Yesterday, the U.S. Fish and Wildlife Service (USFWS) announced its decision not to list the greater sage-grouse as threatened or endangered under the Endangered Species Act (ESA) and withdrew the species from the candidate species list. In deciding that listing the greater sage-grouse “is not warranted at this time,” Secretary Jewell cites to the “largest land conservation effort in U.S. history” as pivotal in influencing that decision. 
 
In January 2005, USFWS determined that the greater sage-grouse did not warrant listing, but encouraged stakeholders to develop conservation measures to moderate the rate of habitat loss. In March 2010, following a second status-review for the species, the USFWS identified habitat loss, fragmentation, and inadequacy of existing regulatory mechanisms as the primary factors leading to a decline in the species’ population and habitat. USFWS nonetheless concluded in 2010 that listing the greater sage-grouse was “warranted, but precluded” at the time.

By court order and settlement with environmental organizations supportive of a listing for the greater sage-grouse in 2011, the USFWS agreed to publish, not later than September 30, 2015, either a decision proposing to list the greater sage-grouse as threatened or endangered or a decision concluding that listing is not warranted at this time. In fact, the USFWS was prohibited from making a final decision on the greater sage-grouse as a result of a “policy rider” in the 2014 appropriations bill. The policy rider expires, conveniently, on September 30, 2015. 
 
Beginning in 2010, and consistent with the USFWS Policy for Evaluation of Conservation Efforts (PECE Policy), federal and state agencies, private stakeholders, and environmental organizations began engaging in an unprecedented effort to conserve the greater sage-grouse through development and implementation of extensive land management plans and other conservation efforts. Given the location and range of the greater sage-grouse, efforts from all of these different stakeholders were required (and continue to be) for these conservation efforts to succeed.
 
At the federal level, in 2010, the U.S. Bureau of Land Management (BLM) in coordination with the U.S. Forest Service (Forest Service) developed a landscape-level management strategy to target collaborative conservation efforts across the entire Western region.  BLM and the Forest Service finalized portions of this comprehensive management strategy yesterday—the same day USFWS made public its decision not to list the greater sage-grouse—by publishing a record of decision approving resource management plan amendments (RMPAs) for the Rocky Mountain region. While these RMPAs are touted by some, others fear the expansive scope and comprehensive prescriptions in the RMPAs will nonetheless create significant hurdles for oil and gas development, hardrock mining, transmission lines and wind turbines, among other development projects in and around potential greater sage-grouse habitat.  In addition to the comprehensive federal RMPAs, 10 of the 11 states in the sage-grouse range updated their state plans to incorporate conservation and mitigation measures for the protection of the species. Complementing these government efforts, stakeholders (including industry) have developed and employed voluntary, private-land efforts, including the Sage-Grouse Initiative, a project directed by the Natural Resources Conservation Service, as well as Candidate Conservation Agreements with Assurances, among other efforts – adding to the protection of the species.
 
In yesterday’s decision, the USFWS ultimately determined that collectively, the conservations efforts implemented and proposed for implementation by federal and state agencies and private landowners “ameliorated” the primary threats to the greater sage-grouse.   
 
Importantly, yesterday’s decision came on the heels of a landmark decision by the District Court for the Western of Texas, which vacated the USFWS’ decision to list the lesser prairie chicken (LPC) as threatened. In Permian Basin Petroleum Association (PBPA) et al. v. Department of the Interior (DOI), et al., the Court held that USFWS’ decision to list the LPC was arbitrary and capricious under the Administrative Procedure Act because the agency failed to properly apply its PECE Policy to conservation efforts proposed for implementation or newly implemented by federal and state agencies and private landowners across five states to improve habitat for and diminish threats to the LPC. Ultimately, PBPAdictates that USFWS must recognize state and private initiatives (such as those developed for the greater sage-grouse) when making listing decisions. While not specifically citing the PBPAdecision in its decision not to list the greater sage-grouse, that decision undoubtedly influenced USFWS' assessment of and support for the comprehensive conservation measures developed for the protection and benefit of the greater sage-grouse. This is evidenced by the USFWS’ significant and extensive analysis of the various conservation efforts pursuant to the PECE Policy, declaring with “confidence” that the programs will be implemented, and as such, will effectively reduce and minimize impacts to the species and its habitat. 

For more information regarding the PBPA decision, please contact Hogan Lovells’ lead lawyer for Permian Basin Petroleum Ass’n v. Department of the Interior, No. 7:14-cv-0050, (W.D. Tex. Sept. 1, 2015), Jim Banks, at james.banks@hogan.lovells.com.  
 
These two recent decisions demonstrate a positive trend for the regulated industry towards recognition of, and reliance upon, wide-ranging conservation efforts as the preeminent species management technique under the ESA. Clearly, early industry engagement regarding potential listing decisions will continue to benefit industry and allow industry to work with USFWS, state and federal agencies, and the public to employ comprehensive conservation efforts that may, eventually, preclude the need to list a species. As Secretary Jewell emphasized, “epic collaboration across a landscape guided by sound science is truly the future of American conservation.”