sage grouse,endangered species
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Why Worry About Greater Sage-Grouse?
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In March 2010, the United States Fish and Wildlife Service (Service) determined that the Greater sage-grouse was warranted for listing as a threatened or endangered species pursuant to the Endangered Species Act (ESA), but listing at the time was precluded by higher listing priorities.   Per a federal court settlement, the Service will determine by September 2015 whether to list the sage-grouse.  Listing of the sage-grouse would trigger additional regulatory hurdles for mining and resource development activities that may affect sage-grouse, including habitat disturbance.  Even if the species is not listed, the United States Bureau of Land Management (BLM), other federal agencies, and the states are developing management regimes that have the potential to conflict directly with exploration and mining, or restrict or possibly even preclude mining or related activities in some locations of sage-grouse habitat.  

Current Regulatory Limitations 

Candidate species receive no statutory protection under the ESA.  But the BLM, which manages thousands of acres of sage-grouse habitat on public lands, issued in December 2011 an Instruction Memorandum directing its regional offices to initiate certain sage-grouse conservation measures and policies applicable to numerous BLM resource programs, including locatable minerals, salable minerals, leasable minerals (energy and non-energy), rights-of-way, realty actions, travel management, water developments, fences, grazing authorizations and management, and other programs.  In April 2013, BLM provided the United States House Natural Resources Committee a list of 130 projects that have been delayed, denied, altered, or deferred by BLM because of the agency’s sage-grouse conservation measures and policies.  Accordingly, BLM’s new sage-grouse policies are having tangible and significant impacts on projects located within sage-grouse habitat on public lands.

Impact of ESA Listing

If the Greater sage-grouse is listed as endangered or threatened pursuant to the ESA, the full panoply of ESA substantive and procedural constraints would apply to mining or resource development activities where the sage-grouse may be affected.  For example, ESA Section 7 requires federal agencies to conserve endangered or threatened species and to consult with the Service to ensure that any action the agency authorizes, funds, or carries out is not likely to "jeopardize” the continued existence of a listed species or result in the "destruction or adverse modification” of designated critical habitat.  Section 7 consultation is triggered whenever a discretionary federal action "may affect” a listed species or critical habitat.  The Section 7 consultation process can result in federal agencies requiring significant changes to mining or resource development projects or federal agencies imposing costly or prohibitive conditions on the project proponent.

ESA Section 9 can directly impact the actions of mine or resource developers because it broadly prohibits the "taking” of any threatened or endangered species.  Section 9’s statutory prohibition applies to both federal and non-federal parties alike, regardless of where the take occurs.  The statute defines "take” as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”  In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the United States Supreme Court upheld the Service’s regulatory definition of "harm” as including significant habitat modification or destruction that causes actual death or injury to a listed species on federal or nonfederal land.

For mine or resource developers operating in Greater sage-grouse habitat, ESA listing of the species likely would result in significant additional regulatory requirements and limitations.  However, there are regulatory mechanisms that potentially can be employed to address these restrictions and allow continued development in sage-grouse habitat, including Section 10 "incidental take” permits and habitat conservation plans, or conservation banking. 

If Greater Sage-Grouse Is Not Listed

In 2010 when the Service determined the Greater sage-grouse was "warranted, but precluded” for ESA listing, the Service found that the inadequacy of existing regulatory mechanisms posed a significant threat to the sage-grouse.  In December 2011, in response to the Service’s findings regarding inadequate regulatory mechanisms and to potentially avoid an ESA listing, the BLM and United States Forest Service began a process to revise their resource management plans to incorporate sage-grouse conservation measures.  The agencies invited the states that have sage-grouse habitat to develop state-specific sage-grouse management measures to be considered as alternatives in the BLM and Forest Service management plan revision process.  In response to this invitation by the agencies, several states have developed, or are developing, sage-grouse management plans.

Thus, regardless of whether the sage-grouse is listed pursuant to the ESA, the regulatory landscape in sage-grouse habitat is changing on federal lands and at the state level.  Mining companies or resource developers operating in sage-grouse habitat should actively participate in the BLM or Forest Service management plan revision processes, and at the state level, to determine the impacts these changes will have on their operations and to provide input to the agencies or states to protect the operators’ interests.  Certain BLM Montana resource management plan revisions were released for comment in February 2013.  Additional federal resource management plan revisions will be released this year and next for public input.  Affected operators should participate in this process to protect their interests. 

1See 75 Fed. Reg. 13910 (Mar. 23, 2010).
216 U.S.C. §§ 1536(a)(1), 1536(a)(2); 50 C.F.R. § 402.01(a).  For more information on ESA critical habitat designations, see IMA-NA regulatory issue brief entitled "What is Critical Habitat?”
350 C.F.R. §§ 402.03, 402.13, 402.14.
416 U.S.C. § 1538(a)(1); 50 C.F.R. § 17.31(a) (applying "take” protection to threatened species managed by the Fish and Wildlife Service).  
516 U.S.C. § 1538(a)(1).
616 U.S.C. § 1532(19).
7Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 708 (1995).
816 U.S.C. §§ 1539(a)(1)(B), 1539 (a)(2)(A).
9See U.S. Fish and Wildlife Service, Notice of Availability, Guidance for the Establishment, Use, and Operation of Conservation Banks, 68 Fed. Reg. 24,753, 24, 753 (May 8, 2003); FWS Conservation Banking Guidance, at 2, available at http://www.fws.gov/endangered/esa-library/pdf/Conservation_Banking_Guidance.pdf. 
 
This regulatory summary is provided by IMA-NA Associate Member Holland & Hart LLC. Contact David Stanish if you have any questions.



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