To the University of Wyoming: The members of the Committee approve the thesis of Terisa Oomens presented on March 30, 2020. Temple L. Stoellinger, Chairperson Jeffrey L. Beck, Outside Member Sam Kalen, UW Faculty APPROVED: Haub School Doug Wachob, College Dean Oomens, Terisa, M, Developing Lasting Law and Policy While Accounting for Scientific Uncertainty: A Review of Wind Energy Development in Wyoming Greater Sage-Grouse Habitat, JD/MA, Haub School, May, 2020. As the country looks towards more renewable energy sources, wind energy has become more popular. Although wind turbines may benefit the country’s renewable energy goals, they may also conflict with the conservation of Greater Sage-Grouse. Greater Sage-Grouse have been suggested for listing under the Endangered Species Act several times but are currently not warranted for listing. The expansion of wind energy development into Greater Sage-Grouse habitat has spurred both research and lawsuits to determine if Greater Sage-Grouse and wind energy can coexist. This is especially true in Wyoming which is home to both high wind energy potential and the largest population of Greater Sage-Grouse. Whether the current policy and courts can account for new scientific findings is yet to be determined. This paper reviews the progression of science, law, and policy regarding wind energy development in Wyoming Greater Sage-Grouse habitat and discusses the association between the three. i DEVELOPING LASTING LAW AND POLICY WHILE ACCOUNTING FOR SCIENTIFIC UNCERTAINTY: A REVIEW OF WIND ENERGY DEVELOPMENT IN WYOMING GREATER SAGE-GROUSE HABITAT By Terisa Oomens A thesis submitted to the Haub School and the University of Wyoming in partial fulfillment of the requirements for the degree of MASTERS OF ART In ENVIRONMENT AND NATURAL RESOURCES Laramie, Wyoming May/2020 ii DEDICATION PAGE To Dad, I finished school. iii ACKNOWLEDGMENTS I want to begin by thanking my thesis committee for countless edits and advice. Temple Stoellinger, Jeff Beck, and Sam Kalen provided constant support, feedback, constructive criticism, and many hours of assurance. The two-year process was strenuous and the encouragement from my accomplished, knowledgeable, and spirited committee made the process more enjoyable. I also want to thank Lucy Pauley for the original nudge to choose Greater Sage-Grouse and wind energy as my thesis topic and Nicole Korfanta for helping me refine my original idea into a usable thesis. Next, I would like to thank my family and friends for their patience in listening to my incessant talking about my thesis topic and the writing process. I would especially like to thank my husband Jake. He has not only put up with the stress of law school, but the stress of a thesis as well. He has remained positive throughout the whole process and has striven to keep me the same. This final product would not have been possible without the love and encouragement from these and many others. I appreciate all of the support, both emotionally and with the paper, to which a ‘thank you’ is not enough. iv TABLE OF CONTENTS Chapter 1 – Introduction ...................................................................................................... 1 1.1 Greater Sage-Grouse ............................................................................................................... 1 1.1.1 Characteristics of Greater Sage-Grouse ....................................................................................................... 2 1.1.2 Decline in Greater Sage-Grouse Population ................................................................................................ 4 1.1.3 Threats to Greater Sage-Grouse Survival .................................................................................................... 5 1.1.4 Petitions for Listing the Greater Sage-Grouse ........................................................................................... 10 1.1.5 Greater Sage-Grouse National Conservation Efforts ................................................................................ 13 1.2 Wind Energy Facilities .......................................................................................................... 15 1.2.1 Current Wind Energy Production ............................................................................................................ 15 Chapter 2 – Interaction of Wind Energy Production and Greater Sage-Grouse ............. 18 2.1 Wind Turbine Effects on Greater Sage-Grouse .................................................................. 21 2.2 Transmission Line Effects on Greater Sage-Grouse .......................................................... 23 2.3 Road Effects on Greater Sage-Grouse ................................................................................. 25 2.4 Studies Conducted on Wind Energy Production Effects ................................................... 26 2.4.1 Seven Mile Hill Study ............................................................................................................................... 27 2.4.2 Greater Prairie Chicken Case Study .......................................................................................................... 30 Chapter 3 – Existing Greater Sage-Grouse Protection Policies Applicable to Wyoming ............................................................................................................................................. 35 3.1 Wyoming Policies on Greater Sage-Grouse ........................................................................ 36 3.1.1 Wyoming Game and Fish Department Greater Sage-Grouse Conservation Plans ................................... 37 3.1.2 Wyoming Statutes Regarding Greater Sage-Grouse ................................................................................. 37 3.1.3 Wyoming Executive Orders Regarding Greater Sage-Grouse .................................................................. 40 3.2 Federal Policies on Greater Sage-Grouse ............................................................................ 43 Chapter 4 – Conflict in the Courts ..................................................................................... 50 4.1 Cases Challenging Wind Energy Development ................................................................. 51 4.1.1 Western Watersheds Project v BLM ......................................................................................................... 51 4.1.2 Oregon Natural Desert Association v BLM .............................................................................................. 56 4.2 Case Challenging Greater Sage-Grouse Resource Management Plans ............................ 65 Chapter 5 – Analysis .......................................................................................................... 69 5.1 Interaction of Wind Energy and Greater Sage-Grouse ...................................................... 70 5.2 Existing Greater Sage-Grouse Protection Policies Applicable to Wyoming .................... 70 5.4 Conflict in the Courts ............................................................................................................ 72 Chapter 6 – Conclusion ...................................................................................................... 73 Appendix A ......................................................................................................................... 75 v LIST OF FIGURES/TABLES Figure 1 ………………………………………………………………………………………………..…. 5 Figure 2 ………………………………………………………………………………………………..... 16 Figure 3 ………………………………………………………………………………………………..... 17 Figure 4 …………………………………………………………………………………….................… 18 Figure 5 ……………………………………………………………………………………………..…... 19 vi Chapter 1 – Introduction With a growing demand for clean energy, wind energy developers have been scoping out locations for wind energy development. Wyoming, and the West in general, have a high potential for wind energy. Because Wyoming is home to roughly 37% of the current Greater Sage-Grouse population, Wyoming has been at the forefront of Greater Sage-Grouse (Centrocercus urophasianus) conservation efforts; often becoming an example for other states to follow in their own conservation efforts. For this reason, this paper focuses on Wyoming’s Greater Sage-Grouse habitat. Although to some individuals the expansion of renewable energy is great news, to others it is a misfortune because the expansion is too often into Greater Sage-Grouse habitat. Wind energy projects are often sited in a vast expanse of open sagebrush (Artemisia tridentata) rangeland that has a low human population. However, the land is also occupied by another important species; the Greater Sage-Grouse. As Greater Sage-Grouse populations decline, the expansion of wind energy development into their habitat is a concern. Significant efforts have emerged in previous years to protect the Greater Sage-Grouse from extinction. Wind development in or near Greater Sage-Grouse habitat is viewed as a threat to the species. Federal and state regulations have been adopted to protect the Greater Sage-Grouse from the potential effects of wind development. Wind energy development may be contributing to the recent decline in the Greater Sage-Grouse population, but it did not cause the overall decline that has been occurring since the 1920s. It is known that the Greater Sage-Grouse needs protection and that wind energy sources are expanding. It is also known that when the legislatures created the existing policies related to wind energy development within Greater-Sage Grouse habitat, they were intended to be adaptable. However, it is unknown whether the policies will last while accounting for the uncertainty in the science. This thesis discusses the impact to Greater Sage-Grouse from wind energy development, reviews regulations to protect the Greater Sage-Grouse and regulate wind energy, and discusses the interaction between the two. 1.1 Greater Sage-Grouse To fully understand the conflict between Greater Sage-Grouse and wind energy development, it is important to understand the history of both. The following section reviews 1 how the Greater Sage-Grouse population has declined and how wind energy development has increased to its current levels. The decline in Greater Sage-Grouse habitat, along with the fragmentation of remaining habitat, was a concern brought forth in the United States starting in the 1920s. As of 2013, $347 million dollars have been invested through public and private spending to protect Greater Sage- Grouse range-wide.1 Some state wildlife agencies were so concerned they closed their Greater Sage-Grouse hunting seasons and others significantly reduced limits.2 From 1968 to 2003, an average of 5.22% decline per year was found.3 This decline was most attributed to a decline in active leks.4 1.1.1 Characteristics of Greater Sage-Grouse In 1957, Greater Sage-Grouse were recognized as having two subspecies, eastern and western, based solely on coloration differences.5 The subspecies designation was questioned by many, and in 2010 the United States Fish and Wildlife Service (USFWS) considered the best available science and found there is no support for recognizing the two subspecies of Greater 1 Holly E. Copeland, et al., Measuring the Effectiveness of Conservation: A Novel Framework to Quantify the Benefits of Sage-Grouse Conservation Policy and Easements in Wyoming, 8 PLOS ONE 1, 13 (June 2013) available at https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0067261. 2 Dr. Robert Lansing Patterson, The Sage Grouse in Wyoming (1952); Robert E. Authenrieth, Sage Grouse Management in Idaho, 9 Idaho Department of Fish & Game Wildlife Bulletin (1981). 3 John W. Connelly, et al., Conservation assessment of Greater Sage-Grouse and Sagebrush Habitats, Western Association of Fish and Wildlife Agencies, Unpublished Report, 6-57 (2004) available at: https://prd-wret.s3-us-west-2.amazonaws.com/assets/palladium/production/s3fs- public/atoms/files/Greater_Sage-grouse_Conservation_Assessment_060404.pdf. 4 Western Association of Fish and Wildlife Agencies, Greater Sage-Grouse Population Trends: An Analysis of Lek Count Databases 1965-2007, 1 (2015), available at https://www.wafwa.org/Documents%20and%20Settings/37/Site%20Documents/News/Lek%20Trend %20Analysis%20final%208-14-15.pdf. Subsequently listed as WAFWA. 5 Endangered and Threatened Wildlife and Plants; 12-Month Findings for Petitions to List the Greater Sage-Grouse (Centrocercus urophasianus) as Threatened or Endangered, 75 FED. REG. 13,910 (2010) available at: https://www.govinfo.gov/content/pkg/FR-2010-03-23/pdf/2010-5132.pdf. 2 Sage-Grouse.6 Therefore, if a listing of the Greater Sage-Grouse is to occur, it would be range wide.7 Greater Sage-Grouse are very particular in the habitat they chose to utilize.8 Greater Sage- Grouse require connected patches of sagebrush and grass for cover and food sources.9 Sage- Grouse demography and abundance are largely influenced by annual variation in sagebrush availability.10 Therefore, they have a cyclical population most likely determined by the availability of resources.11 If Greater Sage-Grouse determine the area is no longer suitable for any reason and leave the area they may not find another location with suitable habitat.12 This places them at high risk for predation.13 Greater Sage-Grouse generally have a 9 to 10 year population cycle with periods of increasing and declining populations.14 However, population inclines have been lower than past numbers, resulting in an overall trending decrease mostly attributed to a loss of habitat.15 The 6 Id. at 13912, 13915. 7 Id. at 13911. 8 Erik A. Beever and Cameron L. Aldridge, Influence of Free-Roaming Equids on Sagebrush Ecosystems, With a Focus on Greater Sage-Grouse 273, 276 (2011) available at: https://www2.nrel.colostate.edu/assets/nrel_files/labs/aldridge- lab/publications/Beever&Aldridge_2011_Equids&GRSG_SAB_Ch14.pdf. 9 Id. 10 Chad W. LeBeau, et al., Greater Sage-Grouse Habitat Selection, Survival, and Wind Energy Infrastructure, 81 THE JOURNAL OF WILDLIFE MANAGEMENT 690, 709 (2017a) available at: https://wildlife.onlinelibrary.wiley.com/doi/10.1002/jwmg.21231. 11 John W. Connelly and Clait E. Braun, A Review of Long-Term Changes in Sage Grouse Centrocercus urophasianus Populations in Western North America, 3 WILDLIFE BIOLOGY 229, 232 (1997) available at: https://bioone.org/journals/Wildlife-Biology/volume-3/issue-3_2f_4/wlb.1997.028/Long-term- changes-in-sage-grouse-iCentrocercus-urophasianus-i-populations/10.2981/wlb.1997.028.full. 12 Cameron L. Aldridge and Mark S. Boyce, Linking Occurrence and Fitness to Persistence: Habitat- Based Approach for Endangered Greater Sage-Grouse, 17(2) ECOLOGICAL APPLICATIONS 508, 523 (2007) available at: https://www.researchgate.net/publication/6342712_Linking_occurrence_and_fitness_to_persistence_H abitat-based_approach_for_endangered_Greater_Sage-Grouse. 13 Id. 14 David R. Edmunds, et al., Greater Sage-Grouse Population Trends Across Wyoming, 82 THE JOURNAL OF WILDLIFE MANAGEMENT 397, 398 (2017) available at: https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=2030&context=usgsstaffpub. 3 decrease in Greater Sage-Grouse populations has been mostly attributed to loss of sagebrush habitat which has been linked to oil and gas development, cultivation, livestock grazing, invasive plants, and changes in fire frequency.16 1.1.2 Decline in Greater Sage-Grouse Population Historical Greater Sage-Grouse population numbers have been estimated to range from 1,600,000 to 16,000,000 birds throughout their historical range.17 However, it is believed that starting in the 1920s and 1930s, when hunting Greater Sage-Grouse for sale in markets began, and continuing into the 1960s and 1970s with habitat alteration, the population of Greater Sage- Grouse has been in a long-term decline, dropping to 88,816 males on leks in 2007.18 Currently, Greater Sage-Grouse exist in roughly half of their historic range with individual populations declining by 15-90% since the early 1970s.19 The historic and current range of Greater Sage-Grouse is shown in Figure 1 below. 15 Id. 16 Id. at 398. 17 Fish and Wildlife Service, Beginner’s Guide to Greater Sage-Grouse, Notes From the Lek Greater Sage-Grouse Conservation Primer Series Primer #1, 3 available at: https://www.fws.gov/greatersagegrouse/factsheets/Primer1-SGBeginnersGuide.pdf. 18 Edward O. Garton, et al., Greater Sage-Grouse population Dynamics and Probability of Persistence, 38 STUDIES IN AVIAN BIOLOGY 293, (2011) available at: https://www.researchgate.net/publication/230856522_Greater_Sage- Grouse_Population_Dynamics_and_Probability_of_Persistence. 19 Aldridge and Boyce, supra note 12 at 509. 4 Figure 1. shows the change in Greater Sage-Grouse habitat.20 1.1.3 Threats to Greater Sage-Grouse Survival A 2008 study of the western United States found 13% of sagebrush habitat has been affected by anthropogenic sources.21 Human influences include, but are not limited to, habitat loss and fragmentation by roads, pipelines, and powerlines 22 and noise 23. Human activities often 20 U.S. Fish & Wildlife, Nevada Fish & Wildlife Office, Greater Sage Grouse, available at: https://www.fws.gov/nevada/nv_species/sage_grouse.html. 21 Matthias Leu, Steven E. Hanser, and Steven T. Knick, The Human Footprint in the West: A Large- Scale Analysis of Anthropogenic Impacts, 18(5) ECOLOGICAL APPLICATIONS 1119 (2008) available at: https://esajournals.onlinelibrary.wiley.com/doi/10.1890/07-0480.1. 22 Id. 23 Matthew J. Holloran, Greater Sage-Grouse (Centrocercus urophasianus) Population Response to Natural Gas Field Development in Western Wyoming, Doctor of Philosophy in Zoology and Physiology Thesis, University of Wyoming, 16 (2005) available at: http://www.oilandgasbmps.org/docs/WY030- HolloranSageGrouseStudy.pdf. 5 cause abandonment of leks 24, decreased attendance at leks that do persist 25, lower nesting rates26, poor nest success27, and avoidance of important habitat28. Greater Sage-Grouse nest habitat selection is influenced by the distance to their loyal lek, transmission lines, roads, and available vegetation.29 The lek a female Greater Sage-Grouse chooses to breed in is highly influential on the habitat they will select for nesting and brood rearing.30 This causes the lek selected for breeding to largely effect the overall survival of the chicks.31 However, because of Greater Sage-Grouse’s cyclical population trends and loyalty to an area means scientists need a higher volume of data to determine a trend, causing a time lag in support data.32 Avian predation is the primary cause of death for Greater Sage-Grouse.33 Survival rates of Greater Sage-Grouse were found to increase within 0.81 kilometers of wind turbines even when 24 Brett L. Walker, David E. Naugle, and Kevin E. Doherty, Greater Sage-Grouse Population Response to Energy Development and Habitat Loss, 71(8) JOURNAL OF WILDLIFE MANAGEMENT 2644, 2645 (2007) available at: file:///Users/terisaoomens/Downloads/2006-529.pdf. 25Holloran, supra note 24 at 1; Walker, Naugle, and Doherty, supra note 25 at 2652; Seth M. Harju, et al., Thresholds and Time Lags in the Effects of Energy Development on Greater Sage-Grouse Populations, 74(3) JOURNAL OF WILDLIFE MANAGEMENT 437, 442 (2010) available at: https://bioone.org/journals/Journal-of- Wildlife-Management/volume-74/issue-3/2008-289/Thresholds-and-Time-Lags-in-Effects-of-Energy- Development-on/10.2193/2008-289.full. 26 Alison G. Lyon and Stanley H. Anderson, Potential Gas Development Impacts on Sage Grouse Nest Initiation and Movement, 31(2) WILDLIFE SOCIETY BULLETIN 486, 490 (2003). 27Aldridge and Boyce, supra note 12 at 508; Matthew J. Holloran, Rusty C. Kaiser, and Wayne A. Hubert, Yearling Greater Sage-Grouse Response to Energy Development in Wyoming, 74(1) JOURNAL OF WILDLIFE MANAGEMENT 65 (2010). 28 Kevin E. Doherty, et al., Greater Sage-Grouse Winter Habitat Selection and Energy Development, 72(1) JOURNAL OF WILDLIFE MANAGEMENT 187, 192 (2008). 29 LeBeau, et al. (2017a), supra note 10 at 706. 30 Id. at 695. 31 Id. 32 Garton, et al., supra note 19 at 371. 33 LeBeau, et al. (2017a), supra note 10 at 709. 6 the surface disturbance increased up to 3%.34 It is suspected this increase in survival is due to less avian predators in the wind turbine area.35 Infrastructure associated with wind energy development is only one of many concerns for Greater Sage-Grouse. Studies suggest Greater Sage-Grouse avoiding the areas of energy development are avoiding human activity rather than the actual infrastructure of the facility.36 Wind turbines are visited on average four times per year for maintenance, but the average natural gas structure is visited 1,825 times per year.37 Oil and gas structures had the greatest negative effect on displacement of Greater Sage- Grouse because of the type of development involved.38 Well pads and roads involved in oil and gas development also allow for the distribution of invasive plants.39 One study suggests Greater Sage-Grouse are attracted to these invasive plants.40 However, the risk of chick survival increases 1.5 times with each additional well pad in the area.41 The higher risk is due to collisions with vehicles and increased predator perches.42 Oil and gas activities can also demolish the sagebrush community; lowering protection for Greater Sage-Grouse.43 However, some mitigation efforts have been found to decrease Greater Sage-Grouse avoidance of natural gas structures.44 One 34 Id. 35 Id. 36 LeBeau, et al. (2017a), supra note 10 at 691. 