POLICY BARRIERS IMPEDE SUCCESSFUL

RESTORATION OF BURNED LOW-ELEVATION

SAGEBRUSH HABITATS

Prepared by:

Megan Maxwell

Biologist/Independent Consultant

March 2015

1 | P a g e

I. Executive Summary

In March 2010, the United States Fish and Wildlife Service (hereinafter, USFWS) issued a

Warranted but Precluded (hereinafter, WBP) determination for the greater sage-grouse

(hereinafter, sage-grouse). Loss of habitat and fragmentation due to wildfire and invasive plants

were cited as significant threats to the species, and existing regulatory mechanisms were

inadequate to protect the species (75 Fed. Reg. 13910). USFWS is currently considering whether

the sage-grouse is warranted for listing under the Endangered Species Act (hereinafter, ESA),

and is set to make a decision by the September 2015 deadline established under a court-approved

settlement agreement. The ability to restore habitats impacted by the fire-invasive plant cycle so

that sage-grouse can persist will be a key factor in the upcoming listing decision, and is a key

issue facing public lands, especially in the Great Basin.

Wyoming big sagebrush (hereinafter, Wyoming sagebrush)1and Mountain big sagebrush

(hereinafter, Mountain sagebrush)2 are subspecies of sagebrush that grow throughout the

intermountain west. Rehabilitating and restoring low-elevation Wyoming sagebrush

communities after a fire is challenging and current federal policies exacerbate the challenges

because they are not designed properly to restore low elevation-dry sites, which are inherently

more challenging than higher elevation sagebrush communities. The federal fire rehabilitation

and restoration funding and land management policies under the Bureau of land Management’s

(hereinafter, BLM’s) Emergency Stabilization & Rehabilitation Program (hereinafter, ES&R)

impose arbitrary deadlines and technical constraints that do not promote successful rehabilitation

of fire-impacted low-elevation Wyoming sagebrush habitats.

The ES&R policy creates funding and technical barriers that minimize the likelihood of

restoration success and thwart the very purpose of the ES&R Program – especially for low-

elevation Wyoming sagebrush sites, and include:

• An inappropriate preference for natural or passive recovery – which may work in higher

elevation Mountain sagebrush communities – but is not the right approach for low-elevation

Wyoming sagebrush.

1 Wyoming big sagebrush (Artemisia tridentata Nutt. ssp. wyomingensis) is a subspecies of big sagebrush that grows

at low to intermediate elevations occurring from 800 to 2,200 m (2,600 to 7,200 ft.) in elevation throughout the

intermountain west. Wyoming sagebrush is the most drought tolerant of the subspecies and as such dominates the

more arid regions. Information available at http://plants.usda.gov/plantguide/pdf/pg_artrw8.pdf, website last visited

March 10, 2015. 2 Mountain big sagebrush (Artemisia tridentata Nutt. ssp. vaseyana) is a subspecies of big sagebrush that grows in

mountain and mountain foothill plant communities from 800 to 3,100 m (2,600 to 10,000 ft.). Mountain big

sagebrush occurs at higher elevations and in higher annual precipitation zones than Wyoming big sagebrush.

Information available at: http://plants.usda.gov/plantguide/pdf/pg_artrw8.pdf, website last visited March 10, 2015.

2 | P a g e

• A three-year, post-burn funding limit, which creates an unrealistic deadline for achieving

successful restoration of low-elevation Wyoming sagebrush sites, which take longer than

three years

• A built-in bias against funding restoration work in low-elevation areas, which

incentivizes land managers to focus their attention and budgets on higher elevation Mountain

sagebrush communities that are easier and quicker to restore and discourages them from

restoring lower elevation Wyoming sagebrush communities

• Annual funding request requirements that create inappropriate competition among sites

for funding – with a preference being given to higher elevation sites because they are easier

to restore

• Scientifically improper metrics for gauging restoration success that do not properly

recognize plant succession from grass-dominated, to a mix of grasses and shrubs, to a shrub-

(sagebrush) dominated state

• Incongruity between funding timelines (3 year maximum) and the length of time required

to restore burned areas

• Failure to commit to and fund long-term restoration objectives beyond the current three-

year funding period.

Secretarial Order 3336 issued on January 5, 2015 establishes that it is the policy of the

Department of the Interior (DOI) to protect, conserve, and restore the health of the sagebrush-

steppe ecosystem particularly greater sage-grouse habitat, and that “allocation of fire

management resources and assets before, during, and after wildland fire incidents will reflect this

priority, as will investments related to restoration.” Secretarial Order 3336 is a positive step

forward but will require significant revisions to current policy. A principal concern about

Secretarial Order 3336 is that it perpetuates the inappropriate funding bias described above for

restoring higher elevation sagebrush areas and relegates low-elevation sagebrush areas to passive

management, which has proven to be ineffective in restoring low-elevation sagebrush areas

impacted by fire followed by infestation of cheatgrass.

For the reasons identified above, the ES&R Program has not, and likely will not adequately

address restoration of low elevation Wyoming sagebrush habitats, unless the program and

polices are revised to consider the circumstances and ecological realties associated with low-

elevation Wyoming sagebrush communities. Recommended policy changes for low-elevation

Wyoming sagebrush sites include:

Develop policies specifically tailored for low-elevation Wyoming sagebrush subspecies

restoration that recognizes different techniques, funding, and timelines are needed for

these areas compared to higher elevation Mountain sagebrush subspecies

Allow more realistic timelines for measuring success and providing funding for low-

elevation restoration efforts

Establish appropriate short-term (1 – 3 years) and longer-term objectives based primarily

on natural plant species succession

3 | P a g e

Eliminate funding bias against restoration activities in low-elevation sites

Measure effectiveness of a treatment by appropriate successional state, rather than

instantly returning a site to its pre-burn state or to a habitat for immediate use by a

specific species

Ensure proper coordination of the ES&R Program with programs designed to control the

spread of cheatgrass and other invasive species to optimize on-the-ground results to

restore burned areas and to limit the fire-invasive species (especially cheatgrass) cycle.

In response to the 2010 WBP determination, BLM chartered the Sage-Grouse National Technical

Team which was charged with developing policy on how to manage sage-grouse conservation

and protection under BLM’s jurisdiction. A Report on National Greater Sage-Grouse

Conservation Measures (hereinafter, NTT Report) was subsequently published on December 21,

2011. Then on December 27, 2011 the Washington, D.C. BLM Office released Instruction

Memorandum number 2012-044, instructing all BLM planning efforts across the range of the

sage-grouse to consider conservation measures for Greater sage-grouse when revising or

amending its resource management plans (hereinafter, RMPs); including specifically the

recommendations found in the NTT Report. Pursuant to the National Environmental Policy Act,

and IM-2012-044 BLM and the U.S. Forest Service have drafted amendments for 98 land use

plans across eleven western states, and are expected to make final decisions on these plans in

2015 so that these revised regulatory mechanisms may be considered by USFWS in its listing

decision.

