Nevada Critics Lose Again in Grouse Fight; July Trial Looms

RENO, Nev. (AP) — A federal judge has rejected a rural Nevada water district's latest attempt to expedite construction of a storage tank in greater sage grouse habitat near the Utah line in a legal battle now expected to drag into the summer.

U.S. District Judge Miranda Du denied this week the final part of a request for a preliminary injunction that White Pine County officials say is necessary to set aside federal regulations protecting the bird so the town of Baker can replace a leaking water tank near Great Basin National Park.

The court battle in Reno hasn't received the same attention as the standoff at a national wildlife refuge in neighboring Oregon where a group of armed men say they are protesting unreasonable restrictions on the use of public lands. But it's an example of ongoing conflicts across the West over myriad land-use issues, from management of wild horse herds from California to Colorado, to control of a road in a national forest near the Idaho line in Nevada that has been tied up in the same federal courtroom in Reno since 1999.

Utah Rep. Rob Bishop, chairman of the House Natural Resources Committee, and leaders of the Congressional Western Caucus are among those who say the Oregon standoff is part of a larger controversy over federal mismanagement of western lands.

"While we do not condone the current actions taken by a select few in Oregon, we do understand their frustration with increasingly heavy handed federal agencies that continue to violate the rights of hardworking American farmers and ranchers," the caucus said this week in a statement from Reps. Cynthia Lummis, R-Wyo., chairman; Steve Pearce, R-N.M., chairman emeritus; and Mark Amodei, R-Nev., vice chairman.

In the Nevada case, Judge Du had allowed both sides to continue arguing about the water tank when she refused on Dec. 8 a broader request to immediately block the Bureau of Land Management from implementing the land use planning amendments in Nevada, California, Oregon, Idaho, Utah and Montana.

The Baker General Irrigation District is still considering whether to appeal the amended right of way the BLM issued Dec. 10, which allows for construction of the replacement tank on federal land but only during a narrow window from July to November so as not to disturb the grouse and its traditional breeding grounds less than a mile away. But even without such an appeal — which would further delay resolution of the matter — the schedule Du has laid out suggests it will be at least July before a trial begins on the merits of the lawsuit filed in September by nine Nevada counties, ranchers and two mining companies that claim the regulations are illegal, unworkable and could run them out of business.

In her Jan. 5 order denying a preliminary injunction, Du said the fact the water tank right of way still may be appealed "further underscores that the claimed harm is neither immediate nor imminent sufficient to warrant preliminary injunctive relief." "Because BLM has approved the district's application, plaintiffs argument of harm has morphed from harm caused by anticipated delay in BLM's approval to potential harm caused by the terms of BLM's approval," she wrote. Opponents say the BLM's restrictions make it "virtually impossible" to complete the project they wanted to begin three months ago and complete by July to ensure water supplies to fight wildfires throughout the summer.

The "government's suggestion that a 10-month delay to this necessary repair is harmless reflects a lack of understanding of the seriousness of the problem or how the (regulations) harm the community," Laura Granier, the plaintiffs' lead lawyer, wrote in a recent brief. Du said the plaintiffs have failed to show why significant work cannot be done before the actual construction, including planning, design and awarding of a contract. She said that even before the planning amendments were adopted, BLM had in place seasonal prohibitions to protect grouse habitat, including restricting activities within 2 miles of activing breeding grounds from March 1 through May 15, and winter range habitat from November 1 through March 31.