37 Chad W. LeBeau, et al., Short-Term Impacts of Wind Energy Development on Greater Sage-Grouse Fitness, 78 THE JOURNAL OF WILDLIFE MANAGEMENT 522, 528 (2014) available at: https://wildlife.onlinelibrary.wiley.com/doi/10.1002/jwmg.679. 38 Torre J. Hovick, et al., Evidence of Negative Effects of Anthropogenic Structures on Wildlife: A Review of Grouse Survival and Behaviour, 51(6) JOURNAL OF APPLIED ECOLOGY 1680, 1685 (2014) available at: https://besjournals.onlinelibrary.wiley.com/doi/full/10.1111/1365-2664.12331. 39 Aldridge and Boyce, supra note 12 at 522. 40 Id. 41 Id. 42 Id. 43 Id. 44 Bradley C. Fedy, et al., The Influence of Mitigation on Sage-Grouse Habitat Selection Within an Energy Development Field, 10(4) PLOS ONE 1 (2015) available at: 7 mitigation measure, reducing drill pad totals by drilling more directional wells from a single well pad, is naturally taking place with the increase of horizontal drilling.45 If mitigation efforts are continued, the effects on Greater Sage-Grouse may decrease. Grazing in Greater Sage-Grouse habitat can also affect survival.46 Greater Sage-Grouse choose habitat for nesting and brood rearing mostly based on vegetation available for cover and food.47 Grazing in their habitat can lower the vegetation level in the area so it is no longer selected by Greater Sage-Grouse, or if it is selected the nesting success will be negatively affected.48 Grazing from free-roaming equids arguably affects the vegetation in Greater Sage-Grouse habitat more than cattle because equids consume more vegetation and can travel farther distances from water sources.49 Disease is another threat to Greater Sage-Grouse, specifically West Nile Virus.50 The first confirmed case of West Nile Virus in Greater Sage-Grouse in Wyoming was in 2003.51 Although the disease accounted for only 4.4% of Greater Sage-Grouse mortality,52 as the climate changes the range of the disease changes, and it may very well become a large concern in the future. Fire is also a concern for the Greater Sage-Grouse.53 Fire not only poses physical harm to Greater Sage-Grouse, but also causes a loss of habitat long-term when invasive plant species https://www.researchgate.net/publication/274637545_The_Influence_of_Mitigation_on_Sage- Grouse_Habitat_Selection_within_an_Energy_Development_Field. 45 Id. at 16. 46 Aldridge and Boyce, supra note 12 at 509. 47 Id. at 518. 48 Id. at 522. 49 United States Department of Interior, Fish and Wildlife Service, Greater Sage-grouse Conservation Objectives: Final Report (2013) available at: https://www.fws.gov/greatersagegrouse/documents/COT- Report-with-Dear-Interested-Reader-Letter.pdf. 50 Holly E. Copeland, et al., supra note 1 at 12. 51 Tom Christiansen, Wyoming Game and Fish Department, Statewide Sage-Grouse Job Completion Report 2016, Wyoming Game and Fish Department, 19 (2016) available at: https://wgfd.wyo.gov/WGFD/media/content/PDF/Hunting/JCRS/2016-17_SG_JCR_Complete.pdf. 52 LeBeau, et al. (2014), supra note 38 at 527. 53 US Department of Interior, supra note 50. 8 move into the burned area replacing sagebrush.54 Maintaining the historic frequency and intensity of fire can help maintain Greater Sage-Grouse habitat.55 Tall structures in Greater Sage-Grouse habitat cause an avoidance of those areas by the Greater Sage-Grouse.56 Structures include Pinyon-juniper trees, fences, and radio towers, etc.57 Greater Sage-Grouse likely avoid tall structures as well because of a fear of predators.58 Tall structures aid avian predators by providing perches and nesting sites as well as providing land predators with ‘highways’ of limited obstacles.59 Loss of habitat from agriculture and housing development is another concern.60 Converting Greater Sage-Grouse habitat into an agricultural or urban land use not only causes an entire section of vegetation to be removed, but it also increases invasive plant species and predator species in the area and increases human activity in the area.61 All of which Greater Sage- Grouse prefer to avoid.62 Threats to Greater Sage-Grouse populations come from many angles. Conservation groups view that fact as a reason to list the Greater Sage-Grouse under the Endangered Species Act (ESA) and gain the ultimate protection for the species. 54 Id. 55 Id. 56 Id. 57 Id. 58 Connelly, et al., supra note 3 at 13-12. 59 Jonathan B. Dinkins, et al., Greater Sage-Grouse Select Habitat Based on Avian Predators, Landscape Composition, and Anthropogenic Features, 116(4) THE CONDOR 629, 630 (2014a) available at: https://bioone.org/journals/The-Condor/volume-116/issue-4/CONDOR-13-163.1/Greater-Sage- Grouse-Centrocercus-urophasianus-select-habitat-based-on-avian/10.1650/CONDOR-13-163.1.full. 60 US Department of Interior, supra note 50. 61 Id. 62 Id. 9 1.1.4 Petitions for Listing the Greater Sage-Grouse The first petitions for listing Greater Sage-Grouse under the ESA as endangered or threatened was filed by Craig Dremann, of the Institute for Wildlife Protection, and the American Lands Alliance with 20 additional conservation organizations in July 2002, March 2003, and December 2003 respectively.63 In April 2004, the USFWS issued its 90 day petition finding which cumulatively found the petitions to be warranted.64 In July 2004, the USFWS reopened public comments to accept comments on the 90-day findings.65 In January 2005, the USFWS issued its 12 month review decision, finding that the Greater Sage-Grouse was not warranted for listing under the ESA.66 In July 2006, Western Watersheds Project filed a case in the United States District Court of Idaho alleging the not warranted finding was arbitrary and capricious because the USFWS did not apply the best science, had an inadequate record, and lacked analysis of habitat degradation and regulatory mechanisms.67 In December 2007 the court agreed and declared a new finding was to be made by May 2009, although this deadline was amended several times. 68 In March of 2010 the FWS issued its new listing decision.69 Greater Sage-Grouse were again considered for listing under the ESA starting in February 2008.70 Greater Sage-Grouse were found to be warranted but precluded for listing under the ESA in March 2010.71 A finding of warranted but precluded means the USFWS determined the Greater Sage-Grouse was threatened, but could not be listed at that time because the resources necessary to do so were being devoted to species with higher 63 Id. 64 Endangered and Threatened Wildlife and Plants; 90-day Finding for Petitions to List the Greater Sage-Grouse as Threatened or Endangered, 69 FED. REG. 21,484, 21,485 (2004). Subsequently listed as 2004 FWS 90-Day Finding. 65 75 FED. REG., supra note 5 at13910. 66 Id. 67 Western Watersheds Project v United States Forest Serv., 535 F. Supp. 2d 1173 (D. Idaho 2007). 68 Id. 69 75 FED. REG., supra note 5 at 13910. 70 Id. at 13911. 71 Id. at 13910. 10 priority.72 Because a state has original control over all wildlife within its borders, the state maintains control over wildlife not listed under the ESA.73 In 2015 the USFWS conducted another listing review.74 Like all ESA listing reviews, the 2015 review analyzed the following 5 factors to determine if a listing was warranted: (1) habitat destruction or modification, (2) overutilization, (3) disease or predation, (4) the adequacy of existing regulatory mechanisms, and (5) other natural or manmade factors.75 The USFWS identified as threats the destruction, modification, or curtailment of Greater Sage-Grouse habitat because of habitat conversion for agriculture; urbanization; infrastructure in sagebrush habitats; fire; invasive plants; pinyon-juniper woodland encroachment; grazing; energy development; and climate change.76 The modification of sagebrush habitat is exacerbated by the fact that meaningful restoration of sagebrush habitat is unproven.77 The USFWS issued its decision in 2015, concluding a listing was not warranted.78 In its decision, the USFWS found no risk to Greater Sage-Grouse from commercial, recreation, scientific, or educational overutilization.79 Predators are another factor of concern for Greater Sage-Grouse. The USFWS found that although Greater Sage-Grouse are prey to numerous species, there is no documented indication that predation will have an effect on the species.80 The USFWS found that modification and 72 United States Fish and Wildlife Service, Endangered Species Glossary, available at: https://www.fws.gov/endangered/about/glossary.html. 73 Dean Lueck, An Economic Guide to State Wildlife Management, Property and Environment Research Center (2000), available at: https://www.perc.org/wp-content/uploads/old/rs00_2.pdf. 74 Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to List Greater Sage-Grouse (Centrocercus urophasianus) as an Endangered or Threatened Species, 80 FED. REG., 59858, 59858 (2015). 75 Id. 76 Id. 77 Steven T. Knick, et al., Teetering on the Edge or Too Late? Conservation and Research Issues for Avifauna of Sagebrush Habitats, 105 CONDOR 611, 620 (2003) available at: https://bioone.org/journals/The- Condor/volume-105/issue-4/7329/TEETERING-ON-THE-EDGE-OR-TOO-LATE-CONSERVATION- AND-RESEARCH/10.1650/7329.full. 78 80 FED. REG., supra note 75 at 59924-59925. 79 Id. 80 Id. at 59922. 11 destruction of Greater Sage-Grouse habitat was a concern for the species, but overutilization, disease, and predation, were not.81 The last factor the USFWS had to study was the adequacy of existing regulatory mechanisms. Greater Sage-Grouse are federally protected in Canada as well as individually protected in the provinces of Alberta and Saskatchewan.82 In the United States, Greater Sage- Grouse received protection from the Bureau of Land Management (BLM), USFWS, and in the states they are located in for the individuals of the species, not for their habitat.83 There are a network of laws and regulations for the BLM and the Forest Service to follow on their lands, but the implementation of those measures varied greatly across Greater Sage-Grouse habitat.84 In 2010 the USFWS concluded the lack of existing regulatory mechanisms was a threat to the existence of Greater Sage-Grouse.85 The 2015 listing decision concluded differently. The USFWS stated that since 2010 substantial improvements have been made at the federal and state level to Greater Sage-Grouse regulatory protections.86 In light of the improvements, the USFWS concluded the existing regulatory mechanisms were adequate to address possible negative effects on the species.87 Other manmade factors were also evaluated for a risk to the existence of Greater Sage- Grouse including; pesticides, recreational activities, life history traits, and drought.88 None of these factors were considered to be a threat to the existence of Greater Sage-Grouse.89 The overall conclusion of the 2015 listing decision was Greater Sage-Grouse are not warranted for listing under the ESA.90 States, therefore, continue to manage Greater Sage-Grouse. 81 Id. at 59867, 59924-59925. 82 75 FED. REG., supra note 5 at 13966. 83 Id. 84 Id. 85 Id. at 13982. 86 80 FED. REG., supra note 75 at 59887. 87 Id. 88 Id. at 59921, 59924, 59925. 89 Id. 90 Id. at 59941. 12 1.1.5 Greater Sage-Grouse National Conservation Efforts Lands managed by the BLM comprise a little under half of Greater Sage-Grouse habitat, while other agencies own around 15%, and private persons own 40%.91 Therefore, even though the state has control over wildlife within its borders, actions completed by the BLM on BLM lands affect the largest area of Greater Sage-Grouse habitat. At the end of 2011, the BLM created the Greater Sage-Grouse Interim Management Policies and Procedures. This document was meant to provide conservation policies and procedures for the “protection of unfragmented habitats, minimization of habitat loss and fragmentation, and management of habitat to maintain, enhance and restore conditions that meet Greater Sage-Grouse life history needs”.92 The document was sent to BLM field officials to address activities affecting Greater Sage-Grouse and its habitat.93 The BLM states in the document that although the document should be used when employees are making land use decisions, it does not need to be used where state or local mechanisms are in place, or a state BLM plan is in place.94 The documents set forth policies and procedures for Greater Sage-Grouse habitat management of vegetation, wildfire, energy project right of ways, leasable minerals, grazing, recreation permits, travel, grasshopper control, wild horses and burros, realty actions, and preliminary general habitat.95 In 2015 the BLM revised its Resource Management Plans.96 The Plan discussed the area of protection, goals, management decisions, consultation requirements, and how to implement the plan.97 The goal of the Plan is to conserve and enhance Greater Sage-Grouse habitat while still 91 Id. 59866. 92 Id. 93 Id. 94 Id. 95 Id. 96 U.S. Department of Interior, Bureau of Land Management, Wyoming State Office, Approved Resource Management Plan Amendment for Greater Sage-Grouse (September 2015) available at: https://eplanning.blm.gov/epl-front- office/projects/lup/103347/143767/177179/002_Wyoming_ARMPA_Main-Body.pdf. Subsequently listed as Wyoming BLM 2015 Plan. 97 Id. 13 providing for multiple use on BLM land.98 The Plan goes into detail on how to monitor the plans effectiveness, how to measure disturbance, mitigation measures, timing and distance restrictions, threats to Greater Sage-Grouse, adaptive management of vegetation, fire, livestock grazing, riparian areas, wild horses and burros, mineral resources, renewable energy, lands and realty, and recreation.99 The Plan also requires the BLM to consult with counties, conservation districts, cities, federal agencies, and state agencies in conservation efforts.100 The BLM Resource Management Plans were revised again in 2019.101 The 2019 Amendments discuss the conservation area, goals, alternatives considered in the environmental impact statement, management considerations, mitigation, plan monitoring, and consultation, much like the 2015 Plan.102 The 2019 Amendments go into detail of the BLM’s decision process than the 2015 Plan.103 However, as discussed in the policy section below, the 2019 Amendments have been overturned by the Federal District of Idaho court leaving the 2015 Plan in effect. The BLM is required to manage its lands for multiple use.104 Because of this directive, management of Greater Sage-Grouse habitat must be managed with the other uses of BLM lands in mind; such as wind energy development. It should also be considered that conserving Greater Sage-Grouse may benefit other animals and plants that share the same habitat, increasing the multiple use of the area.105 Although not as highly noted, there has also been private land conservation efforts. These efforts are harder to track because there is not a requirement to record those efforts. The Sage 98 Id. at 17. 99 Wyoming BLM, supra note 97. 100 Id. at 67. 101 U.S. Department of Interior, Bureau of Land Management, Wyoming State Office, Wyoming Greater Sage-Grouse Approved Resource Management Plan Amendment and Record of Decision (March 2019) available at: https://eplanning.blm.gov/epl-front- office/projects/lup/103347/168776/205593/WY_ROD_03142019_signed.pdf. Subsequently listed as Wyoming BLM 2019 Plan. 102 Id. 103 Id. 104 43 USCS § 1732(a). 105 Scott Gamo, et al., Greater Sage-Grouse in Wyoming: An Umbrella Species for Sagebrush Dependent Wildlife, 7(1) THE WILDLIFE PROFESSIONAL 56 available at: http://www.uwyo.edu/esm/faculty-and- staff/beck/_files/docs/publications/gamo-et-al-2013-wildlife-professional.pdf. 14 Grouse Initiative works with landowners in a voluntary conservation process.106 These conservation efforts include grazing systems, conservation easements, conifer removal, seeding of native plants, and fence modification.107 The efforts are all implemented to improve the private land habitat for Greater Sage-Grouse. 1.2 Wind Energy Facilities As wind energy development continues to grow it has become one of the multiple uses of BLM lands that must also be managed for. The installation of wind farms has substantially grown over the last twenty years and is expected to continue.108 Certain landforms are more likely to have higher wind potential than others such as hilltops, ridge crests, mountain summits, large clearings, and other locations free of local obstructions.109 The BLM manages 20 million acres of land with wind potential.110 The BLM must manage these landforms as they appear on the land it manages. 1.2.1 Current Wind Energy Production At a height of 100 meters, a latest generation wind turbine will start turning at a wind speed of 3.0 meters/second.111 Energy generation from the turbine will continue to rise until 12.0 meters/second.112 From 12.0-25.0 meters/second, the turbine will continue to create energy but 106 80 FED. REG., supra note 75 at 59885. 107 Id. 108 United States Bureau of Land Management, Programs: Energy and Minerals: Renewable Energy: Wind Energy, available at: www.blm.gov/programs/energy-and-minerals/renewable- energy/wind-energy. 109 National Renewable Energy Laboratory, Wind Energy Resource Atlas of the United States, available at: https://rredc.nrel.gov/wind/pubs/atlas/appendix_A.html. 110 US BLM Wind Energy, supra note 109. 111 Lucas Bauer, General Electric, Wind Turbine Models: GE 2.5-120 Data Sheet, available at: en.wind-turbine-models.com/turbines/310-general-electric-ge-2.5-120. 112 Id. 15 will not continue to rise in energy production.113 At 25.0 meters/second the turbine will need to be rotated to stop the wind from turning the blades.114 This is because winds higher than 25.0 meters/second can cause damage to the turbine.115 Since energy production is the cube of wind speed, the closer the average wind speed to 12.0 meters/second, the higher the energy production. Operating at 12.0 meters/second also comes without the extra risk of damage from higher wind speeds that do not contribute more power.116 The highest onshore wind speeds recorded in the United States are in the large clearings on the east side of the western mountains. Coincidentally, this is also an area that coincides with sagebrush habitat. Figure 2. Wind speed in meters/second at 100 meters (328 feet) above ground across the United States. 117 113 Id. 114 Id. 115 Id. 116 Id. 16 The further away from the concentration of residential housing a wind energy developer can site the project, the less human concerns the project must deal with. The majority of projects are located just outside of large urban centers. This location eases the transportation of the energy while minimizing the conflicts with local residents. Figure 3. Larger wind-generated electricity projects currently producing energy as of 2016.118 Figure 4. An overlay of Figures 2 and 3. Wind energy production companies site wind- generated electricity facilities in the Intermountain West because it allows for large energy production and low conflict with humans. However, the concerns for wildlife interaction have become high. As suggested previously, the interaction with birds and wind turbines are mostly negative, and that concern includes Greater Sage-Grouse. 117 National Renewable Energy Laboratory, Wind Resource Assessment, available at: https://www.nrel.gov/wind/resource-assessment.html. 118 U.S. Energy Information Administration, Distribution of Wind Power Plants, https://www.eia.gov/todayinenergy/detail.php?id=31032. Subsequently listed as USEIA. 17 Figure 4. Wind energy development is mostly in the high wind potential areas in the plains to the east of the Intermountain west. Since 2005 the BLM has recognized the possible conflict between wind energy development and wildlife, so it created policy guidance and best management practices to mitigate impacts to birds, wildlife habitat, and other resources.119 In March 2018, five percent of wind energy was produced on public lands, with 35 projects on BLM lands.120 Chapter 2 – Interaction of Wind Energy Production and Greater Sage-Grouse As the wind energy development of the Great Plains and Intermountain West continue, the interaction with Greater Sage-Grouse continues to build. Over 30% of Greater Sage-Grouse 119 US BLM Wind Energy, supra note 109. 120 Id. 18 habitat also has a high potential for wind energy shown in Figure 5.121 Turbines killing birds and bats is another complaint.122 It is estimated that tens of thousands of birds annually are killed by wind turbines across the country.123 Although this may seem like a high number, only 0.01 percent of bird deaths are caused by wind farms according to the article.124 Wind energy companies still try to mitigate the impact they have on birds by avoiding building wind farms in areas along major migratory paths.125 Some companies have even tracked bird migrations to stop the turbines until the birds have left the area.126 Figure 5. Map which this author created on the BLM’s website.127 Wind energy potential, in green, with Greater Sage-Grouse habitat in blue, pink, and orange. 121 75 FED. REG., supra note 5 at 13950. 122 Id. 123 Id. 124 Id. 125 Id. 126 Id. 127 https://bogi.evs.anl.gov/windmapper/portal/. 