Jon Haber

Recent Endangered Species Act news of interest

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These could all have some implications for national forest management (except I think the last one is just about trees – and climate change).

A federal district court ordered the U.S. Fish and Wildlife Service to issue an overdue status report assessing how threatened grizzly bears in the Lower 48 are doing. This resolves one claim in the Center for Biological Diversity’s ongoing lawsuit that challenges the Trump administration’s failure to update the federal recovery plan for grizzly bears.

Environmental groups have sued the U. S. Fish and Wildlife Service for producing an inadequate recovery plan for the threatened species. They have directly implicated national forest planning which must “contribute to recovery” of listed species: “You can see where weaker recovery standards are leading to weaker forest plans,” Montgomery said. “It’s not trickling down but is cascading down. It’s really important for recovery plans to be a road map.”

The U.S. Fish and Wildlife Service proposed Endangered Species Act protections for West Coast populations of the Pacific fisher. The move drew criticism from conservation groups that say loopholes allow for continued logging of the fisher’s habitat.  “The exemptions to their protection are fuzzier than fishers themselves.”

The yellow cedar, a tree native to Southeast Alaska and culturally significant to Alaska Native communities, was denied protected status under the Endangered Species Act. Warmer temperatures are reducing the amount of snow in areas where the cedar grows and that is leaving the tree’s roots exposed to subzero temperatures, which kills the trees.

WildEarth Guardians filed a suit against the U.S. Fish and Wildlife Service, challenging its decision not to list the Joshua tree as a threatened species. They claim climate change is the major reason why the tree should be listed.

Forest Service tries again on Blue Mountains plan revision

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The revision of the three national forest plans encompassing the Blue Mountains of eastern Oregon and Washington is becoming a poster child for failing to finish forest planning.

Northwest Regional Forester Glenn Casamassa announced in March 2019 the Forest Service was scrapping the proposed Blue Mountains Forest Plan Revision, which includes the Umatilla, Wallowa-Whitman and Malheur. A final draft of the plans had been released in June 2018. It was not the first time the Blue Mountain Forest Plan had been paused.A draft version of the plans was completed in 2014, and received so much backlash that local forest supervisors decided to develop new plan alternatives.

So they’re trying something new:

The Blues Intergovernmental Council has been formed to help frame the process of developing a new methodology for forest planning for the Wallowa-Whitman, Malheur and Umatilla national forests. A series of meetings between county commissioners and key Forest Service personnel have been held across the Blue Mountain region over the past year to help kickstart a framework for cross-jurisdiction work.

“The underlying intent is to ensure that we can develop plans for the three national forests that would provide the opportunity for durable relationships with our communities and to make an important difference on the landscape for the long term,” said Eric Watrud, the forest supervisor on the Umatilla National Forest.  Watrud said the council includes state and county representatives in Oregon and Washington, four treaty tribes and regulatory agencies, in addition to the Forest Service.

“The attempt here is to create just a more open, inclusive approach where the Forest Service is working closely with our communities in order to make sure that we are developing a plan that is gonna stand the test of time,” he said. “We have the responsibility of stewarding the management of these three national forests, which are a national and local treasure. And so there’s a tremendous amount of interest, and our intent is to make sure that we’re incorporating that feedback, incorporating those ideas and local suggestions in order to make sure that we accomplish that goal.”

A better process for local input – that’s ok. But this is obviously “inclusive” of only “local” “communities.”  I assume this is only part of the story (as suggested by the forest supervisor’s careful reference to “a national and local treasure”), but I hope they aren’t (maybe again) setting up expectations that won’t be met.

Weekly litigation settlement summary

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It’s been awhile since we’ve gotten a Forest Service litigation summary, but it was a busy week for settling three cases involving the Forest Service.

Idaho salmon

A U.S. District Court judge signed off on an agreement between the Forest Service and Idaho Conservation League involving water diversions in the Sawtooth Valley.  The Forest Service has agreed to complete biological assessments of 20 water diversions in central Idaho that the conservation group says could be harming protected salmon. The Forest Service has three years to complete the reviews of the diversions that mostly supply water to homes in the area.  The judge in June ordered the Forest Service to complete the reviews, and the documents filed Thursday spell out a timeline as agreed to by the Forest Service and Idaho Conservation League.

