John J. Audubon's "Cock of the Plains" depicts greater sage grouse in his book "The Birds of America." More than 150 years later, the once ubiquitous bird is deeply troubled, perhaps because, as Audubon observed, it is "unsuspicious...rarely flies...[and] often runs under the horses of travelers." (Library of Congress)

Despite Wyoming’s protest of Bureau of Land Management greater sage grouse conservation plans, major principles in Wyoming’s own strategy “have been respected,” an adviser to Gov. Matt Mead says.

Mead protested the plans June 29, but his natural resource policy director Jerimiah Rieman said contested points are relatively minor. The BLM plans are “generally consistent” with Wyoming’s greater sage grouse conservation regulations, he said. “All the classics have been respected,” he said of the BLM’s opinion of the state’s rules and maps.

Among Wyoming’s principles are designation of core habitat areas, the amount of land that can be disturbed in them, and development setbacks from sage grouse breeding leks. In contrast, a “classic example” of BLM rules Wyoming is protesting is restrictions on hard-rock mining — basically gold, silver and rare-earth metals. In that case Wyoming believes BLM uses the Endangered Species Act to proscribe restrictions “that are entirely unnecessary,” Rieman said.

“There are little elements,” Rieman said of the conflicts. “We think we can work with the BLM so those little pieces don’t bring down the whole house. We still are optimistic.”

Mead’s protest came only four weeks after he hailed the BLM plans with Secretary of the Interior Sally Jewell in Cheyenne.

“The governor was extremely supportive of the plans coming forward,” Rieman said. In his remarks with Jewell, the governor likened the tedious conservation process to a 100-mile race. Mead said that race is in the last mile and that “it’s all uphill and we have to address some things,” Rieman said.

That’s ongoing. “We have been sitting down with [the BLM] on almost a daily basis,” he said. “This process is far from over.”

In fact, the protest is “setting the stage” for one of the next steps in the complex negotiations, Rieman said. That’s Mead’s “consistency review” — a summary of how the BLM’s conservation proposals mesh with Wyoming’s “programs, plans and policies.” Wyoming had 30 days to file a protest, 60 days to complete its consistency review.

The BLM is required to consider Mead’s consistency review and how federal plans mesh — or conflict — with state programs, plans and policies. Wyoming’s greater sage grouse policies are largely contained in Mead’s Greater Sage Grouse Executive Order.

Whereas … therefore

The order is a series of “whereases” and “therefores” that tell the story of how Wyoming will ensure the grouse survives as a species. The meat of the policy is attached as a map that defines core areas that will be protected as grouse strongholds. Other attachments use language to outline various standards that will be implemented.

The executive order directs state agencies how to act when dealing with development and activities in sage grouse habitat. It applies to state and federal land and to private land only when the owner seeks a state permit — say to develop a gravel pit.

“The Executive Order is the classic example of a state policy that the BLM has to evaluate, according to their regulations … to ensure to the extent they can they are coordinating with that [state] policy,” Rieman said. He used firefighting as an example.

“If a local government had a fire plan and the BLM were looking to change fire management, they would have to review that [local] plan,” Reiman said.

Still, state authority is limited. “We couldn’t put forward a policy and dictate ‘You have to adhere to that,’” he said. Yet the BLM director “shall conform to the governor’s recommendations if it’s in the national and state interest,” Reiman said.

“That’s a wide latitude the federal government is given,” he said. “There certainly is a notion, a very strong notion that they have to give some consideration, and perhaps deference, to state and local laws.”

Limits remain. “We couldn’t say some species in Wyoming is not endangered,” Reiman said.

Gov. Dave Freudenthal issued Wyoming’s first Greater Sage Grouse Executive Order in 2008. Mead has since replaced it with his own, which expires Aug. 18. Rieman and others are reviewing Wyoming’s Sage Grouse Implementation Team’s recommendations for revisions of the executive order that it completed early this summer.

“When we received those we immediately began to review them with an internal working group,” Rieman said of the SGIT recommendations. That group includes SGIT chairman Bob Budd, director of the Wyoming Wildlife and Natural Resources Trust, Mary Flanderka, habitat protection advisor for Wyoming Game and Fish Department, and attorneys.

Work is expected to conclude this week, he said. “We will then sit down with the governor shortly after that as well as the SGIT.” That’s when Mead will decide whether and how to revise the executive order.

Although Mead’s existing executive order does not expire until mid-August, he might revise it before then. That’s because the consistency review is another chance — in addition to the protest — for Mead to influence the BLM.

“There is the opportunity for the governor to introduce new information or ask for consistency with new policy,” Rieman said. Because of that, Mead will likely revise the executive order within the 60-day consistency-review window, he said.

BLM will then determine whether Mead’s new executive order — if he chooses to revise his existing one — constitutes a “substantial change” from what the BLM analyzed in its sage grouse conservation plans. The BLM can take as much time as it needs to make that determination, Rieman said. If Mead’s changes are substantial and the BLM agrees with them, the federal agency would offer another public 30-day review.

“That’s a remaining question that’s outstanding for the BLM and us,” Rieman said. Because BLM examined a wide range of alternatives in proposing its sage grouse plans, Wyoming doesn’t believe any changes Mead might make would be substantial. “I suspect the BLM will say we evaluated no core area, every core-area alternative, therefore there’s no substantial change,” Rieman said.

Some argue misuse of the ESA

Some have argued that the federal government is improperly using the Endangered Species Act and greater sage grouse to make land-use planning decisions, not just to save the species, Rieman said. “I think there’s a strong sense of attempts to use the ESA to leverage changes to land use planning, and that is troubling given this is a species that remains in our control and jurisdiction,” he said. Wyoming hasn’t decided whether it will fight against perceived federal overreach.

“We need to determine if we need to make that argument,” Rieman said. “That might be a better argument for others outside the state.” Wyoming is different because its core-area strategy casts a wide net by encompassing activities on state and federal land and private land where state permits are required.

“Wyoming’s strategy — the fact it is an entire landscape, has helped us avoid some of the issues other states are dealing with,” Rieman said. “We avoided the 3-percent disturbance cap. Wyoming will have a 5-percent disturbance threshold.”

Wyoming and the BLM disagreed over which standard was better. While Wyoming’s method of calculating disturbance allows a larger area to be disrupted, the method counts more types of impacts — like fire — and is therefore more accurate, Wyoming argued.

“Our program is showing strength,” Rieman said of the executive order and core-area strategy. “It’s been a success. Wyoming’s plan, right now, is beyond what the BLM [has] previously put in place.” Until BLM adopts its sage grouse conservation plans — officially called amendments to resource management and land-use plans, “the state is the only agency that has full regulatory control,” Rieman said.

As Wyoming and the federal government offer their respective positions, displaying perhaps like a pair of strutting grouse, there’s a date looming on the calendar’s horizon. A federal court has a September 30 deadline for the U.S. Fish and Wildlife Service to determine the fate of the greater sage grouse. Fish and Wildlife must decide by then whether the troubled bird is a species that remains warranted for protection under the Endangered Species Act.

If protection is warranted, the service would begin determining whether it should protected as threatened or endangered. Congress has blocked Fish and Wildlife Service action with a temporary budget rider. That roadblock could be extended, but the Obama administration has expressed its distaste and could veto bills with such provisions.

Angus M. Thuermer Jr.

Angus M. Thuermer Jr. is the natural resources reporter for WyoFile. He is a veteran Wyoming reporter and editor with more than 35 years experience in Wyoming. Contact him at angus@wyofile.com or (307)...

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