On December 4, Judge B. Lynn Winmill, of the U.S. District Court in Idaho, ordered the U.S. Fish and Wildlife Service (FWS) to reconsider its decision not to list the greater sage-grouse under the Endangered Species Act, reports the Wildlife Management Institute. In 2005, the FWS determined petitions to list the sage-grouse as endangered were "not warranted." Citing potential influence by former Deputy Assistant Secretary Julie MacDonald and what Judge Winmill considered "flaws with the FWS decision-making process," the court ruled that the determination was arbitrary and capricious.

The greater sage-grouse, largest of the grouse species, is a sagebrush obligate found in 11 western states and 2 Canadian provinces. Populations have declined substantially from historic numbers, with current numbers estimated at 100,000 to 500,000 birds. The primary cause of decline is habitat loss, predominantly as a result of invasive weeds, fire, livestock grazing and energy development. Other factors, including West Nile virus, also are of concern. The rate of decline has slowed in recent years, however.

The FWS used a structured decision-making process that considered the recommendations of its own agency biologists, input from a panel of sagebrush ecosystem and sage-grouse experts, and conservation efforts by states or local governments in their listing decision. The process focused on assessing expert biological opinion on whether sage-grouse would be extinct within 100 years, which is equal to 10 generations of sage-grouse or two generations of sagebrush. After assessing all of the biological information about grouse populations and using a point system to determine risk of extinction, the majority of members of both the expert panel and the FWS's decision support team" (Team) cast points to a "not warranted" finding.

According to former FWS Director Steve Williams, the Team concluded that, although there were real threats to greater sage-grouse, two primary factors led to the decision that listing was not warranted. First, the population declines had stabilized prior to the listing decision and, second, there was great uncertainty about the habitat threats. Then-Director Williams, summarized the Team's evaluation: "It is clear that the number of greater sage-grouse range-wide has declined from historically high levels, with well documented declines between 1960 and 1985. However, the most recent data reflect that overall declines have slowed, stabilized or populations have increased. These data and the fact that 92 percent of the known active leks occur in 10 core populations across 8 westerns states, and that 5 of these populations were so large and expansive that they were subdivided into 24 sub-populations. . .were cited by managers on the [Team] as part of their reason for their not warranted recommendation."

The court opinion claims that the tallies of extinction risk by the two groups and that handwritten notes by the Team were the only documentation available to Director Williams during the decision-making process. The court found that, with no transcript or detailed account of the proceedings from the expert panel and without the experts in the room for the listing determination, Williams and the Team did not use the "best science" when they made their decision. In his decision, Judge Winmill wrote that the experts were "locked out of the room" when the "best science was needed the most."

The judge discounted the expertise of the Team, suggesting that only the expert panel could provide the "best science." Williams continues to assert that, although the panel's expertise was an important factor, the FWS, not the expert panel, has the legal obligation and authority to make a listing determination. Moreover, the notion that FWS biologists have no expertise on sage-grouse is completely inaccurate, according to Williams.

The court also cited the involvement of former Deputy Assistant Secretary, Julie MacDonald in the decision-making process as reason to require additional review, independent of the above reasoning. In 2006, the Office of the Inspector General received complaints that MacDonald had "persistently harassed, bullied and insulted FWS employees to change documents and ignore good science related to the Endangered Species Act." A full review of MacDonald's involvement in a number of ESA listing decisions shows repeated efforts, "to steer the ?best science' to a pre-ordained outcome." Judge Winmill found that MacDonald had extensive involvement in the sage-grouse listing decision, making edits and changes to scientific documents; although, she herself had no background in biology. Although concurring with the court's assertion that MacDonald was involved in the process, Williams indicated that the not-warranted decision was based on an evaluation of the best science at hand and MacDonald's attempt to sway the matter otherwise was ineffectual.

At this point, the FWS is considering its options in response to the court decision.