Wolverine – Case Study in ESA

The USFWS takes another step toward finalizing a wolverine recovery effort. Photo courtesy USFWS/Steve Kroschel.
The USFWS takes another step toward finalizing a wolverine recovery effort. Photo courtesy USFWS/Steve Kroschel.

Maybe we could follow this story and learn about the ins and outs of ESA as this goes through the process. When I worked for the FS, we had experts so I didn’t really need to understand all the ins and outs (I was involved with the S Rockies lynx amendment, but more in terms of trying to move it along procedurally). Bob Berwyn posted this on his blog here. It’s interesting that states currently with wolverines don’t seem to be as enthused as Colorado, which currently does not have them. Correlation or causation?

Here’s an excerpt from Bob’s story:

Just in the past few weeks, the state agency rekindled those talks to update stakeholders on the federal listing process, according to Colorado Parks and Wildlife spokesman Randy Hampton.

“We’re trying give everybody an understanding of how some of the things that are proposed would work … The way they’re doing it is kind of new,” Hampton said, referring to the proposed simultaneous listing and nonessential population proposal.

“Overall it was a productive meeting. There were concerns that came up, many related to lynx and the history of that,” he said.

The lynx listing resulted in more stringent reviews for certain types of projects on national forest lands, including logging, ski area operations and expansions, and other recreational uses.

Colorado won’t consider a wolverine reintroduction program until the federal listing is finalized. Then, the State Legislature would have have to give its approval, but Hampton said that state biologists are keen to explore the idea.

“There’s still a great deal of interest in this … Maybe to temper that, there’s biological excitement. There aren’t that many species that you can look at and say, they’re native, were extirpated, and there is general agreement that bringing them back would be a good thing,” he said.

Here’s my question: they aren’t here in Colorado. We bring them in (reintroduction) and then we have yet another creature to analyze on each federal proposal, and it seems that we need to analyze even when they are nowhere around because it could become habitat for them were their populations to grow (is this true?).

Would it be a “good thing”? Based on the same logic (native and extirpated) we would be reintroducing grizzlies to California.. I don’t know.. what is “biological excitement”? People get “biologically excited” for a variety of reasons, not all of which can be discussed on a family blog, but are not usually set into public policy…

I’m interested in a) whose opinion rules at the end of the day as this process goes forward (biologists who work for CDOW? USFWS?)
b) how and when the scientific information gets arrayed and how it is structured for the public to comment on the scientific information and its use.

In the case of the wolverine, the USFWS posits that snowmobiling, backcountry skiing, and land management activities like timber harvest and infrastructure development, don’t pose a serious threat, but nongovernmental conservation groups counter that there’s not enough good science to draw that conclusion. Intentional killing of wolverines would be banned in any case.

Did we move somehow from scientific information about impacts to needing to prove that there are no impacts..isn’t it impossible to prove a negative?

c) what happened with lynx.. at first it sounded like there was a deal with ski areas to support it, now every ski proposal needs to be examined for its impacts on lynx and I believe there’s been litigation that cited lynx.. how does that all work? Was there really a deal? How did it hold up?

d) How about people on private lands.. do they have the same restrictions as public lands?

e) If wolverine is up north and having trouble, is a choice to be more careful up north to protect it instead of moving it somewhere it isn’t? Which under climate change may get less hospitable for the species anyway? Is that a good use of public biologist time and federal planning and analysis funding?

13 thoughts on “Wolverine – Case Study in ESA”

    • Ahhh, the dream world where we could have “done something” to stop the bark beetle outbreak. It’s the climate. Lynx habitat designations or non-designations didn’t have anything to do with what the bark beetles did. Trees don’t live forever.

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      • Well, we could certainly “do something” to mitigate the impacts of bark beetles and fuels build-ups. Of course, I did not say we could stop bark beetle outbreaks, did I? I’m not blaming the ESA. Just the recovery plans, which are often inflexible, experimental and ineffective. When bark beetles and wildfires destroy endangered species habitats, I blame the recovery plans for not adequately protecting those habitats from the reality of man-enhanced impacts, like bark beetles and wildfires. Also, man has allowed invasive native species to alter species compositions, favoring larger and more intense wildfires.

