BLM land management plans maybe prevent species listing

 

At least that is what I think happened, but because of the government shutdown, I can’t confirm the details.

The Trump Administration has declined to extend federal protections for two plants native to the Mountain West.

Julie Reeves, plant and wildlife biologist with the service, said the plants didn’t make the cut because another federal agency, the Bureau of Land Management, prohibits energy development and other potentially damaging activities near their habitats.

“Those (threats) are not going to rise to the level of high magnitude that could affect the species because of protections put in place by the BLM,” she said.

A good idea for Forest Service plans regardless.

17 thoughts on “BLM land management plans maybe prevent species listing”

  1. But what happens when there’s a project-specific plan amendment to allow incompatible activities in a discrete area? How do we get a handle on cumulative impacts of ad hoc permitting?

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    • Sam, it’s not clear to me that these statements have to do with what we would call plans or projects. They may be saying “if we avoid the plants in siting, then there should not be cumulative impacts because there are not individual impacts to accumulate..” But I guess we’ll have to wait and see when the shutdown comes to an end.

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  2. Sharon: The listing agencies require certainty that a species will be protected before it considers forest plan components to be adequate regulatory mechanisms so that there is no need to list a species. I don’t believe this kind of commitment can be made with short-term project decisions. If these protective decisions were something other than BLM long-term plans, then I think a challenge to the listing denial could be successful.

    Sam: I was focusing on the role of land management plan components in the ESA listing process. In that context, the “cumulative impacts of ad hoc permitting” (and amending) could lead the listing agency to determine that land management plans do not provide enough certainty to justify not listing a species. The listing agencies should be watching the land management agencies so that they can make these kinds of judgments about their commitments. It would be unfortunate if forest plans lost the ability to make a difference in the listing process because they are frequently amended to reduce or eliminate prior commitments to at-risk species.

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  3. I think the person quoted might have just been talking about “protections used in practice” and not “protections codified through legal means”.. these are two different things but can easily be confused when people are speaking.

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    • The reason I bring it up, we have seen low fidelity to land management plans when there is political pressure for a project approval. As the fourth circuit recently noted, the FS position on project level amendments essentially destroys the meaning of NFMA’s consistency requirement. Although I am very much in favor of having plan-level protections as a “carrot” to prevent the need for listing, I don’t trust that most plan-level protections are adequate (nor should FWS) without some additional assurances. Perhaps either spelling out additional process for certain kinds of project level amendments or adaptive management questions and triggers as a backstop.

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      • Well my memory was that we had to explain really well why it was necessary to amend it for that site-specific project. In my experience, the rationale had to hold up through the appeal process (in those days) as if it were pre-litigation. No one would want to go there (amend the plan, especially regarding a threatened species) unless it was absolutely necessary. I think the FWS had to agree as well, or at least their concurrence, was part of documentation.

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        • That’s all still true, but the scope is narrow (project impacts) and the premise of the negative listing decision is undermined without any reconsideration of the landscape or cumulative impacts.

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          • This may be a minor point but perhaps an example would be useful.

            I’m thinking of a situation in which there is no actual impact to individuals of the species, so it would be hard to argue that there are landscape or cumulative impacts.

            Again, I think that a rationale presented in the decision doc would describe how you would get from local to landscape or cumulative impacts or not.

          • I disagree that this is adequate. Since the species wasn’t listed in the first place (based on assurances that later prove illusory) there isn’t a prohibition on impacts to individuals of the species. A listing decision, recovery plan, and critical habitat designation preclude the need for future cumulative/landscape analysis: they explain which impacts, positive and negative, are compatible with recovery of the species. If FWS declines to list a species based on the land manager’s commitment not to take an action, then the land manager reneges, it is not enough to analyze the specific impacts in a particular analysis area. The documentation would be highly unlikely to analyze cumulative impacts, because how would they be foreseeable? The plan forbids them, so there’s no “cap” in the plan or other disclosure of the maximum extent of impact, so there’s nothing foreseeable to analyze. Even though the plan’s assurances are empty.

          • Sam, I think the problem here is that we are thinking of different examples. If say, one standard was “no timber harvesting within 200 feet of a stream” but a road is 100 feet from a stream and there is a hazard tree to be removed in a project which requires an amendment. If you are saying “cumulative impacts are foreseeable if you follow a standard all the time, but they are not if you don’t do it once?” If the same people are thinking about/documenting cumulative effects, then they should conceivable be foreseeable either way. (with never doing it or doing it this one time, or doing it the second time considering the first time.

