Recent Endangered Species Act policy news – June/July 2023

A Louisiana pine snake, a threatened species under the Endangered Species Act, in the Kisatchie National Forest, La. Gerald Herbert/AP Photo

REGULATIONS

On June 22, the Fish and Wildlife Service and National Marine Fisheries Service proposed (for public comment by August 23) a new set of regulations for administering the Endangered Species Act, which for the most part cancelled many of the changes adopted by the Trump Administration.  This follows litigation that resulted in the Trump rules being kept in place pending this action by the Biden Administration.  The changes are in three rules governing these main topics:

  • Interagency consultations under ESA section 7, including clarifying the distinction between the environmental baseline and effects of the action
  • Procedures and criteria for listing, reclassifying, delisting, and designating critical habitat for species under ESA section 4, including loosening criteria for designating unoccupied habitat, validating the role of long-term effects such as climate change, and removing economic considerations from this scientific process
  • Reinstatement of USFWS’s blanket ESA section 4(d) rule which, prior to its repeal in 2019, extended the take prohibitions of ESA section 9 to all species. listed as threatened under the statute unless USFWS issued a species-specific rule

While those who liked the Trump version would be expected to criticize all of this, the conservation organizations are not entirely happy that some of the Trump changes have been retained.  A couple of key ones noted by the Sierra Club include:

“One such regulation severely undercuts critical habitat protections. The policy says a development project must affect critical habitat “as a whole” before alternative projects are considered. This would protect a species with a small range because a major infrastructure project would likely destroy its entire area, and thus it would be hard to approve such development. Not so for species with large ranges, like northern spotted owls and gray wolves. There would never be an instance where habitat was destroyed as a whole for a species whose range includes hundreds, thousands, or even millions of acres.”

“Another missed opportunity, conservationists say, was the chance to update the definition of “environmental baseline,” a term used to describe the habitat of a listed species before federal agencies begin a project. Agencies are supposed to evaluate whether their activities jeopardize a species’ survival and recovery. The Biden administration decided to keep the 2019 rule that allows officials to overlook the cumulative effects of past decisions for ongoing projects. Dams in the Pacific Northwest, for example, have pushed salmon and trout runs to the brink of extinction. When a federal agency is looking to extend a dam’s operating license or approve a new dam operating plan, its consultation with the wildlife agency shouldn’t ignore those past effects on the species’ biological condition.” (For land management agencies, this might apply to something like roads.)

On July 3, the Fish and Wildlife Service adopted a final section 10(j) rule that would allow it to establish experimental populations of endangered species in places outside of their normal historical range.  This is primarily in response to changes in species’ habitat resulting from climate change:

“Through this rule change we are adjusting our regulatory authority to allow us to adequately respond to these potential scenarios in circumstances where it may not be possible to recover a species within its historical range because of loss or alteration of some or all its suitable habitat,”

LITIGATION

Court decision in Maine Lobstermen’s Association v. National Marine Fishery Service (D.C. Cir.)

On June 16, the circuit court reversed a district court decision and invalidated a regulation issued by the National Marine Fisheries Service to protect Atlantic right whales from lobster and crab fishing activities.  The case is viewed as significant because it discusses and dismisses the use of the “precautionary principle” where there is scientific uncertainty under the Endangered Species Act.

NMFS consulted with itself on the regulation to determine if jeopardy would be likely.  In its Biological Opinion, NMFS concluded that federal fisheries entangle more than 9% of right whales each year.  According to the court, to reach this estimate, the Service put aside the data on confirmed entanglements and relied instead upon a “scarring analysis” from a 2019 study, noting “This approach provides the benefit of the doubt to the species and a more conservative estimate of total right whale entanglements.” NMFS stated that “uncertainty is resolved in favor of the species” and that it generally “select[s] the value that would lead to conclusions of higher, rather than lower, risk to the endangered species.” To defend its use of the worst-case assumptions, the agency pointed to a line in a House Conference Report for the 1979 amendments to Section 7 of the ESA, which stated that “this language continues to give the benefit of the doubt to the species.”  In its consulting role, NMFS concluded that the regulation would not jeopardize the species.  In adopting the regulation, NMFS acknowledged that its “model outputs very likely overestimate the likelihood of a declining population.”

The court declined to give deference to the agency, and held the BiOp was arbitrary because in the administrative record NMFS had erroneously claimed that its position was required by the ESA’s legislative history, and because its current “policy” on resolving uncertainty using the precautionary principle conflicted with its prior (opposite, under the Trump Administration) position.  In addition, the court stated:

“Statutory text and structure do not authorize the Service to “generally select the value that would lead to conclusions of higher, rather than lower, risk to endangered or threatened species” whenever it faces a plausible range of values or competing analytical approaches. The statute is focused upon “likely” outcomes, not worst-case scenarios. It requires the Service to use the best available scientific data, not the most pessimistic…

If brute uncertainty does make it impossible for the Service to make a reasoned prediction, however, the interpretive rules supply a ready answer: The Service lacks a clear and substantial basis for predicting an effect is reasonably certain to occur, and so, the effect must be disregarded in evaluating the agency action.”

However, the court left the regulation in place, concluding that NMFS might be able to justify it on remand.  (Perhaps meaning, “if they say it in a different way.”  It may also be possible for the consulting agencies to interpret a study that uses the precautionary principle as the best available science for predicting likely outcomes.)  Here is another summary of the case.