19 Direct impacts from wind farms on Greater Sage-Grouse has had little documentation. However, the effects discussed are anticipated and expected to be the same as other energy development; turbines provide high areas for predators and collisions with Greater Sage-Grouse, transmission lines, roads, noise, and dust.128 Turbines are often the tallest structure in the surrounding area providing a perch for aerial predators of Greater Sage-Grouse on the motor when the blades are not in motion.129 Even if aerial predators of Greater Sage-Grouse do not utilize turbines for perches, they may be perceived by Greater Sage-Grouse as potential predator perches.130 Because Greater Sage-Grouse are low flying birds, the reported collisions with turbines have been rare.131 As turbines have gotten taller, they have reached beyond the normal flight path of Greater Sage-Grouse, minimizing collisions with blades.132 The shadow of the blades may also be interpreted by Greater Sage-Grouse as predator shadows.133 Roads are necessary for construction and maintenance of wind energy facilities and the use of the roads causes noise, dust, and predator and invasive species travel. Noise is also caused by the turning of the turbine blades by the wind; the operation of the turbine itself is calculated to be at the same level as conversational speech.134 All of which may cause Greater Sage-Grouse to leave the area. They may also leave because of transmission lines needed to move the energy to urban centers. Estimations for long term disturbance are only 5-10% after wind energy development.135 “However, this estimate does not account for sage-grouse avoidance of developed areas and could be an underestimation of indirect effects.”136 128 75 FED. REG., supra note 5 at 13951. 129 Peter S. Coates, Greater Sage-Grouse (Centrocercus urophasianus) Nest Predation and Incubation Behavior, Dissertation 155, Idaho State University. 130 Id. 131 75 FED. REG., supra note 5 at 13951. 132 Id. 133 Id. 134 Id. “Adjusting for manufacturer type and atmospheric conditions, the audible operating sound of a single wind turbine has been calculated as the same level as conversational speech at 1 m (3 ft) at a distance of 600 m (2,000 ft) from the turbine. This level is typical of background levels of a rural environment.” Id. 135 Id. at 13952. 136 Id. 20 2.1 Wind Turbine Effects on Greater Sage-Grouse The attendance of male Greater Sage-Grouse at breeding grounds was observed for two years after development of a wind energy facility in Wyoming, after which differences between leks inside and outside a wind energy facility did not differ.137 The effects were also found to decrease the further from the wind farm the specific birds were.138 Scientists estimated that 140,000-328,000 birds were estimated to be killed by wind turbines in 2013,139 although the portion of that amount contributed by Greater Sage Grouse is unknown. Grouse are low flying birds and are more likely to collide with fencing than wind turbines.140 Although total bird deaths may seem like a high number, only 0.01 percent of bird deaths are caused by wind turbines.141 Greater Sage-Grouse habitat is in open areas that are mostly void of tall structures. Therefore, even if there is a low collision risk with wind turbines, Greater Sage-Grouse tend to avoid areas with tall structures because of predation risk, which is the primary cause of Greater Sage-Grouse mortality.142 The habitat Greater Sage-Grouse use makes them even more susceptible to wind energy development than other species; such as those who are accustomed to forested areas.143 Transmission lines are also tall structures. Areas with transmission lines and wind turbines may have a compound effect on Greater Sage-Grouse, although this is unlikely.144 Noise from anthropogenic structures may also affect Greater Sage-Grouse. This could be because they cannot hear predators as well, cannot hear each other as well for mating, or the noise 137 LeBeau, et al. (2017a), supra note 10 at 691. 138 Id. at 708. 139 Scott R. Loss, Tom Will, and Peter P. Marra, Estimates of Bird Collision Mortality at Wind Facilities in the Contiguous United States, 168 BIOLOGICAL CONSERVATION 201 (2013). 140 American Wind Energy Association, available at: https://www.awea.org/policy-and- issues/project-development/wildlife. Subsequently listed as AWEA. 141 Hardy and Eller, supra note 122. 142 LeBeau, et al. (2017a), supra note 10 at 708. 143 Horvick, et al., supra note 39 at 1682. 144 LeBeau, et al. (2017a), supra note 10 at 708. 21 is simply irritating.145 Although wind turbines do make noise, the level is fairly low; though some studies do suggest the low frequency noise produced by wind turbines may cover the low frequency mating vocalizations of Greater Sage-Grouse, causing Greater Sage-Grouse to adjust their vocalizations or leave.146 Greater Sage-Grouse vocalization gives the receiving grouse an indication of the vocalizer.147 Therefore, changing vocalizations could alter how the vocalizer is perceived by the receiving Greater Sage-Grouse and affect the mating success of the vocalizer.148 The roads associated with wind turbines make even more noise, which could cause even more problems for vocalization. It is also suggested that Greater Sage-Grouse are avoiding the human activity of the area rather than the infrastructure of the facility itself.149 Vehicle activity and human presence at wind energy facilities is low,150 but a higher level of human activity may be perceived by Greater Sage- Grouse by the movement of the blades on the turbines.151 The level of human activity at wind energy facilities, although low, may also be above what Greater Sage-Grouse will tolerate.152 While Greater Sage-Grouse population trends have been on a long-term decline range wide since 1920s,153 wind energy development only gained serious traction around 20 years ago.154 Although wind energy development may be contributing to the recent decline in the 145 Horvick, et al., supra note 39 at 1686. 146 Jennifer A. Smith, et al., Indirect Effects of an Existing Wind Energy Facility on Lekking Behavior of Greater Prairie-Chickens, 122 ETHOLOGY 419, 420 (2016) available at: https://onlinelibrary.wiley.com/doi/pdf/10.1111/eth.12489?casa_token=AR7fSWi6WoIAAAAA:vvtdL Yh6TaBrAcXjpYmm0W0AAWJd5uCGhieHEMWub-GvRM3XVorERVkpNDGtZ5xBwbDwY9LCPe-Xdg. At 300 meters a turbine will create about 43 decibels of noise. Tomas Kellner, How Loud is a Wind Turbine?, GE Reports (August 2, 2014) available at https://www.ge.com/reports/post/92442325225/how-loud-is- a-wind-turbine/. 147 Smith, et al. (2016), supra note 161 at 420. 148 Id. 149 LeBeau, et al. (2017a), supra note 10 at 707. 150 Id. “[V]ehicle activity levels at a wind turbine are markedly less than a natural gas well….” Id. 151 Id. 152 Id. 153 Fish and Wildlife Service, supra note 18 at 4. 154 US BLM Wind Energy, supra note 109. 22 Greater Sage-Grouse population, it did not cause the overall decline that has been occurring since the 1920s. 2.2 Transmission Line Effects on Greater Sage-Grouse There were 100,000km of transmission lines in the United States in 2011.155 Although this number is not just wind energy power lines, it causes powerlines to also be a concern for the potential spread of invasive species and predators.156 Greater Sage-Grouse can collide with power lines and be electrocuted, although the documented cases are rare.157 However, the high towers that support powerlines give avian predators of Greater Sage-Grouse vantage points to hunt, roost, and nest over the flat terrain where such high points are uncommon.158 One study found predation on Greater Sage-Grouse from raptor species increased 47% after the construction of a powerline 220 yards from an active lek; after which the lek was abandoned.159 Another study found that Greater Sage-Grouse crossed powerlines even less than roads, suggesting that even if predators are not present, Greater Sage-Grouse avoid the area.160 Some suggest this is because of electromagnetic fields having a negative effect on them.161 Powerlines are also vectors for the 155 Daniel Gibson, et al., Effects of Power Lines on Habitat Use and Demography of Greater Sage-Grouse, 200(1) WILDLIFE MONOGRAPHS 41, 44 (2018) available at: https://wildlife.onlinelibrary.wiley.com/doi/pdf/10.1002/wmon.1034. 156 Steven T. Knick, et al., Ecological Influence and Pathways of Land Use in Sagebrush, 38 STUDIES IN AVIAN BIOLOGY 203, 207 (2011) available at: https://www.researchgate.net/publication/236893128_Ecological_Influence_and_Pathways_of_Land_U se_in_Sagebrush. 157 Clait E. Braun, Sage Grouse Declines in Western North America: What Are the Problems?, 78 Proceedings of Western Association of Fish and Wildlife Agencies 139, 147 (1998) available at: https://www.researchgate.net/publication/247440432_Sage_grouse_declines_in_western_North_Ameri ca_What_are_the_problems. 158 LeBeau, et al. (2017a), supra note 10 at 709. 159 Kevin L. Ellis, Behavior of Lekking Sage Grouse in Response to a Perched Golden Eagle, 15 BIRDS 37 (1985) available at: https://www.westernfieldornithologists.org/archive/V15/15(1)%20p0037-p0038.pdf. 160 Christin L. Pruett, Michael A. Patten, and Donald H. Wolfe, Avoidance Behavior by Prairie Grouse: Implications For Development of Wind Energy, 23 CONSERVATION BIOLOGY 1253 (2009) available at: https://conbio.onlinelibrary.wiley.com/doi/pdf/10.1111/j.1523-1739.2009.01254.x. 23 spread of invasive species because the landscape is cleared for construction, although the exact amount of the spread of invasive plants that have been introduced into sagebrush habitat from transmission lines is unknown.162 A study conducted in Eureka County, Nevada evaluated the impacts to Greater Sage- Grouse from a 345-kV transmission line over a ten-year period to determine the effects of power lines on habitat use and demography of Greater Sage-Grouse.163 The study specifically focused on Common Ravens (Corvus corax), one of the largest predators of Greater Sage-Grouse in the western portion for their range.164 The study concluded that the negative effect on Greater Sage- Grouse is likely to do more with the abundance of Common Ravens because of the transmission line than the transmission line itself.165 The study found a “substantial increase” in the Raven population after the construction of the transmission line, Greater Sage-Grouse avoidance behavior up to 10km from the transmission line and reductions in the reproductive process 12.5 km from the transmission line with an overall negative association between the transmission line and population growth 5 km from the transmission line.166 Two studies from 2008 to 2011 in Wyoming supported this conclusion when it also found that Greater Sage-Grouse avoided areas with transmission lines, likely due to the increase in the predator population in those areas.167 The studies further concluded that Greater Sage-Grouse selected their habitat based on landscape attributes that could be used as perches as well as areas with anthropogenic features.168 161 Kim Fernie and Silas James Reynolds, The Effects of Electromagnetic Fields From Power Lines on Avian Reproductive Biology and Physiology: A Review, JOURNAL OF TOXICOLOGY AND ENVIRONMENTAL HEALTH Part B (2005). 162 Knick, et al. (2003), supra note 78 at 619. 163 Gibson, et al., supra note 170. 164 Id. 165 Id. at 170. 166 Id. at 187-188. 167 Dinkins, et al. (2014a), supra note 60; Jonathan B. Dinkins, et al., Greater Sage-Grouse Hen Survival: Effects of Raptors, Anthropogenic and Landscape Features, and Hen Behavior, 92 CANADIAN JOURNAL OF ZOOLOGY 319 (2014b) available at: https://www.nrcresearchpress.com/doi/full/10.1139/cjz-2013- 0263#.Xla9-xNKi3U. 168 Id. 24 Another Wyoming study from 2009 to 2014 studied a specific 27 meter tall, 230 kilovolt, wood pole, H-frame transmission line for its effects on Greater Sage-Grouse habitat selection.169 The study considered areas of poor and high habitat suitability and found that Greater Sage- Grouse avoided areas of high habitat suitability if they were near transmission lines. 170 This study suggested the visibility of the transmission line may be the influencing factor on Greater Sage- Grouse habitat selection.171 Transmission lines seem to have a greater negative impact on Greater Sage-Grouse than the wind turbines themselves. However, because transmission lines and wind energy development are codependent, the effects of transmission lines need to be considered as well. 2.3 Road Effects on Greater Sage-Grouse Impacts from roads are another concern. Roads are constructed for construction and maintenance of wind turbines and transmission lines. Impacts of roads on Greater Sage-Grouse include direct loss of habitat and mortality, barriers, facilitation of predators and invasive species, and noise.172 Greater Sage-Grouse mortality from colliding with a vehicle does occur, although in most instances it is not recorded.173 Predators also use roads for easy travel and scavenging for roadkill, thus reaching Greater Sage-Grouse habitat easier.174 Invasive plant species are also more prevalent in areas with roads because of road fill, vehicle transportation, and road maintenance introducing seeds.175 When invasive species outcompete native sagebrush, the damage to Greater 169 Chad W. LeBeau, et al., Greater Sage-Grouse Habitat Function Relative to 230-kV Transmission Lines, 83 THE JOURNAL OF WILDLIFE MANAGEMENT 1773 (2019) available at: https://wildlife.onlinelibrary.wiley.com/doi/full/10.1002/jwmg.21749. 170 Id. at 1773. 171 Id. at 1784. 172 Richard T. T. Forman and Lauren E. Alexander, Roads and Their Major Ecological Effects, 29 Annual Review of Ecology and Systematics 207 (1998) available at: https://www.annualreviews.org/doi/10.1146/annurev.ecolsys.29.1.207. 173 Patterson, supra note 2. 174 Forman and Alexander, supra note 187 at 212-214. 175 Johnathan L. Gelbard and Jayne Belnap, Roads as Conduits for Exotic Plant Invasions in a Semiarid Landscape, 17(2) CONSERVATION BIOLOGY 420, 429 (2003) available at: 25 Sage-Grouse habitat is immense. Studies have also shown that Greater Sage-Grouse avoid roads because of noise, visual disturbance, and pollution.176 Male Greater Sage-Grouse depend on vocal and visual displays during mating.177 The louder the volume and dust from vehicles the less effective the area is for mating purposes; causing males to leave the area.178 The volume of the vehicles may affect the vocal displays and the dust from the vehicles may affect the visual displays. Roads also seem to have a greater impact on Greater Sage-Grouse than the wind turbines themselves, but as a necessary part of the wind energy development, the effects need to be considered. 2.4 Studies Conducted on Wind Energy Production Effects Scientists have studied the total population, mating movements, and habitat selected by male and female Greater Sage-Grouse before and after construction of a wind energy facility to determine the effects the facility may have on the Greater Sage-Grouse in that area. Studies have been conducted across the nation and on various grouse species. The table in Appendix A lays out each study by: the grouse species it focuses on, the name and citation of the article, and what the findings of the study were. The table brings a multitude of grouse studies together and allows easier comparison between them. Not all studies in the table are discussed in detail in the writing below. Although all the studies are needed to get the whole picture, the studies discussed in the text are more on point with the location discussed in the rest of the paper. https://www.researchgate.net/publication/249431642_Roads_as_Conduits_for_Exotic_Plant_Invasions_ in_a_Semiarid_Landscape. 176 Glenn W. Suter II, Effects of Geothermal Energy Development on Fish and Wildlife, Report for Fish and Wildlife Service 76/20.5 (1978). 177 Robert M. Gibson and Jack W. Bradbury, Sexual Selection in Lekking Sage Grouse: phenotypic correlates of male mating success, 18 BEHAVIORAL ECOLOGY AND SOCIOBIOLOGY 117 (1985) available at: https://www.jstor.org/stable/4599870?seq=1#metadata_info_tab_contents; Michael W. Gratson, Sexual Selection for Increased Male Courtship and Acoustic Signals and Against Large Male Size at Sharp-Tailed Grouse Leks, 47 EVOLUTION 691 (1993) available at: https://www.jstor.org/stable/pdf/2410083.pdf. 178 Amstrup, S.C. and R.L. Phillips, U.S. Fish and Wildlife Service, Denver Wildlife Research Center, Annual Progress Report, Effects of Coal Extraction and Related Development on Wildlife Populations: effects of coal strip mining on habitat use, activities and population trends of sharp-tailed grouse (Pedioecetes phasianellus) (1997); Clait E. Braun, Current Issues in Sage Grouse Management, 67 Proceedings of Western Association of Fish and Wildlife Agencies 134 (1987). 26 The table in Appendix A shows the effects of anthropogenic structures on a species depends on the location and timing of the structure as well as the species itself. For instance, Greater Sage-Grouse require different habitat for different portions of their life history.179 It has also been determined that population trends must be analyzed at different levels to ensure large leks are not overshadowing small ones or the declining smaller leks causing the population trend to be on the decline.180 A smaller lek’s population decline is important even though the total population may be increasing. It also may be easier to determine influences on populations when smaller regions are analyzed as opposed to the entire population.181 The studies selected for deeper analysis in the text were selected because they are Greater Sage-Grouse studies conducted in Wyoming. A Greater Prairie Chicken case study is also included not only because the amount of studies conducted on Greater Sage-Grouse is limited, but also to note the implications of studies on any grouse species to other grouse species. 2.4.1 Seven Mile Hill Study The Seven Mile Hill Study is the most recent study examining effects on Greater Sage- Grouse in Wyoming. Seven Mile Hill is a wind energy facility located in southeastern Wyoming in 2008.182 Chad LeBeau, et al. conducted studies near the facility in pre and post facility construction.183 The Seven Mile Hill studies were conducted throughout the area on birds ranging from 0.5 to 11 km from the nearest wind turbine.184 The study area included 79 wind turbines, 29 km of access roads, 58 km of paved roads, 43 km of transmission lines, operational buildings, and an abandoned surface coal mine.185 179 Hovick, et al., supra note 39 at 1683. 180 Edmunds, et al. supra note 14. 181 Id. at 406. 182 Chad W. LeBeau, et al., Greater Sage-Grouse Male Lek Counts Relative to a Wind Energy Development, 41 WILDLIFE SOCIETY BULLETIN 17 (2017b) available at: http://www.uwyo.edu/esm/faculty- and-staff/beck/_files/docs/publications/lebeau-et-al-2017-wsb.pdf. 183 Id. at 17. 184 Id. at 18. 185 Id. 27 The first published study that focused on the effects of wind energy development on Greater Sage-Grouse at Seven Mile Hill was for male Greater Sage-Grouse to determine if negative effects on male Greater Sage-Grouse lek attendance were present after wind energy development in the area was complete.186 Male attendance at leks was monitored at 14 leks from 2006 to 2008 for pre-wind energy population data.187 Monitoring continued from 2009 to 2016 for post-wind energy population data.188 The study found no evidence that the wind energy development negatively affected male attendance at leks, even 8 years post wind energy development.189 Because the area of wind energy development was relatively small, the leks in close proximity to those areas were few in number.190 Although the study did collect data from 14 leks, the number of leks that were possibly affected by wind energy development were much lower.191 This could have influenced the findings of this study.192 The study was also only conducted on one population of Greater Sage-Grouse, other populations could be affected by wind energy development differently.193 The second study examined female Greater Sage-Grouse at Seven Mile Hill Wind Energy Facility.194 Tracking devices were attached to 346 female Sage-Grouse dispersed at various distances from the wind turbines to determine if avoidance behavior was present.195 Specifically, the study examined the effects of the wind energy development on female Greater Sage-Grouse behavior by exploring nesting behavior.196 186 Id. at 17. 187 Id. 188 Id. 189 Id. at 22. The study found there was a 56% decline in male lek attendance between 2011 and 2012. Id. at 17. However, the study determined this was likely to be an isolated event because declines in male lek attendance were more likely to be caused by lek size and vegetation. Id. at 24. 190 Id. at 22. 191 Id. 192 Id. 193 Id. 194 LeBeau, et al. (2017a), supra note 10. 195 Id. at 690. 28 At the conclusion of the second study, the scientists determined there was no evidence suggesting an influence on Greater Sage-Grouse nesting habitat selection from the wind energy facility.197 However, nest habitat selection was influenced by the distance from the bird’s ‘home’ lek, vegetation (specifically sagebrush), and distance to transmission lines and roads.198 Given the study was conducted one to six years after completion of the facility, it was suggested that any lag effects from the facility would have also been detected.199 Brood-rearing habitat was observed to avoid areas with higher surface disturbance.200 This trend was even more pronounced in the latter years of the study, suggesting a lag time in the effects.201 The summer habitat selection was also found to change to avoid areas with higher surface disturbance.202 The distance between the summer habitat selected and the nearest wind turbine increased by more than double from 2009 to 2014, suggesting a lag time in the effects on summer habitat selection as well.203 Although the wind energy facility did have a negative effect on Greater Sage-Grouse behavior, there was no suggestion that the facility had a negative effect on Greater Sage-Grouse survival.204 In the conclusion of this study the author suggests Greater Sage-Grouse management approaches for oil and gas development may be needed for Greater Sage-Grouse management for wind energy facility in brood rearing and summer habitats.205 Although the study was conducted over several years, this study was lacking in preconstruction data, which could have supported and made results more interpretable.206 The study was also only conducted on one 196 Id. 197 Id. at 708. 