The Interior Department is offering leases to drill for oil and gas in greater sage grouse habitat using a species conservation plan nullified by a federal court last month for being too weak, according to conservation advocates.

The agency is supposed to be adhering to an Oct. 16 order by a federal judge in Idaho who temporarily suspended the Bureau of Land Management’s latest sage grouse conservation plan, which removed protections for the species on millions of acres across the West. The ruling effectively put back into effect plans written under the Obama administration for protecting the bird from increased habitat destruction by wildfires and energy development. 

Environmental advocates including the Wilderness Society and the Center for Biological Diversity say BLM is implementing the ruling inconsistently. In some cases, the agency has postponed offering leases within sage grouse habitat from being sold to the public. But in others, the agency is still offering leases on land within the habitat under the terms of the relaxed conservation protections that were suspended by the court. 

The Trump administration removed a subjective requirement that federal officials ensure that the species’ health and safety will be sustained if land is made available for lease within its habitat, which the rules call a “net conservation gain.” It also eliminated certain state-specific mandates, including one that made BLM prioritize offering land outside of the bird’s habitat when conducting auctions in states such as Utah and Wyoming. 

Those changes were suspended by the court. However, according to an analysis of BLM data by the Wilderness Society, at least 117,000 acres of sage grouse habitat, an area slightly smaller than the city of Chicago, are available for energy leases in Colorado, Utah and Wyoming without those provisions. The parcels were offered at auction in September, after the Obama-era protections were lifted by the Trump administration but before the court ruling. Because there were no bids for parcels, they are now available for leasing on a first-come, first-served basis in accordance with federal mineral leasing law. 

[Trump seeks weaker protections, as 1 million species face extinction]

The agency is also moving ahead with a December auction in Wyoming that will offer leases on land in sage grouse habitat. Environmental groups have filed three separate petitions protesting the sale, arguing it should be delayed in light of the court order.

“Concerning doesn’t even begin to convey where we are,” said Nada Culver, vice president for public lands at The Audubon Society. “Damn the torpedoes and the sage grouse.”

While the environmentalists believe the court order required BLM to prioritize selling leases outside of the bird’s habitat, the agency says the edict didn’t change how it offers that land to potential bidders. The Trump administration’s plans “elaborated on but did not substantially modify” the Obama-era requirement, said BLM spokeswoman Beverly Winston. 

‘Little effect’

“Regarding prioritizing development outside of sage grouse areas, the [order] had little effect there,” she wrote in an email Friday. The requirement for a net conservation gain varies by state, and the agency is working to “align our management” with each state plan, she said.

Sage grouse, which weigh about 4 pounds and are known for males’ mating practice of inflating air sacs on their chests, reside in areas across 173 million acres of the West, a habitat that includes places sought for their fossil fuel and mining potential. 

Wildlife groups have tangled with the federal government over protecting the species since as early as 1991, when the Fish and Wildlife Service for the first time said it would consider listing the sage grouse as endangered. In 2015, after years of missed deadlines and court battles, FWS decided not to list the species as endangered. Instead, it released a management plan intended to prevent its habitat from degrading further. 

But the management plan was opposed by  oil, gas, mining and timber interests, as well as some Republican politicians. The Interior Department sought to do away with the 2015 plan in a bid to free up public land for drilling. In March, the Bureau finalized a replacement that removed conservation measures for states where sage grouse live, including buffer areas to insulate birds from projects. Environmental groups sued to block the rewrite and asked the judge overseeing the case to suspend its implementation as their case proceeded. Last month, the judge approved their motion and signaled he may knock the Trump administration’s conservation plan down. 

“Under these weakened protections, the 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. It is likely that these actions will cause further declines of the sage grouse under the weakened protections of the 2019 Plan Amendments,” wrote U.S. District Judge B. Lynn Winmill.  

While multiple environmental groups cheered the ruling, they are also laying the tracks for lawsuits to invalidate any leasing that occurred after the temporary suspension. 

Michael Saul, a senior Center attorney, said those challenges will come down to how courts interpret more subjective provisions of the 2015 plan, including how BLM is supposed to prioritize leasing outside of sage grouse habitat. “The implementation of those more subjective provisions are not nearly as cut and dry as things like, ‘Is this within 1 mile of sage grouse breeding?’ So how all of these pieces get resolved is going to be up to the courts,” Saul said.