“Greenwire,” in its “occasional series” discusses the role of litigation in implementing the Endangered Species Act.  Some highlights:

During President Ronald Reagan’s first three years, 22 species were listed as threatened or endangered. By contrast, 100 species got protections in the Carter administration’s first three years.  In response, a frustrated Congress in 1982 amended the law to add deadline teeth.

A 2017 Government Accountability Office study found that plaintiffs filed 141 such ESA missed-deadline suits between fiscal 2005 and 2015.

“The Fish and Wildlife Service knows the workload, and it refuses to ask for enough money to get the work done,” Suckling (Center for Biological Diversity) said, “and then when it doesn’t get the work done, it goes to the judge and says, ‘Your Honor, I don’t have enough money.’”

“Of our total revenue in a given year, only about 5 percent comes from legal returns,” Suckling said. “It’s really just not that much money, [and] settlements are good for everybody.”

“We could avoid having to fully litigate cases and use scarce resources to do so if the agency would agree to settle cases more,” said Larris of WildEarth Guardians, “but they much more often decline to settle.”

In what’s still one of the most comprehensive studies of its kind, Biber and co-author Berry Brosi, a biologist now at the University of Washington, assessed the role played by petitions and litigation with hundreds of species. They concluded, in a 2010 issue of the UCLA Law Review, that species listed as a result of a petition or litigation faced greater threats than species listed on the agency’s initiative.  Biber said he believes the 2010 conclusions remain valid, saying that overall, petitions and litigation “are beneficial [in] ensuring that the species most at threat are protected.”

Former FWS Director Dan Ashe, who oversaw the agency during the Obama administration and now is the president and CEO of the Association of Zoos and Aquariums, assessed that “litigation overall has been beneficial” in sustaining a focus on protecting species.

 

Lawmakers Bore Into Anchors in Wilderness and Grizzlies Return to Montana Prairies

Montana wildlife agents sometimes use drones to chase grizzly bears away from farms and ranches on the high plains.

Montana wildlife agents sometimes use drones to chase grizzly bears away from farms and ranches on the high plains. (Montana Fish, Wildlife and Parks)

Some of us have been working on the BLM Proposed Rule and the FS ANPR, so I thought a nice Friday roundup with people agreeing on stuff would be relaxing.

Bipartisan Agreement on Anchors in Wilderness- CPR Story

This is a long and comprehensive story, well worth reading. It’s interesting that bipartisan lawmakers agree, but not so much the FS and NPS.

For Hickenlooper, a longtime booster of outdoor recreation, it makes complete sense for Congress to step in and clear up any confusion or questions about whether fixed anchors can continue to be used across many types of federal land.

“We wanted to make sure there was absolute clarity that this is an essential part of wilderness areas as well as our National Parks,” Hickenlooper said.

Back in Washington D.C., Hickenlooper got language that would allow the continued use of fixed anchors for rock climbing in wilderness areas added to a bill that is now awaiting a full senate vote.

Over in the House, a bipartisan pair of Western lawmakers, GOP Rep. John Curtis of Utah and Colorado Democrat Joe Neguse, is working to pass similar legislation. During a hearing on the PARC Act, Neugse said it’s simply about ensuring a clear standard for a practice that’s been going on for years.

“There are a number of national forests that have in effect changed the rules of the game, right? They’ve begun to treat these fixed anchor devices differently than they have been treated previously,” he said.

Curtis added it’s about “creating a predictable standard for the rock climbing community, who have been using wilderness areas since their inception, and, if I might say so, are among our most predictable caretakers of these wilderness areas and who care deeply about protecting them.”

The House version of the policy is also awaiting a full vote in the chamber.

But this idea may have a hard climb ahead of it. The National Forest Service and the National Park Service have both raised concerns, saying it would, in effect, be changing the Wilderness Act by allowing permanent installations in areas that are supposed to remain as pristine as possible.

And earlier this year, Chris French, Deputy Chief of the National Forest System, said in the hearing that the policy is also unnecessary, because they’re already working on guidance around the issue.

“I believe you’ll see that almost every issue that’s been brought forward in your bill will be addressed,” he assured the House committee members.

According to a spokesperson for the Forest Service, the agency is close to publishing the long awaited draft guidance, which would then be open for 60 days of comments. But they don’t have a set timeline for how soon that will be out.

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Grizzlies Didn’t Read the Recovery Plan

I like this story about grizzlies from the Cowboy State Daily. Since on TSW we mostly hear that this or that FS project needs to analyze for grizzlies more, this is a nice break- farmers and ranchers seem to be dealing with grizzlies coming back to the plains – of course with lots of help from Montana Fish, Wildlife and Parks folks..

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Managing Wyoming’s grizzly bears has come with its challenges, but Montana wildlife officials have a unique quandary – prairie grizzlies.

“People in the ‘gap areas’ (between the Yellowstone and Glacier park ecosystems) were already used to black bears” and so they’ve adjusted to grizzlies moving in, said Montana Fish, Wildlife and Parks department spokeswoman Danielle Oyler.

“Whereas the folks out on the plains, they didn’t have black bears there. So having grizzlies show up has been a huge challenge,” Oyler told Cowboy State Daily.

Montana’s prairie grizzlies are an “unintended consequence” of the overall grizzly recovery program, FWP bear management specialist Wesley Sarmento told Cowboy State Daily.

“There’s a lot of folks uncomfortable with grizzlies being out here,” said Sarmento, who is based in Conrad, Montana, about 60 miles north of Great Falls. “They didn’t expect to have grizzlies out here. And in the original planning documents for grizzly recovery, there was no mention of grizzlies being out here.”