BLM has not yet finalized, implemented, and collected data on effectiveness of conservation

efforts designed to address the concerns identified in the WBP determination, and in the event

policy changes occur in response to Secretarial Order 3336 on-the-ground data will not be

available in time for USFWS to consider the data as part of its 2015 listing determination.

USFWS cannot base its 2015 determination purely on prospective measures designed to

ameliorate threats. In enacting the ESA, Congress directed the Secretary of the Interior to base its

listing decisions “solely on the basis of the best scientific and commercial data available” (16

U.S.C §1533(b)(1)(A)). As a result, the ES&R Program will be evaluated based on existing data

(§ 4(a)(1)(D) “inadequacy of existing regulatory mechanisms”).

Therefore, as a result of the arbitrary deadline established under the court-approved settlement

agreement for sage-grouse, the DOI has effectively prevented any possibility for federal or state

departments and agencies to revise flawed programs, like the ES&R Program; or develop,

implement, and create a track record associated with conservation efforts designed to address the

threats identified in the 2010 WBP. The following steps and policies are needed to adequately

address the threat of fire and invasive plants, especially low elevation communities, to preclude

the need to list the sage-grouse as a threatened or endangered species.

Provide adequate funding to implement Secretarial Order 3336;

Revise the ES&R policies as described herein; and

Provide enough time to monitor and collect data on the effectiveness of newly integrated

policies and treatments.

4 | P a g e

II. Purpose

The sagebrush ecosystem is home to the Greater sage-grouse (Centrocercus urophasianus, sage-

grouse), a sagebrush obligate species. In March 2010 the United States Fish and Wildlife Service

issued a Warranted but Precluded determination for the sage-grouse giving the bird a listing

priority number (hereinafter, LPN) of eight (75 Fed. Reg. 13910), where one represents species

with the most dire need for listing and 12 represents species with substantially less priority. In

each of the subsequent annual reviews USFWS has maintained the species’ LPN of eight. Loss

of habitat and fragmentation due to wildfire and invasive plants and anthropogenic disturbances,

and inadequacy of existing regulatory mechanisms were cited as the primary threats to the

species (75 Fed. Reg. 13910). Unless congress intervenes, the USFWS is obligated under a

court-approved settlement agreement to reach a final decision on whether to list the sage-grouse

under the Endangered Species Act by September 2015. The ability to restore these habitats so

that sage-grouse can persist will be a key factor in the upcoming listing decision, and is a key

issue facing public lands, especially in the Great Basin, a strong-hold for sage-grouse (COT

Report),3 and where the threat of invasive plants and change in fire regime is the most prominent

threat to sage-grouse (COT Report).

The purpose of this American Exploration & Mining Association white paper is to 1) evaluate

current federal policies for rehabilitating and restoring habitat affected by wildfire; 2) to examine

whether these policies are adequate for achieving fire restoration and control the spread of

invasive species following fires; and 3) make recommendations for how these policies need to be

changed or refined to achieve the objective of fire restoration and enhancement of sage-grouse

habitat.

III. Background

The sagebrush ecosystem stretches across approximately 30 to50 million hectares (74 to 123

million acres) in North America (Comer et al. 2002)4 and is considered to be at risk due to

change in fire regimes at its western expanse and other disturbances at its eastern expanse.

Natural fire regimes have been altered in two ways: decreased fire return intervals at mid- to

high-elevations have resulted in infilling of invasive conifers, and increased fire return intervals

at low elevations have promoted invasion of non-native annual grasses like cheatgrass (Bromus

tectorum) (Davies et al. 2011).5 Native perennial herbaceous plants

6are the main factor

influencing the ability of the sagebrush ecosystem to compete against invasive species and

3 U.S. Fish and Wildlife Service. 2013. Greater Sage-grouse (Centrocercus urophasianus)

Conservation Objectives: Final Report. U.S. Fish and Wildlife Service, Denver, CO. February

2013; hereinafter COT Report. 4 Comer, P., J. Kagan, M. Heiner, and C. Tobalske. 2002. Sagebrush vegetation in the western United States. Map

1:200,000 scale. Boise, ID, USA: USGS Forest and Rangeland Ecosystems Science Center; Boulder, CO, USA: The

Nature Conservancy. 5 Davies, K. W.; Boyd, C. S.; Beck, J. L.; Bates, J. D.; Svejcar, T. J.; Gregg, M. A. 2011. Saving the sagebrush

sea: An ecosystem conservation plan for big sagebrush plant communities. Biological Conservation 144: 2573–

2584. 6 Perennial herbaceous plants are non-woody plants that lose their top growth annually, but the, roots, bulbs, or

rhizomes survive the winter. An example of a perennial herbaceous plant is Western yarrow (Achillea millefolium L.

var. occidentalis)

5 | P a g e

recover from disturbances (Chambers et al. 2014a),7 and is thus vital to restoring ecological

function within these habitats.

A. Altered Fire Regime

The lower elevation sagebrush communities and the mid- to high-elevation communities are

two different sagebrush species that are distinct from one another. The lower, drier, and

warmer Wyoming sagebrush (Artemisia tridentata Nutt. ssp. wyomingensis) communities

respond slowly to disturbances when disturbed, and are thus, more challenging to restore than

the mid- to high-elevation, cooler, wetter Mountain sagebrush (Artemisia tridentata Nutt. ssp.

vaseyana) communities which respond and recover much quicker when disturbed, in part due

to variation in precipitation and temperature (Miller and Eddleman 2001,8 Chambers et al.

2014a). As such, the federal fire rehabilitation and restoration policies that dictate interventions

or treatments, and time dependent goals for these communities should also be distinct.

In Mountain sagebrush communities, the reduction in fire return intervals has resulted in an

increase in conifers, which over time suppressed understory structure including native

perennials and sagebrush. In Wyoming sagebrush communities, degraded understory allowed

for invasion of cheatgrass which created an environment where these exotic grass species out-

competed the native species and increased fuel-loading that led to an increased fire return

interval.

Historically, disturbances have occurred less frequently in the Wyoming sagebrush

communities and more frequently in the Mountain sagebrush communities resulting in a

patchwork of different aged stands of sagebrush, which was not uniform across the landscape

(Miller and Eddleman 2001). Prior to invasion of exotic annual grasses, in the low elevation

Wyoming sagebrush communities, fires would burn sporadically and in much smaller acreages

than those today; resulting in a patchwork of different aged stands of sagebrush and grassy

patches, which in return influenced species distribution and abundance. In other words, shrub

associated species and grass-shrub species abundance and occurrence would naturally fluctuate

and disperse depending on the dominant vegetation across the landscape. This patchy fire

pattern would result in sagebrush “islands” across the landscape (Miller and Eddleman 2001).

These islands are ecologically important because they act as the seed source for the patchy

burn areas, and provide seasonal habitat for shrub-dependent species like sage-grouse.

