Judge Christensen on Whitebark Pine

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It’s interesting to me that there are species that have few members right now, and there are species that are likely to have few members in the future depending on people’s predictions/projections about what will happen in the future.

Given my experience with people’s projections about the future, I would tend to prioritize those species that are having problems now. I don’t know if that’s the way ESA works, though.

Anyway, this seems to be a discussion about funding, but it’s not clear what the funding would do other than to develop a plan. But I believe that there have been a couple of other plans or strategies developed. There is one for the Pacific Northwest (here) and one (range-wide) from the Rocky Mountain Station here. I know individuals who have spent many hours working on these efforts, so I am curious why

Christensen also agreed with FWS’ claim that developing multi-species protection plans (that might include whitebark pine with things facing similar threats or use similar areas) was a reasonable and logical effort.

What is missing from the other strategies, developed with much government time and money, that makes them insufficient?

Again, as in so many lawsuits, it’s difficult for me to figure out what is the desired endgame (in Physical World) following all the paperwork-jousting that will actually help the WB pine.

Here’s a link, and below is an excerpt from a Missoulian story. Thanks to an unnamed reader for this.

Whitebark pines grow on high-altitude mountain slopes and mature trees can produce big crops of protein-rich pine nuts. Grizzly bears and other animals count on the trees as a major food source. But decades of devastation by blister rust fungus and mountain pine beetle infestation have put it in danger of extinction. FWS research expects it to be gone from the landscape within two or three generations.

In July 2011, FWS decided whitebark pine was warranted but precluded from protection under the Endangered Species Act. That means while the agency agrees the tree is in danger, it does not have the resources to prioritize its protection over other species already listed.

The Fish and Wildlife Service ranks species’ risk numerically from 1 to 12, based on their respective threats and rarity. The environmental groups argued that whitebark pine got a rank of 2 – second-most serious – but the federal agency let species with lower ranks get protection while the tree was precluded.

Christensen ruled the ranking could assist FWS in setting its priorities, but didn’t force it to work exclusively by the strict order of worst-first standing.

“Congress could have expressly bound the service to its (listing priority number) rankings or some other proxy for degree of threat, but chose not to do so,” Christensen wrote. “The court will respect that decision.”

In September 2011, FWS settled another lawsuit over its endangered species backlog by creating a work plan to finish initial reviews of more than 600 species and settle the status of 251 “candidate” species that were already under review. But the whitebark pine status was done before that agreement was imposed, Christensen said.

Christensen also agreed with FWS’ claim that developing multi-species protection plans (that might include whitebark pine with things facing similar threats or use similar areas) was a reasonable and logical effort.

“The service provided sufficient reasoning and data upon which the finding that listing of the whitebark pine is ‘precluded by pending proposals to determine whether any species is an endangered species or a threatened species’ as required by (law),” Christensen wrote. “In the case of the whitebark pine, the service turned in its homework, which the court gives a passing grade.”

32 thoughts on “Judge Christensen on Whitebark Pine”

  1. Wow…an “unnamed reader” provides a link to an article in a local newspaper easily accessible to anyone in the world with a computer. How positively “cloak-n-dagger!” If we’re going to quote Judge Christensen, might as well post this one too:

    “The Court is not unsympathetic to the Plaintiffs‟ general argument, however, and was surprised by the relatively paltry amount requested and allocated for the Listing Program, given the myriad of activities that fall under its ambit, and the lofty and worthy purpose Congress articulated for the ESA: “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species . . . .” 16 U.S.C. § 1531(b). There is no question that the Listing Program is underfunded, and as a result, many candidate species otherwise deserving of the Act‟s wide protections are languishing in “warranted but precluded” limbo. The Court does not disagree with the Districts of Idaho and New Mexico that the Service and the Secretary of the Interior could likely play a more active and aggressive part in narrowing the gap between what is needed and what is allocated for the Listing Program by requesting and sufficiently justifying additional funds. However, Congress is ultimately endowed with the exclusive authority to appropriate funds, and thus to grant, deny, or modify any request that the Secretary might make. See U.S. CONST. art. I, § 9, cl. 7. The Court declines to take the drastic step of overturning the warranted but precluded determination pursuant to 5 U.S.C. § 706(2)(A) based on the agency‟s alleged failure to do its level best to obtain the full amount needed to fund the Listing Program.”