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  1. It’s not really a question of whether it’s a good use of public time and money — it’s the law. The ESA doesn’t say pick and choose, it says the American people want the federal government to protect and recover endangered species.

    As for grizzlies, I don’t know about California, but we should absolutely be reintroducing them to the Colorado San Juans. It’s a moral imperative. If our generation doesn’t do it, the next, or the next, will. We are not whole unless the world around is whole.

    So now that you know where I’m coming from, a few more comments.

    As far as moving wolverines where they are not, it seems pretty clear right now, based on climate projections, that the higher elevations of of the Southern Rockies are going to be the last, best stronghold for these wonderful animals.

    There was no “deal” with ski areas on lynx. The ski industry straight-up opposed lynx reintroduction to Colorado. If you read the administrative record, there was never a favorable comment from the ski industry on lynx plans. One caveat, Vail Resorts did help fund the program with a $200K donation early on to try and gain points for approval of Blue Sky Basin (then Cat 3).

    Later, the industry appealed every measure the WRNF tried to adopt in its 2002 plan revision under Martha Ketelle to address the main threat to lynx, described in the listing as the “lack of adequate regulatory mechanisms.”

    When the appeals failed, the industry went straight to the top, to U.S. Department of Agriculture Deputy Undersecretary David P. Tenny, who dusted off rarely used “discretionary review” power, and ordered forest officials to ditch a provision requiring the agency to assess impacts to lynx habitat.

    Back to wolverines, the key thing here is that the Southern Rockies population would be nonessential and experimental. It would give the state and the USFWS a real chance to learn about wolverines by releasing collared animals and tracking them. In 10 years, we would know a lot more, just like with lynx, and maybe be in a position to make smarter decisions.

    One thing that strikes me about the draft listing proposal is how the USFWS on the one hand emphasized how little is known about wolverines overall, yet on the other hand, claims enough is known to exempt certain activities from regulation.

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    • Bob, I don’t think anyone has a problem with “the law”.. but the regulations and processes layered upon random bits of case law can be impenetrable and uninterpretable. Also MUSYA is equally “the law.”

      Then there are the effects of personalities… for example, one field biologist at FWS can have an opinion that differs with the FS person… each one can be supported by their own managers..because that’s what managers tend to do. But at its base there are professional disagreements potentially confounded by personalities and interpersonal chemistry.

      The one fact is that there is no public airing (let alone review and comment) of some of these controversies, and how different folks reach their conclusions from the facts.

      Why would southern Rockies be the “last best stronghold” for the species if they are all over the Northern Rockies?

      You said

      “It’s a moral imperative. If our generation doesn’t do it, the next, or the next, will. We are not whole unless the world around is whole.”

      But I don’t think that can really happen… new species have moved in to occupy niches, which we would then kick out (say moving elk back to the midwest, growing trees instead of soybeans in Indiana). But I’m glad you said what you said, because that is philosophical and moral point of view and you are open about it.. not claiming that “science” leads you there.

      I wonder if the FWS is doing that for the same reason as with lynx.. when they are reintroduced you say that existing activities can go forward… then after they’re introduced you say… oh whoops, did we say “x” was OK? well now they’re here and to protect them you can’t do “x” any more.

      Because if you said.. “this is potential wolverine habitat (map) and this is all we will ever claim it is (promise). Within that habitat we won’t let you do anything.” It seems like the folks who might want to do things within that mapped area would be strongly against it.

      Many folks have gone to the top in many administrations to get their way..so I am not surprised, but thanks for the feedback on the origins of lynx and ski areas.

      But maybe we won’t have to worry about that, as when the WR renews the ski area permits, they may find out that that the permits will not promote “ecosystem integrity” under the 2012 regulations and the permits will be denied….

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    • John, as you know “objectively” is really a difficult concept. I was just reading a guy named Ron Miller on the Gospel of Thomas..

