Wyoming's sage grouse strategy sets bar for rest of the West

Doug Cooper stands on a ridge looking east across the grassy swales of the 7 L Livestock Company ranch just north of Casper. One hundred and fifty years ago, his family came to Wyoming from Scotland and, after moving around the state for a couple of decades, his great-grandmother homesteaded here in the 1890s. His grandfather and father later added their own homesteads to the ranch base. The family ran sheep and cows for over 100 years. Now Cooper and his son, who works for him, have several hundred head of cattle. With a kind, clean-shaven face and oval wire glasses, a checkered button-up shirt, worn jeans and lace-up cowboy boots he’s at ease on this spread of more than 50,000 acres.

The big ranch his family has pieced together over the generations is also valuable habitat for the imperiled greater sage grouse. “When I was a boy we had thousands. Now we have a few hundred,” he says of the grouse. The species could become the “spotted owl” of the Intermountain West. If listed as endangered, the grouse would halt resource extraction — from cattle grazing to oil and gas drilling — over more than half of Wyoming, much like listing of the owl did to old-growth logging in the Pacific Northwest.

Cooper has been caught in the middle of efforts to keep that production halt from happening, and in the course of things, he’s lost a valuable development opportunity on his land. He pulls a wind energy lease marked with scribbled question marks and notes from a folder. A few years ago, he started talking with a wind turbine manufacturing company called Clipper Windpower about leasing a portion of his ranch for a wind farm.

Cooper hired an attorney to help him work through the lease and took Clipper staff on tours of his ranch. And he invested not only in the negotiations with Clipper, but also paid a premium for a piece of land he’d recently added to the ranch, entering a contract with the previous landowners to split those wind rights. He stood to make as much as $6,000 to $8,000 per turbine per year, and he calculated a conservative ten turbines would rope his family up to $2.4 million over the estimated 30-year life of the project.

But before the lease was finalized, Clipper Windpower stopped discussions with him. Then-Gov. Dave Freudenthal (D) had just issued an executive order updating Wyoming’s sage grouse core area map and forbidding wind development in those designated areas. A new piece of core area on the updated map exactly covered the part of Cooper’s private ranch land Clipper had wanted to lease. State lands he leases for grazing were outside the core area. The state would still be able to lease for wind development while Cooper could not. Clipper walked away from negotiations with Cooper before signing anything.

“I don’t feel they have right to take property without due process of law,” Cooper says of the governor’s plan, arguing that he can’t find out how the boundary was drawn because the groups designing the core areas didn’t keep minutes of their meetings. He believes the sage grouse core area boundaries were gerrymandered to cut him off while benefiting his neighbor, and that the governor overreached his authority by prohibiting private land development.

“My opportunities are restricted so someone else can have opportunity elsewhere. It’s a transfer of opportunity,” Cooper says. “It’s like finding out that people on your side of the street can’t get mail or go to work or something.”

Cooper’s case highlights potential flaws in Wyoming’s sage grouse conservation strategy. It shows that core areas trace economic or even political as well as biological boundaries, while individual landowners — those who’ve protected sage grouse and their habitat so far and ended up inside the core areas — are asked to make development sacrifices. But Cooper’s situation may provide just the kind of test the core area strategy needs to prove its merit. His case could give Wyoming a chance to show how firm it will be about protecting core areas from new development, thereby protecting existing activities and future development from a possible listing of the sage grouse. And Cooper’s situation, ironically for him, illustrates the care and attention to detail that has gone into core area planning so far. More than 80 percent of the state’s grouse breed and nest inside the core areas.

Meanwhile, Gov. Matt Mead is preparing to take Wyoming’s sage grouse conservation strategy — hailed as “groundbreaking” — to other states around the West. Even the Bureau of Land Management is looking to Wyoming for guidance as the agency starts to design its own range-wide conservation plan for the grouse. (See the accompanying story, “Clock ticking on sage grouse listing.“)But exactly how Wyoming’s and other conservation plans will be implemented remains to be seen. And while a listing decision looms, it will take thorough application of the conservation measures throughout the species’ range to ward off an ultimate listing, which would shut down everything from grazing and wind development to oil and gas drilling and coal mining across most of Wyoming.

