The dysfunctional dynamic between federal and local government was on full display this week as counties went up against the federal Bureau of Land Management (BLM) and U.S. Forest Service (USFS) during the first hearing in federal court over regulations established to protect sage grouse.
Seeking a preliminary injunction against BLM’s Land Use Plan Amendment — a plan drafted to help keep the sage grouse from being listed as endangered under the Endangered Species Act, published in September — Nevada counties and two mineral exploration companies filed suit against the federal Department of the Interior.
They were later joined by the state through Attorney General Paul Laxalt in an attempt to remove restrictions that, plaintiffs said, have already had a negative impact on mining, livestock grazing, energy development and the ability for counties to secure federal land parcels for expansion projects.
Nevada Governor Brian Sandoval protested the suit, saying it was premature, and he said that the AG’s joining in the suit did not represent the will of Nevada. Laxalt fired back, citing state law: “The attorney general is the only constitutional officer authorized by Nevada law ‘to intervene or to appear in’ litigation about public lands’ in the name of the state,’” he said.
Judging by testimony at the hearing for the preliminary injunction, however, the onus for the frazzled relationship over public lands management appeared to be directed primarily at the federal agencies, which were portrayed as unresponsive, uncooperative and unwieldy.
A list of expert witness and those with on-the-ground expertise in Nevada’s counties were trotted up to the witness stand. They outlined a narrative of frustration at trying to work with the federal agencies over how to best conserve the grouse.
Department of Justice (DOJ) attorneys, defending the BLM and USFS, appeared to struggle in comparison, demonstrating at times a lack common knowledge about the issues they were defending. For example, one of the DOJ attorneys appeared surprised to learn that Cooperative Extension was a unit of the University of Nevada, Reno, a fact that is common knowledge in rural Nevada.
Rather than counter much of the plaintiff witnesses’ testimony, DOJ attorneys instead tried to mitigate the witnesses’ claims. The federal defense seemed to rely on repeated objections to lines of questioning by the plaintiffs’ attorney, Laura Granier, and the questioning of plaintiff witnesses’ level of expertise. The DOJ attorneys also asserted that testimony by plaintiff witnesses was speculative.
Demonstrable impacts to mineral exploration, agriculture and development projects are already being seen around the state, however, according to Granier and plaintiff witnesses.
Sage Grouse Regs: What’s at Stake?
The list of impacts facing Nevada is voluminous, and financial tolls are already becoming reality, according to those witnesses.
Adverse impacts include:
- A landfill in Eureka County is now designated by the feds as priority sage-grouse habitat, said J.J. Goicoechea, a Eureka County commissioner.
- A North Valleys middle school is on hold because BLM staff in Carson City told Washoe County that 80 acres, near a high density residential area, are now designated as sage-grouse habitat; this, in contradiction to Nevada Department of Wildlife maps of sage-grouse habitat, according to Bill Whitney, Washoe County’s planning director.
- A veterans cemetery in Sparks is also on hold because BLM told Washoe County that the parcel, near Wild Creek Golf Course, is now designated as sage-grouse habitat and would not be available for the cemetery project, Whitney said.
- The China Mountain Wind Energy Project in Elko County is dead.
- A shooting park in Humboldt County cannot begin constructing public safety measures, said Jim French, Humboldt county commissioner.
- Venture capital in Humboldt County is drying up, and 90 potential mineral claims are on indefinite hold, French said.
- A landfill in Humboldt County, reaching the end of it’s lifespan, cannot expand, according to French.
- A mineral exploration company is “dead in the water” because its investors are no longer offering funding toward a potential $3 billion gold mine until this lawsuit is resolved, even though the exploration project already has in place “extensive mitigation measures to protect sage grouse,” said John Cleary, a geological consultant for Western Exploration LLC, a minerals exploration firm.
Plaintiff witnesses repeatedly asserted that the federal agencies ignored readily available scientific research.
Tina Mudd, the Nevada Department of Agriculture’s former rangeland health coordinator, testified that the federal sage-grouse protection regulations failed to include scientific research that was sent to the federal agencies.
“Without that literature, we are where we are now (in court) — because of that omission,” she said.
Other experts agreed.
“There is a large body of science related to fuels and fuels management (that was omitted in the federal land-use plan amendment),” said Barry Perryman, a professor of rangeland ecology at the University of Nevada, Reno. “I’m sure a large body of grazing research was not included in the draft. There’s very little in the (federal) document that addresses fuels management.”
Perryman said that the federal agency approach was to focus on perennial plants, not invasive species such as cheatgrass, the latter of which is more detrimental to sage-grouse habitat.
“We are managing for the perennials, not the invasives,” he said. “We’re always (ending up) leaving more fuel on the ground. It’s a huge fire risk to sage grouse (that is not addressed in the federal document).”
Perryman said that the federal protections would increase fuels and end up harming sage-grouse habitat.
“(Livestock) grazing is the only real landscape level tool we have that can mitigate (fuels and wildfire),” he added in his testimony.
Debra Struhsacker, senior vice president of Pershing Gold Corporation, agreed with Perryman that scientific information had been omitted from the documents.
“BLM’s own data of mining claims was … not included,” she said. “The U.S. Fish and Wildlife Service also had data available about mining impacts that wasn’t included in … the proposed plan.”
In Federal Hands
BLM countered that it did consider science.
BLM Nevada Director Amy Lueders said the agencies relied on expertise from public comments, their own employees, subject matter experts and other government agencies, such as the U.S. Geological Survey.
The DOJ’s witnesses asserted that grazing permits have not been canceled; mineral exploration may still proceed; any county wanting to take over a “disposed” federal land parcel may appeal if the parcel is designated as sage-grouse habitat — even if no sage grouse reside anywhere near the parcels.
When grilled about the BLM’s use of maps that designated parcels, such as Humboldt County’s landfill, as priority sage grouse habitat, Lueders said that some of the contested land, such as the parcels in Washoe County, “may have value (to sage grouse) as having potential connectivity characteristics.”
When asked how a county, such as Washoe County, would proceed to develop its proposed North Valleys middle school, or the veterans cemetery in Sparks — both of which have been designated by the feds as sage-grouse habitat — Lueders responded:
“I would encourage (the county) to meet with BLM (to discuss) proposals. We would look at specific examples,” she said.
Granier countered that such a process could take months, if not years, and would put the decision-making power in the hands of federal agencies, which the counties would then have to appeal should the decision not come down in the county’s favor.
The USFS Humboldt-Toiyabe Forest Supervisor Bill Dunkleberger agreed with plaintiffs that livestock grazing might decrease as part of the federal plans to protect sage grouse. He said that the Forest Service has flexibility to deviate from the new policies if it benefits sage grouse.
“Subordinate district rangers have authority to make decisions on the ground,” he said.
That kind of uncertainty is partially what prompted the lawsuit. Washoe County, for instance, joined the suit in part because that kind of oversight by the feds was too one sided and too subjective, while discounting on-the-ground realities facing the grouse.
Washoe County Commissioner Vaughn Hartung explained: “I’m terribly concerned with the way that the BLM wants to deal with this.
“The 40-acre parcel (for the veterans cemetery) that they’ve called habitat is coming off Pyramid Highway … I guarantee you there are no sage grouse there,” he added. “If there are sage grouse there, I’ll buy (them) a home.”
Federal District Judge Miranda Du is expected to rule in the near future on the preliminary injunction, which would offer temporary relief to the plaintiffs against the new regulations. Litigation will continue thereafter.