Home On The Range

Grizzly bears are well-adapted to life on the prairie. They evolved from brown bears on the wide-open steppes of Russia, and at one time occupied most of the Great Plains.

Wildlife officials in Wyoming and Nebraska recently told Cowboy State Daily that it’s unlikely grizzlies will reclaim prairie habitat in those states.

But in Montana, they’ve made a home on the range. Grizzlies have pushed well into northern prairie habitat around small communities such as Conrad and Augusta, Oyler said.

“They go well out into the prairies now. They are definitely out in prairie settings,” she said.

The land there is largely private, mostly vast grain farms and cattle ranches, Sarmento said. And adjusting to grizzlies has been tough for prairie folks.

“Kids used to able to run free in the summers and go down to the creeks and go fishing,” he said. “And that’s a lot harder to do right now because of the chance of a grizzly encounter.”

Even so, the grizzlies are probably there to stay, Sarmento said.

“There is a breeding population of grizzlies on the plains, and it’s more and more every year,” he said.

Bruins Making A Comeback

Grizzlies are popping up in many places across Montana where they haven’t been seen in decades, Oyler added. Even some larger communities, such as the state capital of Helena, have bruins nearby.

A grizzly was recently spotted roughly 30 miles south of Billings, as the crow flies, in the the Pryor Mountains. The Pryors extend into Wyoming and are adjacent to the Bighorn Mountains. It was the first verified sighting of a grizzly in the Pryor range since the 1800s.

Grizzlies have long been rumored to be in the Bighorns as well, though there haven’t yet been any verified sightings of them there.

Munching On Cattle Carcasses, Grain

Grizzlies need only the basics to reclaim habitat, Oyler said.

“What’s ideal for them is good food and availability of cover,” she said.

For cover on Montana’s northern plains, grizzlies have taken advantage of natural river bottoms as well as “shelter belts” of trees and shrubbery planted by humans for wind breaks, she said.

There are abundant natural food sources for grizzlies, depending upon the season, Sarmento said.

In the spring, grizzlies can feast on roots and fresh green prairie grass, he said. And they also might occasionally kill whitetail deer fawns.

During the summer, they switch to gorging on wild berries and chokecherries. In the fall they can finish off wounded deer that escaped human hunters or eat gut piles that hunters leave behind.

The trouble begins when they develop a taste for livestock, Sarmento and Oyler said. It might start with grizzlies raiding carcass dumps where ranchers leave piles of dead cattle.

“They get into ranchers’ ‘dead piles.’ And, unfortunately, they sometimes kill ranchers’ livestock,” she said.

Even when cattle carcasses have decayed, grizzlies can get ample calories and rich nutrients from the bones, Sarmento said. But FWP doesn’t like the bruins hanging around carcass piles, because it puts grizzlies in close proximity to people and livestock, upping the chances for conflicts.

“We’ve started a carcass clean-up program” to help mitigate such grizzly magnets, he said.

Piles of grain spilled during harvest can also draw grizzlies, because grain is an easy and calorie-packed meal for the bears, he added. So FWP also encourages farmers to be diligent about cleaning gain spills.

This grizzly was recently tranquilized and collared by Montana wildlife agents for guard dog research project testing to see if livestock guard dogs are effective at keeping bears away from farms with grain spills.
This grizzly was recently tranquilized and collared by Montana wildlife agents for guard dog research project testing to see if livestock guard dogs are effective at keeping bears away from farms with grain spills. (Montana Fish, Wildlife and Parks)

‘Young, Dumb Bears’

Older, wiser bears have managed to adapt well to the northern plains without raising a ruckus, Sarmento said. But with juveniles trying to strike out on their own, it can be a different story.

“For the most part, the bears are pretty good at staying out of trouble. Most of the bears we’ve had trouble with are young, dumb bears,” he said.

Those are typically bears that have recently separated from their mothers and push “east, even farther out on to the prairie” in search of new territory, Sarmento said.

What’s more, they can be much younger than Wyoming sub-adult grizzlies, which usually separate from their mothers around age 2 or 3.

“This area is a system of relatively low risk and high resources for grizzlies. In these kinds of systems, we see young bears getting kicked out on their own by their mothers as yearlings, instead of the typical two-year-olds or three-year-olds,” he said. “And the yearlings can be really dumb.”

Hazing Usually Works

To help keep grizzlies — particularly the young, dumb ones — from getting crossways with farmers and ranchers, FWP has found that hazing is effective, Sarmento said.

“Most bears respond to hazing,” he said. “We use dogs, rubber bullets or cracker shells.”

Cracker shells fire a charge from shotguns. The charge explodes in mid-air, like a large firecracker.

FWP also uses drones to chase bears away from places they shouldn’t be, Sarmento added.

When hazing doesn’t work, FWP might trap bears and relocate them to mountain wilderness areas. There have been only a few cases in which wildlife agents have had to kill prairie grizzlies, he said.

FWP has also launched a guard dog program on some farms, he said.

“We’ve found that dogs are pretty good at scaring grizzlies away from farms where there have been gain spills,” Sarmento said.

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Please feel free to add any stories for discussion in the comments.

To Intervene, or Not to Intervene? The Case of Isle Royale, Wolves and Moose

A pack of wolves after they killed a moose at Michigan’s Isle Royale National Park. (January 24, 2023) AP Photo/Rolf Peterson, Michigan Technological University.

AP had an interesting story about the reintroduction of wolves on Isle Royale, a National Park that is an island. Wolves apparently had only been there since the 1940’s. Even in Wilderness, there are disagreements about when intervention should occur and to what end.

