Listing decision Thabault discusses decision-making factors

A 2010 court settlement agreement mandated that the U.S. Fish and Wildlife Service (FWS) must determine whether the Greater sage grouse should be proposed for listing under the Endangered Species Act (ESA) by Sept. 30 or is no longer warranted for listing. At the same time, a congressional rider in last year’s appropriations package prevents FWS from proposing a rule to list the bird.

FWS Mountain-Prairie Region Assistant Regional Director Michael Thabault comments, “All we can do is make a decision about whether the species continues to be warranted for protection under the ESA, but we are precluded from proposing a rule in the event that it is warranted.”

Listing process

“The ESA is a forward-looking exercise,” Thabault comments. “We are trying to determine if – at some point in the future – the species is likely to become extinct or get to the point that there is a threat of extinction.”

The process in arriving at a decision whether or not to protect the sage grouse – or any species – under the ESA is complex.

“Every species has a slightly different pattern,” he notes of the process for listing. “There is no recipe that we follow.”

“The vast majority of the time, the process begins when we get a petition from someone requesting a species be listed,” Thabault continues. “The ESA has a provision that allows anyone from the public to petition FWS to consider whether a species should be listed as threatened or endangered under the ESA.”

After a petition is received, a series of procedural steps are followed to determine whether the information provided by petitioners is substantial enough to continue the process.

“We look at if the petitioners have provided scientific literature and a good assessment of what they think the species is up against,” he says. “Assuming that we conclude that information is substantial enough to go to the next step, we begin to evaluate the status of the species.”

In making the determination, FWS considers scientific literature and an assessment of threats.

“We look at the status of the species over the long-term and into the future,” he says. “We look at what science says about each aspect threatening the species. What does science tell us about the effects of adverse action? We also look at what the science tells us about the impact of conservation actions.”

Five criteria are utilized in making a final decision. Those criteria include the present or threatened destruction; modification or curtailment of habitat or range; overutilization for commercial, recreational, scientific or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and other natural or man-made factors affecting a species survival. If any criterion is met, the species may be listed.

Policy impacts

In addition to the scientific evaluation, policy components of the ESA also come into play in making the decision.

“We look at whether the information we have fits our policy and if it complies with the definition in implementing the regulations that we have,” Thabault adds.

After assessing the scientific and policy information, FWS determines whether the species warrants protection.

In the event that the science is not clear or there are gaps, FWS makes informed judgment around assumptions and strives to make an informed decision.

A number of FWS employees are involved in developing a listing recommendation.

“FWS is a field-based organization, so we have scientists across the region in the field and in the regional office who help to formulate and make a recommendation to the Director of FWS,” Thabault explains. “The FWS Director is the ultimate decision maker.”

Legal implications

The ESA also includes a series of legal provisions, which are unique.

“For any decision that FWS makes, we are subject to be challenged on whether we made the right decision, the right decision for the wrong reasons or the wrong decision,” Thabault explains.

Legal challenges can be filed in the court of choice for the person or organization filing the lawsuit. The legal process is followed until the court system makes a decision. One of the stipulations is that FWS must receive a 60-day notice of intent to sue that lists the areas a protester seeks remedy for prior to a lawsuit filing.

“The courts may uphold the FWS, vacate the decision or remand the decision back to FWS for future consideration on an aspect of the case,” he adds.

Inside sage grouse

The decision whether to list sage grouse for protection under the ESA is more complicated than many listing decisions.

“The sage grouse is complicated because of congressional action,” Thabault explains. “We had a settlement agreement with the court to make a decision by the end of September, but a congressional rider has prohibited us from proposing a rule to list the species under the ESA.”

“Congress can continue that rider indefinitely, they may propose a new rider or they might withdraw the rider,” he continues. “The bottom line is, even if we were to propose the species be listed for protection, a proposed species cannot garner protection. The species is only protected once we finalize a rule, and we cannot propose a rule.”

Listing particulars

Though Thabault is not able to discuss any specifics related to the findings on sage grouse until after a decision is released, he notes that any species proposed for listing can be protected in several ways.

“We can protect an entire species, a subspecies or a distinct population segment,” Thabault explains. “The statute was amended in the 80s to allow listing of distinct population segments.”

He adds, “If we were to determine that there was a distinct segment of the population that is threatened enough to warrant protection on its own, we can do that. Such a listing is a policy consideration in relationship to the science.”

In addition, a particular area of interest with sage grouse is that a decision not to list the bird was made in 2005 but was subsequently determined to warrant protection in 2010.

“Much of what we are looking at is if there has been a sufficient enough change in what we are doing, regulations in place and the nature of the threats from our 2010 decision,” Thabault says. “We don’t have a clean slate with the sage grouse. We are trying to determine whether the decision we made still stands.”

A final decision on the fate of the sage grouse will be made by the end of September. Thabault was unable to speculate whether a decision may be released prior to that date.

Saige Albert is managing editor of the Wyoming Livestock Roundup and is available at saige@wylr.net.