198 Id. 199 Id. at 709. 200 Id. at 706. 201 Id. 202 Id. 203 Id. at 706. 204 Id. at 709. 205 Id. 206 Id. 29 population of Greater Sage-Grouse.207 Because of the limits of the study, it noted that other populations may be affected by wind energy development differently.208 2.4.2 Greater Prairie Chicken Case Study Greater Prairie Chicken are a species of North American prairie grouse, like the Greater Sage-Grouse (a shrubland grouse), and face many of the same threats to their habitat; loss of habitat and habitat fragmentation from agriculture and energy infrastructure. Given this, it is likely any results from studies on Greater Prairie Chickens can be relatable to Greater Sage- Grouse. Below is a compilation of Greater Prairie Chicken studies. Nest habitat selection and survival were found not to be affected by wind energy development in Kansas.209 However, although the maximum number of males and lek persistence were also unaffected, abandonment of leks was greatest within 8 kilometers of wind turbines.210 It was also found that female Greater Prairie Chickens avoided areas with wind turbines during breeding season.211 Male Greater Prairie Chicken lekking behavior was evaluated by a study in Nebraska.212 Lekking behaviors include booming displays (rapid foot-stomping, erection and fanning of tail and pinnae feathers, lowering of the wings and head, inflating of air sacs on chest, and vocalization), flutter jumps (vocalizing while leaping into the air and flapping of wings), agonistic interactions (face-offs with other males), and non-breeding behaviors (feeding, walking, crouching, standing).213 Lekking behavior is often directly correlated with species population and success because males who spend more time in agonistic and booming behaviors have greater 207 Id. 208 Id. 209 LeBeau, et al. (2017b), supra note 197 at 18. 210 Id. 211 Id. 212 Smith, et al. (2016), supra note 161. 213 Id. at 420. 30 mating success.214 Disruption of this behavior by wind energy facilities could affect the reproductive success and therefore the population of Greater Prairie Chicken.215 This study concluded 62% of the behavior observed on leks near wind energy facilities were non-breeding behaviors.216 Distance to a wind turbine did not affect the amount of time spent in agonistic behaviors; rather the more time the male spent at the center of the lek, the more time was devoted to agonistic behavior.217 Neither distance to a wind turbine nor the location of the male on the lek affected the amount of time dedicated to booming.218 Flutter jumping was also not affected by the distance to a wind turbine; rather the more time the male spent on the edges of the lek, the more time he spent flutter jumping.219 Non-breeding behaviors were affected by the distance to a wind turbine and the location of the male in the lek.220 The closer to a wind turbine a lek was located, the less time was spent by males on non-breeding behaviors.221 Also, the more time the male spent at the center of the lek, the less time they spent on non-breeding behaviors.222 Attendance of females at the lek was also considered.223 The distance to a wind turbine did not affect the female attendance; rather as male attendance at the lek increased, female attendance at the lek increased.224 This study concluded that because the time spent in breeding behaviors was not affected by the distance to a wind turbine, the vocalizations of Greater Prairie Chickens must not be affected by the wind turbine noise.225 This is different than the study done on Greater Sage- 214 Id. at 427. 215 Id. at 419. 216 Id. at 423. 217 Id. at 424. 218 Id. 219 Id. at 425. 220 Id. 221 Id. 222 Id. 223 Id. at 425. 224 Id. 425-426. 31 Grouse. However, the observed Greater Prairie Chicken lek closest to a wind turbine was 700 meters away.226 This could be a result of the lek being far enough away from the wind turbine to not be affected by the noise.227 The size of the facility should also be considered when using the results of the study.228 The wind energy facility in this study was small in comparison to others around the country.229 Each facility will have a different size and therefore a different disturbance level.230 Another finding of the study was the closer to a wind turbine the lek was, the less time was spent in non-breeding behaviors.231 This suggests this may be because avian predators are less abundant in wind energy facilities.232 Breeding behaviors are used to attract female grouse, but they also have the possibility of attracting avian predators.233 The lack of avian predators in the area of the wind energy facility may allow Greater Prairie Chickens to conduct more breeding behaviors without fear of also attracting predators.234 Because males conducting breeding behaviors often have more mating success, leks closer to wind energy facilities may have better mating success.235 However, if the increase in breeding behavior was to compensate for negative effects of the wind energy facility, the mating success will likely maintain the same level.236 225 Id. at 426. 226 Id. 227 Id. 228 Id. 427. 229 Id. 230 Id. 231 Id. 232 Id. 233 Id. 234 Id. 235 Id. 236 Id. 32 A study on a Kansas lek found different results.237 They found 52% of the behavior of male Greater Prairie Chickens on leks was agonistic and courtship displays.238 However, the female lek attendance in Kansas was higher than in Nebraska which has been shown to lead to higher breeding behavior.239 Differences in methods used during the studies could also contribute to the differences in findings.240 Another study was conducted to determine male Greater Prairie Chicken lek attendance near wind energy facilities.241 The study found leks were more likely to be abandoned if they were within 8 km of a wind turbine.242 However, the leks that were not abandoned did not decrease in attendance.243 Other factors, such as lek size, less than seven males, and habitat surrounding the lek, especially agricultural fields, may have contributed to the abandonment of leks near the facility.244 A study designed to investigate the effects of wind energy development on female Greater Prairie Chickens was conducted in Kansas for two years before construction and three years post construction.245 Studying the effects on female Greater Prairie Chickens is important to predict the overall population.246 Females are likely to be more susceptible to disturbance, female nesting rates drive the population fluctuations, and other studies indicate female movement influences 237 Id. at 526. 238 Id. 239 Id. 240 Id. 241 Virginia L. Winder, et al., Responses of Male Greater Prairie-Chickens to Wind Energy Development, 117 THE CONDOR: ORNITHOLOGICAL APPLICATIONS SOCIETY 284 (2015) available at: https://www.researchgate.net/publication/276424670_Responses_of_male_Greater_Prairie- Chickens_to_wind_energy_development. 242 Id. at 290. 243 Id. at 291. 244 Id. 245 Virginia L. Winder, et al., Effects of Wind Energy Development on Survival of Female Greater Prairie-Chickens, 51 JOURNAL OF APPLIED ECOLOGY 395 (2014) available at: https://besjournals.onlinelibrary.wiley.com/doi/pdf/10.1111/1365- 2664.12184%4010.1111/%28ISSN%291365-2664.OAWEEK2014. 246 Id. at 395. 33 male behavior.247 This study found wind energy development did not negatively affect the survival of female Greater Prairie Chickens.248 In fact, the study found the survival rate was nearly double post construction of the wind energy facility, while no other known variables changed, i.e. weather, grazing, or harvest.249 The increase in survival of female Greater Prairie Chickens was thought to be because of lower predator activity.250 Other studies have indicated raptors and mammalian predators, such as coyotes, avoid wind energy facilities.251 Collision mortality discovered by the study found death by collision was rare and was likely due to fences and power lines rather than the wind turbines themselves.252 Although the study did not specifically track predator populations in the area, doubling the survival rate post construction provides a positive outlook on Greater Prairie Chicken and wind energy facility interaction.253 A follow up study in Nebraska was conducted to determine if the abundance of predators decreased near wind energy facilities.254 However, the study found the population of avian predators and coyotes was consistent at various locations from the wind energy facility.255 Although the study did note that other studies have found avian predators and coyotes do avoid wind energy facilities; therefore, the avoidance may be site specific.256 The level of human activity may influence the effect of the wind energy facilities on predators.257 The more activity the more likely the animals will avoid the facility.258 The time between the construction of the wind energy 247 Id. at 402. 248 Id. 249 Id. 250 Id. 251 Id. 252 Id. 253 Id. 254 Jennifer A. Smith, et al., Predation Risk: A Potential Mechanism for Effects of a Wind Energy Facility on Greater Prairie-Chicken Survival, 8 ECOSPHERE 1 (2017) available at: https://esajournals.onlinelibrary.wiley.com/doi/pdf/10.1002/ecs2.1835. 255 Id. at 12. 256 Id. 257 Id. 34 facility and when the study was conducted may also influence the effect the wind energy facility has on predators.259 Predators may become accustomed to the wind energy facility over time causing a decrease in avoidance.260 However, coyotes may be attracted to the wind energy facility because of bird deaths caused by the turbines.261 This may explain why coyotes and raptors were not affected when mammalian predators, who prefer to catch prey, were affected. Studies on Greater Prairie Chicken suggest that the effects from wind energy development are not as negative as originally thought. The science available for the effects of wind energy development on Greater Sage-Grouse behavior and survival in relation to wind energy development is developing. However, with the risk of the extinction of the species being high, it is important for policy makers to attempt to make policy for Greater Sage-Grouse protection. Ideally, this policy is based on the science. Unfortunately, with limited science, policy makers are driven either to not make policy and risk the extinction of Greater Sage-Grouse or make policy based on the limited science available. This is where studies of Greater Prairie Chicken can help fill in the gaps of the limited Greater Sage- Grouse studies. Policy based on the limited Greater Sage-Grouse science alone may lead to the extinction of Greater Sage-Grouse, however, it also has at least the possibility of helping the species if Greater Prairie Chicken studies are considered as well. Creating policy based on the science that can be found is the option current policy makers have chosen. Chapter 3 – Existing Greater Sage-Grouse Protection Policies Applicable to Wyoming The conflicts between Greater Sage-Grouse and wind energy development are expected to be high based on Figure 5., especially in Wyoming. Wyoming, as the manager of Greater Sage- Grouse, has taken many steps through statues, regulations, executive orders, Wyoming Game and Fish, Wyoming Department of Environmental Quality, and Wyoming Oil and Gas 258 Id. 259 Id. 260 Id. 261 LeBeau, et al. (2014), supra note 38 at 528. 35 Conservation Commission to ensure Greater Sage-Grouse protection. The BLM is also taking protection steps because it is required to manage its lands for multiple use. According to the BLM’s website “this means supporting an all-of-the-above energy approach through environmentally responsible development.”262 The BLM must also follow the following Greater Sage-Grouse Management Policies and Procedures when accommodating the tolerated disturbance to Greater Sage-Grouse habitat. 3.1 Wyoming Policies on Greater Sage-Grouse In addition, 68% of the Wyoming’s landscape is potentially occupied during a portion of the year by Greater Sage-Grouse.263 The land used by Wyoming’s Greater Sage-Grouse population is further managed as core or non-core areas, as discussed below. The core area policy protects significant quantity and quality of Greater sage-grouse habitat across the state.”264 This area encompasses 83% of the Greater Sage-Grouse population and 24% of the surface area used by Greater Sage-Grouse in Wyoming.265 Minimizing disturbance in core areas has been determined to be the most effective way to limit the loss and possible extinction of the Greater Sage-Grouse. This is a concern when 21% of core area has high wind potential and 30% of core area is authorized for oil and gas development in Wyoming.266 The USFWS’s 2012 guidelines for Wyoming stated there would be no wind energy development within Greater Sage-Grouse core areas or 0.4 km outside of occupied leks in non-core areas.267 262 United States Bureau of Land Management, About: How We Manage, available at: www.blm.gov/about/how-we-manage. Subsequently listed as US BLM About. 263 Temple Stoellinger and David “Tex” Taylor, A Report on the Economic Impact to Wyoming’s Economy From a Potential Listing of the Sage Grouse, 17 Wyo. L. Rev. 79, 82 (2017) available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3070623. 264 Wyo. Exec. Order No. 2019-3 (August 21, 2019). 265 Edmunds, et al. supra note 14 at 398. 266 75 FED. REG., supra note 5 at 13950. 267 LeBeau, et al. (2017b), supra note 197 at 41. 36 3.1.1 Wyoming Game and Fish Department Greater Sage-Grouse Conservation Plans In 2003, the Wyoming Game and Fish Department formed working groups composed of individuals from agriculture, conservation, industry, and natural resource agencies to implement Wyoming’s statewide Greater Sage-Grouse conservation plan at local levels.268 At the time, Wyoming acknowledged the Greater Sage-Grouse was considered for listing under the ESA and a listing of the Greater Sage-Grouse under the ESA would have a significant negative effect on Wyoming’s economy. The Wyoming Greater Sage-Grouse Commission also created the Wyoming Greater Sage- Grouse Conservation Plan in 2003. The Plan was created to address the declining Greater Sage- Grouse population.269 Although the population has maintained relatively steady since the sharp decline in the 1990’s the Wyoming Game and Fish was concerned with an overall continued decline in the species.270 Despite the conservation effort for the species, hunting of Greater Sage- Grouse has continued, although the number of hunters, daily limit, and overall harvest of Greater Sage-Grouse has decreased.271 3.1.2 Wyoming Statutes Regarding Greater Sage-Grouse In 2007, at the request of Governor Freudenthal, the Wyoming legislature pass Wyoming Statutes Annotated §9-19-101 which created the Sage-Grouse Implementation Team (SGIT) to develop a statewide plan to maintain or increase the Greater Sage-Grouse population and habitat 268 Edmunds, et al., supra note 14 at 398. 269 Wyoming Game and Fish Department, Annual Report, page 2 of directors summary (2003) available at: https://wgfd.wyo.gov/WGFD/media/content/PDF/About%20Us/Commission/WGFD_ANNUALRE PORT_2003.pdf. 270 Id. at 73. 271 Id. 37 to prevent listing of the Greater Sage-Grouse under the ESA.272 The statute requires that the SGIT consists of members from multiple industries and interests to review data and make recommendations to the Governor regarding funding and continued conservation of Greater Sage-Grouse and their habitat.273 The statute also requires the SGIT to make recommendations to the Governor on possible necessary regulatory actions.274 The SGIT developed a core area policy to protect the most utilized Greater Sage-Grouse habitat.275 The SGIT core area policy initiated with maps created in a study by sage grouse scientific experts Kevin E. Doherty, Jason D. Tack, Jeffrey S. Evans, and David E. Naugle to show priority conservation areas in Wyoming.276 The authors were asked to complete the study to inform the SGIT of high breeding densities of Greater Sage-Grouse.277 The study describes the biological basis for delineating the core areas upon which the Core Area Policy is based.278 It describes the core area as “high abundance population centers that contain… the known breeding population for use in conservation planning.”279 The study concluded that, although Greater Sage-Grouse populations occupy across a large acreage, they have dense concentrations during the breeding season.280 The areas where the population is highest are likely to be the most important landscapes for the species, although other habitats are needed as well.281 A map of the Greater Sage-Grouse population and a map of the then existing and already committed energy disturbances were overlaid.282 After considering public comment and the overlaid maps, the Sage 272 Thomas J. Chistiansen and Lorien R. Belton, Wyoming Sage-Grouse Working Groups: Lessons Learned, 11 HUMAN-WILDLIFE INTERACTIONS 274 (2017) available at: https://digitalcommons.usu.edu/cgi/viewcontent.cgi?article=1406&context=hwi. 273 Wyoming Statutes Annotated §9-19-101. 274 Id. 275 Doherty, et al., supra note 29. 276 Id. at 10. 277 Id. at 2. 278 Id. 279 Id. 280 Id. at 8. 281 Id. at 10. 38 Grouse Implementation Team delineated the core areas for Greater Sage-Grouse conservation.283 Other states have followed in Wyoming’s steps creating their own working groups to manage Greater Sage-Grouse. Although the policies have been criticized, the state with the most approval is Wyoming.284 Wyoming Statutes §18-5-501 through §18-5-513 were also enacted in 2010. The statutes regulate wind energy facilities in Wyoming, although it leaves most of the regulation up to the county where the energy facility will be built. It does require that the wind energy facility certify that the facility provide notice in writing to all land owners within 1 mile, all cities within 20 miles, and a newspaper of general circulation in all counties of the proposed facility; that it will comply with all standards, zoning, and regulations; the facility has a written emergency, waste management, project, decommission, and reclamation plan; and that it has adequate legal access; and will not have advertising on the turbines.285 The board of county commissioners must collect the application of the project.286 A public hearing must also be held between 45 and 60 days after the county commissioners decide the application is complete.287 Within 45 days of the public hearing, the board of county commissioners must approve or deny the project.288 The statute also lists penalties for constructing a wind energy facility without a permit.289 Although the county board of commissioners may have a requirement for Greater Sage-Grouse protection, there is no requirement in the statute to avoid Greater Sage-Grouse core areas or avoid negative impacts on Greater Sage-Grouse. Wind energy facilities must also be approved by the Wyoming Department of Environmental Quality Industrial Siting Council which may also include Greater Sage-Grouse protection measures.290 282 Id. 283 Id. 284 Id. at 280-281. 285 Wyoming Statutes Annotated §18-5-503 286 Id. at 505 287 Id. at 506 288 Id. at 507 289 Id. at 512 290 Wyo. Dep’t. of Envt’l Quality, Industrial Siting Council, ch. 1 § 9. 39 In 2017, the Wyoming legislature passed legislation that would allow private bird farms to collect eggs from wild Greater Sage-Grouse to develop captive flocks.291 The Wyoming Department of Game and Fish was then required to develop regulations for that activity.292 Although other parts of the legislation, such as hunting licenses, will likely create revenue for the conservation of the species, the low reproductive rates of wild Greater Sage-Grouse populations could be negatively impacted with removal of viable eggs.293 From 2005 to 2017, the Wyoming legislature provided almost $7 million, which does not include federal or private dollars, to the implementation of the Wyoming Greater Sage-Grouse Conservation Plan.294 220 projects have been implemented under the Plan, including sagebrush protection, invasive plant control, restoration, grazing management, education, and research.295 However, state funding was shifted from the Wyoming legislature to the Wyoming Game and Fish Department in 2017.296 3.1.3 Wyoming Executive Orders Regarding Greater Sage-Grouse In 2008, Wyoming’s Governor at the time, Dave Freudenthal, acknowledged more needed to be done to protect Greater Sage-Grouse and passed Wyoming’s first Executive Order on Greater Sage-Grouse, 2008 Executive Order 2. The 2008 Order acknowledges Greater Sage- Grouse are in need of protection and that Wyoming has a significant portion of their remaining habitat.297 The 2008 Order used SGIT recommendations to demand protection of Greater Sage- Grouse in Wyoming to the greatest extent possible, especially in core population areas.298 It also required funding for habitat assessment and reclamation efforts.299 The 2008 Order stressed using 291 Christiansen, supra note 52 at 225. 292 Id. 293 Id. 294 Christiansen and Belton, supra note 288 at 278. 295 Id. 296 Id. at 279. 297 Wyo. Exec. Order No. 2008-2 (Aug. 1, 2008). 