NFS Litigation Weekly July 13, 2018

Litigation Weekly July 13

The court upheld the Sequoia National Forest’s use of a road maintenance categorical exclusion for a commercial timber sale to remove hazard trees in the Cedar Fire burn area.  (This decision followed an earlier denial of a preliminary injunction, discussed here).  (E.D. Cal.)

(New case.)  Public Employees for Environmental Responsibility challenges the decision by the U. S. Fish and Wildlife Service to remove the Louisiana black bear from the ESA list of threatened species.  (D. D.C.)

In a 2-1 decision, the Fifth Circuit Court of Appeals upheld compliance with NEPA and the Clean Water Act by the U. S. Army Corps of Engineers when it granted a permit to construct the Bayou Bridge Pipeline in Louisiana.  (5th Cir.)

7 thoughts on “NFS Litigation Weekly July 13, 2018”

  1. Road maintenance INCLUDES protection of the road system, which includes ditches, culverts, gates, waterbars, etc. That seems to be included under any CE, as it should. Allowing roads to become damaged, just because a bird MIGHT nest in a hazard tree, seems unwise. In fact, if we ‘fast-tracked’ such projects, we could actually eliminate the chances of birds nesting in hazard trees next to roads. With millions of other trees, not along roads, available for use, wouldn’t that be a good thing for individuals?

  2. PEER v Zinke – Interesting, it is my recollection that it was determined years ago that there are no La. black bears left – only imports and maybe a few imported X La crosses.

    This is a case of Much Ado About Nothing. IMHO

      • A background summary in this article:

        The interest of the crawfish producers shows the broader ecosystem benefit of protecting a single species under ESA:
        The Louisiana Crawfish Producers Association-West and its president, Jody Meche, joined the suit because removing the bear’s protection hurts its interests in ecotourism and wetlands protection, according to the lawsuit. “As more development is authorized in areas previously designated as critical habitat, the ability of crawfishermen to make a living in areas with exacerbated sedimentation, impaired water quality, and disruption of crawfish and other wildlife habitat is severely diminished,” it said.

        Apparently there are still enough “real” LA black bears that they warrant protection from future hybridization with the imports.

      • Re: “Also, the “Factual Allegations” start on page 13, and counter Gil’s “much ado about nothing” allegation.”

        I noticed that you skipped over the facts that support what I said in your link:

        P15 Section 47 – “FWS noted that there might be bears of the subspecies Ursus americanus americanus, descended from Minnesota animals that had been introduced within the range of the Louisiana black bear in the 1960s for sport hunting purposes. Those bears could not always be distinguished from the native subspecies, particularly in the field. … “the only practical means available for protecting any possibly remaining unique genetic material originally belonging to the native U. a. luteolus would be through listing and protecting the taxon now distinguished by cranial features as U. a. luteolus.””
        –> So the only way that you can visibly tell one subspecies from another is to ask them to hold still while you get your calipers out and measure their “cranial features” or take a blood sample for analysis of their genetics = “much ado about nothing”

        P16 Section 49 – Unfortunately the immigration and emigration corridors connecting the “two viable“ subpopulations,” one in each of the Tensas and Atchafalaya River Basins,” is cut by a very heavily trafficked I-20 through the Tensas
        P17 Section 57 – “Only the TRB and LARB contain populations (FWS uses the term “subpopulations”) of the native subspecies (luteolus) that have been continually present in those areas.”

        P18 Section 61 – “the TRC population is now composed largely of bears moved from the TRB and hybrids between TRB and UARB bears.”
        P18&19 Section 63 – “such contact now has led to hybridization of the TRB and UARB bears and to a critical new threat to the natural genome of the native Louisiana black bear.”
        –> Hybridization = they interbreed easily

        P19 Section 65 – “With regard to the LARB population, FWS acknowledged in the delisting decision that it is the population at greater risk of extinction due to future anticipated development and sea level rise. At the time of delisting, the LARB population was experiencing a high degree of mortality from vehicular collisions and nuisance-related removals. The area it occupied had not increased since listing.”
        –> I-10 = vehicular collisions through the Atchafalaya

        P20 Section 70 “At the time of delisting, the most significant causes of death in Louisiana and Mississippi were poaching and road kills, i.e. human – caused mortality. Roads fragment bear habitat and increase the chances of vehicle collisions, increase human contact, decrease habitat use, and restrict bears’ movement to other areas.”
        –> There is no feasible way to change this
        “specifically the TRB and UARB “subpopulations,” are viable over the next 100 years.”
        –> The TRB & LARB are about as good of a place for anything to hide and have reliable access to water, protection and sustenance with the least amount of human interaction.

        I lived near the “TRB” 1987-2001 and followed the news constantly and worked with people who knew the TRB & LARB as well as they can be known – “much ado about nothing”

  3. Gil, thanks for posting this. I had too read that it was more complicated vis a vis the genetics. What I would like to ask, though, living near many places with black bears living successfully among humans, including houses, cars, and so on, what is different about Louisiana that bears (regardless of subspecies or species) are struggling?

  4. From the 2016 delisting rule:

    “The Louisiana black bear was listed as a threatened subspecies primarily because of the historical modification and reduction of habitat, the reduced quality of remaining habitat due to fragmentation, and the threat of future habitat conversion and human-related mortality (57 FR 588, January 7, 1992)…
    At that time, the Louisiana black bear population consisted of three breeding subpopulations,… in
    Louisiana. An indirect result of habitat fragmentation was isolation of the already small bear populations, subjecting them to threats from such factors as demographic stochasticity and inbreeding. Key demographic attributes (e.g., survival, fecundity, population growth rates, home ranges) for the Louisiana black bear were not known at the time of listing.”

    “The threat of significant habitat loss and conversion that was present at listing has been significantly
    reduced and in many cases reversed.”

    The Forest Service should be planning: “However, significant range expansion is occurring
    westward of the current breeding subpopulations in the UARB and TRB, toward Kisatchie National
    Forest and other large forested tracts that are currently unoccupied.”


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