      He says all knowledge is “the three P’s”: partial, provisional and perspectival. What we know is only a part and there are others with parts completing the picture we are trying to see. What we know is provisional; it always needs revision. What we know is perspectival. We cannot fully escape seeing things from our perspective: as a man or woman, someone poor or someone rich, someone gay or someone straight.”

      I would add to what Miller says “someone who works in the forests of California, someone who works with NEPA projects in Utah, someone who practices environmental law in Seattle, someone who studies reforestation in Montana.”

      That’s why I think our humble blog is a good promoter of knowledge. Because we recognize that we want to learn about “the elephant” from different perspectives and so learn more. When someone claims that “the science says we should” that’s a “situation that shouts watch out” because of the 3P’s, and because the scientific process is empirical and not normative. .

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  2. 1) Start talking about wolverines and the Endangered Species Act.
    2) End up talking about beetles and Larry’s pro-logging fantasies.

    When Kevin uses words like ecological “collapse” he got interrogated about semantics.
    When Larry uses similarly ambiguous words like “destroy,” “inflexible,” “mitigation,” “ineffective,” “damage,” “protecting” the interrogators look the other way.

    Just an observation.

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    • Yes, bark beetles and wildfires DO, indeed, “destroy” nesting habitats. Owls and goshawks will NOT nest in dead forests. Yes, recovery plans ARE “inflexible”. Are you saying they are not? “Mitigation” is site-specific treatment for impacted lands, by definition. Spotted owl recovery plans are, indeed, “ineffective”, especially when populations continue to decline. There certainly is “damage” when rare habitats burn at high intensity. Accelerated erosion is pretty damaging to water quality. Washed out roads certainly causes “damage”. Certainly, we should be “protecting” against unintended consequences predicted for today’s forests. We need to accept the realities of man-dominated landscapes. Wishing for humanless forests is folly.

      There is absolutely nothing wrong with using words which best describe my points. Can you suggest a better way to get my own points across?? Sharon was talking about lynx habitat and I was talking about protected dead lynx habitat.

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    • Tree- the difference between Larry and the ecologists talking about “collapse” is that they claim that it is an empirically-based scientific concept. Larry is just using adjectives to describe his point of view. Kind of like you used “pro-logging fantasies” about Larry, except he didn’t single out a specific human being for his colorful adjectives.

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  3. All laws are not created equal. The Multiple-Use Sustained-Yield Act is famously (among lawyers any way) described as ‘breathing discretion at every pore.’ It is brought out often for show, but really is a toothless tiger.

    ESA on the other hand has a few teeth, both procedural and substantive. However, they are blunted for populations designated as experimental under Section 10(j). This means more limited analysis requirements akin to proposed species rather than listed species (no consultation). Any effort to reclassify an experimental population would have to go through a rulemaking process that would have to demonstrate that the population is now ‘essential’ (when before it wasn’t). (Colorado lynx are not designated under 10(j).)

    Recovery plans are more like gums than teeth. They are not directly binding or enforceable on anyone, and they do not require NEPA as a federal action (but they do have to meet some substantive requirements in ESA to recover species). In order to comply with Section 7(a)(1) of ESA to carry out programs for ‘conservation’ of listed species, all federal agencies must strongly consider (and arguably follow) recovery plans which are developed for the ‘conservation’ of listed species. That is why the 2012 planning rule requires plan components to ‘contribute to the recovery of’ listed species (219.9(b)(1)).

    (Some mid-western states have reintroduced elk.)

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  4. Thanks, Jon… I wonder why Colorado lynx are not 10j..?? How is that determination made when you are reintroducing some critter?

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  5. The second question is a little easier. There are basically these criteria in the law: 1) population is outside of the current range, 2) is wholly separate geographically from other populations, and 3) is not essential to the continued existence of the species. The process is discretionary, apparently intended to be triggered by a request for authorization from FWS to release the species in a new location.

    Lynx were reintroduced in Colorado before lynx were listed (a year before, but they had been working on this for awhile). So when it was listed, Colorado was not ‘outside the current range’ of lynx. My guess is that, compared to wolverine, it was less clear that natural lynx had been extirpated or were not connected to northern Rockies populations, so would not have qualified for 10(j) any way.

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