In this case the settlement narrowly concerns the timetable because the court fully resolved the case and told the Forest Service what it needed to do

Montana bull trout

The Alliance for the Wild Rockies sent a 60-day notice of intent to sue in September over management of bull trout in the East Fork of Rock Creek and in the St. Mary River drainage, alleging the federal agencies managing bull trout in those drainages violated the Endangered Species Act by failing to complete formal consultation to protect the trout, which are listed as a “threatened” population. The notice specified the Bureau of Reclamation in connection with the St. Mary River and the Beaverhead/Deer Lodge National Forest in regards to Rock Creek.  The issues here also include water diversions, and additional concerns about flow management and degraded stream channels in Rock Creek.  Earlier this month, the agencies sent letters to lawyers for the Alliance, agreeing to undertake the formal consultation.  

This is exactly what a NOI to sue under ESA is intended to do.  Technically it’s not a settlement since a lawsuit hadn’t been filed yet, but it keeps the agencies out of the position that the Sawtooth is in (above).  There is no timetable specified; they just need to do the process.

Mountain Valley Pipeline

Before a judge decides whether to approve a $2.15 million settlement of a lawsuit alleging environmental damage caused by building the Mountain Valley Pipeline, state regulators will consider public comments on the proposal.  The state agencies are a plaintiff who sued Mountain Valley, saying the company violated state regulations meant to limit erosion and sedimentation more than 300 times in building the largest natural gas pipeline ever to cross Southwest Virginia.

This settlement involves some substantive elements.  In October, Attorney General Mark Herring announced a settlement that provides a framework for court-ordered enforcement going forward, with the possibility that the financial penalty will exceed the $2.15 million agreement if additional violations occur.  Mountain Valley agreed to conditions — which include hiring independent monitors to make inspections beyond what had previously been required by the state — as part of a consent decree that will soon go to a county circuit judge.

This is just one of the lawsuits against the pipeline; others seek to restore permits struck down last year by the 4th Circuit, one to allow the pipeline to pass through the Jefferson National Forest (described here) and the second for it to cross more than 1,000 streams and wetlands.

 

150,000 acre “project” on the Bitterroot

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Well, not exactly, maybe.  This could be a good example of how to get the public involved early enough in the process for timber harvest decisions that the locations have not been determined yet.  But consider that the decision-maker is the same one who applied “condition-based” NEPA analysis to the Prince of Wales area of the Tongass, which has ended up in court.

Bitterroot National Forest Supervisor Matt Anderson has added a new “pre-pre-scoping” stage to the process, not part of the traditional process in which a set of options is presented to the public for review and analysis.

The new approach is meant to get the public involved prior to coming up with any specific actions being planned for any specific location.

That much I like the sound of.

“There is confusion,” said Anderson. “It’s hard for the public to get involved. We are asking ‘What do you want to see? What’s your vision?’” He said the agency was “starting at the foundational level, not any particular location.” He said it was important to get to those particulars but the way there was to first describe the “desired future condition that we want and then look at the various ways we can achieve it.”

Asked about the fact that the current Forest Plan describes a desired future condition for the Bitterroot Front that involves returning it to primarily a Ponderosa pine habitat with little understory, Anderson said that is in the current plan, but that the plan is about 30 years old. He said a lot has changed in that time on the ground. There have been lots of fires and areas where no fires have occurred, and the fuel load has gotten extremely high. He said current conditions need to be assessed and they were currently compiling all the maps and other information they need to get an accurate picture of what is on the ground today in the project area.

This should raise a concern about how this process relates to forest planning, since forest plans are where decisions about desired conditions are made.  However, old forest plans typically didn’t provide desired conditions that are specific enough for projects, so that step has occurred at the project level.  Under the 2012 planning rule, specific desired conditions are a requirement for forest plans, but the Bitterroot National Forest is not yet revising its plan. Whatever desired conditions they come up with should be intended as part of the forest plan, and the public should be made aware of this.  If the new decision is not consistent with “Ponderosa pine habitat with little understory,” they’ll need an amendment to be consistent with the current plan.  (I’d add that changes in the on-the-ground conditions over the last 30 years shouldn’t necessarily influence the long-term desired condition.)