This succession or change in vegetation state from shrub-dominated to perennial grass

dominated to a grass-shrub state is important, and federal land management and fire restoration

policies should be designed to mimic these patterns to the maximum extent possible.

Additionally, these policies should measure success or effectiveness of a treatment by

appropriate successional state, rather than return to pre-burn state or species centric occupancy.

For example, measuring success as eventual use by sage-grouse, or ability to reach a mid to

late stage vegetative state in a time period “meaningful to sage-grouse” is not a reasonable

metric to base rehabilitation or restoration success. Succession naturally occurs in a sequence,

and over long periods of time. It is unreasonable to expect a burned patch, even found under

7 Chambers J.C., R.F. Miller, D.I. Board, D.A. Pyke, B.A. Roundy, J.B. Grace, E.W. Schupp, and R.J. Tausch. 2014.

Resilience and resistance of sagebrush ecosystems: implications for state and transition models and management

treatments. Rangeland Ecology and Management 67:440 -‐454. 8 Miller, R. F. and L. L. Eddleman.2001. Spatial and Temporal Changes of Sage Grouse Habitat in the Sagebrush

Biome. Oregon State University Agricultural Experiment Station. Technical Bulletin 151. Corvallis,OR. 39 pp.

6 | P a g e

the best environmental circumstances, to reach a shrub dominated state in under 10 years

(maximum sage-grouse lifespan), let alone 1.5 years (average lifespan)9 especially without

intervention. Therefore, federal policies must focus on the appropriate ecological succession at

any given stage of the succession sequence and must consider succession, rather than sage-

grouse use, as a primary factor in measuring treatment effectiveness.

Further, instead of measuring success by sage-grouse occupancy federal policies must consider

that affected birds may have dispersed to other areas or sagebrush “islands.” This is especially

important when evaluating whether a treatment was successful. These policies must also

recognize that sage-grouse use multiple habitat types that include a variety of successional

sagebrush states (i.e., spatially and temporally diverse habitats). Thus, rehabilitation and

restoration federal policy objectives should seek to attain vegetative diversity (age and

structure) across the landscape rather than a monoculture of sagebrush, which can indeed

inhibit native perennials which are critical to increasing resilience to cheatgrass.

Past technologies used to stabilize and rehabilitate low-elevation sites have not always been

successful, and sage-grouse habitat requirements were not always the priority when stabilizing

sites after a burn (Arkle et al. 2014, Pyke et al. 2013).10

Federal policies must focus on ways to

improve the restoration of low-elevation disturbed sites and return them to a more desirable

native plant community using updated technologies. There should be policies and regulatory

mechanisms to ensure active restoration of these lands that include a reasonable time line for

restoring these lands.

B. Resilience and Resistance of Sagebrush Ecosystems

The concept of managing habitats and species for resilience and resistance has been suggested

as a way to prioritize restoration activities, and involves preserving and restoring ecological

function within the ecosystem. Resilience is defined as “the capacity of an ecosystem to regain

(sic) its fundamental structure, processes, and functioning when altered by stressors like

drought and disturbances like overgrazing by livestock and altered fire regimes” (Chambers et

al. 2014a, internal citation omitted). Resistance is defined as “the capacity of an ecosystem to

retain (sic) its fundamental structure, processes, and functioning despite stresses, disturbances,

or invasive species (Id., internal citation omitted).

In order to aid in prioritizing landscape scale restoration efforts based on factors that influence

resilience and resistance to invasive annual grasses, the United States Department of

Agriculture (hereinafter, USDA), mapped soil moisture and temperature regimes, which are

correlated with certain vegetative characteristics. In general, Wyoming sagebrush ecosystems

have been found to have low resilience and resistance to annual invasives like cheatgrass,

especially those Wyoming sagebrush areas with less than 20 percent native perennial

9 USFWS, Greater Sage-Grouse Fact Sheet. Information available at https://www.fws.gov/endangered/esa-

library/pdf/sage-grouse_fact_sheet-Aug06.pdf 10 Arkle, R. S., D. S. Pilliod, S. E. Hanser, M. L. Brooks, J. C. Chambers, J. B. Grace, K. C. Knutson, D. A. Pyke, J.

L.Welty, and T. A. Wirth. 2014. Quantifying restoration effectiveness using multi-scale habitat models: implications

for sage-grouse in the Great Basin. Ecosphere 5(3):31. http://dx.doi.org/10.1890/ES13-00278.1; See also, Pyke,

D.A.; D.S. Pilliod; J.C. Chambers; M.L. Brooks; and J. Grace. Fire Rehabilitation Effectiveness: A Chronosequence

Approach for the Great Basin" (2013). JFSP Research Project Reports. Paper 85.

http://digitalcommons.unl.edu/jfspresearch/85

7 | P a g e

herbaceous cover. As elevation and moisture increases-resilience and resistance increases

(Chambers et al. 2014b,11

Chambers et al. 2014a).

Next, USDA was able to take breeding bird density maps and vegetation data (LANDFIRE),

and overlay the information with the resilience and resistance data, which was derived from the

soil moisture and temperature regimes. This information can aid in prioritizing sage-grouse

habitat restoration projects, and their likelihood of success based on resilience and resistance

(Chambers et al. 2014b). For example, if a burn occurs at the edge of a cheatgrass

monoculture, it has less priority, than an area that still retains native characteristics, especially

characteristics that are favorable to sage-grouse.

The emerging concept of resilience and resistance to aid in prioritizing restoration activities

targeted for sage-grouse is important. However, it is also important to recognize that the

concept of resilience and resistance is based on the ability of the ecosystem to recover

naturally or by passive management. In other words, sites with low resilience and resistance

will require active restoration, while areas with moderate to high resilience and resistance will

recover with little to no interventions. Accordingly, a site’s resilience and resistance under

active management or restoration increases the ability of the site to compete against cheatgrass

and eventually reach a more desirable vegetative composition. Research is clear; low elevation-

cheatgrass invaded sites are less likely to recover naturally. However, low resilience and

resistance does not mean ecological function cannot be improved or restored; it means land

managers will have to intervene, which will require a change in policy, financial commitments,

and time. Therefore, federal policies must authorize and fund active management of low-

elevation Wyoming sagebrush landscapes impacted by fire and cheatgrass.

IV. Emergency Stabilization and Rehabilitation, Techniques and Policy

The Bureau of Land Management (hereinafter, BLM) manages approximately 51 percent of

sage-grouse habitat (75 Fed. Reg. 13910), much of which is located in the Great Basin. The

BLM’s Emergency Stabilization and Rehabilitation (hereinafter, ES&R) Program’s main

objective is to prevent further degradation of resources after fire with a “preference” for natural

or passive recovery (ES&R Handbook at 38).12

The ES&R policy is inadequate due to its

preference for passive recovery and the fact that ES&R efforts do not exceed three years due to

appropriation restrictions, after which management of these sites is absorbed into other federal

land management programs, where continued action (restoration) may or may not take place.13

The ES&R Program provides a mechanism for rehabilitating these low elevation sites after a

burn by providing land managers with an opportunity to seed with native perennials on bare

ground, create shrub “islands” by planting sagebrush transplants, and treating invasive species in

11 Chambers, J.C.; D.A. Pyke; J.D. Maestas; M. Pellant; C.S. Boyd; S.B. Campbell; S. Espinosa; D.W. Havlin; K.E.

Mayer; A. Wuenschel. 2014b. Using resistance and resilience concepts to reduce impacts of invasive annual grasses

and altered fire regimes on the sagebrush ecosystem and greater sage-grouse: A strategic multi-scale approach.

