Going slower to go fast is often the best approach. Forming interagency teams to develop large-scale forest-wide or regional conservation strategies for the key listed species that are eating our lunch, then issuing a programmatic BO that covers the conservation strategy, is my recommended approach. However, one must be confident the juice will be worth the squeeze, which requires experienced staff and leadership that trusts their staff to know if the juice is worth the squeeze.
Often times, I think larger scale species-specific PBOs are better than smaller scale multi-species PBOs, because single species PBOs don’t require reinitiation if a new species is listed, they allow for the agencies to gather subject matter experts to focus and craft the larger conservation strategy, and they limit litigation risk to a single species. Convincing leadership to form a team that would meet once every week or two over 6 months to a year developing a larger conservation strategy/BA/BO is not easy.
Species-specific large-scale PBOs should include built-in check-in requirements for the agencies to affirm that the baseline and effects analysis have not changed and are consistent with what was analyzed, as well as take limits averaged over 5-year intervals. How projects are determined to be compliant with the PBO would be dependent on the species and activities covered. For some species or covered activities, an annual report on what was done that year would be fine. For species more at risk or when riskier activities are covered, I’d want to ensure the project fits the PBO before the project is implemented. For species that are not doing well and for which an activity is higher risk, the conservation measures should be crystal clear and not allow for much interpretation. For species that are more stable or even have a positive population trajectory or for lower risk activities, more flexible measures are fine. NTM, FWS should be co-authoring the BA with the USFS.
As an example, it baffles me that the USFS/BLM do not have regional gray wolf PBOs covering gray wolf populations in CA, OR and WA, which are growing at rate enviable of any other listed species I have worked with. Most forest projects present little population level concern, but almost every project affects them. It’s an easy no-jeopardy, but we are now issuing way too many one-off cookie cutter BOs for wolf.
Getting the right people in the room can make or break such an effort. You need folks that are solutions oriented and reasonable but also focused on using best available science and clearly rationalizing and documenting any assumption being made. I have seen the wrong people on both sides make things impossible. You don’t want to assign a USFS person with a history of hatred for the ESA and hell bent on maximizing agency flexibility at any cost, just as you don’t want to assign a FWS person that wants to impose conservation measures that are impactable or too onerous to actually implement. Both sides need to come to the table determined to be the best partner to other.
A stray thought, working on a S7 with the USFS is unlike working on a S7 with other federal action agencies. For example, Federal Highways does not have a multiple use mandate, so they typically don’t care what the BO says once it’s been determined the project will require a BO, other than the take statement and terms and conditions. USFS has an invested interest in what the effects analysis in a BO includes. This adds additional complexity to the relationship and makes things take longer.
Endangered Species Act: Permitting Options for Congress.”
To evaluate the permitting impact of these proposals, BPC convened a roundtable in April 2026 that brought together 49 experts from across the political spectrum, including energy and environmental policy practitioners, legal experts, conservation organizations, and industry representatives. Participants discussed provisions drawn from H.R. 1897; the Fix Our Forests Act, or S. 1462; and proposed rules from the Department of the Interior.
There are many interesting ideas about various reforms which others will understand better than I do and may be worthy of discussion. I did find it interesting that the two ideas about fuel treatments, although not particularly novel ideas, seemed to be generally accepted by the group at the roundtable.
Here’s the summary.
Roundtable participants generally agreed that targeted ESA reforms should be part of the broader bipartisan permitting reform effort but emphasized that the scope of those reforms must be carefully calibrated to avoid derailing the larger deal. When House leaders pulled the ESA Amendments Act from the floor in April 2026, they reinforced that concern.
The strongest consensus emerged around reforms that eliminate duplication and direct resources where they are needed most: framing CCAA and incidental take permit reviews as “satisfying” existing requirements, eliminating plan-level reconsultation under the Cottonwood fix, establishing strike teams for wildfire consultations, and preserving compensatory mitigation as a tool to approve more projects. Participants were more divided on narrowing analytical standards, rescinding the blanket rule, and reforming litigation incentives.
Throughout the discussion, participants returned to a common theme: The most productive direction for ESA reform is a focus on recovery. Participants described empowering states and private landowners, investing in agency capacity, and creating incentives for proactive conservation as strategies that reduce pressure on consultation, litigation, and regulation over time. As one participant put it, the goal should be “more restoration, [fewer] lawsuits.”