298 Id. 40 a non-regulatory approach to influence Greater Sage-Grouse conservation measures, such as incentives to avoid development inside core areas and increase conservation of the species.300 The consequence of this was no wind energy development in core areas. The last portion of the 2008 Order required Wyoming agencies to work collaboratively with federal agencies as well as landowners to ensure Greater Sage-Grouse habitat and population received the highest conservation efforts possible.301 Governor Dave Freudenthal issued a revised Executive Order in 2010 because the core area policy had been re-evaluated.302 This Order stated core areas should not be altered for at least five years.303 It also recognized any land uses that were existing prior to the implementation of the core area policy would not be managed under the policy.304 However, any new activity must demonstrate it would not have negative effects on Greater Sage-Grouse populations in the area.305 The 2010 Order continued to demand funding and collaboration for habitat enhancing and reclamation, the utmost protection of Greater Sage-Grouse and core habitat areas, and an incentive program rather than a regulatory approach to management.306 The 2010 Order declared no surface activity would be allowed within a quarter mile of core areas and no surface activity would be allowed within two miles of occupied leks during mating season with incentives given for developing outside of core area.307 The 2010 Order also reiterated that existing land activities would not be subject to the core area policy; only new activities.308 It went on to state additional habitat was included in the core area policy that was not necessary to protect the species because 299 Id. 300 Id. 301 Id. 302 Wyo. Exec. Order No. 2010-4 (Aug. 18, 2010). 303 Id. 304 Id. 305 Id. 306 Id. 307 Id. 308 Id. 41 of the expected impacts from continuing land use activities.309 The 2010 Order also declared, if new transmission infrastructure would be constructed, it would also be subject to the core area policy.310 To be in compliance, new transmission infrastructure must be within a half of a mile on either side of existing transmission lines if built in winter habitat or if it can be demonstrated that there will be no negative effect on Greater Sage-Grouse populations outside of the approved zone.311 When Governor Matthew Mead was elected in 2011 he shared the concern for Greater Sage-Grouse and signed an executive order. The 2011 Order reiterated the importance of maintenance and enhancement of Greater Sage-Grouse habitat under collaboration between state agencies, national agencies, and landowners and demanded funding for the necessary conservation activities.312 The 2011 Order also continued to acknowledge that existing land activities in core area would not be subject to the core area policy and push for a non-regulatory approach to conservation.313 Governor Matthew Mead ensured the conservation of Greater Sage- Grouse continued despite an administrative shift in the Governor’s office. In 2015 Governor Mead revised the executive order. The 2015 Order started by stating state agencies should strive to follow the Order while also recognizing adjustments may be necessary.314 Existing land uses continued to be protected and new activities must demonstrate they will not have a negative effect on Greater Sage-Grouse populations.315 Incentives rather than regulatory management continued to be expected for state agency, national agency, and landowner conservation of Greater Sage-Grouse.316 The 2015 Order also added the voluntary enrollment of conservation easements for Greater Sage-Grouse.317 309 Id. 310 Id. 311 Id. 312 Wyo. Exec. Order No. 2011-5 (June 2, 2011). 313 Id. 314 Wyo. Exec. Order No. 2015-4 (July 29, 2015). 315 Id. 316 Id. 317 Id. 42 When Governor Mark Gordon took office, another executive order was issued, making him the third Wyoming governor to support conservation of Greater Sage-Grouse. The order started by addressing the importance of conserving Greater Sage-Grouse including for Wyoming’s economy, culture, and native areas.318 It went on to recognize the necessity of discovering and implementing new science in legislation, continuing core area protection, conservation agreements with landowners, agency cooperation, protecting already existing land uses, responsible development, habitat enhancement and reclamation, incentives for nonregulatory management, fire suppression, monitoring, and documenting.319 3.2 Federal Policies on Greater Sage-Grouse The 1999 the “Memorandum of Understanding among members of Western Associations of Fish and Wildlife Agencies for the Conservation and Management of Sage Grouse in North America” occurred between agencies who were members of the Western Association of Fish and Wildlife Agencies.320 It was the first federal policy regarding conservation of Greater Sage- Grouse. The memorandum described the cooperation of the members to conserve Greater Sage- Grouse.321 The next policy was the 2000 memorandum of Understanding between the Western Association of Fish and Wildlife Agencies, U.S. BLM, U.S. FWS, and U.S. Forest Service.322 This Memorandum focused on the conservation of Greater Sage-Grouse through the conservation of sagebrush habitats.323 318 Wyo. Exec. Order No. 2019-3 (August 21, 2019). 319 Id. 320 Western Association of Fish and Wildlife Agencies, U.S. Department of Agriculture Forest Service, U.S. Department of the Interior Bureau of Land Management, U.S. Department of the Interior Fish and Wildlife Service, U.S. Department of the Interior Geological Survey, U.S. Department of Agriculture Natural Resources Conservation Service, and U.S. Department of Agriculture Farm Service Agency, Memorandum of Understanding, 2 (2008) available at: https://prd-wret.s3-us-west- 2.amazonaws.com/assets/palladium/production/s3fs-public/atoms/files/mou_sage_grouse.pdf. Subsequently listed as 2008 MOU. 321 Id. 322 Id. 323 Id. 43 The 2000 Memorandum was followed by BLM’s 2004 National Sage-Grouse Habitat Conservation Strategy which was created to guide future conservation efforts for Greater Sage- Grouse.324 The strategy gave an overview of Greater Sage-Grouse populations and listed goals for addressing conservation measures, enhancing knowledge, expanding partnerships, and ensuring leadership and resources are available for the future.325 Next was the 2006 Greater Sage-Grouse Comprehensive Conservation Strategy. It had the goal of protecting sagebrush habitats to improve the population and distribution of Greater Sage- Grouse by developing partnerships to implement necessary actions.326 The main concerns of the strategy were monitoring, research, communication and outreach, adaptive management, and allocating responsibilities.327 The 2008 Sagebrush Memorandum of Understanding followed two years later and was between Western Association of Fish and Wildlife Agencies, U.S. Forest Service, U.S. BLM, U.S. FWS, U.S. Geological Survey, U.S. NRCS, and U.S. Farm Service Agency.328 The purpose of the memorandum was to provide cooperation between federal agencies regarding conservation of Greater Sage-Grouse.329 The agencies had decided up until that point the focus had been on conservation planning and that it was time to switch from conservation planning to conservation action.330 The objectives of the memorandum were to implement the strategies that had previously been proposed.331 324 United States Department of Interior, Bureau of Land Management, National Sage-Grouse Habitat Conservation Strategy, 3 (2004) available at: https://www.blm.gov/documents/national- office/blm-library/report/november-2004-blm-national-sage-grouse-habitat. Subsequently listed as US BLM 2004 Strategy. 325 Id. 326 Western Association of Fish and Wildlife Agencies, National Sage-Grouse Conservation Planning Framework Team, Greater Sage-Grouse Comprehensive Conservation Strategy, i (2006) available at: https://wdfw.wa.gov/sites/default/files/publications/01317/wdfw01317.pdf. Subsequently listed as WAFWA 2006 Strategy. 327 Id. at 1-3, 1-4. 328 2008 MOU, supra note 334 at 1. 329 Id. at 2. 330 Id. at 2-3. 331 Id. at 2. 44 The 2009 the BLM created the Oil and Gas Leasing Screen for Greater Sage-Grouse to help Wyoming field specialists in determining leasing in Greater Sage-Grouse habitat.332 The screen consisted of 4 questions a specialist should reflect on to evaluate the area for oil and gas development.333 The first question was whether the parcel was in core Greater Sage-Grouse area.334 If the answer was no, the application for oil and gas development could be approved; if the answer was yes, move on to the next question.335 The second question was whether the parcel was within suitable Greater Sage-Grouse habitat.336 If the answer was no, the application for oil and gas development could be approved; if the answer was yes, move on to the next question.337 The third question was whether the parcel was a part of at least 11 square miles of contiguous, manageable, unleased federal minerals.338 If the answer was no the application for oil and gas development could be approved; if the answer was yes, the specialist should consult the State Office Reservoir Management Group for potential drainage.339 The fourth question was whether the Reservoir Management Group identified that the parcel had potential drainage issues.340 If the answer was yes, the application for oil and gas development could be approved; if the answer was no, the parcel should be deferred.341 The BLM created the Greater Sage-Grouse Interim Management Policies and Procedures Memorandum in 2009 to provide policies for BLM field officers to apply when assessing activities 332 United States Bureau of Land Management, Instruction Memorandum No. WY 2010-013 (2010) available at: https://www.blm.gov/policy/im-wy-2010-013. Subsequently listed as US BLM O&G Lease Screen. 333 Id. 334 Id. 335 Id. 336 Id. 337 Id. 338 Id. 339 Id. 340 Id. 341 Id. 45 in Greater Sage-Grouse habitat.342 The BLM’s strategy was protection of unfragmented habitats, minimizing habitat loss and fragmentation, and management of habitats to maintain, enhance, or restore conditions in Greater Sage-Grouse habitat.343 The memorandum listed processes for vegetation management, wildfire, right of ways for energy projects, leasable minerals, grazing management, recreation permits, travel management, grasshopper control, wild horse and burro management, realty actions, and preliminary general habitat.344 This memorandum was to be utilized until the Greater Sage-Grouse Plan was completed.345 In 2011, the BLM Washington Office released the Gunnison and Greater Sage-Grouse Management Considerations for Energy Development Memorandum to supplement the BLM’s 2004 National Sage-Grouse Habitat Conservation Strategy.346 The memorandum addressed environmental responsibility for all energy development, oil and gas, geothermal, wind, and solar, in Greater Sage-Grouse habitat.347 The BLM’s concern for the listing of Greater Sage-Grouse under the ESA led to stronger conservation measures such as the creation of “priority habitat.”348 The BLM defines “priority habitat” as “habitat of highest conservation value relative to maintaining sustainable sage-grouse populations range-wide” “areas of high quality habitat supporting important sage-grouse populations, including those populations that are vulnerable to localized extirpation but necessary to maintain range-wide connectivity of genetic diversity.”349 The memorandum stated oil and gas leases in priority habitat should be withheld or deferred, attach lease notices to new leases alerting the operators of additional conditions that will be 342 United States Department of the Interior, Bureau of Land Management, Washington, D.C., Greater Sage-Grouse Interim Management Policies and Procedures (November 2017), available at: https://www.blm.gov/policy/im-2012-043. Subsequently listed as US BLM Interim Management Policies and Procedures. 343 Id. 344 Id. 345 Id. 346 US BLM 2004 Strategy, supra note 338. 347 Id. 348 Id. 349 Id. 46 applied if leases are approved, and actually attach protective restrictions as appropriate.350 Wind leases should be screened under the Land-Based Wind Energy Guide to determine if the area is priority habitat and alert the applicant if the area is in priority habitat which may mean the lease may be denied or conditions imposed to protect the priority habitat.351 The memorandum also states energy transmission lines should be re-routed to avoid priority habitat.352 Also, all approved projects must consider how the project can avoid, minimize, and mitigate negative impacts to Greater Sage-Grouse.353 As a result of the Gunnison and Greater Sage-Grouse Management Considerations for Energy Development Memorandum, the State-Federal Sage-Grouse Task Force was established as a way for state and federal representatives to meet and evaluate policies, programs, and management, and share data.354 In 2012, USFWS created a Land-Based Wind Energy Guide to assist developers in assessing the possible negative effects to species in the desired area as well as assessing the impacts after completion of the project to determine possible actions to compensate for impacts.355 Although this is strictly a voluntary process that developers can use to ensure they consider every aspect before, during, and after building a wind energy site.356 It brings attention to many aspects that developers must consider.357 For instance, one of the species of concern is Greater Sage- Grouse.358 The Guide also alerts the developers to the possible difficulties of working in areas with Greater Sage-Grouse such as extended surveys and seasonal changes.359 It also stresses that 350 Id. 351 Id. 352 Id. 353 Id. 354 Department of Interior, Secretarial Order No. 3353 (June 7, 2017) available at: https://www.doi.gov/sites/doi.gov/files/uploads/so_3353.pdf. 355 United States Fish and Wildlife Service, U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines, 1 (2012) available at: https://www.fws.gov/ecological-services/es- library/pdfs/WEG_final.pdf. Subsequently listed as USFWS Wind Energy Guidelines. 356 Id. at vii. 357 Id. at 4. 358 Id. at 17-18. 47 because the science is limited, caution should be used when making determinations for a site in Greater Sage-Grouse areas.360 The 2015 Greater Sage-Grouse conservation plans were added to the land use plans of 10 western states during the amendment process to their 1998 BLM and United States Forest Service plans.361 This led to the case brought before Judge Winmill discussed below. As discussed above, the RMP revision discussed the area of protection, goals, management decisions, consultation requirements, and how to implement the plan.362 The goal of the RMP revision was to conserve and enhance Greater Sage-Grouse habitat while still providing for multiple use on BLM land.363 Solar and Wind Energy Rule passed in 2016 amends regulations under the Federal Land Policy and Management Act and the Mineral Leasing Act to facilitate responsible development on BLM lands.364 The rule supports development in areas with high potential, but low resource conflicts – called designated leasing areas.365 Energy developers file applications to site projects on BLM land with the BLM.366 The application with the highest bid is the winning application.367 Under the new rule, application fees are added to applications for leases outside of the designated leasing areas, as well as the winning bidder outside of the designated leasing areas will be allowed to apply for a lease, while the winning bidder inside of the designated leasing areas will be offered a lease.368 The creation of designated leasing areas is through the BLM’s Resource 359 Id. at 18. 360 Id. 361 United States Department of Interior, BLM, USFS Plans for Western Public Lands Provide for Greater Sage-Grouse Protection, Balanced Development, Press Release (May 28, 2015) available at: https://www.doi.gov/pressreleases/blm-and-usfs-plans-for-western-public-lands-provide-for-greater- sage-grouse-protection-and-balanced-development. Subsequently listed as USFS Press Release. 362 2008 MOU, supra note 334. 363 Id. 364 Competitive Processes, Terms, and Conditions for Leasing Public Lands for Solar and Wind Energy Development and Technical Changes and Corrections, 81 FED. REG. 92122 (December 19, 2016). 365 Id. at 92125. 366 Id. at 92123. 367 Id. 368 Id. 48 Management Plans.369 The BLM’s Greater Sage-Grouse Resource Management Plan did not designate any designated leasing areas.370 However, the plan protects primary and general habitat from wind energy development impacts.371 The 2017 Gunnison and Greater Sage-Grouse Habitat Assessment Policy memorandum was created to clarify and add guidelines for BLM field officers when assessing Greater Sage- Grouse habitats.372 The Memorandum had the goal of promoting consistency when completing Greater Sage-Grouse habitat assessments.373 The creation and utilization of a habitat assessment summary report was mandated along with Greater Sage-Grouse habitat data acquisition and management, and habitat suitability indicator values were established.374 The Department of Interior Secretarial Order 3353 Greater Sage-Grouse Conservation and Cooperation with Western States was also created in 2017.375 The Order was created to enhance cooperation between the Department of Interior and western states in the management and conservation of Greater Sage-Grouse.376 The Order was issued under the Reorganization Plan demanding review of all planning decisions made by the previous administration relative to Greater Sage-Grouse.377 Improving the relationship between federal and state employees will improve the conservation and management of Greater Sage-Grouse.378 The Order demands memorandums of understanding are created between the federal and state governments and training of staff is implemented.379 It also established the Sage-Grouse Review Team to coordinate 369 Id. at 92125. 370 Id. 371 Id. 372 United States Bureau of Land Management, Instruction Memorandum No. 2018-021 (2018) available at: https://www.blm.gov/policy/im-2018-021. Subsequently listed as US BLM Habitat Assessment Policy. 373 Id. 374 Id. 375 Secretarial Order No. 3353, supra note 368. 376 Id. 377 Id. 378 Id. 49 national and local conservation activities, review previous conservation plans, and provide recommendations for captive breeding, efficacy of targets, and possible additional steps.380 In March 2019 the BLM revised its 2015 conservation plans.381 The 2019 Amendments discuss the conservation area, goals, alternatives considered in the environmental impact statement, management considerations, mitigation, plan monitoring, and consultation, much like the 2015 Plan.382 In November 2019 the Federal District Court of Idaho ruled the 2019 revisions only considered the BLM’s preferred outcome.383 The court noted the 2019 revisions weakened the protections of Greater Sage-Grouse in the 2015 plan without justification making the one outcome considered not reasonable.384 The court concluded that the 2019 revisions would cause irreparable harm to Greater Sage-Grouse which the public has an interest in protecting.385 Therefore, the current regulation is back to the 2015 conservation plans.386 An appeal of the court’s decision was filed by the BLM in December 2019. Chapter 4 – Conflict in the Courts There have only been two occasions for the courts to hear a case involving Greater Sage- Grouse and wind energy development. Both of those cases were heard in a United States District Court, appealed, and heard again in an Appeals Court. There have also been two cases challenging the BLM Resource Management Plans (RMP) pertaining to Greater Sage-Grouse. The “RMPs are the planning-level decisions that determine the areas of public lands that are open for 379 Id. 380 Id. 381 Wyoming BLM 2019 Plan, supra note 102. 382 Id. 383 Western Watersheds Project v Bernhart, 2019 U.S. Dist. LEXIS 181043 (D. Idaho 2019). 384 Id. 385 Id. 386 Id. 50 activities such as oil and gas leasing and development, livestock grazing, rights-of-way, and other activities, and impose limits or conditions on how such activities may be approved….”387 4.1 Cases Challenging Wind Energy Development Because wind energy development in large wind farms is a contemporary energy source and because it takes time for a case to work its way through the judicial process, the cases regarding wind energy development and the protection of Greater Sage-Grouse are limited. As wind energy facilities continue to be constructed in Greater Sage-Grouse habitat, the conflicts brought to court will continue to increase. 4.1.1 Western Watersheds Project v BLM Western Watersheds Project v BLM was a 2011 case arising in the United States District Court for the District of Nevada regarding approval of a wind turbine facility in Greater Sage-Grouse habitat.388 The decision was written by District Judge McKibben. Western Watersheds Project (WWP), an environmental group with the mission of protecting and restoring western watersheds and wildlife, filed a motion for a temporary restraining order and/or preliminary injunction to stop the BLM from authorizing the construction of a wind energy facility site because of the negative effects it would have on Greater Sage-Grouse.389 WWP argued that the BLM approving construction of the wind energy facility would irreparably harm Greater Sage- Grouse. The disputed wind energy facility is located in Spring Valley, Nevada and would cover approximately 430 acres with 66-75 400-foot tall wind turbines and other structures including roads, two gravel pits, electrical lines, and microwave towers. and provide.390 Three Greater Sage- 387 Plaintiffs’ Opening Brief in Support of Motion for Preliminary Injunction at 15, Western Watersheds v Bernhardt, No. 1:16-cv-00083-BLW (D. Idaho April 19, 2019). 388 Western Watersheds Project v BLM, 774 F. Supp. 2d 1089 (D. Nev, 2011). 