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Judge rejects suit to remove Gunnison sage grouse protection

Colorado lawsuit sought to remove bird’s status as ‘threatened’

A federal judge has rejected a Colorado lawsuit to remove the Gunnison sage grouse from Endangered Species Act protection.

The Sept. 27 decision by Judge Christine M. Arguello upholds a 2014 U.S. Fish and Wildlife Service determination that the bird, known for its elaborate mating dance rituals, warrants protection under the act, including designation of 1.4 million acres of critical habitat in Southwest Colorado and southeast Utah.

“The Court finds that the Service’s final listing decision was not arbitrary, capricious or lacking in a strong scientific basis,” Arguello wrote in the decision. “The Service thoughtfully progressed through the required analysis under the ESA, supporting its findings with scientific analyses and data. The conclusion that the Gunnison sage grouse is ‘threatened’ under the ESA was supported by reason and not arbitrarily drawn, nor was it contrary to law.”

The population of the Gunnison sage grouse is estimated at 3,000 to 4,000 surviving in 7 percent of their original sagebrush habitat in San Juan County, Utah, and Dolores, San Miguel, Gunnison, Delta and Montrose counties in Colorado.

The lawsuit against the ESA listing was filed by state of Colorado, Gunnison County and Gunnison County Stockgrowers Association Inc. in 2015, with the state of Utah and San Juan County, Utah, as plaintiff interveners.

They argued that listing the bird as threatened was unwarranted and that Fish and Wildlife failed to consider conservation efforts by landowners and local governments and to study the economic effects of the designation. Plaintiffs have 60 days to appeal.

The Center For Biological Diversity, Dr. Clait Braun, Western Watersheds Project and WildEarth Guardians intervened in the lawsuit to defend the sage grouse listing. They applauded the court decision, saying the recovery plan under the ESA listing is needed to protect the bird against too much development, habitat fragmentation, grazing, and oil and gas development.

“Sadly, the numbers don’t look good for the Gunnison sage grouse, with only 723 males counted in 2018,” said Gunnison sage grouse biologist Clait Braun. “That translates to about 2,892 total Gunnison sage grouse left in the entire world. Hopefully the judge’s decision means that we can protect this small remaining population.”

Erik Molvar, a wildlife biologist and executive director of Western Watersheds Project, said the court found “no scientific merit in the notion that existing state and local conservation efforts are enough to save and recover this bird.”

But Phil Lyman, a San Juan, Utah County Commissioner, was disappointed with the decision. In an interview with The Journal, he said the action to list the bird on the Endangered Species list was federal government overreach that infringed on private property and local industry.

“It is hugely detrimental. Our county only has eight percent private land, and the critical habitat designation took up two-thirds of that,” Lyman said. “We were elected to stand up to the federal government, or they will take over.”

Lyman said the endangered species listing impacts local ranching operations, potentially delaying improvements.

“Now there is more red tape to put up a barn or extend your pasture. It’s moronic and is calculated to vex people who live in the West,” he said.

San Juan County also depends on oil and gas development. But the federal protection for the Gunnison sage grouse is impacting that too because they are in the same area, Lyman said.

“What happens is the companies walk away and go somewhere else to extract oil and natural gas when they learn that this area has these additional federal regulations because of a bird,” he said. “It’s damaging to our economy.”

San Juan County officials say they have been proactive in practical measures to protect the bird and have mitigation measures in their Resource Management Plan that governs land use. It was recently updated. Lyman said solar pumps around drilling rigs have created wetlands to improve bird habitat in dry areas, and some sage brush lands have been put in conservation easements to preserve occupied and unoccupied critical habitat.

“We’re acting in earnest, then the federal government counters our efforts by targeting private lands and creating more of an uphill battle,” Lyman said.

Bethany Cotton, wildlife program director for WildEarth Guardians, said the court decision gives the Gunnison sage grouse a fighting chance to recover.

“We hope that Utah and Colorado will now spend their time and considerable resources working to safeguard this imperiled dancing bird instead of fighting against our best tool to prevent extinction,” she said.

In an interview, she said ranching and oil and gas can co-exist with Gunnison sage grouse long-term with careful planning.

Protecting key breeding areas, called leks, is essential.

“Grouse have a real affinity for their leks they return to every year and pass on the location for generations,” Cotton said. “When a lek is converted to a cattle lot or some other development, the grouse will continue to arrive during the breeding season, and then they are subject to predation. They are not like other animals that go somewhere else.”

Minimizing fencing that can snag the low-flying bird, and timing restrictions to reduce noise such as from an oil well or roads during breeding season also are important.

“Grouse don’t see wire fences very well. Removing them or putting flags on the fencing helps them to avoid the obstacle,” Cotton said. “During mating rituals, they drum on the ground, but it can be drowned out by a road or drilling rig.”

The birds require sage brush and 7-inch-tall grass to protect them from predators, so more robust rotation and fallowing of livestock pasture is needed to give the grass a chance to regrow, Cotton said.

Limiting power poles in critical habitat to prevent roosting by raptors that prey on grouse is needed. Installing roosting-deterrent devices on current poles also is helpful.

“Gunnison sage grouse are an umbrella species,” Cotton said. “Protecting them helps the 200 bird species and other wildlife that rely on sage habitat.”

The majority of the birds live in the Gunnison Basin and have a stable population there, in part because of significant local government efforts.

Six satellite populations have been in decline in the past 12 years, including the Dove Creek/Monticello, Pinon Ridge (Grand Junction), San Miguel, Cimarron-Sims Mesa, Crawford and Poncha Pass populations.

In 2001, there were 350 birds in the Dove Creek/Monticello region. That dropped to 162 birds in 2007 and declined again to 147 birds in 2012, according to Fish and Wildlife Service documents.

jmimiaga@the-journal.com

Gunnison sage grouse decision (PDF)

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