Here are excerpts regarding fuel treatments.
What ESA Reforms Would Speed Wildfire Response?
The Fix Our Forests Act, or S. 1462, includes ESA-related provisions designed to accelerate federal agency response to wildfire risk. Both options discussed below received strong, unanimous support from roundtable participants.
Policy Option 5: Eliminating Plan-Level Reconsultation Requirements (the Cottonwood Fix)
Under the 9th U.S. Circuit Court of Appeals’ 2015 decision in Cottonwood Environmental Law Center v. U.S. Forest Service, agencies must reinitiate Section 7 consultation on Forest Service and Bureau of Land Management land management plans whenever a new species is listed, new critical habitat is designated, or new information reveals previously unconsidered effects. This requirement applies even when no site-specific project is being proposed. The result is that significant agency resources are diverted from project-level reviews to plan-level consultations that may have no immediate on-the-ground consequences. S. 1462 would eliminate plan-level reconsultation requirements, ensuring that Section 7 consultation occurs at the project level when specific actions are proposed.
Roundtable participants strongly supported this option. Multiple participants described it as one of the easiest reforms to support in the entire ESA discussion. Agencies have struggled with plan-level reconsultation even in periods of adequate staffing, and resource drain compounds the capacity problems that already slow project-level reviews. One participant noted that a similar provision is included in the House farm bill, suggesting broader congressional appetite for the fix. No participant raised objections.
Policy Option 6: Establishing Strike Teams To Accelerate Wildfire Consultations
Section 7 consultations for wildfire and forest management projects currently enter the standard agency queue with no expedited pathway, regardless of the urgency of the underlying wildfire risk. S. 1462 would create dedicated strike teams composed of federal employees from multiple agencies, private contractors, and state or tribal staff to accelerate interagency consultations and site preparation work for fireshed management projects. The Senate bill requires that each strike team include at least one employee of the federal agency with jurisdiction over the applicable federal land.
This option received unanimous support. Participants cited the proven track record of both political-level teams, which are empowered to make difficult trade-off decisions, and career-level teams that bring together staff from different agencies to work through permitting issues together. One participant argued that if Congress considers wildfire consultation a national priority, creating focused resources is the appropriate response, and the result would be not just faster decisions but better ones. No participant raised objections.
I wanted to highlight a couple of Endangered Species Act cases that don’t involve land management agency decisions, but may have important implications for federal lands management.
Gulf of Mexico ESA exemption
TRO denied in Center for Biological Diversity v. Burgum (D. D.C.)
As discussed here, the Trump Administration convened the Endangered Species Committee to consider waiving ESA prohibitions for all oil and gas exploration, development, and production activities in the Gulf of Mexico. On March 27, the district court denied Plaintiff’s motion for a temporary restraining order to postpone the meeting scheduled for March 31.
Government attorneys argued in court that the environmental group was challenging an exemption decision that hadn’t been made, and the judge questioned whether he had jurisdiction to grant the request. The meeting occurred as scheduled and the Committee took the unprecedented action of exempting oil and gas drilling activities from the requirements of ESA based on national security interests. This is the third time an exemption has been granted, the first time the exception has been based on national security interests, and the first time it has not involved a specific project.
Following the meeting, on March 31, the Center for Biological Diversity amended its complaint regarding the committee’s convening (in Center for Biological Diversity v. Burgum (D. D.C.)), adding a claim that Secretary Hegseth’s national security determination lacked a rational basis, fails to consider important factors, and runs counter to the evidence before him, and thus violates the APA
On April 1, Natural Resource Defense Council filed a second challenge, claiming that the national security determination and the committee decision implementing an exemption on that basis are both arbitrary and capricious.
On April 2, Healthy Gulf, Sierra Club, Friends of the Earth and Turtle Island Restoration Network filed a third case (Healthy Gulf v. Burgum(D. D.C.), alleging that the committee violated and exceeded its authority under the ESA by not following required procedures for granting an exemption, that the exemption was required to include mitigation measures, and that the exemption is overly broad rather than applicable to a particular existing agency action.