          • A plan could easily forbid timber harvesting “except when necessary to remove a hazard tree that creates a public safety risk,” and the accompanying EIS could easily estimate how often this would happen and whether the cumulative impact of all those instances would create a problem for any species. The issue is that the negative listing decision is based on an assumption that the plan provides firm protection. But again, as I mentioned earlier, we’re not seeing the kind of fidelity to plans that would justify such faith. I’m not talking about an innocuous amendment to allow removal of a hazard tree. What about a project that authorizes timber production in an area that was allocated to an unsuitable MA in the plan? What about authorization of a linear ROW and associated construction roads through MAs that preclude such activities? Without listing and required consultation, there’s no backstop.

          • In the Sierra Nevada, there are multiple species which are not listed but, deemed as “sensitive”. The ones I am thinking of have substantial protections designed to keep the species unlisted, while making progress on restoring and protecting forests that will become ‘habitat’, someday. We’re still extremely at-risk to high-intensity wildfires, and I don’t see the USFS doing enough to reduce their impacts.

  4. There isn’t really a process for tracking changes in circumstances that were considered in a listing decision. While either agency could bring it up, I’m sure the burden would fall on the public to submit a new listing petition. If there is a documented track record of the FS dodging its plan commitments to wildlife, then that could be provided as comments during a listing process to discourage reliance on forest plans. (It would be nice if there could be a plan component that prevented certain amendments, but that of course could also be amended.)

    Regarding willingness to change plan components for listed species, see one of the first projects developed under the revised Flathead Forest Plan:
    https://forestpolicypub.com/2018/10/23/conservation-group-critical-of-new-collaborative-logging-and-roadbuilding-plan/
    “Hammer points to the fact that the proposal would require two Forest Plan amendments suspending lynx management standards”

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  5. Here is a previous example of the Daniel Boone forest plan being used in the listing process:
    https://forestpolicypub.com/2015/09/01/forest-service-actions-lead-to-delisting-threatened-species/

    Here is another from 2017 apparently involving forest plan components preventing listing the holiday darter and bridled darter (this is from the Fish and Wildlife Service petition findings) :
    https://www.federalregister.gov/documents/2017/10/04/2017-21350/endangered-and-threatened-wildlife-and-plants-12-month-findings-on-petitions-to-list-the-holiday

    “The river is also recognized for its aquatic biodiversity by the USFS, and management strategies employed by both Cherokee and Chattahoochee National Forests within the watershed include designated wilderness areas, recommended wild river, recommended recreational river, black bear habitat management, restoration and maintenance of rare communities, restoration and management of old growth characteristics, and scenic corridors and sensitive viewsheds. These management strategies, which emphasize natural forest communities and water quality are expected to benefit holiday darter within the Conasauga River watershed. The Chattahoochee National Forest management prescriptions within the upper Etowah River also broadly emphasize and promote natural plant communities and so are expected to benefit holiday darter within this watershed. Standards outlined in the Revised Land and Management Plan for National Forests in Alabama (2004) generally protect water and habitat quality in streams. Direct observations of Shoal Creek have found the stream to have good water quality with high levels of dissolved oxygen, stable pH levels, and low sedimentation, confirming the benefits of USFS management strategies to holiday darter habitat.”

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    • The Conasauga is one I know well, and it gets at the real issue here. If the relevant habitat is on federal land, and if the federal land manager is already doing the work that everyone agrees is needed to assist the recovery of the species, then why not list it? What’s the downside? It’s hard for me to see the advantage to the land manager of a negative listing decision unless that land manager wants to keep the discretion to do something at odds with the recovery of the species, in which case listing is even more important. The Forest Service is committed to protecting the Conasauga. They’re doing a great job. But let’s not be naive; there are other species forwhich the Forest Service wants to avoid listing due to a fear that listing might impede the timber program.

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      • Or the mining and grazing programs. See sage grouse (for now). That may be the highest profile case of successfully using public land management planning to stave off a listing threat. Maybe It’s more clear in that case because the land managers had to impose new restrictions on themselves, as opposed to “already doing the work that everyone agrees is needed.” (Then there were the examples of bull trout and lynx, where forest plan changes were initiated before the species were listed but not completed in time to affect the outcome.) A “downside” to federal agencies of listing is the additional process for projects that may adversely affect a species, which are not necessarily prohibited by ESA and may still occur consistent with recovery goals.

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  6. The same issue also arises in the context of removing species from ESA lists. The Ninth Circuit (Greater Yellowstone Coalition v. Servheen) determined that forest plans were adequate regulatory mechanisms to justify delisting grizzly bears because the national forests are “legally bound (by NFMA) to uphold key (conservation) Strategy standards.” I don’t believe that Forest Service fidelity to forest plans was brought up. (The current issue regarding delisting grizzly bears is whether there is analysis that supports the adequacy of the Conservation Strategy.)

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