Gen. Tech. Rep. RMRS-GTR-326. Fort Collins, CO: U.S. Department of Agriculture, Forest Service, Rocky

Mountain Research Station. 73 p. 12

BLM Burned Area Emergency Stabilization Handbook, H-1742-1; see also, Department of the Interior Manual

620 Wildland Fire Management, Chapter 3; hereinafter DOI, 620 DM 3 13

Department of the Interior, Emergency Stabilization and Rehabilitation website last visited February 9, 2015.

Available at http://www.doi.gov/pmb/owf/es_bar.cfm

8 | P a g e

order to ensure ES&R treatment effectiveness. Unfortunately, the ES&R Program is poorly

designed and largely fails to provide adequate support for rehabilitating these difficult low-

elevation, dry sites in the Great Basin.

Inherent in the ES&R Program is the urgency to stabilize and rehabilitate burned sites.

Therefore, this program imposes a strict timeline for developing emergency stabilization plans,

burned area rehabilitation plans, and requesting funds. However, if these timelines are not met

the penalty is “diminished likelihood for funding” (ES&R Handbook at 24), which is

inconsistent with the purpose of the program--to stabilize and rehabilitate these fragile sites.

The funding and planning requirements for actions taken under ES&R do not adequately provide

for adaptive management, implementation of innovative methodologies and technologies, and

restricts funded actions. In 2004 the ES&R Program was split into two programs with separate

planning and funding processes. Emergency stabilization actions are those that occur within the

first year of a burn and are not funded beyond the first year post-burn, regardless of treatment

effectiveness. After the first year, rehabilitation funds are the source for treatments and do not

exceed three years post-burn. These arbitrary deadlines and constraints do not consider on-the-

ground results and impose policy barriers that minimize the likelihood of restoration success and

thwart the very purpose of the ES&R Program.

A funding request is required each year and is based, in part, on previous years’ monitoring and

success analysis. Each site funding request must compete with one another for funding approval.

This competitive funding scheme or funding priority process is an inappropriate policy, which

creates a disincentive for land managers to seek funding for low-elevation Wyoming sagebrush

sites. The result is that only sites with the highest likelihood of success (mainly higher elevation

sites) will likely be funded, leaving more difficult sites to passive recovery, which is exactly the

opposite of what these low-elevation Wyoming sagebrush sites require.

Success is measured by whether the treatment was implemented and whether the treatment met

the emergency stabilization or rehabilitation objective(s) for the site. Unfortunately, seedling

establishment may take more than one year. Therefore, an annual funding request which is partly

dependent on success rates creates policy barriers that are not appropriate for low elevation

Wyoming sagebrush sites that take more time to respond to treatment, thus creating a bias

towards rehabilitating higher elevation sites because they are easier to treat.

Further frustrating the restoration process is rehabilitation treatments are only allowed when

proposed methods have been shown to yield long-term effectiveness, and are “cost-effective.”14

Unfortunately, this policy restriction inappropriately prevents the use of new technologies, and

largely excludes opportunities to reseed. Seeding success is heavily dependent on environmental

conditions, especially precipitation. Land managers can only control application of seeds,

location, and frequency. If seeding failed primarily due to an unusually dry growing season, or

failure to use best management practices (hereinafter, BMPs), such as soil preparation and seed

compaction, then the plot should be reseeded, instead of condemned as a failed site. While funds

can be requested for treatment failures, the site must compete for priority with all the other

ES&R funding requests, and often seeding failure may not be realized until after three years post

burn, after which restoration actions must be funded by some other mechanism other than ES&R

(ES&R Handbook at 47).

14

DOI 620 DM 3

9 | P a g e

For ES&R sites in the Great Basin, especially low-elevation dry sites, where success has not

been demonstrated due to previously poor understanding of native seedling ecology and

application methodologies, has resulted in a relatively poor track record. Thus, ongoing

treatments at these low elevation sites, will not likely meet the funding standard that requires

proven long-term effectiveness. While newer technologies are available and have been found to

be successful and cost effective (Dettweiler-Robinson et al. 2013, McAdoo et al. 2014), the lack

of long-term data creates an obstacle for implementing such practices like using sagebrush

transplants.

Well-articulated and reasonable policy objectives are essential because they will drive what will

be an “allowable” funded treatment. Setting reasonable objectives involves using adjacent

unburned lands as a reference state. However, the ES&R Program restricts possible outcomes to

the treatment plot to that of the reference plot. For example, objectives for the site do not

necessarily require the site to be in a better pre-burn condition. What this means is for sites that

were in a degraded state prior to the fire or had a “pre-existing condition” such as 30 percent

cheatgrass cover, it would not be considered appropriate to set post stabilization objectives below

30 percent cheatgrass cover, in part because ES&R funding cannot be used to deal with pre-

existing conditions (ES&R Handbook at 23). Clearly, setting an objective or goal at zero percent

cheatgrass cover would be unreasonable, but if the long-term goal is sage-grouse occupancy, or

at a minimum restored ecological function, then a paradigm shift is necessary; reaching for the

bare minimum will not suffice.

Using reference plots in developing objectives and treatments, and prioritizing ES&R sites is

reasonable and necessary. However, if the objectives are to return a site to a previously degraded

state then the cheatgrass-wildfire cycle will most assuredly continue at the expense of the sage-

grouse and other species. Thus, treatment objectives should be designed to increase resilience

and resistance, while taking into account ecological succession. Seeding with sagebrush in the

first three years, may not be appropriate, but seeding and re-seeding with native perennials until

a desired understory state has been reached could be an appropriate short term objective and

goal. Further, recent research indicates for sites with cheatgrass as the dominant understory

component (reference state 6), seeding after fire can increase perennial native grasses and

sagebrush, but cheatgrass and other annual exotics will likely persist (Chambers et al. 2014a).15

One of the fundamental components of the ES&R Program is to prevent establishment of

invasive species and rehabilitate ecosystems to a healthy state; however this cannot be achieved

if the goal is improperly defined as restoring a site to its pre-burn conditions – even if that is a

degraded state.