389 Id. at 1091. 390 Id. The project was also expected to power 45,000 Nevada homes, provide up to $3 million in tax benefits to local school districts, and provide 225 jobs, and provide $45 million in economic benefit for Nevada. Id. 51 Grouse leks were found within a mile of the project site, but none were found in the project area.391 This is likely due to the project site being located in an area that is considered low quality sagebrush habitat.392 The developer’s project was also approved for “fast track” approval.393 The preliminary environmental assessments (EA) issued by the BLM concluded that the project would pose no significant environmental impacts and the BLM officially approved the project through a Record of Decision (ROD), Finding of No Significant Impact (FONSI), and a Final EA.394 WWP’s complaint alleged the BLM violated the National Environmental Policy Act (NEPA) and asked for a temporary restraining order and/or a preliminary injunction to stop the construction of the wind energy facility.395 To be granted a preliminary injunction, WWP was required to prove: a likelihood of success on the merits, a likelihood WWP will suffer irreparable harm in the absences of preliminary relief, the balance of the equities sharply favors WWP, and an injunction is in the public interest.396 WWP claimed the “fast track” approval did not allow for complete consideration of all possible negative effects.397 Specifically, WWP argued “(1) there are significant and unknown environmental impacts to the project site that warrant an EIS, not just an EA;398 (2) the BLM's 391 Id. Although there are 38 Greater Sage-Grouse leks in Spring Valley, the project site is considered low quality sagebrush habitat. Id. 392 Id. 393 Id. at 1092. In 2009 the federal government announced the “fast track” approval process for the most promising renewable energy projects. Id. The “fast track” process allowed the BLM to focus on the most promising renewable energy projects. Id. 394 Id. 395 Id. at 1093. WWP did first file an administrative appeal and petition for stay to the Interior Board of Land Appeals (IBLA), however they filed a notice of dismissal of that appeal shortly before filing this suit. Id. 396 Id. “An injunction is not a remedy that issues automatically in an environmental case…. There is no presumption that environmental harm should outweigh other harms to the public interest.” Id. 397 Id. at 1094. 398 NEPA requires federal agencies, like the BLM, to prepare an environmental impact statement EIS for all "major Federal actions significantly affecting the quality of the human environment…. This is to ensure that the agency "will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be 52 decision provided no detailed statement of reasons establishing that the project's impacts are insignificant; (3) the BLM failed to take a "hard look" at the environmental impacts without adequate scientific data, including impacts to bats and sage-grouse, and the cumulative environmental impacts of the project; (4) the decision did not properly consider or address public comments and opposing views; and (5) the final EA failed to consider an adequate range of alternative courses of action.”399 Although the BLM must have analyzed the potential negative environmental impacts, it may have decided an EIS was unnecessary because of adopted mitigation measures, even if those measures did not completely compensate for the expected negative environmental effects.400 The area of the facility was already fragmented by roads and facilities; maybe what led to the project area not being high quality sagebrush habitat.401 Despite the area being low quality habitat for Greater Sage-Grouse, the BLM planned to implement mitigation measures to reduce the impact on any Greater Sage-Grouse in the area.402 On top of the BLM mitigation measures, the developer had committed $500,000 to enhance sagebrush habitat in the area.403 The Court concluded the BLM’s decision not to conduct an EIS because of the mitigation measures that were to be put in made available to the larger [public] audience." Id. at 1094-1095. “An EA is a 'concise public document that briefly provide[s] sufficient evidence and analysis for determining whether to prepare an EIS or a finding of no significant impact' (FONSI)." Id. at 1095. An agency, like the BLM can prepare an EA to determine if an EIS is required because a project will “significantly affect” the environment. Id. However, if the agency decides an EIS is unnecessary, it must “provide a detailed statement of reasons explaining why the proposed project’s impacts are insignificant. Id. 399 Id. at 1094. 400 Id. at 1095. "In evaluating the sufficiency of mitigation measures, the court considers whether they constitute an adequate buffer against the negative impacts that may result from the authorized activity, specifically, examining whether the mitigation measures will render such impacts so minor as to not warrant an EIS." (internal quotations emitted). Id. 401 Id. at 1096. The closest lek to the project site is 1.5 miles away and is separated by a state highway. Id. Two other leks are about 6000 feet from the project site and are separated by a U.S. highway, state highway, and other dirt roads. Id. 402 Id. Permitted activities were restricted within 2 miles of a lek during Greater Sage-Grouse mating season and requirements were put in place to prevent weeds, protect soil, and installation of anti- perching devises to reduce predation. Id. 403 Id. The $500,000 was also eligible for federally matched funding; making the possible restoration budget $1,000,000. Id. 53 place was justified and “supported by analytical data and they adequately buffer[ed] against any potential negative impacts.”404 The caused WWP’s first claim to be decided in favor of the BLM. When the BLM is determining whether to conduct an EIS it must also consider whether the approved action is related to other actions that individually would be insignificant, but together would be significant.405 The Court concluded the chart the BLM included in the EA discussing ranching, grazing, utilizing existing fencing, and vegetation treatment and a more detailed section on the impacts to Greater Sage-Grouse was sufficient to consider the cumulative impacts of the project and take a “hard look.”406 Therefore, WWP’s second claim was decided in favor of the BLM. Judge McKibben also stated although there is uncertainty regarding the project’s impacts, the BLM provides substantial scientific evidence that the project will not significantly affect Greater Sage-Grouse and the permanent disturbance would be even less after the restoration efforts.407 The Court therefore concluded that “the BLM provided a detailed statement of reasons explaining why the proposed project’s impacts are insignificant.”408 WWP’s third claim was also decided in favor of the BLM. WWP also claimed when considering alternatives, the BLM should have considered avoiding siting projects in Greater Sage-Grouse leks and avoiding creating attractions for Greater Sage-Grouse predators.409 However, Judge McKibben noted the BLM looked to other documents, were going to install anti-predator mitigation measures, the site is located in low quality sagebrush habitat, and the site has no active leks within project boundaries.410 The Court therefore concluded that the BLM addressed each of WWP’s concerns and explained if the measure was 404 Id. at 1098. 405 Id. at 1099. 406 Id. at 1099-1100. 407 Id. at 1100. 408 Id. 409 Id. 410 Id. at 1100-1101. 54 adopted, modified, or rejected and why.411 WWP’s fourth and fifth claim was therefore also decided in favor of the BLM. Based on the previous discussion, the Court concluded WWP was not likely to succeed on the merits of their case.412 The Court also concluded WWP did not prove irreparable injury to Greater Sage-Grouse if an injunction was not granted.413 Judge McKibben noted the habitat of the site was already poor, the closest lek was found 1. 5 miles away from the project site, and the restoration measures would enhance the existing habitat.414 The Court then considered the balance of the equities. The Court reasoned that the wind energy facility would contribute to the federal renewable energy goals, benefit Nevada’s economic recovery, and delaying the project might result in a loss of the loss of the funding for the project and therefore the project itself because it would cause Nevada to default on their contracts with Nevada Energy.415 The Court therefore concluded that the balance of the equities is in favor of the BLM.416 Lastly, the Court concluded the public has a strong interest in the project continuing.417 The nation and Nevada have a strong economic interest in the project continuing.418 Although the public has an interest in conserving Greater Sage-Grouse, that interest is outweighed by the interest of the project continuing.419 The Court’s overall conclusion was to deny the temporary restraining 411 Id. at 1101. 412 Id. “The court concludes the BLM considered all the relevant factors, including important mitigation measures, took a ‘hard look’ at the environmental impacts, and, therefore, did not act arbitrarily, capriciously, or abuse its discretion when it decided that the project's impacts on the environment would be insignificant and an EIS was not required.” Id. 413 Id. at 1102. 414 Id. 415 Id. at 1103. 416 Id. 417 Id. 418 Id. “Congress has articulated the public policy that our nation should incorporate clean energy as a necessary part of America's future and it is essential to securing our nation's energy independence and decreasing green house emissions.” Id. “The project would generate over 220 new jobs with priority to Nevada residents and over $20 million in wages…. Additionally, it would provide millions of dollars in property tax revenue…. Nevada is also committed to developing renewable energy sources.” Id. at 1103-1104. 419 Id. at 1104. 55 order/preliminary injuction because WWP did not prove a likelihood of success on the merits, a likelihood of irreparable harm to Greater Sage-Grouse if the injunction was not granted, the balance of the equities was in favor of the BLM, and the public interest was in favor of the project continuing.420 After losing at the District Court, WWP filed a motion in the same District Court for an injunction pending appeal of the District Court decision.421 On appeal, WWP asked the District Court for an injunction to stop the BLM from authorizing the wind energy facility while WWP was appealing the case to the appellate court.422 The Court noted the wind energy project will be completed in phases.423 The current approval is only for phase one, about 60 to 70 wind turbines.424 Although the complete plan includes up to 1,000 turbines, the BLM will need to obtain approval for every phase increasing turbines.425 In the event environmental effects are found to occur from the 60 to 70 turbines, further development can be stopped.426 WWP’s arguments were essentially the same, and the injunction was again denied because they failed to establish irreparable harm to Greater Sage-Grouse if an injunction was not granted.427 4.1.2 Oregon Natural Desert Association v BLM Oregon Natural Desert Association v BLM was a 2011 case in the United States District Court for the District of Oregon, Portland Division under Judge King.428 Oregon Natural Desert Association (ONDA) asked for a temporary restraining/preliminary injunction order to stop the BLM’s planned juniper treatment because of the project’s short term effects on Greater Sage- 420 Id. 421 Western Watersheds Project v BLM, 2011 U.S. Dist. LEXIS 50056 (D. Nev., 2011). 422 Id. at 1. 423 Id. at 20. 424 Id. 425 Id. 426 Id. 427 Id. 428 Oregon Natural Desert Association v. BLM, 2011 U.S. Dist. LEXIS 131784 (D. Or., 2011). 56 Grouse.429 ONDA argued new information has been found which should cause the BLM to prepare a supplemental EIS.430 However, the BLM stated the ‘new information’ had already been accounted for in the original EIS for the project.431 ONDA then filed a supplemental complaint seeking to stop the project because it violated NEPA, The Federal Land Policy and Management Act (FLPMA), and the Steens Mountain Cooperative Management and Protection Act (Steens Act) by destroying sagebrush habitat.432 The BLM’s project was to remove juniper trees to reduce fire fuel and restore plant communities on approximately 336,000 acres on Steens Mountain.433 To conduct the project, the BLM planned to use “prescribed fires, cutting down and girdling trees, fencing, seeding, and planting.”434 ONDA was concerned with the size and execution measures of the project because 14 Greater Sage-Grouse leks are in the project area.435 The BLM responded to that concern by stating that “wildfire and juniper encroachment are the two largest factors causing sagebrush habitat loss in Oregon.”436 ONDA’s argument includes: “(1) the BLM violated NEPA by failing to issue a supplemental EIS that takes into consideration the new research about sage-grouse and the proposed wind project near several leks; (2) the BLM violated NEPA by changing the Juniper Treatment Project; (3) the BLM violated NEPA by failing to conduct the proper environmental review of site-specific treatments; (4) the BLM violated FLPMA by authorizing juniper 429 Id. at 3. 430 Id. “When new information comes to light the agency must consider it, evaluate it, and make a reasoned determination whether it is of such significance as to require an SEIS.” Id. at 15. 431 Id. at 4. "[T]he information, as a whole, emphasizes what BLM had already noted in the FEIS: agencies should focus on maintaining good habitat and restoring potential (but currently marginalized) sage-grouse habitat, using methods that include addressing juniper encroachment." Id. 432 Id. at 4-5. 433 Id. at 5. “According to the BLM, juniper, although native, has expanded its range and density and dominates other vegetation such as mountain big sagebrush, quaking aspen, shrubs and grasses and puts at risk mountain mahogany and old-growth juniper.” Id. at 6. 434 Id. The BLM anticipated needing to grade, gravel, and install culverts or rock crossings to transport the machinery needed for the project. Id. 435 Id. at 7, 9. 436 Id. at 10 (internal citations emitted). 57 treatments, vehicle use and road maintenance in WSAs; and (5) the BLM violated the Steens Act by allowing off-road vehicles in WSAs and new road construction.”437 The BLM must prepare a supplemental EIS when it makes a substantial change relevant to environmental concerns to the proposed project or when new environmental information concerning the proposed project becomes available.438 The rule used by the Court was: “if there remains 'major Federal action' to occur, and if the new information will 'affect the quality of the human environment' in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared…. Further, the BLM must re-examine its decision when the EIS ‘rests on stale scientific evidence and false assumptions.’"439 ONDA argued the Sage-Grouse Monograph and the proposal for an energy transmission line across Steens Mountain, both published after the project EIS, require the BLM to create a supplemental EIS for the project.440 ONDA claimed the Sage-Grouse Monograph demonstrated that Greater Sage-Grouse will be affected by the juniper treatment, however, the Court noted the Oregon Department of Fish and Wildlife (ODFW) found the short term effects predicted by the juniper treatment are acceptable, if the habitat is restored over time because Greater Sage-Grouse populations will remain stable even with a short term loss of habitat and that junipers need to be removed to enhance Greater Sage-Grouse habitat.441 ONDA also argued that the prescribed fire the BLM planned on using would raise the probability of Greater Sage-Grouse abandoning the leks within the project area.442 The BLM argued that this information was not new and was considered in the final project EIS.443 437 Id. at 11-12. 438 Id. at 17. 439 Id. at 18. 440 Id. at 19-20. 441 Id. at 20, 23. 442 Id. at 25. 443 Id. at 26. “One of the specific purposes of the Juniper Treatment Project is to restore sage- grouse habitat.” Id. “A factor to consider is whether ‘the proposed fire is in areas not currently used by sage- grouse. If so, then fire cannot have much effect.’" Id. “Where juniper is scattered among sagebrush, the BLM will choose different treatment,…leaving sage-grouse habitat mostly unaffected.” Id. 58 Judge King concluded the BLM examined the cumulative effects to Greater Sage-Grouse habitat from prescribed fire in the final project EIS by discussing the finding of its own research from previous fires that the fire did not affect the leks as well as discussing the negative effects of juniper on Greater Sage-Grouse habitat.444 The Court ultimately found the Sage-Grouse Monograph did not alter the results of the BLM’s final EIS on the project and therefore did not warrant a supplemental EIS.445 Additionally the Court found the FWS’s finding that the Greater Sage-Grouse was warranted but precluded from listing also did not warrant a supplemental EIS.446 Nor did the Court find the two mile buffer from leks prescribed by the BLM’s final EIS in need of supplementation after emerging science suggested a four mile buffer was more appropriate.447 ONDA also argued the proposal of a wind energy farm consisting of 40-69 turbines and a 9 mile transmission line after the final project EIS was published required the BLM to provide a supplemental EIS.448 The BLM argued that because the project EIS for the transmission line discussed the cumulative effects of the juniper treatment and because the project was too speculative, the BLM did not have to discuss the transmission line in the juniper treatment EIS.449 NEPA allows the BLM to only rely on the cumulative effects analysis of a previously completed project, not a later project.450 Therefore, the Court found the BLM could not rely on the transmission line’s EIS for cumulative effects, but it also found the project to be speculative to 444 Id. at 27. 445 Id. at 29. 446 Id. at 33. Initially, the BLM treated Greater Sage-Grouse as a sensitive species. Id. at 30. The FWS listing the Greater Sage-Grouse changed the legal status, but not the biological status of the species. Id. at 31. Nothing it the listing gave new information requiring a supplemental EIS. Id. 447 Id. at 33, 36. “The BLM's explanation evidences an awareness of the emerging science and the risks posed by adopting a two-mile buffer, as well as the need to limit treatments within ‘currently suitable habitat to maintain an intact sagebrush component.’" Id. at 35-36. “The BLM has already placed a buffer around leks, the place where most nesting takes place. Additionally, it has committed to ceasing all treatments in those areas during the nesting season. The BLM has taken the necessary ‘hard look’ required by NEPA by examining and disclosing the possible effects on sage-grouse.” Id. at 36. 448 Id. at 36, 37. The wind energy developer also filed two applications for 40-69 more wind turbines, but withdrew both before either application as approved or denied. Id. at 37. 449 Id. at 40. 450 Id. 59 discuss in the EIS.451 Judge King also noted, however, that the BLM should have considered the effects if the wind energy facility expanded together with the effects of the transmission line because it is reasonably foreseeable.452 After consideration of those effects, the BLM may find they constitute significant information and therefore require a supplemental EIS.453 The only part of ONDA’s first claim that was decided in favor of ONDA was the possibility of a supplemental EIS being required after consideration of the effects of an expansion of the wind energy facility with the transmission line. The Court then considered ONDA’s second claim; that there were substantial changes made to the project after the public comment period.454 ONDA stated the BLM decision to proscribe burn on top of one lek and as close as 500 feet from three others, while the project EIS and ROD state no proscribe burns will be done within 2 miles of a lek, and that this was a substantial change to the proposed action.455 The BLM contended that the maps were drafts which did not have the 2 mile buffer superimposed on them yet and that the final proscribe burns will not occur within 2 miles of a lek.456 The Court found there was no evidence that the maps were final or that the BLM was going to violate the 2 mile buffer.457 Therefore, ONDA’s second claim was decided in favor of the BLM. ONDA’s third claim was that the BLM failed to adequately conduct the proper environmental review of site-specific treatments. The timing, location, and method of removal is not listed in the EIS, it was instead a project specific decision.458 Because of this, ONDA claimed 451 Id. “Although it is a close call, I defer to the BLM's assertion that [the transmission project] was speculative and the effects on the Juniper Treatment Project area were not sufficiently apparent to require discussion of it in the EIS and ROD; the transmission route had not yet been determined.” Id. at 41. 452 Id. at 43-44. 453 Id. at 45. 454 Id. 455 Id. 456 Id. 457 Id. at 46. 458 Id. at 50. 