What’s The Beef, Part Two: How Lawsuits Shape Land Management Policies

Range management is more a result of lawsuit than science…Special interest groups sue the land management agencies and they agree to settle on terms that do not benefit the general public and are almost never disclosed…
Victor Iverson in Deseret News, January 22, 2016

Sue and Settle

Back in the heyday of clear-cutting, over-grazing, strip-mining, etc, when a generation of passionate environmentalists were inspired by Hayduke and his Monkey Wrench Gang, it seemed that the only way to bring attention to the problems of over-use and degradation of lands was with aggressive, sometimes dangerous, protest actions.  From removing survey stakes and tree spiking to bombings and arson labeled as eco-terrorism, considered one of the greatest threats of terrorism in the United States, environmentalists wanted to be heard.  In desperation to save what they loved, they demanded change in the only ways they felt were left to them.  But then another way was found to effect change in land use policies.

We decided, let’s just sue instead.  It got settled with the Service agreeing to do a wolf study, which led to reintroduction.

That was the moment when we looked at it and said, ‘Wow.’  The environmental movement spent a decade going to meetings and demanding action and getting nothing done.  They were asking powerful people for something from a position of no power.  We realized that we can bypass the officials and sue, and that we can get things done in court.

Kieran Suckling of the Center For Biological Diversity in an interview with High Country News

The use of lawsuits to force the agency overseeing the land or wildlife in question to act has proven to be effective.  And it has been steadily increasing.  When the agency agrees to reach a settlement in these lawsuits, the terms are negotiated behind closed doors, outside of the public’s view, away from the public’s input.  It is referred to as ‘sue and settle.’  Here is a short definition from a report from the US Chamber of Commerce:

 Read the whole thing,including embedded links here

Science, policy, and the fate of the greater sage-grouse

Few species are currently receiving more attention from scientists, managers, legislators, and reporters than the greater sage-grouse (Centrocercus urophasianus). Once numbering in the millions and spanning 13 US states and three Canadian provinces, sage-grouse are now extirpated in two states and one province and have lost 44% of their original range.

 In the mid-1990s, biologists became increasingly concerned about declining populations and the loss and deteriorating conditions of remaining sagebrush (Artemisia spp) ecosystems. At that time, however, it was determined that the species did not meet requirements for listing under the Endangered Species Act (ESA). Years later, in 2010 – after litigation, a “not warranted” decision in 2005, and more litigation – the US Fish and Wildlife Service (USFWS) concluded that the sage-grouse did warrant ESA protection. The USFWS is under court order to finalize a decision by 30 September 2015.
What has followed is an unprecedented effort among federal and state agencies, private landowners,
and numerous other stakeholders to conserve sage-grouse across more than 480 000 km2 of sagebrush habitat. However, the looming deadline has not been without controversy. As predictable as the Sun rising in the east, lawyers, lobbyists, and consultants hired by industry and others began questioning the science underlying the threats to sage-grouse, conservation objectives, and management recommendations that the USFWS will use in making their final decision. A few unpublished reports have emerged, attacking studies, peer-review processes, and scientists, questioning their objectivity and calling researchers an “insular group of scientist–advocates who deviate from providing credible, accurate scientific data to advancing policies they personally support”. This characterization is a case of the proverbial “pot calling the kettle black”.
These unpublished, non-peer-reviewed reports serve as the foundation for a lawsuit, filed in March 2015, by numerous western counties and industry-oriented plaintiffs claiming violation of the Data Quality Act of 2001. The fate of that lawsuit has yet to be determined, but the stage is set for another round of court battles that will decide whose science is most defensible.
 At the heart of the scientific argument lies uncertainty and discord on how many sage-grouse there
actually are, causal factors affecting their decline, and what is needed to offset extirpation and habitat
loss and degradation. Annual counts of males at breeding sites (leks) are used as an index to determine population trends.
  Imperfect methodology and sampling effort, questionable extrapolation of male-driven indices to derive population estimates, and difficulty in attributing these data to any one threat (eg energy development) have fueled the criticism. Without exception, all field studies on sage-grouse include assumptions and limitations, and some even have flaws, but the weight of evidence regarding threats to sage-grouse and sagebrush ecosystems cannot be denied. One need look no further than current and projected habitat changes from development as well as losses associated with invasive plant species and fire to realize what that evidence shows.
Debate among scientists is fundamental for the advancement of science and policies derived from its
findings. But the current debate over sage-grouse seems anything but scientific. Opponents of change
seem more interested in casting doubt and discrediting the facts than they are in healthy scientific
debate. History is replete with examples where professionals attempt to demonstrate that science is clear on an issue and immediate action is needed to avoid potentially dire consequences – only to be confronted by other “science” or “scientists” trying to show that the existing information is incomplete or unclear.
 As with our justice system, it only takes “reasonable doubt” to convince many that  the science does not justify needed change and action. Indeed, what is the land manager or decision maker to do when everyone comes to the table with their own scientists, to contend that their particular way of doing business is not a threat?
As the court-ordered September 2015 deadline approaches, one thing is certain: the courts will decide
the fate of sage-grouse, regardless of what the USFWS decides. Existing science will continue to be questioned,
perhaps with valid criticism but probably not with credible, published data supporting counter
positions. This has become the “state of play” for contentious ecological issues and especially those
requiring some stakeholders to change their practices. Science has been lost in the political and legal vortex that now plays out in social media and does not translate to a general public increasingly losing interest in the natural world. This scenario demonstrates why scientists must ensure that their work will pass both peer and legal scrutiny and can be messaged in a way that captures the public’s attention when the “next sage-grouse” comes along – and it surely will.