On May 16, 2013, U.S. District Court Judge Dana Christensen ruled in favor of conservation groups and found that the U.S. Forest Service violated the Endangered Species Act when it failed to consult with the U.S Fish and Wildlife Service to determine whether its region-wide management direction for the threatened Canada lynx would destroy or adversely affect 10 million acres of designated critical habitat for the elusive feline.
In the past, the Forest Service had taken a project by project approach to managing critical habitat, but recovering Canada lynx requires managing their habitat at the large landscape scale. This ruling requires the Forest Service to sit down with the Fish and Wildlife Service to ensure its big-picture management scheme is protecting the 10 million acres of designated lynx critical habitat in the northern Rockies. The judge’s ruling impacts 11 national forests containing designated critical habitat in Montana, Idaho and Wyoming.
The lawsuit challenged the Forest Service’s failure to consult with the U.S. Fish and Wildlife Service to ensure that the Northern Rockies Lynx Management Direction would not destroy lynx critical habitat. At the time the management direction was adopted, lynx critical habitat was only designated in three national parks—Glacier, North Cascades and Voyageurs. The U.S Fish and Wildlife Service subsequently designated 10 million acres of critical habitat across 11 national forests in the northern Rockies after it determined that Julie MacDonald, a high ranking political appointee in the Bush Administration, had improperly interfered with critical habitat designations for several species, including the Canada lynx. The court ruling determined that the Forest Service should have consulted with the Fish and Wildlife Service when the new critical habitat was designated.
So, let me get this straight. Because the Forest Service didn’t consult with the USFWS, that would “destroy lynx critical habitat”??? When I worked on the Bitterroot, there was a VERY unscientific elevational line protecting “potential lynx habitat” from ALL timber projects. Even if lynx were not present. I’m seeing yet another example of “do no harm”, through human management but, accepting all sorts of other “harms”, including unintended consequences.
OK, I don’t get it. A casual read sounds like the FS didn’t consult on the Norther Rockies plan amendment, which they must have.. so was there a separate step they should have consulted on?
And the “improperly interfered” is interesting, because I remember the appeals court saying “elections have consequences” when talking about the roadless rule. But political appointees can’t make decisions about ESA? It’s wired so that only scientists can? Sounds like that science would really need to be high quality. Also, I wonder about how power.. that tends to be shared among Congress, the Courts and the Executive Branch, could suddenly be outside the Executive Branch and between scientists and the courts.
I wish the political scientists were still on this blog…
The FS did consult on the original lynx plan amendment, but that consultation preceded the relevant critical habitat designation decision. The issue in the lawsuit is whether critical habitat designation triggers the FS’s duty to re-initiate consultation. The judge says “Yes, it does.”
As for the improper political interference, here’s the USDI Office of Inspector General report that details the transgressions. For those keeping score, it’s worth noting that the interference occurred under the Bush administration, was investigated by the OIG during the Bush administration, and the OIG’s findings were adopted and approved by the Bush administration. In other words, this is not a case where one political party was pointing fingers at the other.
Sharon, it would seem the courts are saying that the politicians should not be arbitrarily amending or ignoring any specific act of Congress, or set of rules already in place as a result of legislation.
Your comment seems to accept (with little concern) the premise that it is OK for laws and regs to be tweaked or ignored each time a new political regime has the gavel. That idea, taken to its fullest extent, would play havoc with our society, and not just forest management. Surely you jest, or tongue-in-cheek?
Also, I was under the impression that the day-to-day running of the government is the key function of the executive branch, of course, within the limits of law. (Not happening in too many cases, however, but in theory, yes.) Therefore the executives and their scientists have the first crack at management or mismanagement. It is then the role of citizens and courts, or Congress if they really object, to oversee or rein-back on executive actions that are “wrong”.
If current ESA rules and regs say one thing, and your politicians or execs say another, then the court has every right (and duty) to correct the course of action. I know you know this…you are confusing me with this post!
Well, the way I see it, things like politicians writing planning rules that include “ecological integrity” are, in fact, arbitrarily amending or ignoring Congress.
I seem to remember Congress asked for EAJA fee documentation, which I haven’t yet seen either..
Anyway.., that is the tension, politicians do what they do and people litigate to make sure they are not going too far. The problem with this is that only some people have enough money/skill to litigate…so regular people can kind of fall out of the equation if we’re not careful.
My question was whether there is something specific about ESA that says politicals should not make decisions. Because however much I think the planning rule errs in being faithful to MUSYA, I don’t think it’s “improper” for a political to make that decision. Do you see what I’m saying?
Or maybe it’s just reporter bias…people who disagree with him/her agenda do it “improper”ly. I just don’t know.
Larry – It’s that procedural harm question again. If you don’t follow the procedures, courts do err on the side of avoiding possible real harm (especially for ESA-listed species). And ESA does have a separate requirement for protecting critical habitat, even when there are no lynx in it (because it might be important for recovery – another ESA requirement).
Sharon – The Forest Service did consult on the amendment with respect to jeopardy (I know; I was there). But critical habitat has its own separate consultation requirement, and the Forest Service chose not reinitiate consultation for that purpose. A more detailed summary of the case is below. McDonald’s actions became ‘improper interference’ (the reporter’s words) because there was no scientific rationale for the decisions she made (or told the FWS to make) and the agency recognized the decisions would be considered arbitrary and not defensible.
Summary of Salix lawsuit on lynx:
Plaintiffs challenged the failure of the Forest Service to reinitiate consultation on forest plans amended by the Northern Rockies Lynx Amendment. The Amendment was adopted in 2007 and consultation occurred to meet the non-jeopardy requirement of ESA. Critical habitat was designated in 2009, and this has a separate consultation requirement. The Endangered Species Act requires that agencies reinitiate consultation on actions when new critical habitat is designated ‘where discretionary Federal involvement or control over the action has been retained or is authorized by law.’