60 the BLM should have to prepare an environmental analysis for each treatment.459 The Court concluded that the BLM was merely implementing the EIS and ROD and that environmental review was not needed for each decision.460 ONDA also argued that the BLM not conducting an environmental analysis for each project, is segmenting the action to avoid addressing the cumulative effect of all the projects together.461 The Court disagreed and stated that the BLM did not improperly segment the action; it prepared a landscape level EIS analyzing the project, considered its need to comply with the Steens Act, “produced a full cumulative effects analysis, and committed to implementing adaptive management.”462 The Court ultimately concluded the BLM’s decision not to issue a supplemental EIS based on Greater Sage-Grouse publications did not violate NEPA and the BLM did not make substantial changes to the project, but the BLM did need to consider the possible impacts of a reasonably foreseeable expansion of the project combined with the transmission line.463 459 Id. at 51. “[E]ach of these actions is a ‘final agency action’ subject to challenge. Since the EIS does not provide design details for any treatment unit, ONDA suggests, the BLM's site-specific juniper treatment decisions represent its ‘last word’—without them the cutting and burning cannot occur.” Id. 460 Id. at 52. “The EIS evaluates the methods of treatment, annual acreage targets, and effects of the treatment on the environment by habitat type and by each Steens Mountain resource (e.g. air, soils, water, forests, weeds, etc.). It describes specific burning methods and when each will be used. It imposes PDEs to guide BLM decisions about when, where and which of the treatment methods are appropriate.” Id. 461 Id. at 52-53. “ONDA contends that these site- specific decisions needed to be analyzed within a single EIS.” Id. at 53. ONDA suggests what the BLM has done is similar to the 10-year timber management plans that did "not designate specific timber sale boundaries or require that any particular stand of timber be harvested….When spotted owl habitat needs became known, the court ordered BLM to analyze the new information for each timber sale in a NEPA document." Id. at 53-54. 462 Id. at 54. The BLM “prepared a landscape-level EIS analyzing the effects of the Juniper Treatment Project on all the resources of the area, including air, soils, water, wetlands, riparian areas, water quality, soil crusts, forests, weeds, vegetation, fish, birds, wildlife, special status species (including sage-grouse), visual resources, and wilderness.” Id. “Additionally, with a project this size, adaptive management is the only logical way the BLM can proceed to undertake habitat restoration, providing the agency with the flexibility to respond to on-the-ground circumstances when they arise. Courts have approved the use of adaptive management.” Id. at 54-55. “Further, the final EIS at issue here is not the kind of programmatic EIS that requires the preparation of further environmental analysis in order to implement the project.” Id. at 56. 463 Id. at 56-57. 61 The Court found that the BLM violated FLPMA and the Steens Act by authorizing juniper treatments, vehicle use and road maintenance in WSAs were ONDA’s fourth and fifth claims.464 The BLM argued because the rule requiring no vehicle use in WSAs was an internal guideline it did not impose a duty on the BLM.465 However, the Court reasoned that once the BLM implemented the rule into the Steens Mountain Regional Management Plan it needed to comply with it.466 The Court also noted that it must give substantial deference to the BLM’s interpretation of the rule.467 The BLM argued “the project will protect and enhance wilderness values” of the area and that “the project is necessary to successfully restore landscape-level ecological health and diversity to areas where juniper expansion has increased[.]”468 While ONDA argued the rule “permits only temporary uses which do not create surface disturbances” and that the BLM failed to explain how the project will enhance wilderness values.469 Judge King reasoned that although the rule does “permit only temporary uses that do not create surface disturbances,” there is an exception for actions that benefit wilderness values which the BLM did evaluate.470 The judge also noted that the rule does limit vegetative manipulation and the BLM failed to explain how cutting juniper when not a pretreatment for prescribed burning in WSA’s is not violating the rule; in that way the BLM is violating FLPMA.471 The BLM also argued the restriction on off road 464 Id. at 57. “Pursuant to FLPMA, the BLM has identified areas that qualify as WSAs under the Wilderness Act. 43 U.S.C. § 1782(a). The BLM's task is to manage these WSAs so as not to impair the suitability of such areas for preservation as wilderness….To implement the non-impairment requirement, BLM published the Interim Management Policy for Lands Under Wilderness Review or IMP.… The IMP generally permits in WSAs only activities that are temporary and that do not create a surface disturbance…. [E]ven if actions benefit wilderness values, the actions must still be carried out in a manner which is least disturbing to the site." (internal quotations removed). Id. at 57-59. 465 Id. at 60. 466 Id. at 60-61. 467 Id. at 61. “I must give substantial deference to an agency's interpretation of its own regulations, and give the agency's interpretation controlling weight unless it is plainly erroneous or inconsistent with the regulation.” (internal quotations removed). Id. at 63. 468 Id. at 65. 469 Id. at 67. 470 Id. at 68. 471 Id. at 70, 72-73. 62 vehicle use does not violate the rule because there is an exception for official purposes.472 ONDA responded by arguing that any BLM action could be considered an official purpose under that argument and questioned whether off road vehicle use is necessary to carry out the project; as the exception requires.473 The Court concluded there was no reason to suggest the BLM’s interpretation of the official purpose exception was inconsistent with the rule.474 In considering ONDA’s argument that the BLM violated the Steens Act, the Court reasoned that the analysis is similar to the FLPMA analysis in that the exception used; in this case the administrative purposes exception, can be used in justifying the BLM’s use of off road vehicles, however, this issue was not ruled on in the lower agency decision and therefore could not be decided by this court.475 The Court concluded that the BLM did not violate FLPMA other than not adequately explaining how cutting juniper not for prescribed fire pretreatment is not vegetative manipulation. The Court ultimately concluded that the BLM did need to consider the possible cumulative effects of a reasonably foreseeable expansion of the wind facility with the transmission line and depending on the conclusion of that analysis submit a supplemental EIS, that substantial changes were not made to the project after the public comment period, the BLM did not improperly segment the action, the BLM did not violate FLPMA except for not adequately explaining how cutting juniper not for prescribed fire pretreatment is not vegetative manipulation in the WSA, and that the violation of the Steens Act was not considered below and therefore had to be remanded for consideration. The case continued in 2016 when ONDA appealed the district court decision to the United States Court of Appeals for the Ninth Circuit.476 ONDA’s first argument was that the BLM failed to directly assess baseline conditions at the cite and instead relied on results from a nearby cite to 472 Id. at 74-75. 473 Id. at 75. 474 Id. at 76. “Although I, too, am somewhat concerned about the seemingly broad authorization of the "official purposes" exception to off-road and off-way vehicle use, ONDA fails to identify any reason for me to find the IBLA's interpretation is inconsistent with the IMP. At face value, the guideline permits BLM to undertake off-road and off- way travel for official purposes when it is for protection of the lands and their resources; the BLM also explains that such travel may be necessary for firefighter safety. The BLM contends the Juniper Treatment Project is for the protection of the WSAs and I have no reason to question that conclusion.” Id. 475 Id. at 81. 476 Oregon Natural Desert Association v. Jewell, 840 F.3d 562 (9th Cir. 2016). 63 conclude that Greater Sage-Grouse were not using the site for winter habitat which was essential to comply with NEPA.477 The Court noted that “several cases have found environmental analyses insufficient for failing to establish an environmental baseline.”478 The Court also noted that the BLM relying on a nearby site to determine baseline data was inappropriate because the other study found some Greater Sage-Grouse were present during the winter months at the site.479 Judge Berzon reasoned that this finding from the other study should have caused the BLM to assume Greater Sage-Grouse were present during the winter, not absent.480 Although the BLM argued that the Court owed the agency deference, the Court concluded “deference does not excuse the BLM from ensuring the accuracy and scientific integrity of tis analysis, a NEPA requirement.”481 The BLM next argued that the mitigation measures adopted would cure any potential harm caused by the inaccurate baseline.482 The Court reasoned that the inadequate baseline information affected the public comments and the BLM assessment of the projects impacts.483 The Court concluded that because the impacts the BLM analyzed were incorrect because of the missing baseline, the BLM could not have known whether the mitigation measures would be adequate.484 ONDA’s second argument was that the BLM failed to address genetic connectivity between Greater Sage-Grouse populations.485 However, the Court noted that ONDA did not even use the term ‘genetic connectivity’ in its draft EIS comments or in any argument made separately 477 Id. at 568. “The establishment of a baseline is not an independent legal requirement, but rather, a practical requirement in environmental analysis often employed to identify the environmental consequences of a proposed agency action…. An EIS must "succinctly describe the environment of the area(s) to be affected[.]…Accurate scientific analysis is essential to implementing NEPA." (internal quotations removed). Id. 478 Id. 479 Id. at 569. 480 Id. 481 Id. at 570. 482 Id. 483 Id. at 571. 484 Id. 485 Id. 64 from habitat connectivity and fragmentation.486 “Contrary to ONDA's assertion, genetic connectivity and the distinction between genetic connectivity and habitat connectivity are not such obvious issues that ONDA had no obligation to raise them to the agency.”487 Judge Berzon concluded ONDA never raised genetic diversity as an issue previously and was therefore prohibited from raising it now.488 The Court ultimately concluded that the BLM did violate NEPA by using faulty baseline data for Greater Sage-Grouse winter habitat in the area, but could not consider the accuracy of the BLM’s genetic diversity analysis because ONDA had not raised that issue previously. 4.2 Case Challenging Greater Sage-Grouse Resource Management Plans In 2015 the BLM adopted Greater Sage-Grouse RMPs to conserve Greater Sage-Grouse habitat while also hopefully keeping Greater Sage-Grouse off the Endangered Species Act list.489 Western Watersheds filed a complaint in court about the RMPs almost immediately. Western Watersheds Project v Bernhart is a case from the United States District Court for the District of Idaho under Judge Winmill.490 Western Watersheds Project (WWP) challenged fifteen EISs issued in 2015 covering ten western states.491 WWP argued the BLM used the EISs to segment the environmental analysis instead of conducting a rage-wide analysis.492 After this litigation had started, the Trump Administration came into office and started to revise the 2015 plans which the BLM issued amendments for.493 As the revisions to the 2015 plans were more lax than the original 2015 plans, WWP now seeks to enjoy the BLM from implementing the 2019 plan amendments.494 486 Id. “ONDA's comments address connectivity and fragmentation at length, but only in a general sense, not specifically with regard to cross-population genetic connectivity.” Id. at 572. 487 Id. at 573. 488 Id. at 574. 489 Id. at 7. 490 Western Watersheds Project v Bernhart, 2019 U.S. Dist. LEXIS 181043 (D. Idaho 2019). 491 Id. at 4. 492 Id. 493 Id. at 5. 65 When the Trump Administration came into office and started to revise the 2015 plans, the changes they made were opened for public comment.495 Although the Environmental Protection Agency (EPA) commented that the changes were not scientifically supported and recommended that the final plans summarized the scientific information used to develop that changes, the BLM did not address the EPA’s comments and issued final plans.496 The changes included: removing sagebrush focal areas (SFA) designation, eliminated compensatory mitigation and net conservation gain requirements, significant changes to mandatory buffers around Greater Sage- Grouse leks, and undermined corrective action triggers.497 To obtain injunctive relief, WWP “must show that: (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) that an injunction is in the public interest.”498 WWP asks the Court to consider testimony not included in the record from the lower court.499 “Considering extra-record evidence is warranted where the plaintiff alleges that an EIS has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept stubborn problems or serious criticism under the rug.”500 Judge Winmill reasoned that there was a serious issue in the case of whether the BLM neglected to evaluate the consequences of the plan changes so therefore the testimony could be heard.501 The testimony not considered in the previous record, from Dr. Braun, directly addressed that issue and stated the 2019 amendments contradict the best available science and concludes 494 Id. at 5, 6. “WWP alleges, Interior Secretary Ryan Zinke directed agencies to relax restrictions on oil and gas development in sage grouse habitat…. [WWP] supplemented their complaint to challenge the BLM’s 2019 amendments[.]” Id. at 5. 495 Id. at 12-13. 496 Id. at 13, 14. 497 Id. at 14-16. 498 Id. at 17. 499 Id. at 19. 500 Id. 501 Id. 66 the BLM avoided addressing Greater Sage-Grouse habitat loss and fragmentation in the amendments.502 The Court then discusses each element required for injunctive relief. When considering the likelihood of success on the permits the Court considered WWP’s claim that the BLM (1) failed to consider reasonable alternatives, (2) failed to take a hard look, (3) failed to consider cumulative impacts, and (4) eliminated compensatory mitigation requirements.503 Under consideration of reasonable alternatives, the Court concluded the BLM failed to consider reasonable alternatives because only two alternatives were considered; no action and the BLM’s preferred management alignment alternative.504 However, Judge Winmill noted that the no action alternative was provided strictly for comparison purposes making BLM’s preferred outcome the only alternative considered.505 The Court therefore concluded that WWP was “likely to succeed on their claim that the BLM failed to consider reasonable alternatives in violation of NEPA.”506 WWP’s claim that the BLM failed to take a hard look was the second argument considered. Judge Winmill noted that a previous case “held that the BLM failed to take a hard look at the environmental consequences of regulatory changes when it ignored comments of the FWS and EPA, among others, expressing concerns about those changes.”507 Reasoning that the EPA expressed several concerns about the amendments which the BLM did not follow nor explain why they declined to follow, the Court held WWP was likely to succeed on their claim that the BLM did not take the hard look required by NEPA.508 502 Id. at 20-21. 503 Id. at 23, 25, 27, 28. 504 Id. at 23. “In addition to evaluating the proposed agency action, every EIS must rigorously explore and objectively evaluate all reasonable alternatives to that action…. The analysis of alternatives to the proposed action is the heart of the environmental impact statement.” Id. 505 Id. at 24. “In order to be adequate, an environmental impact statement must consider not every possible alternative, but every reasonable alternative.” (internal quotations removed) Id. 506 Id. at 25. 507 Id. at 26. “[W]hen an agency, such as the BLM, offers no meaningful response to serious and considered comments by experts, that agency renders the procedural requirement meaningless and the EIS an exercise in form over substance.” Id. 508 Id. at 26-27. 67 Next for consideration was WWP’s claim that the BLM failed to consider cumulative impacts.509 The Court reasoned that the BLM is in a unique position where it can evaluate the cumulative impacts of each state plan and the BLM’s own actions over the entire range of Greater Sage-Grouse.510 Instead of utilizing their unique position, the BLM focused on each state individually despite scientific evidence suggesting that the range of Greater Sage-Grouse covers multiple states and requires a large scale analysis.511 Most importantly, notes the Court, the BLM does not explain the failure to do so causing WWP to likely succeed on their claim that the BLM failed to consider cumulative impacts.512 The last likelihood of success on the merits argument by WWP is the elimination of compensatory mitigation requirements.513 Because the FWS relied on the mitigation requirements in the 2015 plans for their finding that listing Greater Sage-Grouse under the ESA was not warranted, changes to this requirement after the public comment period was closed creates significant new circumstances that the BLM should have issued a supplemental EIS for.514 The Court concluded WWP was likely to succeed on the merits of their fourth claim.515 The Court ultimately concluded that WWP was likely to succeed on all of its claims. Judge Winmill then went on to decide the other three factors before granting an injunction. Because the amendments would be affect immediately, it is likely BLM “actions will cause further declines of the sage grouse under the weakened protections of the 2019 plan amendments.”516 Although the 509 Id. at 27. 510 Id. at 28. 511 Id. at 27-28. “Under NEPA, courts must give deference to an agency's determination of the scope of its cumulative effects review…. The geographical scope is not necessarily limited to the project's geographical boundaries or to state borders…. Agencies are not obligated to explain why they exclude every possible area that might be included in the cumulative effects area. Instead, they must justify on the record the chosen level of analysis.” Id. 512 Id. at 28. 513 Id. 514 Id. at 28-29. “Failing to do so insulated the agency's decision-making process from public scrutiny. Such a result renders NEPA's procedures meaningless.” Id. at 29. 515 Id. 516 Id. at 30. “[T]he BLM will be approving oil and gas leases; drilling permits; rights-of-way for roads, pipelines, and powerlines; coal and phosphate mining approvals; and livestock grazing permit renewals.” Id. 68 BLM argued that any actions by them are not imminent, the Court disagreed stating the actions required to permit oil and gas extraction were the expressed intent of the Trump administration.517 Because of this circumstance, the Court concluded WWP is likely to suffer irreparable harm if an injunction is not granted.518 These same circumstances along with the fact that the BLM will simply be able to revert back to their 2015 plans tips the balance of the hardships towards WWP.519 The Court recognized there is a “well-established public interest in preserving nature and avoiding irreparable environmental injury…. And suspending a project until environmental analysis has occurred comports with the public interest, because the public interest requires careful consideration of environmental impacts before major federal projects may go forward.”520 The Court ultimately concluded WWP satisfied all the elements to be granted an injunction, the BLM was enjoined from implementing the 2019 plan amendments, and the 2015 plans would remain in effect during the injunction.521 An appeal to this case was filed in December 2019. Chapter 5 – Analysis The goal of policy should be to protect the Greater Sage-Grouse while also allowing for wind energy development. The concern is how to make lasting policy while accounting for the uncertainty in the science of the interaction between Greater Sage-Grouse and wind energy development. Policy makers must continue to pass policy despite having little scientific data to base those policies on. Current national and Wyoming policies should encourage collaboration between all interest groups to ensure the greatest amount of science is incorporated into the approval of wind energy projects in Greater Sage-Grouse habitat. Below is a discussion on opportunities to improve the integration of science into law and policy. 517 Id. 30-31. 518 Id. at 31. 519 Id. at 32. “[T]he sage grouse will suffer more hardships from the 2019 Plan Amendments than the defendants will suffer from reverting to the provisions of the 2015 Plans.” Id. 520 Id. (internal quotations removed). 