    • MatthewK

      It is amazing how much time you have to post and comment except when you are asked for specifics as I have repeatedly and most lately in my 3rd, 4th, 5th and 6th paragraphs here at: https://forestpolicypub.com/2014/05/12/more-on-montana-lands-designated-as-restoration-priorities/comment-page-1/#comment-47824

      Your reply to item #4 at ( https://forestpolicypub.com/2014/05/12/more-on-montana-lands-designated-as-restoration-priorities/comment-page-1/#comment-47892 ) as to why you wouldn’t speak to the specifics was “I don’t know Gil? Because I work a 40+ hour a week job that isn’t checking in on this blog, or even working on national forest policy issues? Because I like spending time with my wife and friends and not getting into, what quickly turns out to be, some very strange on-line debate with you? It’s nice outside. The birds are singing. I’m going to garden and have a beer. So thank you.” So as shown in this comment above and other multiple comments since my request, you have plenty of time to comment in spite of your protestation that “I work a 40+ hour a week job that isn’t checking in on this blog,” but you don’t have time for specifics which you refer to as “some very strange on-line debate with you” which only confirms that your main interest is to be heard rather than hearing opposing points of view. Keep deflecting with aspersions, you’re really good at that and seem to have lots of time for it and for “checking in on this blog”. Don’t you see the inconsistencies between your statements and actions of which this is but one of many? You are inconsistent because you refuse to be pinned down on anything but don’t want to admit it which only shows that you are not interested in compromise or negotiation. As you imply in your restoration principles, it’s your way or the high way.

      BTW, let me congratulate you on the improvement in the aspersions you use. “Very Strange” is much nicer than “Creepy”. Thank you for your progress in your self improvement program and for the resulting kinder and gentler Matthew.

      • Speaking of his way, news just hit that WWI, along with Conservation Congress (basically Denise Boggs laundering money from Peter Mennen’s inheritance, yep, that Mennen family) and Friends of the Bitterroot (Larry Campbell), using Western Watershed’s attorney — will be suing in Montana state court because the nomination process for the Farm Bill fire money nominations wasn’t open enough.
        So much for compromise and negotiation. Never mind that the nominations were just empty posturing and most of the funds will go to save Mark Udall’s Senate career.

        • Morning Dave. Here’s a copy of the complaint. Yes, as anyone can read in the complaint, some Montana citizens and organizations believe their rights were violated by the no-notice, no-public input secret nomination process. Also, last I checked, Friends of the Bitterroot included 300 members in the Bitterroot Valley and the leadership included a former Forest Service district ranger and a former Forest Service wildlife biologist. But those are just petty details. Making FOB out to just be Larry Campbell is just so much more intriguing, to some people at least.

          • The last time I looked, the last IRS Form 990 the Friends of the Bitterroot filed was in 2007. Since then they’ve disappeared from the “Guidestar” radar screen. In 2007 they had “contributions, gifts, and grants” of $3300 and listed $490 from “membership dues and fees.” If I recall, their website at the time listed “membership dues” as $25 ($10 for student). Well…$490 divided by $25 is 20 members…not 300…or 800 that they routinely claimed then.

            What specific criteria constitutes a “member”? A hit on a website, a mailer sent to an address, some college kid who signed up in 1990 but has since got a haircut, got a job, and now votes Republican but doesn’t realize he’s still considered a “member” in good standing. How many dead people are registered members? The groups I belong to usually require a due of some sort LOL.

            Hey…maybe I’m way off base here…maybe I’m missing an accounting nuance. If so, I apologize in advance…but could someone tell this group “how many dues paying members does the FOB” have now?

      • Morning Gil. You’re retired, aren’t you? That must be nice. Also, it appears as if your need to debate people – and set all the rules of the debate – is greater than the need other people feel to debate you.

