As the trade and mainstream press has widely reported, yesterday, the US Fish and Wildlife Service (FWS) decided against placing the Greater Sage Grouse on the endangered species list. This is big news, if for no other reason than that grouse habitat covers hundreds of thousand square miles area across a dozen states:

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Certainly, the FWS’s decision not to list the sage grouse spares a large geographic area of oil and gas land, rangeland, federal land, and otherwise developable area from restrictions under ESA.

But, more fundamentally, FWS’s decision formalizes the “success” of industry’s response to the extraordinary wave of Endangered Species Act (ESA) listings it has faced in recent years. Examining this “success” more closely is the main purpose of this blog.

As we described a couple of years ago, litigation from NGOs spurred FWS into acting on its tremendous backlog of endangered species petitions and critical habitat designation requests. As a result, in 2012, FWS planned out the ESA determinations it would undertake every year for five years, covering all 50 states and over 450 different species. Significantly, the NGOs themselves created the list of species for FWS’s prioritized attention under this plan by petitioning FWS for listing the species and then bringing suit when FWS was unable to review the petitions within the statutorily-mandated period. The list covered species whose habitat blanketed areas where significant energy and other development was planned. Inevitably, this set up a situation where imminent ESA listings were bound to conflict with industry’s development plans.

Galvanized by the potential for inflexible and extraordinarily restrictive listing decisions (and habitat designations to follow), industry responded as best as it could – by trying to moot the need for listing designations. Industry’s strategy was to take independent action to conserve the most critical (to it) of the species, creating adequate voluntary protections for those species, so that industry could preclude a FWS finding that the species was under imminent or foreseeable threat of extinction.

Industry’s strategy has been successful before – it averted the listing of the New Mexico and Texas Dunes Sagebrush lizard in 2012 – but the sage grouse was an enormous challenge, given its wide range and the outsized impacts its listing would have had. Staving off a listing by using more tailored, coordinated strategies is definitely a “win.”

But the win does not come without implications and complications. As FWS identifies in its 341-page decision, the primary basis for the Service’s decision not to list the sage grouse is that “the primary threats to greater sage-grouse have been ameliorated by conservation efforts implemented by Federal, State and private landowners.” These conservation efforts included self-imposed limitations adopted by the Bureau of Land Management (BLM) and the voluntary measures sought to be imposed by Colorado and other western states.

By basing its non-listing decision on these voluntary conservation efforts, the FWS has effectively required their continuation and their demonstration of effectiveness over time. Moreover, since these conservation efforts are not statutorily required, their success or sufficiency is not tested against the customary legal markers, inviting disagreement and dispute. These uncertainties are significant and will be a factor in gauging the sage grouse “success” over time.

In sum, the sage grouse “success” means that energy and other developers have successfully used a preventative approach to avoid the most restrictive aspects of the ESA. However, they will be limited in their future development of federal lands in the region to the extent those limitations formed part of the basis of FWS’s non-listing rationale, and they will have to participate in the various state and private conservation efforts now available to them. The perceived – and perhaps disputed – future success of these efforts may result in FWS’s reexamination of its decision and the subsequent listing of the sage grouse. NGO lawsuits are also inevitable, challenging both FWS’s decision not to list the grouse and, if that litigation is unsuccessful, how the voluntary programs are being implemented. It is far too early to call the “success” final.