On September 22, 2015, the U.S. Fish and Wildlife Service (“FWS”) announced its determination that the greater sage-grouse does not warrant protection under the Endangered Species Act (“ESA”) – i.e., the sage grouse does not face the risk of extinction now or in the foreseeable future. While initially appearing to be a win for industry and landowner groups, many have questioned whether the onerous land use restrictions required to obtain the not warranted decision portend a more troubling approach to listing decisions.

The sage grouse is a widespread species, spanning eleven states throughout the Midwest. In 2010, FWS found that a listing of the sage grouse was warranted but precluded by other ESA priorities, reasoning that the sage grouse’s habitat had been adversely impacted by mining, drilling, and wildfires fueled by cheatgrass.

Since that time, FWS has worked with the states and private landowners on what U.S. Department of the Interior Secretary Sally Jewell has called “the largest land conservation effort in U.S. history.” As a result of this collective effort, FWS determined that a listing of the greater sage-grouse is no longer warranted.

The restrictions enacted to attain the not warranted decision, however, impose immense hardships on industry and landowner groups alike.  Ten million acres have been withdrawn from future mining claims, oil and gas drilling is prohibited near sage grouse breeding grounds, and grazing permits require new levels of scrutiny.

These restrictions have already led to two legal challenges.  Officials in Nevada and two mining companies have alleged the land use plans will result in the “total destruction of certain businesses.”  Another lawsuit brought by the governor of Idaho similarly warns that “sometimes the cure is worse than the disease.”

FWS will reassess the status of the sage grouse in five years.