Judge: Battle to prove need to block U.S. rules on sage grouse

RENO — Eight Nevada counties that want a court to block new U.S. protections for the greater sage grouse face a battle to show the move is necessary across thousands of square miles in the West, a federal judge said Tuesday.

U.S. District Judge Miranda Du said she knows the counties and two mining companies have serious concerns about new restrictions on mining, livestock grazing and other development adopted when the federal government decided in September not to list the bird as threatened or endangered.

The groups are suing the Forest Service and Bureau of Land Management and asking for a temporary injunction to block the proposed rules before a trial. Du called that request a “drastic remedy.”

“The burden is pretty high on the plaintiffs,” Du said during a daylong hearing in Reno. “My concern is the motion, and the testimony so far, lacks specificity to determine the likelihood of irreparable harm, not the possibility of harm.”

Among other things, the lawsuit says the rules would prevent construction of a wind energy project that would bring $500 million to Elko County’s economy and has the potential to run mining companies and ranchers out of business.

Du said there is “plenty of uncertainty” about the potential effects of the land-use planning amendments that the two agencies adopted to protect the bird found in 11 Western states. But she said she needs evidence of actual projects being halted or delayed to meet the legal threshold that would warrant a temporary injunction.

“Without specific information, I am not going to be able to get there,” Du said.

The judge didn’t say if she intended to rule from the bench but suggested she would not do so when she told lawyers they could file briefs at the conclusion of the hearing. Without an emergency order, the case is unlikely to go to trial until next year.

Assistant U.S. Attorney Holly Vance said in a brief filed before Tuesday’s hearing that the counties and mining companies are misrepresenting and exaggerating the potential effects of the rules. She said they have not proved the restrictions will cause irreparable harm and are prematurely challenging the amendments, which offer guidelines but no specific decisions on individual grazing, mining or other federal permits.

Washoe County Planning Director Bill Whitney testified Tuesday that the county school district’s plans to acquire BLM land to build a new middle school in Sun Valley, north of Reno, have been put on hold as a result of the sage grouse protections, even though the county doesn’t believe there are grouse “any place near there.”

Eureka County Commission Chairman Julian Goicoechea said the protections are stifling new development in his county and prohibiting officials in neighboring White Pine County from obtaining a right-of-way necessary to build a new water tower in Baker.

“There is real harm occurring because of what is in the documents,” he testified.

Goicoechea, who serves as chairman of Nevada’s Sage Grouse Ecosystem Council, said it worked closely with federal officials to develop Nevada’s alternative protection plan but were blindsided by the final U.S. regulations.

“We did not want to be here today,” he said. “We wanted to work this out for the last three years. We tried. We were ignored.”