We received news from the Biden administration that U.S. Department of the Interior is going to revisit greater sage grouse management plans — assuming the 2015 plan (1.0), the 2019 plan (2.0) and the 2021 supplemental EIS (3.0) were not enough.

DOI reports it will file a public scoping notice in the Federal Register in the next 60 days to accept public comment on the new planning process and address new information regarding the status of the bird.

Prepare. Get your pencils and paper out to comment. Alternatively, reboot your e-document to change the date on your last comments and add additional comments.

In our view, this is all part of a bad joke. The poor bird cannot decide what to do. Even worse, the boots-on-the-ground agency people and the stakeholders cannot decide what to do. One administration says “r,” another administration says “x,” the courts say “y” and even others say “z.”

Such confusion seriously demonstrates that expertise and sound science no longer exist in the government. For those of us in the natural resource field, the long-held assumption that all the smart people worked for the government, like in the Gifford Pinchot days, no longer exists. In fact, the effective deferral by NASA in contracting with Space X gives significant pause that even NASA is second rate.

Please. We are not intending to offend our friends and colleagues in DOI or other federal and state resource management agencies. They have a tough job. We have respect for them and the work they do and try to do.

However, it is clear that it is time to take a hard look as to how we view an agency’s work and, more importantly, how the courts should review agency work. Looking now at 4.0 relative to a sage grouse plan is a little much to swallow for stakeholders, who have been doing and continuing to do their part, and often privately and apart from government action and funding, to enhance habitat for this bird even before 1.0.

We are not intending to just throw stones. There are solutions. One solution is Congress must take a serious look at amending the archaic Administrative Procedure Act. The courts’ grant of deference to agency’s interpretation of statutes, regulations and decision-making, with its underlying assumption of superior agency expertise, ignores reality and, candidly, goes too far.

Undeserved agency deference was most recently illustrated by the 9th Circuit’s opinion in Corrigan v. Haaland wherein the Circuit affirmed the remarkable position that silence of a point in a statute somehow allows the DOI to fill in the silence; effectively legislating a point without Congress’ input.

The point involved in Corrigan v. Haaland is material to those dependent upon public land use under the Taylor Grazing Act because it impugns the view that an adjudicated Grazing Preference does not remain attached to Base property after BLM decides to not renew a grazing permit. No congressional act. No court re-adjudication. Canceled. See Capital Press articles dated Sept. 18, 2020, “A Question of Preference;” May 7, 2021, “9th Circuit hears arguments over ‘grazing preference;’” and Sept. 10, 2021, “Oregon ranchers lose appeal over ‘grazing preferences.’”

There remain opportunities to apply expertise and to ensure sound science in our federal and state resource management actions. In the meantime, please prepare yourself for sage grouse 4.0.

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Alan Schroeder, Schroeder Law in Boise, Idaho; Laura Schroeder, Schroeder Law Offices P.C. in Portland, Ore.; and Therese Ure Stix, Schroeder Law Offices P.C. in Reno, Nev., specialize in federal land law.

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