Scientists believe the island’s first moose swam to Isle Royale around the turn of the 20th century. Wolves arrived in the late 1940s, apparently crossing the frozen lake surface from Minnesota or the Canadian province of Ontario. Though technically part of Michigan, that state’s shores are farther away.

Moose provided an ample food supply for the wolves, which in turn helped keep moose numbers in check. Both populations rose and fell over the years, influenced by disease, weather, parasites and other factors. But inbreeding finally took its toll on the wolves, whose numbers plummeted between 2011 and 2018.

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The scientists’ annual report, based largely on aerial observations last winter, estimated the rebuilt population at 31 wolves— up from 28 last year. It said the wolves appeared to be forming three packs, with others wandering alone or in smaller groups. The moose total was roughly 967, down from 1,346 last year and 54% decline from about 2,000 in 2019. Ecologists are celebrating what they hope will be a healthier herd.

“It’s been hugely successful,” said study co-leader Sarah Hoy, a research assistant professor and animal ecologist. “That’s what everyone was hoping for.”

But the early results haven’t settled a debate over whether people should rescue struggling species at Isle Royale or other designated wilderness areas, where federal law calls for letting nature take its course.

“We have felt and still believe that the National Park Service should not have intervened and set up this artificial population of wolves,” said Kevin Proescholdt, conservation director for the advocacy group Wilderness Watch.

Some experts said they should be allowed to die out, as have other species that once occupied the island, including Canada lynx and woodland caribou, which had the same predator-prey relationship as today’s wolves and moose.

“Species come and species go,” Proescholdt said, arguing that the federal Wilderness Act “directs us to let nature call the shots and not impose our human desires.”

Park officials and Michigan Tech scientists contend the absence of a top-of-the-food-chain predator of moose and beaver would have been ruinous for the island’s forest. Even now, its balsam firs continue to deteriorate from moose browsing and an attack of tree-killing spruce budworm, the report said.

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The moose population’s 28% drop from 2022 is one of the biggest one-year collapses ever seen at the park, it said. While wolf predation is partly responsible, necropsies indicate the biggest cause was starvation from overpopulation.

Even though relatively few moose calves appear to be surviving to adulthood, there’s no reason to worry about the moose’s immediate future, Michigan Tech biologist Rolf Peterson said. They’ve fallen to 400-500 before and bounced back. But the warming climate, tick infestations and other long-term challenges will remain.

For now, the park’s ecosystem is getting healthier thanks to the wolves’ return, he said, suggesting the decision to intervene was correct.

“The old hands-off approach to managing national parks, figuring everything will turn out OK, is probably not sufficient,” Peterson said. “Our footprint is all over the entire globe.”

If hands-off is not sufficient for National Parks, then, why would we think it is for Forest Service or BLM? Or perhaps it’s not a question of hands-offness so much as who gets to decide when to be hands-on and for what reasons.

Bad Winter for Wildlife, Bison Genetic Purity and Early Dispersal of Domestic Horses

Antelope in southcentral Wyoming are dying in large groups from lack of food this winter. (Photo Courtesy Larry Hicks)

Bad Winter for Wildlife

This winter has been very hard on wildlife in Wyoming and Colorado.

The wildlife winter kill in southcentral Wyoming is the worst anybody there can remember, some locals are saying.

“It goes on for miles: dead animal after dead animal after dead animal,” state Sen. Larry Hicks, R-Baggs told Cowboy State Daily on Wednesday. “The antelope are dying by the thousands. Starvation is an ugly thing.”

Outfitter and pilot Bo Stacks said that at higher elevations, he’s seen even hardy bull elk struggling to survive.

“Usually the elk are pretty tough and don’t have much die-off,” he told Cowboy State Daily. “There’s still 4 feet of snow on the high ridges. When I fly over, they don’t even look up because they’re so weak. They don’t even do anything.”
 

In addition, near Pinedale a bacterium, Mycoplasma bovis, has killed more than 200 pronghorn.

The Question of Genetic Purity.. re Bison

From this Wall Street Journal essay..

Native American reservations across the Great Plains support a growing number of the animals that the Blackfeet call Iinnii, and today the total U.S. bison population is estimated at 500,000. It’s a huge conservation success, but it comes with a twist with far-reaching implications for species recovery: Genetically, these animals are different from their wild ancestors, with a measurable portion of their DNA coming from cows.

Hybrid species—and especially species hybridized to satisfy human needs—are valued less by conservationists than species with their original genetic legacy intact. To suggest that a hybrid bison riddled with cattle genes is the same animal that roamed the Plains in Paleolithic times would be, for many people, to commit wildlife heresy, like saying the difference between your neighbor’s kitty and a Himalayan snow leopard didn’t matter.

What struck me about this was the idea that non-human manipulated hybrid species would be of less value than those with the “original” intact. Especially since we are hybrids ourselves.. in the words of Wikipedia

Introgression of DNA from other lineages has enabled humanity “to migrate to, and succeed in, numerous new environments”. Therefore, a strong case can be made that hybridization was an essential driving force in the emergence of modern humans.

Evolution is a process and hybridization can help it along… “intactness” (or a specific genetic array) is a function of a particular time and place. And sometimes conservationists intentionally hybridize to generate more genetic diversity in small populations (e.g. the Florida Panther.


Horses in North America.

As it turns out there is debate as to whether wild horses count as native wildlife.

You may have read about this one. Here’s a link to the full text of the publication in Science. Basically, they think the reintroduction of horses came from the Spanish, and that Indigenous trade routes led to horses being throughout western North America by the time other English speaking settlers showed up.

