Legal Decision on Monitoring SW Species

Thanks to Matt Koehler for this submission..

For Immediate Release, October 12, 2011
Contact: Taylor McKinnon, Center for Biological Diversity, (928) 310-6713
Erik Ryberg, Western Watersheds Project, (520) 622-3333

Court Slams Forest Service’s Refusal to Monitor Southwestern Endangered Species

TUCSON, Ariz.— A federal judge on Tuesday sided with the Center for Biological Diversity and Western Watersheds Project in a lawsuit challenging the U.S. Forest Service’s chronic refusal to monitor the health of threatened and endangered species in national forests throughout Arizona and New Mexico.

The 2010 suit alleged that the Forest Service failed to monitor populations of species, including the Mexican spotted owl and ridge-nosed rattlesnake, as required by a 2005 “biological opinion” authorizing implementation of forest plans for national forests in Arizona and New Mexico.

“The U.S. Forest Service has been shirking its legal obligation to monitor the Southwest’s most imperiled species and make sure its actions aren’t pushing them into extinction. Instead the agency’s been spending its money elsewhere and leaving these vulnerable species in the lurch,” said Taylor McKinnon of the Center. “This court ruling finally holds the Forest Service accountable for neglecting these species and putting them at the very bottom of its list. We hope the Mexican spotted owl and other imperiled species will now get the protection they need and deserve.”

The ruling provides endangered species with interim protection while the Forest Service and Fish and Wildlife Service reinitiate consultation on the regional forest plans. The ruling suspends livestock grazing on four grazing allotments that were determined likely to harm endangered rattlesnakes, imposes restrictions recommended by Fish and Wildlife on logging near Mexican spotted owl nests at the Upper Beaver Creek timber sale in northern Arizona, and may provide a basis for suspending other actions harming endangered species prior to completion of a new biological opinion.

“Arizona’s public lands are deceptively rich in animal life, and it is unfortunate that the Forest Service treats those animals with such disdain,” said Erik Ryberg with the Western Watersheds Project. “Western Watersheds Project is hopeful that this legal victory will cause the Forest Service to acknowledge the damage that their widespread livestock grazing programs inflict on animals that make these public lands their home.”

In June 2005, the U.S. Fish and Wildlife Service issued a biological opinion that gave the Forest Service, in accordance with the Endangered Species Act, permission to implement forest-management plans in all 11 national forests in Arizona and New Mexico. As a condition of that permission, the Forest Service agreed to monitor threatened and endangered species’ populations and their habitats.

But in October 2008 the Service issued a report admitting it had not done the monitoring. It also admitted that it might have exceeded its allowable quota of harm to some species, including the Mexican spotted owl. The Center warned the Forest Service of an impending lawsuit if it did not begin the required monitoring, which the agency has continued to refuse to do. After the Center filed suit, the Forest Service and Fish and Wildlife Service reinitiated consultation; today’s decision provides interim protections for endangered species until the reinitiated consultation is completed.

The lawsuit was argued by attorneys Marc Fink with the Center for Biological Diversity and Matt Kenna from Durango, Colorado.

To view Tuesday’s ruling, click here.

5 thoughts on “Legal Decision on Monitoring SW Species”

  1. I am still rather new to the litigation arena, but being the NEPA/litigation coordinator on the Coconino I have a perspective that leads me to find this ruling rather strange. I also interpreted the ruling very differently than CBD’s press release and though I would share my thoughts to provide for a more robust understanding of the recent ruling.

    This ruling was for a preliminary injunction on some grazing allotments on the Coronado and for the Upper Beaver Creek Watershed Restoration Project on the Coconino. Despite what the press release says, the Forest Service has not refused to monitor, but simply cannot meet the monitoring requirements of the 2005 Biological Opinion due to limited budgets and multiple other priorities. That is why the FS is currently in the process of reinitiating consultation for the Southwestern Region’s land management plans.

    For the Upper Beaver Creek Project, this lack of monitoring was already taken into account by limiting all activities within MSO PACs and within a 1/2 mile buffer during the breeding season to ensure impacts would be minimized. This almost exactly matches what was prohibited by the preliminary injunction in the court ruling. So, in effect, this ruling has little or no actual on-the-ground effect (for Upper Beaver). Rather, the ruling’s effect is more of a ‘chilling effect’ on all other projects that include thinning/burning in or near MSO habitat. Unfortunately, maintaining dense and untreated stands within MSO habitat is exactly the opposite of what the draft MSO Recovery Plan says needs to happen for the long-term survival and proliferation of the species.

    I don’t plan on arguing with anyone on this point, but hope to provide a different perspective that may be interesting and/or enlightening to other readers.

  2. Thank you, Mike. It’s good to hear from knowledgeable people with different perspectives.

    It seems counter-intuitive to me that you can’t do what’s in the recovery plan due to litigation from people concerned with the species, but maybe I am missing something.i

  3. Mike, your distinction between “not refusing to monitor”, just “not funding it”, is unconvincing. The Forest Service agreed to being allowed to log and graze in endangered species habitat on the basis that it would monitor those actions. It then chose to fund the logging and grazing, but not fund the monitoring. That was the agency’s choice. If it did not feel capable of doing the monitoring, it should not, legally or morally, have done the logging and grazing.

    This particular problem was addressable because of the Endangered Species Act nexus. However, the problem is even more widespread under NEPA. The BLM and Forest Service regularly promise monitoring in a NEPA decision, but then carry out extraction action, but fail to monitor. They response is always “we don’t have the money.” But the agency always has money for the extraction part.

  4. This has been an ongoing issue for the FS and probably for other entities as well. Some have argued that the funding should be set aside the fiscal year of the project approval for the monitoring and kept only for that use- annual appropriations are hard to control.

    I am not sure, but I think some stewardship contracts may contain monitoring as part of the contract.

  5. The FLAME Act should have addressed the problem of diverting project funds to wildfire suppression. Another avenue that could be used is to “obligate” funds to pay a contractor or Enterprise team to complete the monitoring, while protecting the funds. Without the guaranteed monitoring promised by the Forest Service, this is just a “bait and switch”. For the Forest Service to earn any trust, they have to do what they say they are going to do.


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