Gunnison Sage-Grouse Endangered Species Act Litigation

Drawing a line on federal power under the Endangered Species Act

Cases > Separation of Powers > Gunnison Sage-Grouse Endangered Species Act Litigation
Active: Litigation is ongoing.
Case Court: District Court of Colorado

Colorado and two if its counties challenged the listing of the Gunnison sage-grouse as “threatened” for lack of evidence, and challenged the designation of critical habitat as overbroad. For years, the affected states, counties, and landowners partnered to conserve the species while maintaining economic viability but the federal government ignored these successful efforts and instead imposed significant land use restrictions over a wide swath of land, most of which does not now and cannot ever support a sage-grouse population. PLF filed an amicus brief arguing that the federal government’s actions exceeded statutory and constitutional bounds.

In 2014, the U.S. Fish and Wildlife Service listed the Gunnison sage-grouse as “threatened” and designated over 1.4 million acres in Colorado and Utah as critical habitat. Over 90% of sage-grouse habitat in the State of Utah is found on private land and local landowners have provided 28,000 acres of their land for conservation management. After spending more than $18 million, these cooperative efforts have increased the primary bird population by 30% and exceeded the government-established recovery goal. In combination with habitat areas that are federally owned and managed, over 75% of occupied habitat is protected, with more to come.

This wasn’t good enough for environmental groups, who sued to have the listing changed to “endangered” and claimed that the Service should impose more stringent land use restrictions and should not rely on voluntary conservation efforts. The Service claims the voluntary efforts are inadequate and extended the “critical habitat” designation to cover 766,462 acres that are unoccupied and unsuitable as habitat. Meanwhile, the State of Colorado also sued, challenging the listing altogether, given the effectiveness of voluntary conservation efforts, as well as the critical habitat designation because over half the area is unoccupied by the sage-grouse and large areas are completely unsuitable for the bird. The cases are consolidated. Species conservation is laudable, but it must be accomplished by lawful means.

As amicus representing our clients in the Markle gopher frog case, currently pending before the United States Supreme Court on a petition for writ of certiorari, PLF supports the state of Colorado in arguing that the Service must consider the proven success of voluntary federal, state, and local conservation efforts and that the designation of unsuitable areas a critical habitat violates both the Endangered Species Act and the Constitution. A decision in Markle will ultimately determine the outcome in the Gunnison sage-grouse case, and the scope of agency authority.

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What’s at stake?

  • If the Endangered Species Act allows the Service to regulate and control private land that is not and cannot be used for species conservation, there is no limit to the agency’s power to regulate land nationwide.
  • Species conservation is laudable, but it must be accomplished by lawful means. A refusal to acknowledge successful voluntary efforts and designation of unoccupied, unsuitable land as critical habitat exceeds agency authority under the ESA and violates the public trust.

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