It’s a little confusing, though, because there were headlines like “Native Americans corralled Spanish horses decades before Europeans arrived“. And of course, you would think, “aren’t the Spanish Europeans?” but what they mean is that horses were spread out around western North America before later European settlers showed up.

New CEQ Guidance on Habitat Connectivity

Cascade Forest Conservancy

On March 21, the Council on Environmental Quality provided “Guidance for Federal Departments and Agencies on Ecological Connectivity and Wildlife Corridors” to federal agencies.  The Forest Service was a member of the working group that developed this guidance.

Connectivity is the degree to which landscapes, waterscapes, and seascapes allow species to move freely and ecological processes to function unimpeded. Corridors are distinct components of a landscape, waterscape, or seascape that provide connectivity. Corridors have policy relevance because they facilitate movement of species between blocks of intact habitat, notably during seasonal migrations or in response to changing conditions… Increasing connectivity is one of the most frequently recommended climate adaptation strategies for biodiversity management.”

“To the maximum extent practicable, Federal agencies are expected to advance the objectives of this guidance by developing policies, through regulations, guidance, or other means, to consider how to conserve, enhance, protect, and restore corridors and connectivity during planning and decision-making, and to encourage collaborative processes across management and ownership boundaries. Any existing corridor and connectivity policies or related policies should be updated as needed to align with the objectives in this guidance. Federal agencies should have new or updated policies ready to implement by the first quarter of 2024 and make their policies publicly available. Federal agencies should also actively identify and prioritize actions that advance the objectives set forth in this guidance.”

“Federal agencies should not limit engagement in restoration activities only to circumstances when restoration serves as a mitigation strategy to compensate for adverse impacts from projects or actions. Instead, Federal agencies should consider where there are opportunities in their programs and policies to carry out restoration with the objective of promoting greater connectivity.”

One of the specific “focal areas” listed in the memo is “forest and rangeland planning and management.”  “Connectivity and corridors should factor into high-level planning and decision-making at Federal agencies as well as into individual decisions that lead to well-sited and planned projects.”  “In carrying out large-scale planning required by statutory mandates (citing NFMA and FLPMA) Federal agencies should consider updating inventories of Federal resources under their associated management plans to assess connectivity and corridors.”

The Forest Service 2012 Planning Rule already includes language requiring that forest plans address connectivity as part of its wildlife viability considerations.  I had something to do with that, but I was regularly disappointed in the agency’s unwillingness to “think outside the green lines” about how species occurring on a national forest depend on connectivity across other land ownerships, so I’m always happy to see someone try to make them do that:

“Ecological processes and wildlife movement are not limited by jurisdictional boundaries. Therefore, Federal agencies should seek active collaboration and coordination with other Federal agencies, Tribes, States, territorial, and local governments, as well as stakeholders to facilitate landscape, waterscape, and seascape-scale connectivity planning and management, and consider appropriate collaboration with other nations. Prioritization and strategic alignment of connectivity efforts across partners improves the effectiveness of each entity’s activities and enables larger-scale conservation, enhancement, protection, or restoration to occur.”

“Federal agencies with investments on Federal lands or in Federal waters adjacent to designated areas that may have conservation outcomes (e.g., National Park System units, national monuments, national forests and grasslands, national marine sanctuaries, national estuarine research reserves, wilderness areas, national wildlife refuges, etc.) should explore collaborative opportunities to enhance connectivity across jurisdictional boundaries.”

These kinds of initiatives seem to come and go, but we should at least expect to see the land management agencies tell us what they think under this administration by next year.  If anyone happens to notice, let us know!

Is Something Rare (Almost) Everywhere? Geothermal vs. Toads and the Search for Land for Renewables with Fewest (No?) Impacts

Ormat’s Steamboat Hills geothermal plant outside Reno, Nev., supplies electricity to the Los Angeles Department of Water and Power. (Ormat Technologies)

 

Update: the Fallon Paiute-Shoshone Tribe is a plaintiff  with CBD on this lawsuit against this project.

Another excellent piece by Sammy Roth of the LA Times in his Boiling Point newsletter. The Times has something like 99 cents for six months which IMHO is worth getting if you only read Sammy’s work. He also has links to interesting articles on wind and solar and wildlife that I hadn’t seen. And perhaps you can sign up for his Boiling Point newsletter without being a subscriber.  This is a controversy about something considered to be good for decarbonization (geothermal) but has localized environmental impacts. We usually see this as a “good ENGO’s vs. bad industry” kind of thing, but this seems to be a “good ENGO vs. good industry” kind of thing. I like how Sammy interviews both Patrick Donnelly of CBD and folks from Ormat, the geothermal company, and tries to put the pieces together.

Looking through our lens posited yesterday considering the Biden Admin and Native people, I don’t see any mention of Native concerns in this piece (I’m checking with the reporter).  Also the Biden Admin would have to go with the science of the USFWS because of the unique science-based characteristics of ESA (Jon can correct me on this).  And perhaps their own views of “scientific integrity” as Jon brought up here yesterday.

 

The nation’s largest geothermal power company is preparing to sue the Biden administration over its decision to protect a tiny toad, in the latest high-stakes showdown between renewable energy development and wildlife conservation.

In a letter to Interior Secretary Deb Haaland and the director of the U.S. Fish and Wildlife Service — a copy of which was shared exclusively with The Times — Ormat Technologies Inc. warned Wednesday that it would sue the wildlife service in 60 days if the agency doesn’t revisit its decision to declare the Dixie Valley toad an endangered species. That decision might otherwise derail Ormat’s plan for a Nevada geothermal plant that could potentially supply climate-friendly electricity to California.