        • MatthewK

          It must be awesome to be you. Never wrong. Inspired to constantly pontificate your unequaled intellect on subjects that you don’t know anything about. So wise that you fill the NCFP, many newspapers, and meetings on environmental issues with demonstrations of your prowess. Instantly inflamed anytime anyone dares to contest your position and instantly resorting to intimidation tactics to scare them off rather than defending your position with actionable specifics based on long established science that continues to be supported by recent science.

          Have you ever read what you write? Would your like for me to assemble a list of your invective’s/aspersions/innuendos? How about a list of the facts that have been presented to you that you ignored the next time that you got a chance to spout your faux science and mantras? Accusing me of loving to debate is worse than the pot calling the kettle black. My time spent in debate is infinitesimally small compared to yours. You’re proud of your love to contest others and crow about it quite often here on NCFP. Your claims are just another vivid example of your hypocrisy/duplicity. You have proven that you are not constrained to stick to established science which seems to be totally irrelevant to you which in turn allows you to say whatever you want without having to consider whether or not the other person might know more than you and have a valid point.

          As a point of fact, I detest debate but I don’t detest it as much as I do logical inconsistencies and falsehoods. I will continue to contest your aspersions/invective’s and uninformed mantras in spite of your vindictive and incessant need to put others down. Let me know when you are willing to raise the truce flag and discuss specifics point by point on a rational basis without obfuscation and without flaming the opposition. Until then, I’m on you like a cat on a June bug.

    • Matthew… I like to thank people. Some people I don’t thank publicly not to create intrigue but because they are current employees. My personal experience with the FS was that working on the blog while an employee provoked much internal drama which I hope to avoid by generic gratefulness to those currently employed.

      It would be nice if you wouldn’t assume the worst.

      If they (FWS) don’t have enough money to do everything, shouldn’t they (FWS) figure out what they can or can’t do? Who else should?

      By litigating it seems like the previous case made a giant list of species that they are now dealing with…so will more court cases lead to changes in priorities? Given that they will never have enough money to do everything, will they be bouncing like a pinball as court cases go back and forth with different species priorities?

      It doesn’t seem like an optimal way to run this program to me.

      • That’s a question of law, Sharon, and the ESA right now is untouchable. There are hard and fast mandate deadlines for decisions, and the mandates of the ESA are equally as hard. The groups that filed the 600 species epic knew that.
        The ESA was deliberately written to be crazy by a handful of people, the language was ignored by Congs thinking it was all about fuzzy wuzzies and cute animal babies, and it even took the environmental movement some time to realize they’d been handed an A-bomb. And if an A-bomb is the only tool you have….well.

          • Nixon was more about Dick Nixon being in power than about representing Republican values of limited government, Larry. He was better than Humphrey, but that’s not conceding much.
            Thing is, there’s a serious crisis coming with the ESA as new listings hammer new victims, new parts of the country that are not going to like seeing their prosperity proscribed by some unknown beastie. They’re already saying the grouse has orders of magnitude more potential for economic harm, and in a down economy, that’s risky.

      • In an interesting contrast to the whitebark pine case, the same federal district court in the same week (but a different judge) found unreasonable delay in producing a recovery plan for Canada lynx. Even though the FWS tried a similar defense – that they were waiting until they were done designating critical habitat first. (http://www.enewspf.com/latest-news/science/science-a-environmental/52780-court-acts-swiftly-to-aid-rare-canada-lynx.html)

        Affirmative duties are hard to enforce, and there is no clear line for how much delay is “unreasonable” delay under the APA (in the lynx case it was 14 years). So professional opinion is given deference up to a point, but beyond that priorities get worked out by judges and in settlement agreements. It ends up being the ‘squeaky wheel’ approach to spending tax dollars; the things the most assertive members of the public are most assertive about get addressed first. I don’t think that is unusual in our system of government.

        • Same court, different judge. Christensen is not quite the fire-breathing Naderite ambulance chaser that Molloy is.

          • Dave, you may have missed these, but this blog has previously featured some of Judge Dana Christensen’s other rulings on National Forest management issues. Wouldn’t these rulings from Judge Christensen also make him a “fire-breathing Naderite ambulance chaser” in your view? Also, just curious, but how can a senior United States federal judge be an “ambulance chaser?”

