State Roles in Protecting Wildlife: Implication of Greater Sage-Grouse and the Endangered Species Act in Colorado

The greater sage-grouse may be listed as a threatened or endangered species by February 26, 2010. Traditional and renewable energy developers are not thrilled at the prospect of an endangerment listing because it will limit their ability to develop large areas of greater sage-grouse habitat. At the same time, the controversy raises concerns about Colorado’s ability to protect wildlife. Some counties in Colorado do not protect un-endangered wildlife because the state lacks mechanisms for ensuring wildlife regulation. Inconsistent and insufficient wildlife protection can result in endangered species listings, which can be detrimental to industries and local economies.

When deciding whether or not to list or delist species, the U.S. Fish and Wildlife Service considers efforts made by states “to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices.” Endangered Species Act § 4 (b). Thus, states’ actions to protect wildlife can stave off an endangered species listing and the accompanying strict federal regulation. In the case of the greater sage-grouse, Wyoming has taken steps to protect the species to avoid listing. Governor Freudenthal issued an executive order directing state agencies to prioritize greater sage-grouse protection in core population areas. Wyoming’s Industrial Siting Council, a fairly comprehensive authority over permitting on state and private lands, administers the strategy.

The greater sage-grouse issue is more pertinent in Wyoming than Colorado because 50% of the remaining population lives in Wyoming. However, the issue raises questions as to Colorado’s ability to protect wildlife in general (including the newly returned wolves). Colorado’s Land Use Act of 1970 and Land Use Enabling Act of 1974 delegated broad discretion to counties, resulting in varying permitting processes and wildlife standards for each county. While some counties self-impose wildlife regulations, others do not require significant wildlife consideration. Even though the Colorado Division of Wildlife prepared some excellent reports on greater sage-grouse conservation strategies, the counties are not obligated to comply with Division of Wildlife recommendations.

Varying approaches by counties (including a total lack of wildlife consideration in some areas) leave gaps in wildlife protection. Because of these gaps in local protection, the federal government is more likely to step in and list species as endangered or threatened. A listing could constrain development in the areas where the species is found thus affecting industry, local economies, and tax revenue. At the same time, revisiting the state’s land use laws could benefit numerous species beyond the greater sage-grouse. Colorado could look at Wyoming’s Development, Information, and Siting Act of 1975, as an example of a program with state level comprehensive authority. Although criticized by some environmentalists, Wyoming’s more comprehensive approach provides a clearer permitting scheme for industrial development, allows interest groups to congregate and engage at the state level, and ensures consideration of wildlife matters. Alternatively, the state could mandate county consideration of sensitive wildlife or maintain backstop authority when counties fail to regulate.

While the state is understandably concerned that the greater sage-grouse will be listed under the ESA, the decision could give Colorado occasion to reconsider its approach to protecting wildlife.
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Cabell Hodge and Christian Alexander

Return of the Wolf!

In 1995, packs of wolves were reintroduced to Yellowstone National Park and Idaho under the special, more relaxed rules that apply to “experimental, non-essential” populations under Endangered Species Act (ESA). The wolves have thrived and are now firmly established in both regions.

Last week, owners of the High Lonesome Ranch near De Beque, Colorado called the Colorado Division of Wildlife to confirm the presence of a wolf pack that they believe has taken up residence at the ranch. Workers have reported wolf sightings, scat, and howls on this hunting and fishing preserve in western Colorado. Biologists sent animal droppings to the University of California – Los Angeles for DNA testing and the results are not yet known. Federal officials claim they haven’t yet seen sufficient evidence. But if the presence of wolves in Colorado is confirmed, they will, ironically receive a much higher level of protection than currently exists for Wyoming and Idaho wolves, courtesy of the Endangered Species Act.

Before our society began to truly appreciate the importance of biodiversity, the federal government funded bounty hunters who eradicated all wolves in Colorado by the 1940’s. Similar efforts throughout the country pushed the gray wolf species dangerously close to extinction.

While ranchers and wolves have had a tumultuous history, Paul Vahldiek, owner of the High Lonesome Ranch, says he welcomes the return of the wolf. “It seemed logical to me, based on what happened in Yellowstone National Park, that keystone species like wolves might have a positive effect on biodiversity and restoring the health of aspens on this property,” Vahldiek said.

Others, including rural residents from surrounding states where wolves have been reintroduced, do not share Vahldiek’s enthusiasm, claiming that wolves have devastated livestock herds and threatened human lives. In Idaho, State Representative Dick Harwood, R-St. Maries introduced a bill on Monday encouraging the governor to declare a state of emergency and require the Idaho Department of Fish and Game to use “any means” to reduce wolf numbers.

Wolves and other predators play a very important role in biodiversity. By helping to keep ungulates such as elk and deer on the move wolves may be the answer to the widespread aspen die-off occurring throughout the Rocky Mountains.

Biologically speaking, wolves can live just about anywhere people allow them. As a legal matter, wolf recovery in Colorado will depend on the ESA and the success of the state and federal governments in adhering to the sometimes inflexible requirements in that law. But ultimately, wolf recovery in Colorado depends on the good stewardship of property owners like Paul Vahldiek and on all Coloradoans, whose informed opinion can give the wolf a fighting chance on social and political fronts.
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Judson Brehmer
Project Manager, Red Lodge Clearinghouse