Federal scientists say the 2-inch amphibian’s wetland habitat — the only place it’s found on Earth — is threatened by Ormat’s renewable energy project. The Reno-based company disputes that conclusion, arguing it’s grounded in shoddy science.

Paul Thomsen, Ormat’s vice president of business development, told me federal officials wrongly assumed his firm’s geothermal production would drain the nearby Dixie Meadows, when the company’s tests have suggested otherwise. He also said the Biden administration had illegally invoked the Endangered Species Act based on speculative future harm to the toad.

“For us, the precedent there is terrifying,” Thomsen said. “If this action were to stand, many renewable energy projects in the West could be thwarted simply based on a concern, with no evidence that they may impact a species in the future.”

“We’re being convicted of a crime that we haven’t committed,” he added.

To help avert the worst consequences of global warming — which is already fueling deadlier and more destructive heat waves, fires, droughts and floods — the U.S. must build huge amounts of renewable energy infrastructure at a breakneck pace.

But across the American West, endangered-species concerns have emerged as a key barrier to construction of solar farms, wind turbines, power lines and lithium mines that would supply electric-car batteries. Lawsuits and protests from conservation activists, Native American tribes and rural residents are poised to slow or block a growing number of projects.

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As far as Donnelly is concerned, the geothermal industry has a “dirty little secret,” which is that its facilities frequently dry up hot springs. He pointed me to a 2000 research paper from the U.S. Geological Survey concluding that when geothermal plants are built, impacts to nearby water features such as hot springs, geysers and steam vents “should be viewed as the rule, rather than the exception.” The paper cited several decades-old examples involving Nevada plants since acquired by Ormat.

“There’s this huge body of peer-reviewed literature,” Donnelly said.

When I asked Ormat’s Thomsen about that literature, he told me the geothermal plants cited in the research paper used an older technology that the company has phased out at most of its facilities. As for Dixie Meadows, he told me Ormat’s flow testing found no direct connection between the deep geothermal reservoir and shallower springs that he said feed the wetlands.

He also noted that Ormat recently reduced the plant’s proposed size from 60 megawatts to 12 megawatts, and that the company agreed to extensive real-time monitoring to ensure the wetlands aren’t affected. He said the monitoring would cost roughly $1.5 million a year during the geothermal facility’s operation, adding to a likely construction cost of around $60 million.

Federal officials, Thomsen said, failed to take those factors into account before protecting the Dixie Valley toad last year.

“We support the Endangered Species Act,” Thomsen said. “We want it to be implemented properly.”

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An Interior Department spokesperson declined to comment on Ormat’s 60-day notice warning of a potential lawsuit.

But in its species assessment of the Dixie Valley toad, Interior’s Fish and Wildlife Service cited research that it said showed the springs feeding Dixie Meadows “are not hydraulically isolated from the underlying geothermal reservoir.” As a result, the toad’s wetland habitat “can be impacted by production pumping and/or injection for the geothermal project,” the agency wrote.

Donnelly, meanwhile, pointed me to data showing that temperatures and water levels increased in one spot at Dixie Meadows after Ormat finished flow testing — a possible indication of underground hydraulic links that could put the toad at risk.

“The toads have this incredibly delicate relationship to temperature,” Donnelly said. “If you start cooling off those springs, they might all freeze to death. And if you start heating up those springs, they might all boil to death.”

Asked about the temperature and water level changes, Ormat’s senior legal counsel, Laura Jacobsen, told me via email that small amounts of data from a single spring are “far from sufficient to establish the flow test impacted the springs,” especially with temperature readings “within the variable baseline range for that spring.” The company also pointed me to a Bureau of Land Management document concluding that flow tests “indicate little to no observed changes in spring discharge conditions.”

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I’ve been shining a light on similar battles across the region through The Times’ Repowering the West series. I’m now writing Part 3, dealing with solar sprawl in southern Nevada. Next month I’ll travel to Idaho to report Part 4, about why the red state’s dominant power company set a goal of 100% clean energy even when lawmakers haven’t ordered it to do so.

In the meantime, Dixie Meadows is far from the only geothermal conflict I’m tracking. Another project contemplated by Ormat could be built just outside Gerlach, a Nevada town best known as the gateway to the Burning Man art and music festival. Local residents and Burning Man leaders are fighting to block exploratory drilling, saying a geothermal plant could industrialize their rural outpost and scare off tourists. The San Francisco Standard’s Maryann Jones Thompson wrote about the controversy.

I was also struck by a recent study from the U.S. Geological Survey, funded in part by Ormat, finding that populations of greater sage-grouse — an iconic Western bird known for its mating dance, and a prime example of the extinction crisis — “declined substantially in years following the development of the geothermal energy plants” in Nevada, as the Geological Survey described the study. The agency has built a mapping tool that it says can help companies find low-impact spots to build geothermal plants.

“It’s great that they’ve developed a tool that can identify areas that are more or less sensitive,” Ormat’s Thomsen said.

Ultimately, that’s what it’s going to come down to: finding the best places to put renewable energy. It’s as true for small-footprint geothermal plants as it is for sprawling solar farms, vast fields of wind turbines and lengthy power lines.

A person could wonder if the first step in renewable energy buildout would have been to work with companies to identify sites with less potential for wildlife and Indigenous concerns. Rather than set targets, make assumptions, fund companies, and when they are far down the road, say “oops, not there.”

Seems like we might have done better by making sure top-down determinations of what should be done with renewable energy installations are actually viable in the real world.

