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Environmental Law

: ESA Blawg

Federal court rejects decision not to list greater sage grouse

By Keith Rizzardi

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Western Watersheds Project v. U.S. Forest Service, 2007 WL 4287476 (D.Idaho, Dec. 4, 2007)(reversing agency decision that listing of greater sage grouse was not warranted.)
Sage-grouse populations have been in significant decline for decades, and in fact, both the Bureau of Land Management and the Forest Service have listed the sage-grouse as a “sensitive species” across its entire range in the United States. However, in this case, WWP sought review of a decision by the Fish and Wildlife Service (FWS) rejecting petitions to list the greater sage-grouse under the Endangered Species Act (ESA). The opening pages of the Court’s ruling left no doubt as to the seriousness of the federal government’s errors with respect to the ESA.

Male sage grouse photo from U.S. Fish & Wildlife Service.

First, the court explained that the agency’s decision-making process was flawed, in three respects: “After reviewing the FWS’s decision, the Court finds three flaws with the FWS decision-making process: (1) While the FWS consulted with experts, the agency excluded them from the listing decision; (2) The FWS created no detailed record of the experts’ opinions; and (3) The FWS ignored that portion of the experts’ opinions that were preserved on the record.”
Second, the Court found not only that this process violated the ESA requirement to consider the best available science, but also that this process should not be used again: “This process violates the statutory requirement that the “best science” be applied. By improperly insulating the decision-makers from scientific input, it vreates opacity when transparency is required. The Court has serious reservations about whether such a process may be used again in any reevaluation of the sagegrouse or, for that matter, in any other listing decisions in the future.”
But perhaps most remarkably, the Court found that the agency decision was openly tainted my executive misconduct: “Finally, the FWS decision was tainted by the inexcusable conduct of one of its own executives. Julie MacDonald, a Deputy Assistant Secretary who was neither a scientist nor a sage-grouse expert, had a well-documented history of intervening in the listing process to ensure that the “best science” supported a decision not to list the species. Her tactics included everything from editing scientific conclusions to intimidating FWS staffers. Her extensive involvement in the sage-grouse listing decision process taints the FWS’s decision and requires a reconsideration without her involvement.”

Other Noteworthy Resources:

For more information on this case (from the Plaintiffs' perspective), visit Dec. 4, 2007 press release by the Western Watersheds Project..
For additional background on the controversy related to Ms. MacDonald, visit the Nov. 28, 2007 ESAblawg entitled "After the Big Mac Attack".

Full post as published by ESA Blawg on January 19, 2008 (boomark / email).