A federal judge said he will likely overturn the U.S. Fish and Wildlife Service’s withdrawal of the bi-state sage grouse from a list of threatened species.
At a hearing Friday, U.S. District Judge Joseph Spero said he couldn’t understand why the agency concluded that bird populations were declining to the extent that they required protection, then suddenly reversed its decision two years later.
The agency had cited the stabilizing effect of conservation efforts on the population, but Spero seemed skeptical. “Why is it reasonable to rely on those efforts in the withdrawal decision in 2015 if they were not enough in 2013?” he said.
Environmental groups who sued the federal government to preserve the species claim its numbers are dwindling due to low birth rates, as well as residential and commercial development, livestock grazing, and the encroachment of invasive plants like cheatgrass and pinyon-juniper, all of which destroy its sagebrush habitat.
The ground-dwelling bird, which has a distinctive and elaborate mating dance in which the males puff out their chests, survives in an ever-smaller number of Western enclaves, including the bi-state area along the California-Nevada border. The species has been the center of a prolonged debate between conservationists and developers and others who argue a threatened designation would severely constrain land-use opportunities across swaths of the American West.
In 2013, the sage grouse was well on its way to a protected habitat of 1.8 million acres when the U.S. Fish and Wildlife Service suddenly reversed course on the proposed listing in 2015, based on a population trend analysis by Peter Coates with the U.S. Geological Survey. Environmentalists took issue with the fact that Coates’ study predicted positive population growth for one of the populations of sage-grouse when it had zero males in 2013 and only one in 2014. It also could not evaluate two other populations due to data limitations.
The Coates study also presented major problems for Spero. He pointed out that it did not analyze the effectiveness of conservation efforts such as removing invasive plants. “There’s no details on how much was removed or whether the planned removal would be sufficiently beneficial to make sure the species is not threatened,” he said.
Attorney Hubert Yang with the Department of Justice acknowledged the government has an “uphill battle” in proving its case to Spero. Still, he argued that commitments to fund conservation measures going forward, as well as those measures becoming more “refined” since 2013, are what made the difference in the years between 2013 and 2015.
But the pair mostly butted heads over the Coates study, as Yang asserted that the study need not include the best science – only the best science available when the Service made its decision.
“We recognized there are limitations to the study, but it doesn’t change our conclusion that it was the best available science,” Yang said, adding, “This is one of those situations where the perfect can’t be the enemy of the good. If the service had not considered the Coates study, it would have been left with very little.”
He also said the agency viewed the study with “caution.”
Visibly frustrated, Spero said, “My problem is you reached a conclusion that the species was threatened. You changed that conclusion to say it’s not threatened. One of those bases is the Coates study and its conclusion that its species is stable, a conclusion you said you have to view with caution. The next step was they accept the species as stable.”
Spero took arguments under submission.