"In my view, we opened the right door and closed the right door," Freemuth said. "If (the grouse) had been listed, we would have had war on the West again."

The rhetoric of the 1980s Sagebrush Rebellion is what we're hearing from Ammon and Ryan Bundy, who are leading an armed occupation of the Malheur National Wildlife Refuge in southeast Oregon, Freemuth said. Collaborative processes are not easy, he acknowledged.

"The alternative is holy war," Freemuth said.