What Aspects of Wolf Management are the Responsibility of the Forest Service? Potential CBD Lawsuit

Colorado wolf photo from CPW
Thanks to the non-paywalled Cowboy State Daily...here’s the link.

Wolves that cross the border from Colorado into Wyoming may be shot on sight, and it’s up to the U.S. Forest Service to stop it, an environmental group claims.

The Center For Biological Diversity plans to file a lawsuit against the Forest Service in U.S. District Court unless the agency steps up to protect the wolves. That’s what the group claims in a letter sent to USFS and U.S. Department of Agriculture officials. The Forest Service falls under the USDA’s jurisdiction.

The possible lawsuit may initially seem like a legal dead end, because the Forest Service doesn’t manage wolves.

The Wyoming Game and Fish Department has jurisdiction over wolves in Wyoming, and the Colorado Parks and Wildlife Department is primarily in charge of the growing wolf population in that state.

But the Forest Service does have authority to shut down wolf hunting in its jurisdiction – and indeed already has shut down prairie dog shooting in parts of Wyoming, the Center for Biological Diversity claims in its letter.

In the case of wolves, the group argues that the Forest Service should declare a no-kill zone on the Medicine Bow-Routt National Forest, headquartered in Laramie.

Center for Biological Diversity attorney Collette Adkins told Cowboy State Daily on Thursday that she couldn’t discuss the pending case in detail. However, she affirmed the group’s stance on the Forest Service having authority to stop hunting in some instances.

“That’s not a question at all, and forest supervisors do that regularly for various reasons, including for protecting an endangered species,” she said.

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Despite not having any wildlife management authority in Wyoming, the Forest Service still has authority to ban the killing of wolves on the Medicine Bow-Routt National Forest, thus giving them at least some degree of protection, the Center for Biological Diversity claims.

The agency has been negligent in that regard, the group says.

“The U.S. Forest Service has not issued any orders to close wolf hunting or trapping or otherwise protect wolves on the Medicine Bow-Routt National Forest,” the group’s letter states. “Nor does the Land and Resource Management Plan for the Medicine Bow-Routt National Forest have any standards or guidelines aimed at conserving wolves.

“In fact, the Forest Plan, developed in 2003, includes no mention of wolves at all.”

I wonder if that’s because there were not wolves there then?

Here’s the FS side on the prairie dog shooting question..

The Forest Service has shut down prairie dog shooting and should be able to do the same for wolves, the Center for Biological Diversity argues.

“As just one example of the Forest Service’s use of this authority to prohibit hunting, the Forest Supervisor has ordered a seasonal closure of prairie dog hunting on Thunder Basin National Grassland,” the letter states. “The Forest Service’s authority to restrict hunting on national forests has been repeatedly confirmed in the courts.”

Forest Service spokesman Aaron Voos recently told Cowboy State Daily that the agency implements seasonal closures of prairie dog shooting in some parts of the national grassland.

However, that’s not to protect the burrowing critters from being shot. Rather, it’s to protect raptors and other wildlife that feast on perforated prairie dog carcasses from getting lead poisoning from bullet fragments.

The Forest Service has shut down prairie dog shooting and should be able to do the same for wolves, the Center for Biological Diversity argues.

“As just one example of the Forest Service’s use of this authority to prohibit hunting, the Forest Supervisor has ordered a seasonal closure of prairie dog hunting on Thunder Basin National Grassland,” the letter states. “The Forest Service’s authority to restrict hunting on national forests has been repeatedly confirmed in the courts.”

Forest Service spokesman Aaron Voos recently told Cowboy State Daily that the agency implements seasonal closures of prairie dog shooting in some parts of the national grassland.

However, that’s not to protect the burrowing critters from being shot. Rather, it’s to protect raptors and other wildlife that feast on perforated prairie dog carcasses from getting lead poisoning from bullet fragments.

Effects of e-bikes on wildlife management areas

by AltoRider

We’ve discussed e-bikes, and one of the questions was what kinds of effects they have, and on wildlife in particular.  It looks like some places have seen enough use to say something about that.  Here is one report on that from the Utah Division of Wildlife Resources.

Class II and Class III e-bikes are now banned in off-road areas at all 193 wildlife and waterfowl management areas in the state, according to the Utah Division of Wildlife Resources…

Division officials explained that they altered the rule because some e-bikes were “ruining” habitat meant to protect the state’s wildlife. They believe the rule change can help reduce habitat destruction.

“In areas where there is a lot of e-bike use, notable habitat damage is occurring,” said Utah Division of Wildlife Resources Capt. Chad Bettridge in a statement Thursday. “With the increased use of e-bikes, we are seeing these properties damaged, ultimately limiting our ability to manage them for their intended purpose.”

“While we would like to provide recreational opportunities on our WMAs, these properties were purchased for the benefit of wildlife and wildlife habitat,” he said. “These properties are public land, but they are not multiple-use like many other state and federally-owned properties.”

Friday News Roundup: Hogs, Montana Story, Bourbon and Decarbonization

Photo North Dakota Game and Fish

Best headline.. goes to the Cowboy State Daily for

Hogpocalypse Now? Feral Swine In Colorado, Montana Could Bode Badly For Wyoming

 

Hordes of hogs running wild across Wyoming aren’t likely anytime soon, some hunters and wildlife agents said, but feral pigs reaching the Cowboy State could be inevitable.

There have already been reports of feral swine showing up in Colorado, North Dakota and Utah, and there’s serious concern over them pushing south from Canada into Montana.

