ESA update

National Audubon Society Field Guide

There’s a lot of news recently, mostly about litigation, all with implications for public land management.

(Notice of Intent.)  The Forest Service litigation weeklies seemed to have missed this one involving the Forest Service.  On September 23, the Center for Biological Diversity and the Western Watersheds Project notified the Forest Service, BLM and Fish and Wildlife Service of their intent to sue over the effects of livestock grazing on the Gunnison sage-grouse.  They allege, “failure to reinitiate consultation in light of the species’ decline and the best available science, their failure to implement the BiOp’s (biological opinion) conservation measures, and the likely exceedance of the BiOp’ incidental take statement…”

Note:  The decision challenged appears to be a “Candidate Conservation Agreement” made when the species was proposed for listing, and the “conference” on that for the proposed species which was adopted as the biological opinion after it was listed.  In it the Forest Service and BLM agree to adopt “conservation measures” for the Gunnison sage-grouse.  The CCA says that, “The GUSG CCA is not a decision document …,” but, “The GUSG CCA is consistent with the 1992 BLM Gunnison Field Office Resource Management Plan; USFS Land and Resource Management Plan for the Grand Mesa, Uncompahgre and Gunnison National Forests …”

The reason why there was consultation under ESA on this “non-decision” (rather than the forest plan and/or project-level grazing authorizations) is because it would provide a “programmatic” consultation and opinion on types of federal actions that may be taken in the future that “are likely to have insignificant or discountable effects to the species or habitat,” such as fences and small-scale water developments for grazing (and other activities related to recreation and other developments).  The CCA should have no force or effect except between the action agencies and the FWS, and I understand the primary benefit of consulting on it is to streamline subsequent consultation on individual future actions that it covers.  It would be interesting to see what a court would do with this without an actual “decision” by the action agencies.

That was probably more than anyone else was interested in, but here’s some more straightforward ESA actions that may affect public management.

(Settlement of Center for Biological Diversity v. Bernhardt, Eastern District of North Carolina.)  The Fish and Wildlife Service has agreed to complete a revision of the recovery plan for the red wolf by February 28, 2023.  The few remaining wild individuals are found near the Outer Banks of North Carolina, but CBD has provided a report on potential reintroduction areas that include the two national forests in Florida, four national forests in Virginia and West Virginia, three national forests in Arkansas and Missouri, five national forests in North Carolina, Tennessee and Georgia, and the Talladega National Forest in Alabama

(New lawsuit, Fish and Wildlife Service.)  On September 29, three conservation groups filed a complaint in the federal district court for the Northern District of California against the decision to not list the bi-state sage-grouse under the Endangered Species Act.  The challenge focuses on the failure of “voluntary” mechanisms to stem the decline of the species.  The complaint does not mention the Forest Service, though the species occurs on the Humboldt-Toiyabe National Forest, which amended its forest plan in 2015 to adopt conservation measures.  (AP article here.)

(New lawsuit, Fish and Wildlife Service and BLM.)  On September 29, the Center for Biological Diversity alleged in the Nevada federal district court that the Fish and Wildlife Service “unreasonably delayed” a decision on a petition to make an emergency listing decision for the species, and that the BLM failed “to protect the wildflower in accordance with FLMPA and BLM policies, as the Center’s petition requested.”  The species is found only in an area coveted by mining companies seeking lithium and boron (previous litigation was discussed here).  The emergency circumstances arose from the recent mysterious physical removal of 40% of the remaining individuals, discussed in this article.

(New lawsuit, Fish and Wildlife Service.)  On September 30, several organizations and individuals challenged the removal of the Louisiana black bear from the list of threatened and endangered species in 2016.  The suit says that the FWS is attempting to pass off non-native bears (introduced from Minnesota in the 1960s) or hybridized black bears as true Louisiana black bears to claim that recovery goals have been met.  The species is found on the Kisatchee National Forest.

(Notice of Intent to Sue the Fish and Wildlife Service.)  Following prior litigation requiring it to reconsider its decision to not list the wolverine, on October 13 the FWS withdrew its current proposed rule to list the species as threatened.  On the same day, Earthjustice submitted its NOI to the agency.  The FWS states that the wolverine is expanding its range and would be less affected by climate change than previously thought (discussed in this article.)

  • New species listings

On September 29, the Fish and Wildlife proposed to list the Wright’s marsh thistle as threatened under the Endangered Species Act.  Two of the eight known locations are on the Lincoln National Forest, but involve less than an acre.  They are mostly threatened by the effects of climate change on water availability since these areas are not being grazed.  (Here is a local article.)

On September 29, the Fish and Wildlife Service also proposed to list two species of eastern mussels as threatened, and designated critical habitat on the Allegheny and Daniel Boone National Forests. Habitat for both the longsolid and round hickorynut mussels is threatened by timber operations (among many other things), is widely distributed, and is likely found on other national forests.  (Here is a local article.)

1 thought on “ESA update”

  1. Thanks for rounding these up, Jon! I looked at a couple of journal articles on the Louisiana black bear and they were interesting.


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