ES&R funds can be used to control non-native invasive plants, especially when it has been

documented that those plants, such as cheatgrass, may quickly invade, or out compete native

plants (ES&R Handbook at 34). Unfortunately, funding to control invasive plants in order to

ensure ES&R treatment effectiveness is limited to three years, after which funding for ongoing

management must be acquired by some other means. After three years, the site and surrounding

area in question would have to be treated and managed under the Fuels Management Program or

15

See also, Knutson, K. C., D. A. Pyke, T. A. Wirth, R. S. Arkle, D. S. Pilliod, M. L. Brooks, J. C. Chambers, and

J. B. Grace. 2014. Long-term effects of reseeding after wildfire on vegetation composition in the Great Basin shrub

steppe. Journal of Applied Ecology. doi:10.1111/1365-2664.12309

10 | P a g e

Weed Management Program, where there is not necessarily coordination between the programs

to ensure success of the ES&R site. Moreover, the provision in the ES&R Program which

restricts use of funds for treating “pre-existing conditions,” like cheatgrass invasion, limits the

amount of funds that can be used to “ensure” treatment effectiveness. Therefore, significant

coordination must take place between programs in order to adequately address the potential

proliferation of cheatgrass at ES&R sites. The fire and invasive plant cycle must be treated as a

single threat that must be managed with high coordination between programs to ensure ongoing

funding and treatment. The current separation of ES&R, invasive species control, and fuels

management into different programs may lead to lack of coordination, and competing priorities

which fails to provide assurance for ES&R sites with a cheatgrass component that funding will

be available to ensure restoration.

While the policy for seeding or planting shrubs is an allowable treatment to stabilize threatened

or endangered species habitat, it is only approved if the burned area can be stabilized within

three years (ES&R Handbook at 39). Obviously, this is not long enough for the majority of sites

considering the nature of plant succession, especially for slow-growing sagebrush. The ES&R

Program is not in line with ecological and scientific realities associated with succession and

restoration, and creates a barrier to restoring habitat for sage-grouse over time. The low elevation

sites are being set up to fail if success is defined as sage-grouse occupancy or habitat parameters

within three years. Further, it raises the question of whether one of the most important regulatory

programs for managing sage-grouse habitat in the Great Basin can be found adequate under the

Endangered Species Act (7 U.S.C. § 136, 16 U.S.C. § 1531 et seq, hereinafter, ESA) listing

factor D, and the Policy for the Evaluation of Conservation Efforts (68 Fed. Reg. 15100, March

28, 2003; hereinafter, PECE), discussed in detail below.

In the Great Basin, natural/passive recovery or “do not seed” has been utilized in 50 percent of

the rehabilitation or restoration sites across the region (Lambert 2005).16

This “preference” for

natural recovery and a budgetary constraint limited to three years are the primary factors

contributing to the poor ES&R success rates in the region. From an ecological standpoint three

years is just a snapshot in time, and does not allow for the necessary time needed for succession.

Even highly productive habitats with little threat of invasive species require many years in order

to reach “late” stage vegetative components (like those necessary for sage-grouse nesting habitat)

without intervention.

For sites where it was determined that intervention was necessary, the primary objective for

ES&R seeding treatments in the Great Basin has been to stabilize soils, increase desirable

perennials, and decrease invasive plant species (Pyke et al. 2013), not establishment of sagebrush

or eventual use by sage-grouse. In a letter dated November 28, 2014, USFWS assert that

rehabilitation programs have failed to establish a vegetative component meaningful to sage-

grouse, which is a flawed metric because it was not the objective for these sites to begin with.17

USFWS cites, Arkle et al. 2014 which looked at whether ES&R sites seeded between 1990 and

2003 resulted in occupancy of sage-grouse 20 years post-burn, and then created a model to

predict probability of use.

16

Lambert S.M. 2005. Seeding Considerations in Restoring Big Sagebrush Habitats. In: Shaw, Nancy L.; Pellant,

Mike; Monsen, Stephen B., comps. 2005. Sage-grouse habitat restoration symposium proceedings; 2001 June 4–7;

Boise, ID. Proceedings RMRS-P-38. Fort Collins, CO: U.S. Department of Agriculture, Forest Service, Rocky

Mountain Research Station 17

See, USFWS Letter to Congressman Amodei, question 5 at 16, (citing Arkle et al. 2013 [sic] Arkle et al. 2013

appears to be a typing error.

11 | P a g e

As we know (and as the authors note), the ES&R Program was not designed to restore sage-

grouse habitat. While the authors do indicate that most of the treatment sites had the objective of

improving wildlife habitat, we know that in order to acquire funding for habitat improvement

under the ES&R Program habitat parameters must be met within three years, which clearly is not

enough time to restore sagebrush ecosystems, as discussed above. It is unclear, whether any of

the sites included in this study received active management after the first three years, or what

type of seed mix was used which is important, because seed mix, is critical to rehabilitating these

sites. For example, native perennials do not compete well against forage grasses when seeded

together, which was a common practice during the time period analyzed.

Post-fire seeding has been the primary treatment used at ES&R sites within the shrub-steppe

ecosystem, although they have largely failed in meeting their objectives in the short-term

(average four years post burn) (Pyke et al. 2013). However, it has been suggested that failure of

these sites can be attributed to lack of use of BMPs,18

such as soil preparation or seed

compaction, factors known to increase seeding effectiveness. Failure to use BMPs is important

because it could indicate that for these more challenging low-elevation dry sites, it is not that

they cannot be restored, but rather a specific technique failed; therefore, a different technique or

set of techniques should be utilized. For example, drill seeding tends to yield better results than

aerial seeding (ES&R Handbook at 39-40), especially in terms of seed establishment, and

decreasing fuel loads,19

and using transplants instead of seeding has a higher success rate for

sagebrush (McAdoo et al. 2014; Dettweiler-Robinson et al. 2013).20

Failure to reach long-term ES&R goals is often cited as restoration failure,21

despite the fact that

these sites are only funded under the ES&R Program for three years. If the purpose of the ES&R

Program is to stabilize sites in the short term, then the goals and objectives must also be in the

short term. It is unreasonable to set long-term objectives for these fragile sites, if after three years

they are not actively managed. If long-term restoration goals are set, then it only makes sense to

continue funding through the ES&R Program or establish a third tier “Restoration” which

provides for long term funding for restoration treatments- a new Emergency Stabilization,

Rehabilitation, and Restoration“ ESR&R Program.” In its current form the ES&R Program does

not provide the mechanisms needed to address the fire-invasive plant cycle, which requires on-

going, active management in order to increase the resilience and resistance of the ecosystem to

fire and cheatgrass. Therefore, the ES&R Program needs to be revised to address the need for

long-term, active treatment of low-elevation Wyoming sagebrush sites.

The mindset that low elevation sites cannot be restored and are therefore lost, is flawed because

for so many of these sites active management did not occur, and for those that did receive

treatment- seed mix, poor techniques, regional climatic variables, and a policy that impedes

resource availability has prevented recovery as defined by sage-grouse occupancy. However, 18

Pyke, D.A.“Fire Rehabilitation and Triage-Reality vs. Perception.” PowerPoint Presentation. International Sage-

grouse Forum. Salt Lake City. November 14, 2014.