Perhaps worse, people sometimes deliberately transplant feral hogs, apparently because they want the opportunity to make money by offering “canned” hog hunts, Montana’s state veterinarian, Martin Zaluski told Cowboy State Daily.

“Much of the spread of feral hogs has been in stock trailers being pulled down highways at 80 miles per hour,” he said.

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As a special treat for our TSW Montana residents… here’s a Livingston, Montana resident (Walter Kirn) getting grumpy ( in a good writer way) about a recent New York Times Magazine story…

Walter: There always has to be a center of evil in the United States, right? For a while, it was northern Idaho, like you say, which did genuinely have some Christian white supremacist compounds as it were. But so now I guess it’s Montana’s turn in the stocks. But more than that, I think the piece was a lifestyle piece gone wrong. Everything about it was exotic. Even if I were Marxist, I’d want to move to Montana after I read this piece. It looked unreconstructed and wild and full of characters and conflict and so on….

The funny thing is that having lived there for 32 years, this is now about the third cycle of ‘Montana as militia threat’ that I’ve watched in the press. In the nineties around the time of the Oklahoma City bombing, there was something called the Patriot movement and the militia movement. And it was usually located in Montana because, for readers of the New York Times, you can pretty much set any scary trend in Montana without anyone checking on it. It’s harder nowadays because there are direct flights to Bozeman and there didn’t use to be…

Walter: But accompanying the text of this piece, and even more damning in the eyes of the person who knows nothing about Montana, were a bunch of photographs that were absolutely completely manipulated and filtered in the way of like dystopian campaign ads. They put dark filtering on them, and they showed things like some kind of a Republican meeting in a hotel ballroom or something, but filtered so as to look like some satanic pageant.

Here’s a link to the discussion with Walter and Matt Taibi on Substack.  It might be behind a paywall.

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Another interesting article on the White Oak Initiative and how they need openings for seedlings to get started:

But the intensity of land use a century or two ago tipped the balance too far. “Back then, we did wide-scale burning on purpose or accident. We abused the system with practices we don’t think [are] appropriate now,” says Stringer. That realization led to policies that introduced decades of fire suppression, such that shade-loving trees have enveloped the undergrowth again. Add in pests and invasive plants encouraged by climate change, and baby oaks don’t stand a chance.

But controlling invasive species and pests, and cutting to provide light to the understory, takes commitment and resources many forest owners don’t have. “Missouri’s forest cover is 15 million acres, and 12 million acres are privately owned. Only 10 percent of that is being actively tended to,” notes Missouri State Forestry specialist Hank Stelzer. “Landowners have the attitude, ‘If it’s green, it’s good.’ So the forest is like an unweeded garden, and we know what happens when you neglect a garden. You don’t get large tomatoes; you get insects and disease. We see the same thing in woodlands. We don’t get the quality white oaks or those that can sustain climate change.”

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Decarbonization Corner

Following the Money- Climate Edition

(note there are many things that people can do or fund about decarbonizing, from concrete to nuclear to hydro to geothermal; this focuses on anti-fossil fuels and pro- wind and solar.)

I find ENGO’s interesting and where the $ come from, and to what specific ends.

Robert Bryce apparently had the patience and the facility to look into climate related ones.. which relates to our federal lands issues in that, for example,  “rapid scaling” and “stopping the expansion of fossil fuel infrastructure.”

Given that other ENGO’s are likely to litigate some of the rapid scaling (but will be with the big $ on the “stopping the expansion”), it would be interesting to see (if we could, but I don’t think we can) what this money will be used for.

 

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Building Things, McKibben on the IRA

Bill McKibben in this New Yorker article  which is generally interesting.. talks about rural people being influenced by outside (bad, fossil fuel) groups.

The same kind of manufactured opposition is shaping up on land. For many years, surveys found that solar energy was incredibly popular across political groups—Republicans, independents, and Democrats all favored far more public support for photovoltaics. But front groups sponsored by the fossil-fuel industry have begun sponsoring efforts to spread misinformation, crisscrossing the country with slide shows claiming that wind turbines routinely catch on fire, or lower property values, and that solar farms shed toxic chemicals into the water supply. “There’s always been some run-of-the-mill nimbyism,” Norris, the North Carolina solar developer, said. “But there’s an increasingly organized opposition effort.”

So.. I’ve actually attended public meetings on these things and I didn’t see any sign of “front groups”. Maybe the difference is that it seems like a good idea. until it industrializes your landscape. And we were told industrialized landscapes were bad and to be resisted, until now. Notice how concern for the environment is now NIMBYism and even “the culture wars”. I don’t know the answer, but more listening, and less critiquing might be a start. And if our neighbors, protecting what they see as their environment, become the key to the “climate crisis slipping irretrievably out of control” then perhaps someone has bet on the wrong decarbonization horse.

Based on the way that project approvals work, it’s going to come down to a county-by-county basis,” Norris told me. “I thought solar energy was insulated from the culture wars until relatively recently, but it’s getting worrying.” Nationally, Billy Parish said, “We used to be able to say solar polled in the low nineties for popularity. But I think that’s probably begun to trail off a bit, become a little more polarized. It’s still very popular, but there’s definitely slippage.” And that slippage could mean a thousand different fights, each one delaying change past the point where the climate crisis slips irretrievably out of control. “Thanks to the I.R.A., money is not the chief obstacle,” Gillis said. “What Congress did was change the economics of the technologies we’re talking about. But what they did not do was remove all the other barriers slowing us down. Really, economics was the tailwind for renewables already. It just got better with the I.R.A. But the other friction remains.”