The Ninth Circuit addressed this issue in 1994 and decided that plans were continuing agency actions subject to the ESA reinitiation requirement. In 2004, the Supreme Court found that BLM plans were not continuing actions for the purpose of NEPA, and in 2007 the Tenth Circuit applied the same reasoning to hold that Forest Service plans are not continuing actions under ESA. The Forest Service would like the Ninth Circuit to change its position based on these subsequent cases (and did not expect to win in district court; I was the Forest Service lead on this case).
The Montana district court held that reinitiation of consultation on plans is required for lynx critical habitat because ESA is more demanding than NEPA, and because recent Ninth Circuit cases have continued to endorse the 1994 precedent (though they were not about forest plans). It also held that project analysis of effects on critical habitat could not substitute for analysis that was required at the broad scale.
However, the district court did not enjoin any projects because plaintiffs had not provided information demonstrating that harm posed by any projects to take place in Lynx Amendment forests is likely to occur and is irreparable. While plaintiffs had provided sufficient information to establish standing to sue based on areas they would use in lynx critical habitat that might be affected, they did not provide any evidence for the court to assess the likelihood of harm or tailor an injunction to the harm alleged. The court thought what plaintiffs wanted the Forest Service to demonstrate for every ongoing project was ‘impossible’ (though it should have been done already for each project).
Thanks, Jon. My Experience on the Bitterroot was in 2004. Is the definition of critical lynx habitat so general that it can include ALL acres above a certain elevational line? That sure seems TOO general to be scientifically sound. When I was there, most of those acres were dead from the fires and the subsequent bark beetles that came from those burned forests. Again, I question recovery plans when they basically say “do nothing”.
I definitely questions claims of willfull destruction of habitat by the Forest Service. “Destroy” is a powerful word that becomes powerfully wrong in this instance.
Thanks, Jon, it is very helpful to have someone who understands all this. It’s pretty obscure to those of us who aren’t directly involved.
So… there was an amendment to protect lynx and tell people what they could and couldn’t do to protect them. We had a Southern Rockies one with which I was peripherally involved. But designating critical habitat is a separate decision. It seems, just off the cuff, that both should be related somehow, how many acres and how you manage them.
I guess I don’t get how habitat can be critical if the critter currently doesn’t use it. It seems like there would be a lot of guesswork about how the climate will change, whether beetles will kill the trees, if there are fires, etc.
It can’t really be “critical” in the English sense of the word if the species is doing OK without it. Perhaps again that is the difference between “keeping them from extinction” and “making sure they are everywhere they used to be.” Which I think are two different things.
Sharon – The language in ESA always refers to ‘the Secretary.’ (The Secretary typically delegates to an agency.) If a species is listed under ESA it is probably not doing ok.
ESA specifically addresses unoccupied habitat that is ‘essential for the conservation of the species’ (i.e. recovery) as critical habitat. It is confusing that the Forest Service designated lynx habitat for the purpose of its management direction (which does not include unoccupied habitat in the N. Rockies), and the FWS designated critical habitat for the purpose of ESA which could be unoccupied – not sure if it did.
My opinion on critical habitat is that it sounds worse than it is for those who don’t like it, and it accomplishes less than it should for those who like it. Based on the examples in the regulations, I think it was intended to give an extra layer of protection for uncommon but important habitat, but (for the wide-ranging species I’ve mostly dealt with), it covers vast areas, and is seen (by both the action agencies and consulting agencies) as an extra paperwork requirement.
Larry – Lynx habitat has been defined largely based on presence of snowshoe hares (dense understory vegetation), and having enough snow for lynx to outcompete other carnivores. Elevation is a ‘scientific’ proxy for snow depth.
Jon: Less trees equals more surface snow. Should we be clearcutting everything above a certain elevation in deference to nonexistent lynx so that snowshoes will benefit and lynx may be introduced? I think critical habitat has been a politically motivated land-grab that sounds better than it really is. Does that form the basis of a third group, in your perspective?
Jon, I’m just trying to understand the concept of “critical”- how can Colorado be “essential for the conservation” of the species if the species was OK without being reintroduced to Colorado. And if the species was not OK in the North.. how does designating habitat in the South help?
Maybe I’m thinking of the “vast areas” that you describe.
Just thinking about the “science,” it seems like you could have a more conservative and a less conservative estimate about habitat depending on what you think about climate change (here in the south, will those same elevations continue to provide habitat?). I don’t know how you could pick among them based on “science” ???
Lynx is a species that can benefit from some early seral vegetation, so logging is not necessarily a problem, and the lynx management direction is mostly about scope and timing of management activities rather than a prohibition. But I don’t recall that clearcuts are considered a benefit from a snow standpoint (getting a little too scientific for me here, but I think snow retention is important, too).
While ESA requires critical habitat designation concurrently with a species’ listing ‘to the maximum extent prudent and determinable,’ it is not unusual to see it delayed or to not have it happen until the listing agency gets sued. Listing provides most of the species’ protection by itself, and there may not be much payoff perceived of an additional ‘land grab.’ (Critical habitat designation also requires an analysis of economic and national security impacts.) I think that designating unoccupied habitat as critical habitat is not very common. There is no lynx critical habitat in Colorado.
Lynx was not ok in ESA terms before being reintroduced in Colorado. Listing was pending. Part of the rationale for the Colorado reintroduction was that having a healthy (sub)population there would promote recovery and speed up de-listing. For the purpose of ESA it is all one lynx population.
I agree that the ‘science’ of future snow conditions is challenging. Legally, the agency responsible for ESA has the job of making sense out of that in relation to listing and critical habitat – subject to judicial review under the arbitrary/capricious standard.