19 See generally, Pyke et al. 2013;

20 McAdoo J.K, C.S. Boyd, and R.L. Shelley. 2013. Site, Competition, and Plant Stock Influence Transplant

Success of Wyoming Big Sagebrush. Rangeland Ecology and Management: May 2013, Vol. 66, No. 3, pp. 305-312; Dettweiler-Robinson E., J.D. Bakker, J.R. Evans, H. Newsome, G.M. Davies, T.A.Wirth, D.A. Pyke, R.T. Easterly,

D. Salstrom, and P.W. Dunwiddie. 2013. Outplanting Wyoming big sagebrush following wildfire: stock

performance and economics. Rangeland Ecology and Management, 66(6). pp. 657-666. (doi:10.2111/REM-D-12-

00114.1) 21

See generally, Pyke et al. 2013; Arkle et al. 2014

12 | P a g e

with proper management and updated understanding of the mechanisms involved in restoring

these sites they do not have to be a lost cause; however, they will require active management,

and intervention over a longer term in order to stabilize them and increase their resilience and

resistance.

V. Cost-Benefit Analysis

Broadcast and aerial seeding has been the preferred method for treating degraded and burned

sites, in part due to the lower cost per acre compared to other seeding methods. As a practical

matter, aerial and broadcast techniques are conducive to seeding expansive acreages associated

with cheatgrass induced fires; however the yield or success defined as seed germination and

establishment is not remarkable, especially for sagebrush.

Research has shown that transplanting sagebrush plants is far more successful and reliable for

low elevation sites than aerial or broadcast seeding (McAdoo et al. 2014), but is cost prohibitive

on a large scale. That said, if the rehabilitation objective were to mimic historical fire patterns,

then using transplants to create shrub “islands” along with seeding native perennials could be an

effective and cost effective alternative (McAdoo et al. 2014, Dettweiler-Robinson et al. 2013).22

A rough cost comparison shows that at an average cost of $21.00 per acre for aerial sagebrush

seeding (seed and treatment) will yield approximately 13 plants with a high failure rate over

time. Conversely, managers could plant 40 sagebrush transplants per acre with a yield of

approximately 10 plants per acre which would amount to one surviving plant every 60 feet and

would cost approximately $17.00 per acre.23

An important component of the ES&R Program is whether a treatment is cost efficient and

effective. It seems clear that restoring these habitats will require a change in how current cost-

benefit analyses are conducted, and should be based on yield success opposed to amount of

acreage covered.

VI. Secretarial Order 3336

On January 5, 2015 Secretary Sally Jewell signed Secretarial Order 3336 “Rangeland Fire

Prevention, Management and Restoration,” establishing that it is the policy of the Department of

the Interior (hereinafter, DOI) to protect, conserve, and restore the health of the sagebrush-steppe

ecosystem particularly sage-grouse habitat, and that “allocation of fire management resources

and assets before, during, and after wildland fire incidents will reflect this priority, as will

investments related to restoration.”

As part of Sec. Order 3336, the Secretary created a task force that is responsible for reviewing

existing programs, policies and practices associated with the prevention, suppression, and

restoration of the sagebrush steppe ecosystem. Included in this, is the review and update of the

22

See also, supra, note 17. 23

Pyke, D.A.“Fire Rehabilitation and Triage-Reality vs. Perception.” PowerPoint Presentation. International Sage-

grouse Forum. Salt Lake City. November 14, 2014.

13 | P a g e

ES&R Program to integrate with long-term restoration activities, and a commitment to long-term

investments in restoration.

On January 30, 2015 DOI approved the Implementation Plan24

produced by the task force. The

Implementation Plan lays out the timeline and methodology to be used in developing both the

“Initial” and “Final” Reports. The Implementation Plan provides details on how Section 5 and

Section 7(b) of Sec. Order 3336 will be addressed (Implementation Plan at 1).

The Implementation Plan appropriately adds an additional requirement to Section 7(b)(i) of Sec.

Order 3336: “Design and implement comprehensive, integrated fire response plans for the Fire

and Invasives Assessment Team (FIAT) evaluation areas in the Great Basin that prioritize

protection of low resilience landscapes most at, risk to detrimental impacts of fire and invasives

(Implementaion Plan at 7, emphasis added), which must be addressed in the Initial and Final

Reports. However, the “products” identified in the Implementation Plan do not directly address

prioritizing restoration of areas with low resilience and resistance, but rather prioritize those

areas from protection of fire. This could have an indirect positive impact for sites classified as

low resiliency and resistance, because it could give these areas priority it terms of fuel

treatments, which would presumably address and treat, to a certain extent, cheatgrass densities.

The products requested under the Implementation Plan to address Section 7b(iv) (“Fully

integrate the emerging science of ecological resilience into design of habitat management, fuels

management, and restoration projects”) includes identification of BMPs, and a commitment to

adaptive management for restoration projects (Implementation Plan at 12). If implemented these

directives, could help to ensure treatment effectiveness. Of course it is too early to know how

this direction will result on-the-ground, but it provides a mechanism for allowing a change in

treatments that are not necessarily identified in the initial ES&R plan(s), which are otherwise

limiting.

The Implementation Plan Section 7b(v) addressing review and update of ES&R policies and

programs to integrate with long-term restoration, and address funding issues provides for

important changes including:

Update and refine project prioritization criteria;

Issue interim policy guidance to clarify funding, time, and program scope;

Explore options for additional resource needs to complete projects;

Explore efficiencies in seeding operations;

Update Department Manual with associated handbook, including interim policy guidance

(Implementation Plan at 14).

On March 9, 2015, Secretary Jewell approved the Initial Report.25

The Initial Report identifies

actions that must be taken immediately to address the threats posed by the 2015 wildfire season

and includes recommendations to “[a]ccelerate efforts to restore rangelands damaged by wildfire

with native plants and grasses to help improve the health of this ecosystem (Initial Report at 2).

24

Department of the Interior (January 30, 2015). Implementation Plan: Secretarial Order 33 36 – Rangeland Fire

Prevention, Management, and Restoration; hereinafter Implementation Plan; available at

http://www.nifc.gov/fireandsagegrouse/docs/ImplementationPlan_SO3336.pdf. 25

Department of the Interior (March 9, 2015). SO 3336 - The Initial Report; A Strategic Plan for Addressing

Rangeland Fire Prevention, Management, and Restoration in 2015, hereinafter Initial Report; available at

http://www.forestsandrangelands.gov/rangeland/documents/SO3336-TheInitial%20Report_20150310.pdf.

14 | P a g e

In addressing Section 7b(v) of Sec. Order 3336 – post fire recovery: review and update

emergency stabilization and burned area rehabilitation policies and programs to integrate with

long-term restoration activities, DOI states: “In order to make progress in post-fire restoration of

sage-steppe ecosystems, it is important to focus efforts on areas characterized by high resistance

to invasive annual grasses and resilience after disturbance” (Initial Report at 14). Unfortunately

this direction only perpetuates the bias associated with low-elevation Wyoming sagebrush sites,

which are generally classified as having low resilience and resistance. Other direction also

suggests that only the most “viable projects” should be approved.