There are many species in the Gulf of Mexico that are listed as threatened or endangered, Rice’s whales being considered at greatest risk of extinction. The Secretary’s national security determination focuses on lawsuits brought by non-governmental organizations about the biological opinions that analyze oil and gas activities in the Gulf, and that require certain actions to protect listed species. He added, “It is necessary for national security to eliminate the threat of vacatur, rather than waiting to see if it materializes.” (It could be hard to distinguish federal lands energy production from offshore energy production in this regard.)
(The graphic included with this article summarizes the number of species listed under the ESA for each president. It seems like there should be an asterisk for waiving protection of any of those species, and maybe subtractions.)
Court decision in Center for Biological Diversity v. U. S. Department of the Interior (N.D. California)
On March 30, the district court vacated four modifications of the regulations governing consultation under the Endangered Species Act, which is required any time a federal action may affect a listed species or its critical habitat. For three of the modification, the court found, “The agency’s errors are serious. Its regulations contradict the text of the Endangered Species Act and undercut the efficacy of Section 7 consultation in protecting threatened or endangered wildlife and marine life.” The fourth was arbitrary and capricious.
One provision invalidated by the court was the definition of “effects of the action” that must be considered. It would allow federal agencies to address only effects of actions that are “reasonably certain to occur,” to which the court responded, “… to the extent that the “reasonable certainty” requirement excludes evidence that is the best available, it violates the statute.” The standard improperly allowed the Services to exclude scientifically supported but uncertain impacts from the jeopardy analyses.
Another provision would have explicitly stated that mitigation measures “do not require any additional demonstration of binding plans.” Focusing on the word “insure,” the court held that, “an agency does not satisfy its obligation under Section 7 to insure against harm to species or habitat by resting its conclusions on ‘plans’ that are merely proposed and non-binding.”
The court overturned a definition of “destruction or adverse modification” (of critical habitat) that would require federal actions to affect species’ critical habitat “as a whole” before habitat protections are needed, which would allow smaller projects to avoid this analysis and mitigation. The court found that use of the modifier ‘as a whole’ contradicts the statute because it “improperly permits piecemeal habitat degradation, contrary to the ESA’s categorical prohibition on adverse modification of designated critical habitat.”
The fourth provision pertained did away with a requirement for the Fish and Wildlife Service and the National Marine Fisheries Service to request a “reinitiation of consultation” with other agencies under certain circumstances. While there is no statutory requirement for the consulting agencies to reinitiate consultation, the agencies failed provide an adequate explanation for the change, in violation of the APA.
The court upheld two other amendments affecting key terms in Section 4 regulations on listing (“foreseeable future”) and determining critical habitat (“not prudent”). The court also found that the agencies complied with NEPA in issuing the 2024 Section 4 regulations using a categorical exclusion.
This court’s order “simply allows the relevant pre-2019 provisions to control” until currently pending proposed regulatory changes are completed. However, it’s not clear how much any of these changes would change actual practice, or how these interpretations of the law may also affect the currently pending regulatory changes. The article includes a link to the opinion.
Example of a random SOPA , note that direct contact info for FS employees is available on the SOPA but I blocked for this image.
The Forest Service Press Office (thanks!) sent me a copy of this rather lengthy letter. Here’s a bit of a philosophical question to frame the whole Emergency effort: is wildfire really an emergency? Some would argue that climate is an emergency; some would argue that wildfire is an emergency but other solutions that vegetation manipulation on federal lands should be chosen. Some would argue that vegetative manipulation is OK, but it’s not an emergency enough to change current procedures. Others would argue that vegetation manipulation is OK but not cutting trees to be used commercially. But if we back up, it seems like some people who believe that global warming is a crisis also believe that (some) mitigation projects should be expedited, but not adaptation projects. If we frame the wildfire crisis as being about climate change, which some people do. It’s very confusing, but I thought that it was important to lay out that context before we discuss “what we think is OK to do in an emergency” we need to talk about exactly what we think the emergency is and how we define it.
Here are the general introductory statements:
On April 3, 2025, Secretary of Agriculture Brooke Rollins signed Secretarial Memo 1078-006 titled Increasing Timber Production and Designating an Emergency Situation on National Forest System Lands. The Secretarial Memo implements Executive Order 14225, Immediate Expansion of American Timber Production (March 1, 2025). Acting Associate Chief Chris French provided additional direction to Regional Foresters in a letter dated April 3, 2025, Implementation of Secretarial Memo 1078-006. This letter directed the Deputy Chief of the National Forest System (NFS), within 14 days, to release direction for using Emergency National Environmental Policy Act (NEPA), Endangered Species Act (ESA), and other regulatory authorities to streamline and simplify the permitting process. The following guidance contained in this memo fulfills this requirement.