Wyoming’s plan more than a decade in the making

“People would like it if we could do x, y or z to solve the sage grouse issue,” says Tom Christiansen, sage grouse program coordinator for the Wyoming Game and Fish Department. “There is no silver bullet. More or less the problem is human impact, and there’s not an easy answer.”

Wyoming’s comprehensive sage grouse conservation strategy started when former Gov. Jim Geringer appointed Bob Budd to lead the effort way back in 2000, and Budd has been at the helm ever since. From a longtime Sublette County ranching family, with a past that includes working not only for the Wyoming Stock Growers’ Association but also The Nature Conservancy, Budd is quick talking, firm and gruff, with friendly, bright eyes and a tidy moustache. His philosophy, he says, has been to work transparently with people representing various interests in the state, and to let locals make as many decisions as possible. Because he doesn’t work for a regulatory agency and doesn’t rely on votes, Budd says he can be just as harsh with agencies as he can with industry or agriculture. “Everybody understood it was a fair setting,” he says.

Back in the early 2000s, Budd’s team examined a range of threats to sage grouse from parasites and disease to predation and habitat loss. They determined that habitat fragmentation, largely from energy development, was a major threat to sage grouse in Wyoming, and wrote a statewide sage grouse conservation plan published in 2003. The plan called for extensive sage grouse mapping to prioritize places for conservation and for establishing local working groups to implement regional, on-the-ground conservation measures. Over the next few years, the state implemented this plan. Then, in 2007 Gov. Freudenthal convened a state sage grouse summit and created a state-level sage grouse implementation team with Budd at its head. The governor asked Budd for realistic things the state could do to prevent a sage grouse listing.

Later that year, Budd’s sage grouse team presented Gov. Freudenthal with a list of 21 recommendations for ways to protect grouse. The next year, the team followed up with a rough map of sage grouse core areas, and the governor adopted the map and some, but not all, of the team’s recommendations as his first sage grouse executive order in August of 2008. For example, he included a call for more mapping and for suppression of wildfires, but did not include incentives to minimize the footprint of housing developments. The order required state agencies — and requested other landowners and land managers in Wyoming — cooperate on efforts to keep sage grouse off the endangered species list by concentrating conservation efforts in the designated core areas. Those areas, identified on the map, cover about 15 million acres or roughly 24 percent of the state’s land area and are home to an estimated 80 percent of Wyoming’s sage grouse.

Still, Budd knew the map needed more precision, so he took it to the local working groups and asked them to scrutinize the core areas in their regions and modify the maps. In the Bighorn Basin, for example, the local working group added areas where leks — breeding grounds where sage grouse congregate in the spring to strut — had been left out. In other areas, existing infrastructure, like a uranium mine and a town, were carved out of the core areas. Meanwhile, the state had completed half a million dollars worth of mapping, which also added precision to the core areas. The updated version of the map, which did a much better job than the first of both including key sage grouse habitat and excluding existing development, was finalized and implemented with a second executive order in August of 2010. It added roughly 400,000 new acres to the sage grouse core areas, including a piece over Cooper’s ranch.

“What Doug Cooper got caught in is the only reasonable metric we could use of whether something was developed or not, is if it had a permit,” says Budd, explaining why the core area traces the edge of the ranch. “We’d literally get 30 wind companies coming in and saying, ‘I’m going to develop that. I’m going to do this. I’m going to lease that.’ I’d go check with the landowner. They didn’t have a lease. They’d never heard of the company. We needed something that was realistic. We needed a lease, a plan of development, something more.”

Notably, adding to Cooper’s frustration, the state had finalized leases with Clipper Windpower on trust land within Cooper’s ranch in April of 2009. So the state trust land was outside the protected core area, while Cooper’s private land was inside, even though the current quality of the sage grouse habitat on both sides of the core area boundary is comparable.

