Bellwether Bird

Other than the spotted owl, whose decline and subsequent protection more than a decade ago essentially shuttered the logging industry and economy of the Pacific Northwest, few birds have elicited the sort of nervous scrutiny that the sage grouse now generates in the West. The once ubiquitous chicken-like bird has been in decline for several decades. West Nile virus outbreaks in recent years hit the bird hard, and the sagebrush upon which it depends has been battered and depleted by urban sprawl, grazing, drought, mining operations and energy development. So it wasn't a complete surprise when in December 2007 a federal judge in Idaho ordered the Fish and Wildlife Service to reconsider its 2005 decision not to list the greater sage grouse under the Endangered Species Act.

The issue is so potent that Wyoming Gov. Dave Freudenthal hosted a Sage Grouse Summit in June to explore ways to protect the bird's habitat. Failing to do so would be "dire for both the bird and interested parties," he told the Casper Star Tribune. And there are a lot of interested parties -- environmentalists, of course, and virtually everyone else with a stake in how land is managed in the 11 Western states where sage grouse live.

In Wyoming alone, where energy development on federal land generated nearly $1 billion in state revenues last year, the pressure to keep those revenues flowing is enormous. To the extent sage grouse are found to be threatened or endangered, energy royalties will be threatened. "Because the sage grouse is a species that occurs throughout the state, if they were to become listed, that could start leading to decisions that start cutting back on the ability to develop energy resources, which then cuts off revenue flow and the [economic] opportunities," says Steve Furtney, a policy adviser to Freudenthal.

"We don't want to lose the critter itself, because that's important and a significant indicator of the open spaces and the environment we've always had, but also it could shut down the opportunities that energy offers. It could affect agriculture as well, and, of course, there's a long tradition of ranching in the state. All kinds of things could be affected if the sage grouse is listed," Furtney says.

Such far-reaching effects are now a serious possibility with Judge B. Lynn Winmill's Dec. 4 ruling. The chief judge for the District of Idaho said the Fish and Wildlife Service's decision not to list the bird was "arbitrary and capricious," and noted that both the Bureau of Land Management and the Forest Service had designated the bird as a "sensitive species" across its entire range.

Various environmental groups had petitioned the Fish and Wildlife Service to list the sage grouse under the Endangered Species Act. By law, the agency is to base its decision only on the merits of the best available science (the Interior Department secretary could overrule the designation of a species' critical habitat for economic reasons as long as the decision doesn't lead to extinction).

Winmill's ruling cited three flaws in FWS' decision: While the agency consulted with experts, it excluded them from the listing decision; FWS created no detailed record of the experts' opinions; and the agency ignored the portion of the experts' opinions that were preserved on the record.

Additionally, Winmill said the agency failed to analyze the deterioration of the bird's habitat and the regulatory mechanisms designed to protect it. And perhaps most damaging, the judge said the decision was tainted by "the inexcusable conduct" of Julie MacDonald, the executive who oversaw the agency as Interior's deputy assistant secretary for fish, wildlife and parks.

MacDonald, an engineer with no expertise in biology, heavily edited the agency's analysis of the risk of extinction to the greater sage grouse and questioned and belittled scientists' findings that informed the analysis, according to the Interior inspector general. Many believe her interference prevented the bird's listing, an argument the judge found compelling.

MacDonald's role was revealed during an IG investigation into unrelated complaints about her heavy-handed management style. Investigators found that she bullied employees, altered some scientific reports involving potentially endangered species, and shared nonpublic information with sources in the agriculture and energy industries.

MacDonald resigned from Interior in May after the report into her conduct became public, and last fall the Fish and Wildlife Service announced it would reconsider seven of the Endangered Species Act decisions it reached during her tenure. But the agency did not intend to reconsider the sage grouse decision until Winmill ordered it to do so. The judge's ruling, hailed by environmentalists, could severely constrain oil and gas development and mining throughout the West.

"If the species were to be listed under the [Endangered Species Act] the adverse economic impacts would be widespread," according to an environment and natural resources law alert issued by the Washington-based law firm Crowell & Moring, whose clients include the National Mining Association.

"ESA listing could cause delays and other adverse impacts to mining and oil and gas operations, farming, grazing, construction, utility operations, and other activities in broad areas of sagebrush habitat occupied by sage grouse in 11 Western states. It is no secret that anti-development [organizations] for many years have sought to use the legal protections of the ESA to block development activities over vast areas," the firm said.

Erik Molvar, a wildlife biologist with the Biodiversity Conservation Alliance in Laramie, Wyo., one of 20 environmental groups that petitioned to have the sage grouse listed as threatened or endangered, sees it differently: "Many decision-makers have been focusing their efforts on preventing endangered species listing rather than recovering the bird. Hopefully this ruling will be a wake-up call that will spur officials to move beyond talking about sage grouse conservation and actually start doing something about it."