To address specific challenges related to wildfires and forest health, the Secretarial memo contains an Emergency Action Determination (EAD) under the Infrastructure Investment and Jobs Act (IIJA), Section 40807, Emergency Actions authority. NFS will support use of this new EAD with additional information, increased Emergency Action Portal functionality and several mapping products to identify the lands included. All actions eligible within the lands covered will use this EAD authority as the default approach including ongoing actions. To use this Forest Health and Hazardous Fuels EAD, proposals must be submitted through the Emergency Action Portal for final approval by the unit’s Forest Supervisor.
Tribes and States Can Request Additional Areas.
Secretarial Memo 1078-006 provides federally recognized Tribes, Alaska Native Corporations, and States the ability to request additional areas to be included in the EAD through the Regional Forester to the Chief of the Forest Service for approval. Additional process guidance for addressing these requests will be forthcoming.
NEPA
When applying this authority to ongoing NEPA actions, consider if a change in the NEPA process will provide for efficiency given its current stage. If an opportunity for objections has already been communicated to the public or is within the objections process, the project timing may not be a good fit for use of this authority.
Public notice and an opportunity to comment is required for IIJA authorized projects, however the statute affords greater discretion in how that is accomplished. To expedite emergency actions, use streamlined approaches under the Agency’s NEPA procedures rather than relying on the notice and comment procedures of the displaced objection processes set out in 36 CFR Part 218. For example, publication via the Schedule of Proposed Actions and distribution of a notice through the unit’s mailing list may be done for environmental assessments (EAs) and categorical exclusions (CEs). Public notice for an environmental impact statement should follow the direction in 36 CFR 220.5(f).
To further expedite these projects, seek to minimize process requirements like scoping, extraordinary circumstance review, and decision memo requirements while still fulfilling all applicable legal requirements.
My bold. At this point, if I lived near or was otherwise interested in forest projects, I would make sure that I was on the forest’s mailing list, and also check the SOPA at least once a week. You can just type in the forest name and SOPA into a search engine, and find the projects, the dates, the link to the project website and whom to contact. Unfortunately, I didn’t have any luck clicking through today and sent a note to the WO about the broken links.
1. Scoping for emergency actions shall be commensurate with the scope and scale of the project. Such scoping efforts should be focused and brief. Formal comment periods will not typically be required for EAs and CEs. Alternative forms of public involvement are sufficient to fulfill agency responsibilities under NEPA and the IIJA.
I’ve seen many EAs with apparent comment periods and even response to comments, so this is interesting.
2. For extraordinary circumstances review, analyze the degree of effect to the proposed action not just the mere presence of a resource condition. Focus on the most important
resource conditions, those listed in 36 CFR 220.6(b) and do not casually expand the scope of conditions being assessed.
But if you expand them thoughtfully, I guess that would be OK.
3. For decision documents, use Agency templates and only include the content required at 36 CFR 220.6(e) and 36 CFR 220.7(c). Additional emergency compliance tools under NEPA can be found on the Ecosystem Management Coordination SharePoint site. Where applicable, prioritize use of CEs to meet NEPA compliance. To expand use of CEs, the
Forest Service recently adopted over 40 additional categories from other agencies under Section 109 of NEPA. Please examine these additional categories, as well as current USDA, Agency, and statutory CEs when considering compliance actions in support of the Secretarial Memo.
Note that this adoption was last July, prior to the current Administration.
************
There are also emergency suggestions for for NHPA compliance and Tribal Consultation.
*****************
Since Jon knows about ESA, I thought I’d throw this section in this post.
For compliance supporting the ESA:
1. Employ existing, and develop new, innovative, options for expediting ESA consultation and achieving conservation objectives. Refer to the June 26, 2024, Interagency Memo on
“ESA Section 7 Streamlining Guidance for Implementing the Wildfire Crisis Strategy” for a summary of existing options and opportunities for efficient and effective ESA consultation (https://usdagcc.sharepoint.com/sites/fs-nfs-niesc).