Many landowners in Wyoming, so far, have accepted the restrictions of the core areas in hopes of avoiding the more severe restrictions of a possible endangered species listing. “My frustration with Mr. Cooper arises from the fact that he never attended a meeting,” says Bruce Lawson, an industry representative on the Casper region local working group. Budd’s sage grouse implementation team and the local working groups invited public input about the core area revisions. Lawson attended half a dozen local working group meetings in different regions of the state for the bentonite mining company he works for. He didn’t see Cooper at any of those meetings. “He didn’t attend, didn’t participate. Now he cries foul. I felt that was wrong. He had plenty of opportunities to participate.”

The region that covers Cooper’s ranch had a working group that met in Gillette, more than 100 miles from Cooper’s ranch. Cooper says he didn’t go to the local working group meetings because he’d seen an early draft of the sage grouse map and believed his ranch would fall outside the core areas.

Even though it has caused hassle for some landowners, the long and involved core area process has set a benchmark for widely coordinated and comprehensive species conservation plans. Pat Deibert, national sage grouse coordinator for the U.S. Fish and Wildlife Service, the agency that will ultimately decide whether to grant sage grouse endangered species protection, is impressed by Wyoming’s approach. “They’ve been incredibly proactive. It’s amazing they have taken this on and accomplished this.”

Putting the core area strategy to the test

None of Wyoming’s sweeping plans to protect sage grouse offer Doug Cooper peace of mind.

“The Wyoming constitution says you can’t lose property right without due process of law,” he says. “It’s shocking to me that we would lose our wind rights.”

He’s met with Gov. Mead seeking due process. “I want them to start over and do it the right way,” he says. Cooper doesn’t believe the process that created the core areas was legitimate, and says the governor has no authority to restrict development rights on private property through executive order. “We never had an ‘orderly proceeding’ or any of those things. It’s kind of a Kafkaesque thing where you know you’re in trouble, but you don’t know exactly why and there is no procedure that works,” he says.

Cooper argues that if the core areas had been adopted as a regulatory mechanism through the Game and Fish Department, there would have been public review and comment period. He is working with an attorney to build his case.

Landowners who find themselves in core areas do have avenues to seek support. This year the U.S. Department of Agriculture Natural Resources Conservation Service made over $27 million available to private landowners in Wyoming for sage grouse conservation efforts such as purchase of conservation easements, habitat improvements and infrastructure like bird ladders to help grouse escape from stock tanks. And the U.S. Fish and Wildlife Service has been working with Wyoming to develop a programmatic Candidate Conservation Agreement with Assurances, a contract landowners can voluntarily enter wherein they promise to undertake specific conservation measures for sage grouse on their land in exchange for relief from some Endangered Species Act restrictions should the grouse be listed. The programmatic agreement should be ready for landowners to sign up by early next year.

Meanwhile, the U.S. Fish and Wildlife Service emphasizes that Gov. Mead’s sage grouse executive order can only be effective if it is fully implemented, even on private land. One thing the agency looks for in making its listing decision is presence of adequate regulatory mechanisms to protect the species from threats. Wyoming’s plan “is not quite regulatory,” says Mark Sattelberg, supervisor of the Wyoming field office for the U.S. Fish and Wildlife Service.

“But I think it’s probably the best we’re going to get in the near future,” Sattelberg says.

Deibert of the Fish and Wildlife Service is watching closely to see how Wyoming will react the first time the sage grouse core areas are challenged, such as by a wind company seeking to develop in a core area. “How the state reacts will be an important litmus test for how good a regulatory mechanism it is,” she says. “They have not been challenged yet.”

Still, Deibert says, Wyoming’s plan “is a huge step forward. They absolutely have laid the railroad tracks for everybody else.”

Budd calls it, “one of the greatest citizen triumphs I have ever seen. People sat down, they were civil, they were honest, they tried to figure out ways to make things work, but they never lost sight of their objective, which was conservation of sage grouse.”

NOTE: Information regarding property boundaries and sage grouse core area boundaries was clarified at 1:45 p.m. August 9.

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