The Initial Report identifies issues that affect the ability of ES&R activities to support protection,

conservation, and restoration of sagebrush ecosystems and recognizes that the current timing

restrictions of one year for emergency stabilization, and three years for rehabilitation are not

based on ecological (or logistical) parameters. The Initial Report then recommends “under

unusual circumstances, a fiscally responsible extension process should be considered” (Initial

Report at 15). This recognition is important but falls short of committing resources for long-term

restoration consistent with ecological succession.26

Long-term active management of ES&R sites, especially the low-elevation Wyoming sagebrush

sites is vital to success. DOI’s commitment to multi-year investments (Sec. Order 3336; Section

7b (vi)) for restoration activities found in the sagebrush ecosystem includes the development of

“policies and procedures that simplify implementation of multi-year restoration projects,

including associated effectiveness monitoring and adaptive management” (Implementation Plan

at 15). The actions proposed in the Initial Report include identifying non-fire programs and

activities that could fund long-term “restoration” activities; however, ES&R “projects” would be

“evaluated based on opportunities and commitments from non-fire program and activities if the

work that is proposed will extend beyond the ES and BAR[burned area rehabilitation] duration.

This requirement is necessary for long-term success (Initial Report at 17-18).

Secretarial Order 3336 is certainly a positive step forward, and the Implementation Plan and

Initial Report produced pursuant Sec. Order 3336 have some positive changes with respect to

long-term funding; however the recommendations found in the Initial Report seem to be

perpetuating the bias against restoring low-elevation Wyoming sagebrush sites, and instead

seems to favor prioritizing these sites for fuels management. While fuels management

prioritization can have positive indirect impacts, as discussed above it fails to provide for active

restoration of these habitats. Not all of these low-elevation, dry Wyoming sagebrush sites are a

lost cause, and they should not be treated as such. Other recommendations and revisions to the

ES&R Program that should be implemented through Sec. Order 3336 include:

Develop policies specifically tailored for low-elevation Wyoming sagebrush restoration

that recognizes different techniques, funding, and timelines are needed for these areas

compared to higher elevation Mountain sagebrush;

o Active management must be the “preferred policy” for low-elevation,

cheatgrass invaded sites;

o Arid environments will require multiple interventions, and use of BMPs;

26

“Review ES policy and procedures. Issues included for review: developing an exception process, in conjunction

with the Office of Management and Budget (OMB), to allow funding beyond 1 year of containment for high priority

treatments; procedures for exceeding the current 10 percent ES Authority Level; developing criteria for

performance objectives that account for probability of success; and include FIAT scientific criteria in the project

design to ensure that the most viable projects are approved” (Initial Report at 17, emphasis added).

15 | P a g e

Create a long-term funding mechanism specific to ES&R treatment sites, such as a third

tier “Restoration”-Emergency Stabilization, Rehabilitation and Restoration

(“ESR&R”);

Eliminate funding bias against restoration activities in low-elevation sites;

Allow more realistic timelines for measuring success for low-elevation restoration

efforts;

Establish goals and objectives for each tier of ESR&R that are consistent with

ecological succession;

Availability of native seeds is critical to improving seed success and ultimately restoration; thus,

DOI will need to make it a funding priority to increase the availability of native plant materials,

and collaborate with other departments and agencies (such as USDA), and the private native seed

industry to improve seed supply, as directed under Sec. Order 3336.

VII. ESA Listing

USFWS is scheduled to make a decision on whether sage-grouse is warranted for listing under

the ESA in September 2015, as a result of a court-approved settlement agreement.27

Under

§4(a)(1) of the ESA a species may be considered “threatened” or “endangered” based on one or a

combination of five listing factors, including “an inadequacy of existing regulatory mechanisms”

(Factor D, emphasis added). USFWS in its 2010 WBP determination found that as a result of

lack of data, uncertainty, and inconsistency in implementation and reporting associated with

BLM’s regulatory mechanisms, USFWS asserted the precautionary principle concluding that

BLM’s regulatory mechanism were inadequate to protect sage-grouse (75 Fed. Reg. 13910).

Central to this finding is the ability of land managers to restore lands degraded by invasive

species, especially cheatgrass (75 Fed. Reg. 13910 at 13934-13938). USFWS also recognized the

uncertainty surrounding the ES&R Program’s impact on sage-grouse (75 Fed. Reg. 13910 at

13934, 13977), partially as a result of lack of reporting data. Interestingly, USFWS found that

BLM focuses 98 percent of their invasive species restoration efforts only in areas receiving more

than nine inches of annual precipitation (75 Fed. Reg. at 13937), and that most commonly

invasive species treatments are conducted under the “Burned Area Rehabilitation Programs” i.e.

ES&R in the form of reseeding (75 Fed. Reg. 13910 at 13977). As a result, 98 percent of these

treatments are only funded for up to three years, and in the majority of cases these sites were not

treated with the objective of creating habitat for sage-grouse, as described above.

In response to the 2010 WBP determination, BLM chartered the Sage-Grouse National Technical

Team who was charged with developing policy on how to manage sage-grouse conservation and

protection under its jurisdiction. A Report on National Greater Sage-Grouse Conservation

Measures (hereinafter, NTT Report)28

was subsequently published on December 21, 2011. Then

on December 27, 2011 the Washington, D.C. BLM Office released Instruction Memorandum

27

United States Fish and Wildlife Service, “Endangered Species Act Workplan Fiscal Year 2013 to Fiscal Year

2018-MDL Packages and Other Court Settlement Agreements,”12; available at

http://www.fws.gov/endangered/improving_ESA/FY13-18_ESA_Listing_workplan.pdf 28

United States Department of the Interior. (2011, December 21). A Report on National Greater Sage‐Grouse.

Sage-Grouse National Technical Team.

16 | P a g e

number 2012-044,29

instructing all BLM planning efforts across the range of the sage-grouse to

consider conservation measures for sage-grouse when revising or amending its resource

management plans (hereinafter, RMPs); including specifically the recommendations found in the

NTT Report.30

Pursuant to NEPA,31

and IM-2012-044 BLM and the U.S. Forest Service have

drafted amendments for 98 land use plans across eleven western states, and are expected to make

final decisions on these plans in 2015 so that these revised regulatory mechanisms may be

considered by USFWS in its listing decision.

The recommendations for ES&R, and restoration treatments found in the NTT Report, provide

only broad direction, and in general recommend that for ES&R and restoration sites found within

priority habitat, land managers should consider sage-grouse habitat parameters, native seeds

should be used, and potential uses such as grazing should be restricted.32

Unlike the prescriptive

recommendations directed at other BLM programs such as withdrawals under the minerals

program,33

the NTT Report does not make prescriptive treatment recommendations, such as

requiring BMPs (soil preparation/compaction).