Seems like that Interagency Memo (from the last Admin) is probably available outside the sharepoint site for those curious.
2. Bring innovative ideas to the WO Natural Resources staff to develop additional options and opportunities. New opportunities are being developed as part of the National Active
Forest Management Strategy.
3. Where expedited consultation is necessary, provide as much essential information as feasible to the Services in advance of the action, in order to: determine appropriate design
features to incorporate; assess whether leadership elevation may be warranted; and minimize the time/capacity investment required after any emergency actions are completed.
4. Use the below suggested consultation initiation language where expedited consultation is needed: “XX National Forest is requesting expedited consultation to perform YY work
pursuant to Secretarial Memo 1078-006. The project is expected to commence on ZZ date. If expedited consultation cannot be completed prior to that date, the Forest requests the
consultation be completed under the emergency consultation regs and procedures. (50 CFR § 402.05).”
5. The WO Natural Resources staff are working with ESA consultation agencies to develop additional guidance and methods involving emergency consultation.
To the simple-minded like me, it seems like ESA consultation would involve something like “in these areas, for these kinds of projects, you need to do X, Y and Z to protect A, B and C species.” We know this because dozens of fuel treatment projects likely have been done in the same area. I get that there are landscape-level considerations. It looks like there already emergency consultation regs and procedures in place, but then that goes back to where we started “is it an emergency, and if so, what kind?”
Many thanks to Jon for another excellent litigation round-up! The discussion of the barred owl strategy reminded me of what I think is an excellent AFRC podcast talking about how the strategy works on the ground. Thanks to Nick Smith and Andy Geissler!
FWS claims that the historical range of barred owls was initially limited to the eastern United States before some barred owls began to expand west around the turn of the 20th century through natural ecological processes. FWS states that climate change and increased trees in the Great Plains enabled barred owls to reach the Pacific Northwest.
75. There is also genomic evidence, including a 2021 study, that shows substantial differentiation between eastern and western barred owls, which suggests barred owls have likely existed in the Pacific Northwest for thousands of years. Today, barred owls’ range overlaps much of the range of northern spotted owls and California spotted owls.
(I wrote to the authors of the study, one I couldn’t locate, and one did not answer my email, so see whether they had updated information.)
The below is on pages 21 and 22 of the Friends of Animals complaint.
F. Lethal Barred Owl Management Plan
139. The stated purpose of the Decision is to “reduce populations of non-native barred owls in selected areas to provide for the survival of the native northern spotted owls and prevent the invasion of non-native barred owls into the range of California spotted owls.”
140. The central premise underlying the Decision is that barred owls meet the definition of an “invasive species” under Executive Order 13751.
141. Barred owls are not an invasive species under Executive Order 13751 or the MBTA.
142. Barred owls did not come to the Pacific Northwest by way of “introduction.”
143. There was no “introduction” of barred owls to the Pacific Northwest because they did not arrive there “as a result of human activity” by “escape, release, dissemination, or
placement.”
144. Barred owls were not introduced to the Pacific Northwest because, according to FWS, they migrated there on their own over the course of many years.
145. FWS determined that the “probable explanations” for the migration of barred owls to the Pacific Northwest were climate change and increases in trees in the Great Plains.
146. Whether or not their migration to the Pacific Northwest was aided by human changes to the environment is not determinative of whether barred owls came to the Pacific Northwest through “introduction.”
147. FWS thus based the Decision on the erroneous classification of barred owls as an invasive species.
148. Barred owls are native to the areas in the Pacific Northwest where the Decision will be implemented because they arrived there through a natural ecological process
I didn’t realize that the concept of “introduction” was so important (if it is, or it’s just plaintiffs “throwing it at the wall and seeing if it sticks”). It seems to me that human activities and post-glaciation time frames are almost entirely correlated. How could anyone parse out the importance of each in a long-term process like migration? And if it’s impossible to parse out, should it be in regulation (if it is)? I don’t have a bird in this fight, but I think the concepts are worthy of discussion.
We could certainly talk about past successes at saving and recovering some species, but here is a story that suggests the inadequacy of ESA for the task of mitigating or reducing the effects of human climate disruption on many (maybe all) species. This species has apparently become extinct in the Mule Mountains of southern Arizona – on BLM land under federal land management.