521 Id. 69 5.1 Interaction of Wind Energy and Greater Sage-Grouse The current science in the Seven Mile Hill Study suggest there may be a lag time between the construction of a project and when the negative effects of the project are felt by the nearby Greater Sage-Grouse populations. The Seven Mile Hill Study also suggests that the negative effects discovered may not be as catastrophic as they were expected to be. Although Greater Sage- Grouse tend to avoid areas with tall structures, a Kansas Prairie Chicken study suggested grouse that do not avoid the area have a higher survival rate. Mentioning that this could be due to predators of the Greater Sage-Grouse avoiding the area. No matter the reasoning, Greater Sage- Grouse having a better survival rate in and near wind energy facilities may be a trait selected for in Greater Sage-Grouse in future generations which could help the Greater Sage-Grouse species recover. Further research is needed to determine if the conclusion of positive or negative effects on Greater Sage-Grouse by wind energy development is supported and to determine if Greater Sage-Grouse predators avoiding wind turbine facilities is the reason for increased survival. However, to account for the current science, policy should require several years of study before development, to account for the lag time in effects, and differentiate between effects and negative effects on survival of Greater Sage-Grouse. 5.2 Existing Greater Sage-Grouse Protection Policies Applicable to Wyoming The initial federal regulations brought federal agencies together to agree to protect Greater Sage-Grouse with the goal of conserving the species. This was a good first step but needed to be expanded to require action. The regulations then recognized, in order to conserve the species, the habitat also needed to be conserved. The regulations started with conservation planning for monitoring, research, creating partnerships and cooperation, allocating responsibilities, communication, and outreach. The planning regulations eventually turned into action regulations. The oil and gas industry was the first to be regulated, followed by other activities, and all energy development in ‘priority habitat.’ The almost constant human presence at oil and gas sites was a concern that shaped the oil and gas regulations around Greater Sage- Grouse. This concern followed to other development in Greater Sage-Grouse habitat as a ‘better safe than sorry’ mentality. As emerging science demonstrates the actual effects on Greater Sage- 70 Grouse, policy should be amended to reflect that regulations actually needed to protect the Greater Sage-Grouse from each type of development. The State-Federal Sage-Grouse Task Force was then created to assess the regulations and suggest adjustments. The USFWS created a Wind Energy Guide and western states’ land use plans were updated to incorporate the recently created regulations. Shortly after that the regulations were updated to accommodate the newly found science. The most recent changes to the federal regulations include cooperation between federal agencies, state agencies, and landowners for the conservation of Greater Sage-Grouse and its habitat. The policy is starting to incorporate the emerging science, but needs to continue to do so. Wyoming initially created working groups with the goal of preventing the listing of the Greater Sage-Grouse under the ESA. However, the regulations Wyoming did create wanted to prevent the decline of the species, not facilitate regrowth of the species. Although preventing the decline of the species is a good first step, preventing listing needed more than just the prevention of the decline in numbers. The Sage-Grouse Implementation Team was created to assess the current conservation situation, give suggestions on how to better conserve the species, and make recommendations on possible activities in Greater Sage-Grouse habitat. The Team also created the ‘core area’ policy, which provided a more focused area for conservation efforts. Executive orders followed, ordering Greater Sage-Grouse conservation, providing for incentives rather than regulation for preferred development, working collaboratively, demanding funding for conservation efforts, creating incentives for conservation easements, and allowing for adjustments when necessary based on science. Alternatively, Wyoming’s wind energy regulation leaves specific regulation to county commissioners; although the ‘core area’ policy will apply to any new wind energy development. The Sage-Grouse Implementation Team has been an asset to Wyoming’s goal of preventing Greater Sage-Grouse from being listed. The Team should analyze the new science and base its assessments and recommendations accordingly. Federal and Wyoming policy confronted the conservation of Greater Sage-Grouse from different angles, although both were successful in their own ways. Wyoming policy lead the way and informed the federal policy on the strictness required to protect Greater Sage-Grouse. The federal regulation and Wyoming’s management policies work together to provide guidelines while also allowing for the gradual shifting of industry away from sensitive areas. Both sets of policy now specify cooperation of federal agencies, state agencies, and landowners, under the idea that more opinions will lead to the best solution that everyone can live with. Both sets of policy also allow for adjustment as the scientific evidence of the effects of wind energy 71 development proceeds. Federal and Wyoming policy seem to fill in the gaps of the other and there is little to no conflict between the two. This increases the efficiency as well as the effectiveness of each set of policy. Both sets of policies are poised to adapt as new science on Greater Sage-Grouse emerges. As more time elapses between the construction of wind energy facilities and the studies being conducted, the effects on Greater Sage-Grouse will become clearer. Policy makers should continue to evaluate the effectiveness of the current policies in account for the emerging science. Greater Sage-Grouse survival rates increasing near operating wind energy facilities is an example of this. Although this particular finding should not be used to increase the wind energy facilities in core Greater Sage-Grouse habitat, it should be considered when siting wind energy facilities near core habitat. 5.4 Conflict in the Courts Wind energy will continue to expand as the nation turns away from conventional fuel sources. Wind expansion means more tension because of possible conflict between renewable energy goals and saving a species that was almost listed as endangered several times, including recently in 2015. The conflicts discussed in the cases challenging wind energy facilities and the 2015 and 2019 RMPs were mostly procedural. The environmental organizations argued that the BLM did not follow proper procedure when creating the RMPs and EISs so therefore the projects should not be able to move forward. The main procedural failure alleged was that the BLM did not conduct a thorough review of the environmental effects of the project. Although in Western Watersheds Project v BLM the court concluded the BLM did follow the proper procedures, in Oregon Natural Desert Association v BLM and Western Watersheds Project v Bernhart the court concluded the BLM failed to follow the proper procedure. The main concern of the courts were that the BLM did not explain its decisions enough. The courts owe an agency deference as long as the agency can explain why it concluded what it did. In order to ensure deference, however, the agency must thoroughly explain why it chose one alternative over the others. To prevent these same conflicts from reappearing as more wind energy farms are placed in or near Greater Sage-Grouse habitat, the BLM should ensure the proper procedure is followed. Even if the BLM determines one alternative is obviously better than another it should thoroughly explain why the one alternative is better and the other is worse. This not only provides the 72 environmental organizations with reasoning for the BLM’s decisions, but it also provides a decision that the courts should give deference to. The BLM is also required to base its decisions on the current science. The BLM should ensure that its decisions are accounting for the new science which states that wind energy development likely does not affect Greater Sage-Grouse as much as originally anticipated, but a time lag may need to be taken into account. As the BLM moves forward, it should review and consider the new science in its decisions. Since the BLM is required to base its decisions on the current science, the BLM citing to the new studies and explaining how those studies informed their decisions should allow the court to give the BLM deference. The BLM ensure proper procedure is followed and taking into account the most recent science should reduce the law suits filed challenging the BLM’s decisions. Another concern may be litigation based on the public trust doctrine. In Center for Biological Diversity v FPL Group, the Center for Biological Diversity (CBD) argued the wind energy facility killing and injuring birds was in violation of the public trust doctrine.522 The public trust doctrine ensures the public right to wildlife.523 States manage the wildlife within their borders in accordance with the public trust doctrine. If policy does not adapt to emerging science, litigation may ensue because the state is not managing wildlife correctly. The opportunity for litigation in all areas should be minimized as much as possible to ensure the focus and funding stays on conservation of Greater Sage-Grouse and its habitat and not on court costs. Chapter 6 – Conclusion This paper discusses and analyzes the current science, law, and litigation stemming from Greater Sage-Grouse conservation. It highlights the connection between all three and the ability for them to coexist and support one another. The current policy for Greater Sage-Grouse individual and habitat conservation and protection has the ability to change as the science showing the effects of wind energy development on Greater Sage-Grouse continues to grow. The ability for the policy to adapt is the greatest way for the policy to continue to last while still accounting for the scientific uncertainty inherent with limited data. More research should be funded to repair the problems associated with lack of data. If the science continues on its current 522 Center for Biological Diversity, Inc. v FPL Group, Inc., 166 Cal. App. 4th 1349 (Cal. Ct. App. 2008). 523 Id. at 1361. 73 trend, the policy will also be able to account for the lag in effects and the positive effects seen between wind energy development and Greater Sage-Grouse. Greater Sage-Grouse population recovery and wind energy development are both seen as progressive positive things. However, when two good ideas are in tension, the priorities of a nation and state become stressed. This is shown by the amount of environmental litigation. Under this circumstance, the perceived tension may be unwarranted and the current policy will be able to account for that as it becomes more evident. Despite the tension being unwarranted, cases are likely to continue to be filed. To help prevent cases from being filed in court, the BLM can ensure the proper procedures are followed and the current science is cited in their decisions. If the policy adapts to and the BLM utilizes the emerging science, the conservation of Greater Sage-Grouse will still allow for the expansion of wind energy development. Supporting two birds with one stone. 74 Appendix A Table 1. Articles reviewed for the analysis of this section. Not all studies in the chart are discussed in detail in the writing below. Although all the studies are needed to get the whole picture, the studies discussed in the text are more on point with the location discussed in the rest of the paper. 75 Article Name Article Authors and Citation Finding of Study Over half of the habitat Greater Sage-Grouse selected for nesting, and Cameron L. Aldridge and Mark S. Boyce, 75% of habitat selected for Linking Occurrence and Fitness to brood rearing were Persistence: Habitat-Based Approach for unlikely to be successful. Endangered Greater Sage-Grouse, 17(2) Greater Sage-Grouse Linking Occurrence and Ecological Society of America 508 (2007) avoided areas with human Fitness to Persistence - avaialble at: https://www.researchgate. activity although there was Habitat Based Approach for net/publication/6342712_ no effect from the activity Endangered Greater Sage Linking_occurence_and_ on nest or brood rearing Grouse fitness_to_persistence_ success. Habitat-based_apprach_ Because Greater Sage- for_endangered_Greater_ Grouse avoided the areas Sage-Grouse. of human activity they were pushed into areas that were less successful for them. Predicted Wyoming's Greater Sage-Grouse Core Holly E. Copeland, et al., Measuring the Area Policy plus $250 Effectiveness of Conservation: A Novel million easement Measuring the Effectiveness Framework to Quantify the Benefits of Sage- investment could cut of Conservation - A Novel Grouse Conservation Policy and Easements anticipated Greater Sage- Framework to Quantify the in Wyoming, 8(6) PLOS ONE 1 (June Grouse losses by about half Benefits of Sage Grouse 2013) available at: statewide and 2/3 in core Conservation Policy and https://journals.plos.org/ areas. Easements in Wyoming plosone/article?id=10.1371 Easements in areas with /journal.pone.0067261. high residential threat would be the most effective. 76 Greater Sage-Grouse David R. Edmunds, et al., Greater Sage- Out of the 46 Core and Greater Sage Grouse Grouse Population Trends Across Wyoming, non-core populations Population Trends Across 82 The Journal of Wildlife Management analyzed to determine the Wyoming - WY Sage Grouse 397 (2017) available at: https:// overall Greater Sage- Population Viability digitalcommons.unl.edu/ Grouse population tend, 33 Analysis cgi/viewcontent.cgi?article= populations were declining 2030&context=usgsstaffpub. and 13 were increasing. Bradley C. Fedy and Kevin E. Doherty, Population Cycles are Population Cycles are Highly Correlated The populations of Greater Highly Correlated Over Over Long Time Series and Large Spatial Sage-Grouse and Cottontail Long Time Series and Large Scales in Two Unrelated Species: Greater Rabbits were highly Spatial Scales in Two Sage-Grouse and Cottontail Rabbits, 165 correlated. However, the Unrelated Species - Greater Oecologia 915 (2010) available at: reason behind the Sage Grouse and Cottontail link.springer.com/article/ correlation was unknown. Rabbits 10.1007/s00442-101-1768-0. Bradley C. Fedy, et al., The Influence of Mitigation on Sage-Grouse Habitat Selection Within an Energy Development Field, 10(4) Mitigation efforts resulted PLOS ONE 1 (2015) available at: The Influence of Mitigation in overall less avoidance of https://www. on Sage Grouse Habitat natural gas structures by researchgate.net/publication Selection Within an Energy Greater Sage-Grouse, but /274637545_The_Influence_ Development Field high density areas were of_Mitigation_on_Sage- still avoided. Grouse_Habitat_Selection_ within_an_Energy_ Development_Field. Evidence of Negative Effects All anthropogenic Torre J. Hovick, et al., Evidence of Negative of Anthropogenic Structures structures had a negative Effects of Anthropogenic Structures on on Wildlife - A Review of effect on Greater Sage- Wildlife: A Review of Grouse Survival and Grouse Survival and Grouse and displaced Behaviour, 51(6) Journal of Applied Behaviour individuals. 77 Ecology 1680 (2014) available at: Oil and gas structures had https://besjournals.online the greatest negative effect library.wiley.com/doi/full/ on displacement. 10.1111/1365-2664.12331. Evidenced a decline of lekking Greater Sage- Grouse after the construction of energy structures. Greater Sage-Grouse lek site persistence was most affected by anthropogenic structures. Chad W. LeBeau, et al., Short-Term Impacts of Wind Energy Development on Female Greater Sage- Short Term Impacts of Wind Greater Sage-Grouse Fitness, 78 The Grouse survival rates did Energy Development on Journal of Wildlife Management 522 not vary as the distance to Greater Sage Grouse Fitness (2014) available at: https://wildlife the facility varied, although .onlinelibrary.wiley.com/doi chick success did. /10.1002/jwmg.679. Chad W. LeBeau, et al., Greater Sage- Direct impacts of wind Greater Sage Grouse Habitat Grouse Habitat Selection, Survival, and energy on Greater Sage- Selection, Survival, and Wind Energy Infrastructure, 81 The Journal Grouse were low, but Wind Energy Infrastructure- of Wildlife Management 690 (2017) indirect effects were high; Greater Sage Grouse and available at: https://wildlife avoidance of human Wind Energy .onlinelibrary.wiley.com/doi activity. /10.1002/jwmg.21231. Chad W. LeBeau, et al., Greater Sage- Detected a 56% drop in Greater Sage Grouse Male Grouse Male Lek Counts Relative to a Wind Greater Sage-Grouse lek Lek Counts Relative to a Energy Development, 41 Wildlife Society counts at leks near wind Wind Energy Development Bulletin 17 (2017) available at: http:// energy sites relative to leks 78 www.uwyo.edu/esm/faculty further from wind energy -and-staff/beck/_files/docs/publication sites. /lebeau-et-al-2017-wsb.pdf. Male Greater Sage-Grouse attending leks close to wind energy development responded differently than males close to other anthropogenic features. Recommend caution in designating buffers between wind energy facilities and Greater Sage- Grouse leks of less than 1.5 kilometers to avoid effects on leks. The effect of powerlines of Greater Sage-Grouse were Daniel Gibson, et al., Effects of Power Lines indirect effects of Effects of Power Lines on on Habitat Use and Demography of Greater avoidance at least 5 km Habitat Use and Sage-Grouse, 200(1) Wildlife Monographs from the transmission line Demography of Greater 41 (2018) available at: https://wildlife likely due to an increase in Sage-Grouse .onlinelibrary.wiley.com/doi/pdf/ Raven population after 10.1002/wmon.1034. transmission line construction. 79 Jonathan B. Dinkins, et al., Greater Sage- Grouse Select Habitat Based on Avian Predators, Landscape Composition, and Anthropogenic Features, 116(4) The Greater Sage-Grouse Select Greater Sage-Grouse were Condor 629 (2014) available at: Habitat based on Avian located farther away from https://bioone. Predators, Landscape potential perches and areas org./journals/The-Condor/ Composition, and of high avian predator volume-116/issue-4/CONDOR-13- Anthropogenic Features populations. 163.1/Greater-Sage-Grouse- Centrocercus-urophasianus-select- habitat-based-on-avian/10.1650/ CONDOR-13-163.1.full. Jonathan B. Dinkins, et al., Greater Sage- Grouse Hen Survival: Effects of Raptors, Greater Sage-Grouse Hen Anthropogenic and Landscape Features, and Greater Sage-Grouse hens Survival: Effects of Raptors, Hen Behavior, 92 Candian Journal of selected habitat with fewer Anthropogenic and Zoology 319 (2014) available at: raptors and anthropogenic, Landscape Features, and https://www.nrcresearchpress.com and tall landscape features. Hen Behavior /doi/full/10.1139/cjz-2013-0263#. Xla9-xNKi3U. Greater Sage-Grouse Chad W. LeBeau, et al., Greater Sage- avoided even suitable Grouse Habitat Function Relative to 230-kV habitats if they were near Greater Sage-Grouse Transmission Lines, 83 The Journal of transmission lines. Habitat Function Relative to Wildlife Management 1773 (2019) Visibility may be the 230-kV Transmission Lines available at: https:// determining factor of what wildlife.onlinelibrary.wiley.com/ Greater Sage-Grouse doi/full/10.1002/jwmg.21749. considered 'near' structures. 80 Jennifer A. Smith, et al., Indirect Effects of Male Greater Prairie an Existing Wind Energy Facility on Chickens at leks closer to Lekking Behavior of Greater Prairie- wind energy facilities spent Indirect Effects of an Chickens, 122 Ethology 419 (2016) less time in non-breeding Existing Wind Energy available at: https:// behaviors. Facility on Lekking onlinelibrary.wiley.com/doi/pdf/ Distance from wind energy Behavior of Greater Prairie 10.1111/eth.12489?casa_token= facility had no effect on Chickens AR7fSWi6WoIAAAAA:vvtdLY time spent performing h6TaBrAcXjpYmm0W0AAWJd5u booming displays, fuller CGhieHEMWub-GCRM3XVorERV jumps, or agonistic kpNDGtZ5xBwbDwY9LCPe-Xdg. behaviors. The population of Greater Prairie Chicken avian predators was similar Jennifer A. Smith, et al., Predation Risk: A within 2 km from the Potential Mechanism for Effects of a Wind Predation Risk - A Potential facility as it was farther Energy Facility on Greater Prairie-Chicken Mechanism for Effects of than 2 km away. Survival, 8 Ecosphere 1 (2017) available Wind Energy Facility on The population of coyotes at: Greater Prairie Chicken was also similar within 0.5 https://esajournals.onlinelibrary. Survival km away from the facility wiley.com/doi/pdf/10.1002/ as it was farther than 0.5 esc2.1835. km away. The avoidance observed may have be site specific Virginia L. Winder, et al., Effects of Wind No negative effects were Energy Development on Survival of Female found on female Greater Effects of Wind Energy Greater Prairie-Chickens, 51 Journal of Prairie Chicken survival Development on Survival of Applied Ecology 395 (2014) available at: near wind energy sites. Female Greater Prairie https://besjournals.onlinelibrary. Female Greater Prairie Chickens wiley.com/doi/pdf/10.111/1365- Chicken survival rate 2664.12184%4010.1111/%281SSN% nearly doubled post 291365-2664.OAWEEK2014. construction. 81 Greater Prairie Chicken Virginia L. Winder, et al., Responses of Male Greater Prairie-Chickens to Wind Greater Prairie Chicken lek Energy Development, 117 The Condor: abandonment was twice as Responses of Male Greater Ornithological Applications Society 284 likely for leks within 1 km Prairie Chickens to Wind (2015) available at: of a wind turbine, however Energy Development https://www.research the leks that remained gate.net/publication/276424670_ active had no decline in Responses_of_male_Greater_Prairie- attendance. Chickens_to_wind_energy_development. 82