The recommendations in the NTT Report also fail to recognize treatments other than seeding,

such as using transplants, as the discussion is limited to seed mix. Ultimately, BLM in the NTT

Report fails to adequately address the inherent shortcomings of the ES&R Program, such as the

restrictions associated with appropriations, “allowable” treatments, and pre-existing conditions,

which is limiting the recorded effectiveness of potential treatments.

Unfortunately, even if the NTT Report did adequately address the primary threat to sage-grouse-

fire and invasive plants- and then prescribe more effective ES&R and restoration treatments, the

fact that BLM has not yet finalized, implemented, and collected data on effectiveness of these

conservation efforts means that USFWS cannot base its 2015 determination purely on

prospective measures designed to ameliorate threats. In enacting the ESA, Congress directed the

Secretary of the Interior to base its listing decisions “solely on the basis of the best scientific and

commercial data available” (16 U.S.C §1533(b)(1)(A)). As a result, the ES&R Program will be

evaluated based on existing data (§ 4(a)(1)(D) “inadequacy of existing regulatory mechanisms”).

For the reasons identified above, the ES&R Program has not, and likely will not adequately

address restoration of sagebrush habitats primarily due to its preference for passive management,

and appropriation restrictions related to pre-existing conditions, only three years of funding, and

site prioritization based on likelihood of effective treatment. Thus, despite efforts made to

address the shortcomings related to regulatory mechanisms, these efforts cannot satisfy the

requirements of §1533(b)(1)(A)) of the ESA.

29

BLM, BLM National Greater Sage-Grouse Land Use Planning Strategy,

www.blm.gov/wo/st/en/info/regulations/Instruction_Memos_and_Bulletins/national_instruction/2012/IM_2012-

044.html (Dec. 27, 2011) (last visited March 7, 2015). 30

Id. 31

42 U.S.C. §4331 et seq. 32

See Generally, NTT Report at 27 33

NTT Report at 24

17 | P a g e

VI. PECE Considerations

PECE is a policy designed to provide guidance to the USFWS and National Oceanic and

Atmospheric Administration Fisheries when making listing decisions under the ESA. The intent

of the PECE policy is to provide consistency in the methods used to evaluate whether formalized

conservation efforts identified in a conservation agreement, conservation plan, management plan,

or similar document that have not yet been implemented, or have yet to show effectiveness, can

be considered in making a listing determination (68 Fed. Reg. 15100, Mar.28, 2003).

The policy establishes two main criteria used to determine whether conservation efforts can be

considered during the listing process: 1) certainty that the conservation efforts will be

implemented; and 2) certainty that the efforts will be effective. Included in this are factors such

as whether or not there is sufficient funding or other resources available to carry out the effort,

and do the parties have the authority to implement it.

Despite the intent of PECE, courts have consistently found that the Federal government’s efforts

to avoid listings as a result of newly implemented or future formalized conservation efforts is

inconsistent with §1533(b)(1)(A)), as there is no supporting data. As such, any efforts made to

revise the ES&R Program, or efforts described in the NTT Report and subsequent RMPs, which

could satisfy PECE are likely to be rejected,34

notwithstanding, USFWS’ support of the policy.

For example, one of the primary objectives identified in the COT Report is to “[d]evelop and

implement state and federal sage-grouse conservation strategies and associated incentive-based

conservation actions and regulatory mechanisms” (COT Report at 33). USFWS then suggests

that sage-grouse conservation strategies consider PECE to help evaluate their livelihood of

implementation and effectiveness (Id. at 33-34).

In addition, in response to the 2010 WBP determination and the court-approved settlement

agreement, then Secretary of the Department of the Interior Salazar invited the 11 western states

impacted by a potential listing of sage-grouse to work together; develop a state plan for

conserving sage-grouse and its habitat that could be the basis for managing federal as well as

state and private land in a particular state; and to address cited deficiencies in an effort to

preclude a listing under the ESA. Since the time of Secretary Salazar’s invitation, Colorado,

Idaho, Montana, Nevada, Oregon, Utah, and Wyoming have developed, revised or are

developing state conservation plans to conserve sage-grouse and its habitat in order to preclude

the need for listing of the sage-grouse under the ESA (Wyoming developed a conservation plan

prior to Secretary Salazar’s invitation). State plans in states like Nevada, where wildfire and

invasive species are the primary threat to sage-grouse, focus a great deal of attention on fire

management, fuel reduction, and controlling the spread of invasive species.

However, not enough time has elapsed between development, and implementation of these plans

to create a track record demonstrating successful sage-grouse habitat conservation, which could

be considered under the ESA. Therefore, for most of the states, their conservation efforts will

need to be analyzed under PECE, where the courts have given little comfort to the strength and

durability of the policy regarding determinations under §1533(b)(1)(A).

34

See Generally, Cheever Frederico, “Greater Sage-Grouse, Lesser Prairie-Chickens, and Dunes Sagebrush Lizards:

Developments in the Courts, Federal Agencies, and the States Regarding Imperiled but Not (Yet?) Listed Species,”

58 Rocky Mt. Min. L. Inst. 23-1 (2012).

18 | P a g e

VII. Conclusion

The primary threats to the sage-grouse have been identified as invasive plants, change in fire

regime, and inadequate regulatory mechanisms. The ES&R Program is the primary mechanism

for rehabilitating and restoring degraded sites, however the program is horribly flawed. In order

to provide a workable mechanism for rehabilitating and restoring low elevation Wyoming

sagebrush communities, and adequately address the invasive plants-fire cycle which threatens the

Great Basin, the ES&R Program must be revised to provide for the ecological realties associated

with succession, and provide long-term funding of active management techniques, as described

above.

BLM has not yet finalized or implemented its revised RMPs, or collected data on effectiveness

of conservation efforts designed to address the concerns identified in the WBP determination

including those associated with restoring habitat. While Sec. Order 3336 could provide a

mechanism for revising the ES&R Program to meet the needs of low-elevation Wyoming

sagebrush communities, on-the-ground data will not be available in time for USFWS to consider

the data as part of its 2015 listing determination. USFWS cannot base its 2015 determination

purely on prospective measures designed to ameliorate threats. As a result, the ES&R Program

will be evaluated based on existing data (§ 4(a)(1)(D) “inadequacy of existing regulatory

mechanisms”).

As a result of the arbitrary deadline established under the court-approved settlement agreement

for sage-grouse, DOI has effectively prevented any possibility for federal or state departments

and agencies to revise flawed programs, like the ES&R Program; or develop, implement, and

create a track record associated with conservation efforts designed to address the threats

identified in the 2010 WBP. Therefore, in order to adequately address the threat of fire and

invasive plants, especially low elevation communities, for sage-grouse, and preclude the need for

listing under the ESA is to implement Secretarial Order 3336, revise the ES&R policies as

described above, and provide enough time to monitor and collect data on the effectiveness of

newly integrated policies and treatments.