NFS Litigation Weekly April 6, 2018

Litigation Weekly April 6

(New case.)  Plaintiffs challenged the Dinkey timber sale on the Nantahala-Pisgah National Forest because of erosion and water quality risks.  (E.D. Tenn.)  (This case was also discussed here.)

The court invalidated the regulation issued by the Fish and Wildlife Service governing management of the reintroduced  Mexican wolf because it did not sufficiently further the conservation of the species, and the court required a new determination of whether the population was “nonessential” under ESA.  The Mexican wolf is found primarily on national forest lands in eastern Arizona and western New Mexico, where there are persistent conflicts with livestock grazing.  (D. Ariz.)


Blogger’s bonus – new case

The Alliance for the Wild Rockies “says the U.S. Forest Service and U.S. Fish and Wildlife Service are ignoring their own science by not including roads behind earthen berms in total road mileage counts” in grizzly bear habitat on the Kootenai National Forest.  (It’s not clear what decision is being challenged.)

9 thoughts on “NFS Litigation Weekly April 6, 2018”

  1. Jon, thanks for the grizzly roads one.. it makes me wonder when, and to what extent, illegal activities are incorporated into environmental analysis. Say illegal bike trails cause sedimentation.. does that mean roads that people have been using legally should be closed to make up for it?

    I looked for the study on the AWR website but couldn’t find it.

    • The usual rule in NEPA is to include effects that are “reasonably foreseeable” and effects of actions of others would be cumulative effects. There is also a body of law on the need to disclose the effectiveness of mitigation measures as part of conducting effects analysis. It sounds like that is an issue about berms. And closing other roads because some can’t be effectively closed could also be a mitigation measure.

  2. Also on the Mexican wolf one.. can this be true??
    Page 12
    “All Mexican wolves alive today originated from the seven founding wolves that by 1980 constituted the last of the subspecies. (See FEIS at..)”

    Also, the below was a little confusing to me…

    ” In 1978, the subspecies listing was subsumed by the designation of the entire
    gray wolf species as endangered throughout North America, with the exception of
    Minnesota, where the species was listed as threatened. In 2015, the Mexican wolf was
    again listed as an endangered subspecies. See 80 Fed. Reg. 2488 (Jan. 16, 2015); 50
    C.F.R. § 17.11(h). In spite of the changes in legal designation, the Mexican wolf has
    continuously been recognized as a separate subspecies for the purposes of research and
    conservation. (See 2015 10(j) Rule at FR000137.)

  3. On your confusion, I read this paragraph to say that the Mexican wolf was included as part of the original wolf listing, but was then listed separately as a subspecies in 2015. The last sentence seems to say that the scientists have always considered it subspecies. If a species is listed, I don’t think there is any need or requirement to list a subspecies of that species. It may be that there became a need to list this subspecies because of the delisting that was happening with other wolf populations.

    I’m glad you are reading this because I don’t understand some of the genetics issues. The main issue here is whether having just one population contributes to recovery. The scientists relied on by the FWS said that there needs to be metapopulation of three dispersed populations. How does more wolves in more places improve genetic health when they still all started with the same seven individuals? In the court’s words, “They further note that forestalling genetic degradation and reducing the high relatedness of the population are actions that must be taken early on, while the population is still small, ‘in order for this population to contribute to recovery.’” Can you explain this (and why “early on”)? Also what to make of the concept of “genetically valuable wolves” (that would not be adequately protected), and “more than half of the genetic diversity of the seven original founders has been lost from the population.”

    Section 10(j) is not often used and I can’t say I understand it that well, but this seems like a case where the only existing population would have to considered “essential” because loss of the only population “would be likely to appreciably reduce the likelihood of the survival of the species in the wild.”

    • Jon- I haven’t looked up the background papers so this is just a geneticist’s guess of what is going on.

      By dividing the wolves into three different populations, the pops would then tend to diverge through selection and drift. You would try to get all the diversity in the pool of 7 critters somehow, and put these maximally diverse (within pop) groups in three different places, and hopefully through time, through selection and drift they would become differentiated from each other. The total genetic diversity for the species is calculated “within pop” plus “among pops” and even if within pops stayed the same among pops would grow-so total diversity would grow- that is, unless wolves wandered from one pop to another, which would keep the pops more homogeneous (migration in genetics-ese although “migration” implies settlement not just mating).

      I think “early on” means that 7 is pretty low to start with, so rather than see the critters struggle with that low level, why not introduce more diversity now, and then have a nice genetically variable pops to “contribute to recovery.” My understanding is that there are other Mexican gray wolves in Mexico so they could help out with this..

      “Genetically valuable” is kind of value-laden 😉 but I would guess that this either has to do with uniqueness (say divergence from other gray wolves, what makes Mexican wolf most unique) or uniqueness compared to the other 6 wolves’ offspring or simply some lack of bad genes or possessing good genes in some sense.

      Genetic diversity can be measured in a variety of ways (and using different markers). I would guess that they measured it in the seven originals and then in the current living offspring (?) and found that the diversity had been reduced. Generally when you have that few animals, people breed them very carefully so that the diversity is kept up as much as possible.

      If you can find cites for the last two (genetically valuable) and (reduction in diversity).. I’ll look them up.

  4. By the way, this is a case where the court did not give deference to scientific conclusions of the federal agency. It rejected conclusions about whether the rule contributed to recovery of the species because the same scientists the FWS referenced said that the FWS had misinterpreted their research. It rejected the “nonessential” determination because the FWS relied on outdated information (from its prior determination). Both of these could be viewed as pretty extreme (arbitrary) misuse of science.

    • In “Northern Spotted Owl v. Hodel,” FWS sought to shield its arbitrary decision against listing the owl behind its claim of agency “expertise.” There was no expert behind the curtain:

      The Court will reject conclusory assertions of agency “expertise” where the agency spurns unrebutted expert opinions without itself offering a credible alternative explanation. Here, the Service disregarded all the expert opinion on population viability, including that of its own expert, that the owl is facing extinction, and instead merely asserted its expertise in support of its conclusions.

      Plus ça change, plus c’est la même chose.

  5. Thanks for that blast from the past. I see a lot of statements to the effect that an agency staff person’s “professional judgment” is the “best available scientific information.” That may be the proverbial “slender reed” if there is any conflicting information out there.


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