“The Tongass is so different than the Bitterroot,” said Anderson. “There is not much similarity. I’m not trying to replicate that process here. It was a conditioned-based process up there. It’s like comparing apples to oranges.” In reference to conditioned-based projects, he said, “One difference with this project is that some of that will be pre-decision and some of that will be in implementation. We are trying to shift some of the workload to the implementation stage.”

He said they have a slew of options, from traditional NEPA, to programmatic NEPA to condition-based NEPA “and we are trying to figure it out.”

He insists that the NEPA process will be followed with the same chance for public comment and involvement on every specific project that is proposed in the area.

There’s some ambiguous and possibly inconsistent statements there.  Condition-based NEPA seeks to avoid a NEPA process “on every specific project.”  I could also interpret shifting workload to “pre-decision” and  “the implementation stage” is a way to take things out of the NEPA realm.

And then there’s this:

In response to the notion that the huge project is being driven by timber targets and not health prescriptions, Anderson said that the Regional Office had set some timber targets for different areas of the region, but that those targets were not driving the analysis. “This project has nothing to do with meeting any target,” said Anderson.

This feels a little like “There was no quid pro quo.”  Would timber harvested from this project not count towards the targets?  (I’d like to see  targets for achieving desired conditions.) All in all this project would be worth keeping an eye on.

(By the way, here’s the latest on Prince of Wales.)

Missoula Forest Collaboration Roundtable

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Montana Public Radio collected some interesting perspectives.

What collaboration looks like to what some would consider a “far-right politician:”

“We were thrilled to have the Rocky Mountain Elk Foundation with us today, that is exclusively focused on habitat restoration for elk and sportsmen. We want to continue to have all voices at the table,” Gianforte said…  I think all voices needed to be at the table in these collaboratives, but you have to participate in good faith,” he said. “There have been instances here in Montana where a collaborative worked literally for years to put a project together, and yet people who were at the table still sued. We have to prevent that sort of bad behavior.”

Is it “collaboration” when your participation means you can’t sue over the outcome?

What this idea of collaboration looks like to what some would consider an “extreme environmental group” (Alliance for the Wild Rockies):

“He wants to have all voices that agree with him at the table,” Michael Garrity says.  Garrity says he had no advance notice about Thursday’s roundtable. The Alliance is frequently at odds with — and in court fighting against — timber interests over forest policy.  Garrity said Friday that not only did he not receive an invitation, no one from what he called the environmental community got one either. And without that perspective, he says this week’s roundtable was simply an echo chamber. “It’s not going to be a good dialog unless they invite groups that oppose some logging by the Forest Service.”

My emphasis, especially on the “some,” not all logging.  (The Rocky Mountain Elk Foundation does not oppose logging, though some elk hunters and groups do.)

What collaboration and litigation look like to the Forest Service:

“Different people see it in different ways; including different courts,” (USDA Undersecretary) Hubbard said. “The idea is for us to come together and agree on what kind of treatments make some sense, what satisfies most of the interest out there in one way or another, and then be able to implement that and have the courts support that with some consistent rulings.”

(My emphasis.)  The implication is that courts are just another form of public opinion.  And that it’s ok to exclude some of the interest out there, like “groups that oppose some logging.”  (And my usual gripe – the scope of project collaboration should include not just the “kind of treatments,” but which areas should be treated.)

(And there’s some discussion of categorical exclusions and the Good Neighbor Authority, too.)

Stewardship contracts – a better tool for the job than a roadless rule?

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I wouldn’t have thought that one is a substitute for the other, and maybe this suggests that Utah defined its problem wrong initially.  But they’re happy enough with the way their Shared Stewardship agreement is working that they have put their roadless rule proposal on a back burner.  At least some greens seem happy, too, and least those concerned about roadless areas.  Priority-setting, within the framework of a forest plan, is one thing that I think lends itself to collaboration.

Amid debate about state-specific exemptions to the Roadless Rule, Congress created the capacity to negotiate “stewardship contracts” ranging up to 20 years with states in the 2018 Consolidated Appropriations Act.  It allows the Forest Service to rely on “state’s guidance for designing, implementing, and prioritizing projects geared toward reducing the risks of damaging wildfires and promoting forest health.”