            Judge Christensen Halts Fleecer Mtn Logging Project: USFS shortcut lynx, griz analysis, must also supplement EA with “full and fair discussion of the impact that temporary roads will have on elk” (here)

            Judge Christensen: USFS Must Consult with US FWS to Protect 10 Million Acres of Lynx Critical Habitat (here)

            Judge Christensen stops 3 timber sales over lynx habitat concerns (This one was in the Helena IR)

            • Molloy was chasing ambulances for Nader when he was nominated. I guess Christensen isn’t that much different. Don’t know whether that’s good because he’ll keep the kettle of doom boiling, or bad because the frogs are dying.

  2. Here’s the way ESA works: “Candidate species are assigned a listing priority from 1 to 12 based on the magnitude of threats they face, the immediacy of the threats, and their taxonomic uniqueness (for example, full species have higher priority than subspecies). The species’ listing priority dictates the relative order in which proposed listing rules are prepared, with the species at greatest risk (listing priority 1 through 3) being proposed first.” (http://www.fws.gov/endangered/esa-library/pdf/candidate_species.pdf) (The last sentence seems to be a little at odds with the judge’s reasoning.)

    As you have suggested, “immediacy” is a criterion. This has been made an issue in the polar bear listing. The Pacific Legal Foundation claims that is the first time listing has been based only on future threats.

    I don’t think either the judge or the FWS intended to dismiss available research on whitebark pine, and I would expect it to be considered as possible “best available science” when a multi-species approach is taken. It looks like (without reading the opinion) that the issue in this case was timing and agency efficiency, and Judge Christensen was just being deferential to the agency.

  3. This thread is exactly why Democrats need to control the courts: Republicans continue to put capital over sustainable habitats.

    • But Larry, I thought courts were about “following the law”. It sounds like you are saying that they are politics by a different door.

    • LarryK

      Give us a little lead time before you start building gas houses in which to incinerate those who have different views than you do. How else are you going to control the courts?

  4. Although Larry’s comment below has no redeeming value and is insulting to almost “all” of us, it is not defamatory and says much about Larry’s character. Thus, I approved its publication. Andy Stahl (wearing my moderator hat).

    Republicans in blue states are as transparent as butt pus, Gil: you are frustrated and you know it. Derek rules the roost here for my money: he lives in a red state that I fled years ago while Matthew is ganged up upon because he’s a Democrat living in a blue state who still cares about the Last Best Place. They are the only people on this blog who get my clicks usually: all the rest of you are idiots.

  5. The lynx deal fascinates me because the lynx is so dependent upon snowshoe hares, and prime snowshoe hare habitat as described is post catastrophic stand removal fire in its 30-40 year old range of recovery, above the mean annual snow accumulation area, on relatively flat ground. That is will ‘o the wisp ephemeral habitat that will change every decade and the lynx has to follow the hare population cores or be very limited in numbers if only due to the paucity of hares over such a large landscape. Of course, it does take planning in a managed landscape to make sure you have fire in the right places today so that in 30 to 40 years you have prime snowshoe hare habitat to serve the lynx. And, as usual, critters do have the ability to move to where the food supply is more abundant or they can choose to not breed so as to conserve their own dna until the food supply can support more of their kind. The hares can reproduce at a staggering rate, and must, as their own survival strategies are about out producing their predators’ ability to pare the prey population.

    As far as dueling green advocates, MK has been the designated spouter for a decade of more, and parrots the party line as well as any. Serial litigators need mouth pieces stirring the pot, and MK fits the bill. Like a lynx traveling far and wide to find a morsel, so must MK. The very idea that vast landscapes are in a constant state of change, and have been since man arrived with the retreat of the glaciers, permanent snow fields, and the demise of the megafauna that had the body mass to absorb solar energy and to conserve energy through the diurnal cycle in a very cold environment. That this place is still not all glaciers and snow is due to global warming that came about before man had mastered much more than fire and some simple stone tools. There is little to burn following a glacier. And when there was some fuel, I will guess the burners fired some of it.

