Mead reinstates Sage Grouse Core Area order

On June 3 Governor Matt Mead signed an updated version of the Sage-Grouse Core Area Protection Executive Order, which is said to provide more flexibility for management in core areas while adding language requiring continual reevaluation of science and data for sage grouse management.
The new order replaces the document signed by former Governor Dave Freudenthal in 2010, and leaves the boundaries of the core area intact.
“This is not an action I take lightly or without reservation. However, because the listing of the greater sage grouse as a threatened or endangered species could cripple the economy of our state, I believe this executive order is needed,” said Mead. “I believe this effort, which started almost a decade ago, represents the most significant conservation measure ever undertaken by a state in support of protecting a species.”
Although the U.S. Fish and Wildlife Service (FWS) has expressed support for the core area strategy, some landowners remain hesitant about the concept, including Natrona County landowner Doug Cooper, who says the executive order sets up a scary precedent.
“I could see a government using a similar process to say we can’t graze our cows on rangeland because it’s too dry, or too pristine,” says Cooper, adding that he thinks the Sage Grouse Implementation Team (SGIT) and the order itself were conducted in such a way that they didn’t come under the Regulatory Takings Act.
“No single agency did this, but if it had gone through one agency it would have gone through rulemaking, and the Administrative Procedures Act would have applied, and the regulations would have been reviewed for the takings implication. The whole process comes down to the fact that the Governor can do what he wants with executive orders,” he explains.
Bob Budd of the SGIT explains one of the key changes made by Mead – a direct reference to the Regulatory Takings Act.
“It’s a reminder that these restrictions may have impacts on some people, and that we have a responsibility to try to make things right by those who might have some kind of a taking,” says Budd. “There’s a burden on them to prove the taking, but the order includes a more overt recognition that this isn’t being done without sacrifice, and certainly the feds realize that everyone’s made sacrifices.”
FWS calls the executive order “sound policy” for conservation of sage grouse, and the order also factors heavily in their annual status review, which is required under the Endangered Species Act for the bird’s current “warranted but precluded” standing.
Cooper says the order includes a list of exemptions, including branding calves, trailing cattle and emergency services. However, he notes that the order says it will only regulate permitted activities, but then turns around and “allows” those day-to-day ranch activities.  
“We have the ‘right’ to do a lot of things, and who in Wyoming would have ever thought they didn’t have the ‘right’ to brand their own calves, but now the Governor says they’ll ‘allow’ us to do this,” says Cooper. “They keep saying that the executive order only affects those things that need a permit, but then it says we ‘shall’ have escape ramps in all stock tanks – and never says what will happen if we don’t use the ramps.”
Cooper says the State Engineer’s Office now requires escape ramps in stock tanks as a part of water well permits.
“There’s never been a law passed that says that, so it’s a requirement without statutory authority, and that’s what’s wrong with the whole thing,” he states. “The order prohibits wind development, but there is no law that prohibits wind development in the core.”
“There is no documentation that wind development is bad for sage grouse, but they can prohibit it anyway because they think it ought to be bad. We’ll get wind development within our ranch, whether we like it or not, but it will be on state land, which was not included in the core area,” adds Cooper, who says the core area has cost his operation millions of dollars in lost wind and oil development potential.
“My biggest problem is that we were never notified that our land was under consideration for any of this in the first place,” says Cooper of the core area strategy. “I was meeting with the local Game and Fish biologist and warden on other issues, and they never mentioned our land was being added into the core, and we weren’t added until the last meeting of SGIT, so we had no idea we would be included.”
“Normally there would have been comment periods, and there was nothing done like that. The SGIT didn’t even keep minutes, so I can’t even find out how it happened,” adds Cooper. “It’s not good government – you’re not supposed to be able to lose a property law without due process of law, notice and opportunity to speak in an orderly proceeding.”
Cooper says he’s retained an attorney, and is working out his options.
“We had to wait until Mead decided what to do, and I’m disappointed. I think he gave in, saying that we’ll do this however FWS wants it,” he states.
In addition to an attorney, Cooper says he’s working with a state legislator on what can be done statutorily.
“It looks like there’s a real gap between when an agency adopts rules and when rules come through a committee like the SGIT that hasn’t existed before – they can do what they want, without following deadlines and timelines that allow people to be notified and the chance to talk about it.”
Notwithstanding the implications, Cooper says he does applaud the goal of not getting the sage grouse listed, but, “If you read the executive order, it says we have a robust sage grouse population, but we’ll turn around and harm the people who live on the land. If this continues we’ll start to see this show up in real estate values, with a better deal outside the core, and less of a deal inside the core.”
“It’s a transfer of opportunity,” says Cooper. “I no longer have opportunity to do some things on my land so that someone someplace else can benefit through minerals. I get the sage grouse, and somebody else gets the oilfield.”
“The bottom line is that the new administration has said they think this is a good strategy, and they’ll move forward with it,” says Budd. “And that’s more important to FWS than anybody else.”
Christy Martinez is managing editor of the Wyoming Livestock Roundup and can be reached at christy@wylr.net.