 

Wilderness Society Senior Resource Analyst for National Forest Policy Mike Anderson said conservationists are encouraged by what Shared Stewardship agreements could foster in addressing critical needs.  “Working side-by-side to identify the major risks and implement projects that are actually going to make a difference on the land is something conservationists, I think, can generally can support,” he said. “We think it is good.”

 

(Utah Public Lands Policy Coordinating Office lead counsel) Garfield said under the agreement, projects “can happen, and are occurring, within and without the roadless area, when necessary.”    ‘The existing rule provides a lot of exceptions that the Forest Service can use for forest restoration,” he said. “The Forest Service wasn’t using those” exceptions in many cases.  Garfield said PLPCO will be watching closely over the next four years to see if the Shared Stewardship agreement works out before withdrawing its petition. “I won’t say everything we hoped to accomplish under a state-specific Roadless Rule will be achieved under the Shared Stewardship agreement,” he said, “but a lot of progress is being made.”

(One error in this article – the Idaho and Colorado state roadless rules have been approved.)

NFS Litigation Weekly November 1 & 6, 2019

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Forest Service summaries:  2019_11_1 and 6_Litigation Weekly_Final

COURT DECISIONS

The district court denied the Rosemont Copper Company’s motion for reconsideration of its decision to enjoin a proposed copper mine on the Coronado National Forest.  (D. Ariz.)

The district court granted a joint stipulation of both parties to dismiss the case for the Pier Fire Roadside Hazard Tree Mitigation Project on the Sequoia National Forest.  (E.D. Cal.)  (This was another case involving the road maintenance CE and salvage logging – see also EPIC v. Carlson.)

The 9th Circuit Court issued an order affirming in part and remanding in part the appeal of the district court’s 2018 order dissolving the permanent injunction against the Miller West Fisher Project on the Kootenai National Forest. The case was remanded to the district court for the limited purpose of reconsidering whether the Miller Project complied with the ESA in the Cabinet Face grizzly bear area as a result of the recent ruling on the Pilgrim Project.)  (9th Cir.)

UPDATES

The district court denied the Forest Service’s motion to dismiss this case involving the Rock Creek Mine on the Kootenai National Forest.  (D. Mont.)

NEW CASES

The plaintiffs request a Declaratory Judgment of their ownership of property adjoining the White River National Forest.  (D. Colo.)  (These are the same parties who filed a suit in the Court of Claims, discussed here.)

The plaintiffs filed a complaint concerning the allowed use of Class 1 e-bikes on non-motorized trails on the Tahoe National Forest.  (E.D. Cal.)  (More in this article.)

NOTICE OF INTENT

The Notice concerns ESA consultation on the Mission Project on the Okanogan-Wenatchee National Forest with regard to salmon, steelhead, bull trout and Canada lynx.  (A lawsuit has already been filed addressing other issues, summarized here.)

 

BLOGGER’S BONUS

The Supreme Court of New Hampshire has affirmed a state commission’s determination to reject this proposal, which would have cut through the White Mountain National Forest.  (There is no indication on the Forest Service website that the agency ever engaged on this.)

The Center for Biological Diversity sued the BLM protect the world’s only population of Tiehm’s buckwheat (Eriogonum tiehmii) from harm related to mineral exploration and a proposed open-pit mine for lithium and boron (fyi – not “rare earth” minerals).  They have also petitioned the U. S. Fish and Wildlife Service to list the species under ESA.  CBD asserts that “the proposed mine’s project area includes the entire area where Tiehm’s buckwheat is known to grow,” and that, “the BLM has designated the wildflower as a special status species, intended to promote its conservation and reduce its chances of being listed as threatened or endangered.”

CBD and other conservation groups notified the U.S. Fish and Wildlife Service of their intent to sue the agency for failing to finalize Endangered Species Act protection for Humboldt martens in northern California and southern Oregon.  They were proposed for protection in October 2018 and should have received final protection by October 2019.

In May 2019, after 12 years of protection, the BLM opened up the desert around Factory Butte to ORVs, and they are being sued for failing to follow any NEPA process.

  • Crazy Mountains

The judge in the Friends of the Crazy Mountains case, discussed here,  refused to dismiss it.  Meanwhile the Custer-Gallatin National Forest has proposed a land exchange to address problems associated with the checkerboard ownership.

