I was shocked to read, in the winter 2014 edition article on sage grouse, the statement that the State of Wyoming has broad authority to enforce the core area policy on non-federal land. While the State of Wyoming has authority over state lands and most permits required by state agencies, the State of Wyoming has no authority over private land and private minerals. There is no state law that gives the Governor the power to regulate private property for sage grouse. Absolute arbitrary power over private property by state government is specifically prohibited by the Wyoming Constitution (Article 1, Section 7). Private property was included in the sage grouse core areas without notice to the owners or any opportunity to speak at a hearing. The Governor’s Sage Grouse Implementation Team (SGIT) established the core boundaries but kept no minutes of where or how these boundaries were established. The SGIT did not have to adhere to Wyoming’s Administrative Procedures Act. In one case the state protected wind leases on state land by moving the boundary just outside of the area leased for wind development. Private mineral leases were not allowed the same consideration and were included in core areas. The Legislature has not addressed the sage grouse core areas in statute. The Legislature did encourage the core strategy by use of a pass around resolution that has no legal standing. I have asked the SGIT many times to provide me with the statutory authority for their actions and have been ignored. Unlike wolf recovery, the core area strategy is not established in state law. The idea that sage grouse has brought the West together is entirely false.
7L Livestock Company
As Mr. Cooper’s letter illustrates, and indeed, as the article itself pointed out, broad disagreement exists regarding the appropriate management of sage grouse and governmental roles in doing so. And, in states such as Wyoming, where public lands are extensive, private land holdings relatively limited, and wildlife respect no property boundaries, the costs of sage grouse conservation (or wildlife conservation more generally) are not necessarily uniformly shared.
The Core Area Policy adopted by Governors Freudenthal and Mead provides that then-existing land uses within Core Areas “should be recognized and respected by state agencies,” and assumes that such activities existing prior to August 1, 2008 will not be managed subject to Core Area stipulations. It further provides that activities occurring after that date for which state agency review or approval is required by federal or state law are subject to review under the Policy. The Executive Order further contains a list of activities, predominantly relating to agricultural and ranching activities, which are exempted from review under the Policy. Whether this balance represents an appropriate policy determination is certainly open to debate.
The broader question, however, remains whether the sage grouse states, working together and with both the federal government and the private sector, can accomplish the goal of making a federal listing of the greater sage grouse under the Endangered Species Act unnecessary, or whether divisions among us over these and similar issues will continue the cycle of species conservation driven and overshadowed by litigation.
Michael J. Brennan, P.C.
Conservation Law and Policy