    I am certain that they even had some interest and use in petroleum and coal, knowing that both could burn. Even here in Oregon, there were a very few places where crude oil bubbled out of the ground like in the Beverly Hillbillies. One in particular near Astoria. And coast range water wells have enough methane in them to where you can burn it off the top of the water tank if you so please. That is why most use surface water like springs instead of drilling. No gas to deal with. Kill the parasites with UV or chlorine, and don’t have the gas in your water. But also not enough gas to be economically a viable resource.

    So we have a whole community of critters that are marginal survivors of the last Ice Age, including us (we don’t do real well at the northern latitudes and there are few dry spots in the southern latitudes), and they will live at elevation and latitudes where temps and precip still favor their existence and that of their prey. There will be a judge, some day, who will rule on an ESA issue that it is really about climate and not a controlled condition that can be placed and altered by the whole of mankind’s action or mitigation. There are common sense judges who know “pissing into the wind” when they see and understand it. If the snow levels and depths are no longer suitable for snowshoe hares and lynx, their “habitat” is gone (north) with the wind of climate change. Rocky Mountain snowshoe hares are at the southern limit of their habitat, which can be almost sea level far to the north. Moot. And guess what? There will be species to occupy the remaining habitat, and species getting Darwinized to meet the new conditions and climate. Same with whitebark pines. How many years ago was it that army worm larvae were the most important source of grizz calories? Opportunistic omnivores with a nose that can detect food at 40 miles or whatever the distance is, will find something to eat. Maybe in the wrong place and wrong source, but they will do what they are dna programed to do. We do know that the YNP dump used to be the socialization spot and most important food source for grizz in the Park. And the dump is where you find bald eagles in AK, and I suppose bears as well. They can adapt. Can we? Is our legal system and our Constitution pliable enough to allow us to adapt to a changing world? Laws can change. Can we?

    Pardon me if I digress a little, but New Bedford whalers were the first energy companies. Whale oil as an energy source. And they got rich. They, and the others of their ilk, were so prolific on the Pacific Coast, and to a degree, so inefficient. Struck and lost whales were more than a common occurrence, and some would wash up on a beach and become a massive pile of protein for man and animals alike. A change in the food environment for critters along the seashore. Add that to the hundred years or more that California was a source of raw cattle hides to produce the belting that connected rudimentary water and steam power to machinery, and the high demand for those hides as they didn’t last long due to wear. You had a Spanish land grant ranch system raising cattle for which the only market was to kill them and sell the hides. The result was another extra protein source of magnitude. All of which makes me wonder how many meat eating animals were in abundance in California for a relatively short time, all due to this sudden influx of massive amounts of protein? Or on the Great Plains while the bison slaughter was in full play? How common was the great bear, wolves, and the condor before those food sources appeared? So my drifting thoughts are about how man, here for millennia before Europeans with their pen and paper, was the shaper of the plant and animal community for a very long time, in one way or another. We do, you know, have one unique ability even when there are few of us: we can plan and set stuff on fire on purpose. And that has to be reasoned with, examined, and be part of the scheme of sustaining species via the ESA. If we can’t, or don’t, set fires, lots of them, big ones, on a regular basis, we will lose species. Our ESA laws are in conflict with the EPA rules and regulations being written and put in play without public discussion by zealots, daily, and as long as that is ongoing, the rest of this discussion about who litigates to save what is folly. The plants and animals that evolved AFTER the last Ice Age, here by the set fires of mankind, cannot be saved by zealots litigating and zealots protecting the air from particulates and gases from landscape fire. Cross purposes. Can’t get there from here. Congress only understands how to get re-elected, and if they are running in a circle, their solution is to nail theit other foot to the floor. Congress is the answer, albeit apparently at this time a hopeless one, and only Congress can revisit and adjust species protections and habitat to the changing climate. We are going to be chest deep in dry climate protected areas, and short on wet ones. On a more optimistic note, the US appears to be interested in becoming a preserve that imports its stuff of life for its ever growing population. Fertile grounds for a Chinese “take out” economy for all we need to live our ever digressing standard of life and equality.


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