Recovery planning for the Gunnison sage-grouse

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The U. S. Fish and Wildlife Service has released a draft recovery plan for the Gunnison sage-grouse in Colorado and Utah.  The Center for Biodiversity doesn’t like it, but more to the point, they like less how the BLM is managing Gunnison sage-grouse.  More to the point because recovery plans are not mandatory, while federal land management plans can be – and plan components must be mandatory to be considered “regulatory” enough to carry much weight in ESA listing and delisting decisions.  As the FWS said, “Establishing durable regulatory mechanisms that are binding and enforceable, such as revised land use planning amendments, will be important for recovery.”

CBD:

The recovery plan comes on the heels of BLM decisions not to designate any Areas of Critical Environmental Concern for Gunnison sage-grouse in the Tres Rios and Uncompahgre Resource management plans, and to adopt inadequate safeguards for the birds’ habitat in recent land-use plans. For example, although the draft recovery plan calls on federal land-management agencies to improve their resource management plans and protect suitable habitat within four miles of breeding sites, the BLM’s August 2019 proposed resource plan for its Uncompahgre Field Office protects only habitats within 0.6 miles of breeding sites. The BLM admits this would “fall short of minimum protection standards to maintain sage-grouse viability.”

“Bringing the Gunnison sage-grouse back from the brink requires decisive and concerted action, but instead we have two federal agencies working against each other,” said Michael Saul, a senior attorney at the Center for Biological Diversity. “The Fish and Wildlife Service is urging federal land managers to improve protections for public-land habitat, but the BLM is moving in the opposite direction. This is a recipe for extinction for this beautiful bird. We’ll do everything possible to keep that from happening.”

The timing is also such that BLM plans were released prior to the draft recovery plan.  That means that the BLM should start taking another look at how their plans address this species and take into account the new information and recommended measures.  The same is true for the 10% of sage-grouse habitat that occurs on national forest lands. BLM is not subject to NFMA, so its obligation to maintain species viability to avoid listing under ESA is not as clear as for the Forest Service.  Forest Service plans must “contribute to recovery” of listed species, so failure to address elements of this recovery plan when it is final should raise serious questions.

In addition to specific conservation measures like the four-mile buffers for breeding leks, the draft recovery plan provides some specific desired conditions that could be included in land management plans:

2. Regulatory mechanisms or other conservation plans or programs, such as land-use management plans, reduce and ameliorate threats associated with habitat loss and degradation in all populations, such that:

A. Habitat in Dove Creek is improved and maintained at a quantity calculated to support a HMC of 30, although this criterion is not measured by achieving the target HMC.

B. Habitat in CSCSM is maintained at a quantity calculated to support a HMC of 7, although this criterion is not measured by achieving the target HMC.

C. Habitat is improved and maintained in Gunnison Basin, San Miguel, Piñon Mesa, Crawford, and Monticello at a quantity calculated to support the target HMCs as listed in Table 1.

At a minimum, the land management agencies will need to explain how these plans contribute to meeting their requirements under ESA to manage their programs to promote recovery of listed species, which should include how they are implementing the final recovery plan.

Forest planning for “sustainable” recreation

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A former Forest Service backcountry specialist talks about ecological integrity and increasing human recreation activities, and tries to answer the question of “what is sustainable recreation?”  The 2012 Planning Rule requires plan components “to provide for: (i) Sustainable recreation; including recreation settings, opportunities, and access; and scenic character.”

What is “Sustainable Recreation”? The Forest Service defines it as “the set of recreation settings and opportunities in the National Forest System that is ecologically, economically, and socially sustainable for present and future generations.”

Here’s how it’s done:

The Recreation Opportunity Spectrum can be used in forest planning to define a desired condition for management within each zone. Indicators and standards are meant to define the tipping point beyond which management action must be taken.
 If the standard for a backcountry area (called “semi-primitive non-motorized” in ROS jargon) is that no more than six other parties are encountered on a typical day, when the encounter rate exceeds that number some action is supposed to take place to return to the desired condition.
It’s a neat framework, but doesn’t always play out as intended on the ground. ROS doesn’t differentiate between a semi-primitive area in the back yard of a town like Jackson or Bozeman and one that’s two hours away.
That seems like a major shortcoming, especially if all areas with a SPNM designation must have the same desired level of semi-primitive non-motorized use.  However, the Planning Handbook encourages “new approaches,” including creating “desired recreation opportunity spectrum subclasses” §(23.23a).
The usual sequence of remedial actions begins with non-intrusive measures like visitor education. If the problem isn’t solved, additional actions are considered.
The Bridger-Teton forest plan is typical in its prescribed sequence of actions, this excerpt taken from its direction on wilderness. The following recreational strategies should be used, listed in descending order of preference:
First Action – Efforts are directed towards information and education programs and correction of visible resource damage.
Second Action – If the first action is unsuccessful, restrict activities by regulation (for example, set a minimum distance between a lakeshore and where people can camp).
Third Action – If the first and second actions fail, restrict numbers of visitors.
Fourth Action – If first, second, and third actions are not successful, a zone can be closed to all recreation use until the area is rehabilitated and restored to natural conditions.
In my experience, outside of designated wilderness and other special areas where specific laws apply, the Forest Service keeps circling around the first action, which isn’t a bad strategy given the continuing need for it in communities where resident turnover is high.  It’s an ongoing need regardless of the often unmet requirement to step up restrictions. But restrictions trigger blowback, as when the Shasta-Trinity National Forest tried to set encounter limits for the wilderness that includes Mt. Shasta.
People basically said they don’t care if it’s crowded—they just want to reach the summit, and a judge agreed with them. On the other hand, those who float the Selway River are happy to wait until they get a launch day shared by no one else. Since everyone is going the same direction at about the same speed, everyone can experience a bit of peace and quiet. So the application of sustainable recreation standards depends on who is using the forest and what they will accept.
And those are the questions that forest planning should be designed to answer.  (Note:  the Bridger-Teton plan has not been revised, so may not be the current state-of-the-art.  Also, I couldn’t find the court case referred to.)  And this must be done against the backdrop of a requirement for ecological integrity.
User-built trails and roads are often the opposite of sustainable. They develop incrementally and aren’t designed with soil type, grades and curve radii in mind, or the needs of resident wildlife. The trail system after adoption by the Forest Service usually gets reworked so it doesn’t turn into deep ruts or wash into the creek, but where is the analysis that determines that the trail location is right in the first place?  The trail itself becomes more sustainable, but where do the grouse and elk and owls go?
The adoption of forest plan of components for desired recreational use has effects that must be evaluated during the NEPA process, but rarely does the Forest Service devote much attention to this.
The author describes a common fallacious argument that the Forest Service likes to make about sustainability to avoid controversy:
While the planning rule makes clear that ecological integrity underlies compatible uses in a national forest, the ecological, economical, and social sustainability have since been referred to as a three-legged stool, with all three legs of equal importance.
But if you parse the actual language of the Planning Rule, it is apparent that the ecological leg needs to support more weight (driven by the substantive diversity requirement of NFMA) (my emphasis).
“Plans will guide management of NFS lands so that they ARE ecologically sustainable and CONTRIBUTE TO social and economic sustainability; CONSIST OF ecosystems and watersheds with ecological integrity and diverse plant and animal communities; and HAVE THE CAPACITY TO PROVIDE people and communities with ecosystem services and multiple uses that provide a range of social, economic, and ecological benefits for the present and into the future.

Modeling for Decisions IV. In Practice – Climate Change and the Rio Grande Cutthroat Trout (and Forest Planning)

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It’s fortuitous that we have this recent example of how a court viewed a population model for an at-risk wildlife species that addresses climate change. The court included the usual caveat that, “Deference to the agency “is especially strong where the challenged decisions involve technical or scientific matters within the agency’s area of expertise.”

It is undisputed that the Service attempted to estimate the effects of climate change by using both “moderate” and “severe” predictions of expected effects, and that for the severe model, it “increased the risk function over time by 20 percent for the 2040 forecast and 40 percent for the 2080 forecast.” 79 Fed. Reg. at 59,147–48. The Plaintiffs take issue with the Service’s observation that the differences in results from the moderate and severe climate change models were “not particularly large.” Disbelieving that this could be a correct conclusion, the Plaintiffs thus suggest that the models “are driven by the Service’s assumption that climate change will have relatively little influence on the threats to individual Trout populations.” (# 76 at 26.)

But the Plaintiffs’ argument begs its own question, assuming that the Service’s models are infected by false preexisting assumptions that climate change effects with be minimal. It is essential to note that the Plaintiffs have not gotten “under the hood” of the Service’s models and pointed out any methodological, programming, or data entry flaws with them. Rather, the Plaintiffs simply argue that the models must be flawed because they produced results with which the Plaintiffs disagree. It may be that the models are flawed, but it may also be that that Plaintiffs’ (and the Service’s as of 2008) expectations about climate change effects are misplaced. Ultimately, it is the Plaintiffs’ burden to demonstrate an error in the Service’s actions, and simply pointing out that two different methodological approaches to calculating the effects of climate change in the far future produced two different results, one of which the Plaintiffs disagree with, does not suffice to carry that burden.

The threatened inquiry takes a longer-term view, asking whether the species might become endangered in a more distant future. But the threatened inquiry is necessarily closed-ended; once the Court has reached the endpoint of the “foreseeable future” (a term found in ESA, and defined recently by regulation) — which the parties here agree is 2080 — the Court’s ability to prognosticate must also come to an end. After 2080, nothing can be foreseen, all is simply speculation. So it is meaningless to ask whether a species will be threatened as of 2080, because it is impossible in 2080 to engage in the long-term future examination that the threatened analysis requires. By 2080, a species must have either reached the level of endangered and be at immediate risk of extinction, or it never will.

As the Plaintiffs observe, it appears that the Trout is on a “slide towards extinction.” (# 76 at 35.) But if the Service’s models are correct — and in the absence of a challenge, the Court must assume that they are — that slide will not be completed as of or immediately following 2080. At that time, there will still be 50 populations of Trout remaining, a number that the Service believes (and the Plaintiffs have not disputed) is enough to ensure the species’ survival through some indeterminate point in the future. What might become of those 50 populations after 2080 is beyond our ability to foresee; the curtain has come down and the movie has ended. We could attempt to speculate about what might happen thereafter — the 50 populations could persist, they could perish, new populations could be discovered, old habitats could become viable again — but speculation is all it would be. Our ability to predict what might happen has come to an end.

This analysis and decision actually has some important implications for forest planning (from the 2013 Rio Grande Cutthroat Trout Conservation Strategy).

Of the total 1,110 km (690 mi) of occupied habitat, 698 km (434 mi) (63 percent) are under Federal jurisdiction, with the majority (59 percent) occurring within National Forests (Alves et al. 2008).

Range-wide, a large proportion of the watershed conditions within the forests that have Rio Grande cutthroat trout are rated as “functioning at risk,” which means that they exhibit moderate geomorphic, hydrologic, and biotic integrity relative to their natural potential condition (USFS 2011)

Land management activities are currently practiced according to the Carson, Santa Fe, and Rio Grande National Forest Land and Resource Management Plans, and BLM Resource Management Plans. During scheduled revisions, the forests and BLM field offices will evaluate the current Land and Resource Management Plans and update as necessary to provide adequate protection for Rio Grande cutthroat trout with current best management practices. Land management activities that would result in the loss of habitat or cause a reduction in long-term habitat quality will be avoided.

 

If the trout is a warranted for listing (even if precluded by higher priorities), it is a “candidate” species under ESA.   The Planning Rule requires that forest plan components conserve candidate species (which under ESA means the same thing as recover). Since this decision that listing is no longer warranted was reversed, that should mean the species is again a candidate species.

Of course, national forests where the trout is found have been revising their forest plans after 2014, when listing was no longer considered warranted. Consequently, the Rio Grande cutthroat was considered for inclusion as a species of conservation concern. The Rio Grande National Forest has identified the species as an SCC in its final plan (currently in the objection period). The requirement for forest plans for SCC is for plan components to maintain a viable population.

Logically, a species that is warranted for listing should warrant greater protection than one that is not. So it’s possible that the Rio Grande will need to reconsider plan components in areas that are important to this species, or to at least document why this change doesn’t make a difference.

Which could bring us back to the modeling question – how does the Forest Service show that it is meeting the NFMA requirement to provide ecological conditions necessary for this species?   If there is a working population model for a species, then those factors that may be influenced by national forest management should be examined to determine how they could change as a result of forest plan decisions, and whether or how that could affect the model results.