Over the last 3 million years — a million years longer than humans have been around — the Yarrow’s spiny lizards in the Mules adapted to live in cool mountain climates called sky islands. Because the desert floor below is too hot, the lizards were essentially marooned at higher elevations, as if on an island, and cut off from other Yarrow’s populations in southern Arizona and northern Mexico.
In 2014, the team could not find any lizards below 5,700 feet. Up to that elevation the temperature in the mountains had gotten too hot. In 2021-22, they returned to the Mules to count lizards in the same spot. They were gone. At that point, the lizards could only be found living much higher, at 7,100 feet, a cooler elevation.
In a scientific paper, Wiens and his colleagues calculated the rate at which the lizards were dying, concluding that it is among the fastest rates ever recorded.
But because the highest peak in the Mules is 7,700 feet, the Yarrow’s spiny lizards were quickly running out of elevations with cooler air. Based on its calculated rate of decline, and with nowhere else to go, Wiens projected the lizards would go extinct here by 2025 — a phenomenon that scientists call riding the “elevator to extinction.”
In March of this year, a survey trip into the mountains with CBS News proved his hypothesis correct, one year ahead of schedule. Wiens could no longer find any lizards, though it will take several more trips before rendering a conclusion.
This species was apparently never listed under ESA, or even petitioned. The BLM could have petitioned to list the lizard. You might think that a federal agency responsible for species on its lands would want all the tools available to provide for the species survival, but I think petitions to list a species by federal agencies are unheard of.
We know that species may be listed under ESA because of the effects of climate change (e.g. polar bears). The ESA would then force federal agencies to modify their actions that would adversely affect listed species. In this example, changing BLM management practices might have been necessary, but not sufficient, to save the species.
If the species had been listed, at least in theory, other actions that are causing the loss of habitat could have been modified or eliminated which could have benefitted federal lands ecosystems. A Congressional Research Service Report from 2019 found that unlikely:
Judicial review has helped to ensure that the Services consider projected climate change effects on species in their ESA decisions. However, the courts have not required the Services to curb activities that may contribute to climate change to protect threatened or endangered species.
Stakeholders disagree on whether the ESA should play a role in addressing climate change, with some arguing that the ESA is not equipped to mitigate climate change effects. Other stakeholders believe that the Services can and should wield the ESA to protect further species threatened by climate change by curbing activities contributing to climate change. From the Services’ viewpoint, the best available scientific and commercial data have been insufficient to determine whether greenhouse gas emissions from a proposed activity cause detrimental effects on a species or its habitat. In light of the judicial deference afforded to the Services, the courts have not expanded the ESA as a tool to protect listed species by regulating activities that contribute to climate change.
Despite some success challenging BiOps, neither the courts nor the Services have found that climate change effects from a proposed federal action jeopardize the species or adversely modify its habitat.
Even though that is what happened here. Federal actions authorizing greenhouse gas emissions have contributed to a baseline for this species that trended toward and resulted in extinction. This same trend is occurring for many other species in less obvious ways. Nothing to celebrate here.
But the CRS authors offer this (faint) note of hope:
From the Services’ viewpoint, the best available scientific and commercial data have been insufficient to determine that GHG emissions from a proposed activity cause detrimental effects on the species or its habitat. However, as climate modeling and technology advance, the Services may be able to predict the causes and effects from climate change on species with greater scientific certainty and data.
(Note: This report was written at the end of the Trump Administration and discusses its changes in the ESA regulations, which have since been changed by the Biden Administration. Also, I have not tried to update what’s been happening in the courts.)
This is a great article by Scott Streater of E&E News; fortunately a TSW reader forwarded it to me, as it has a paywall. It’s pretty comprehensive and hard to excerpt from, but I’ll try.
Here’s the link to the BLM press release, public meetings and the DEIS. Here’s the BLM’s title and tagline;
Analysis uses best available science and lessons learned to benefit species and western communities
I’ll try to hit the main points of the Streater article.
It blends some of the Obama decision and the Trump era decision. Perhaps some horse-trading with western Govs? Or realizing that the 2015 approach doesn’t fit with desired renewable buildout?
In essence, the proposal outlined in a draft environmental impact statement Thursday is a compromise that a BLM news release emphasized draws on “the most successful components” of the Obama administration plans in 2015 that mandated protections for the most sensitive grouse habitat across 10 states and revisions to those plans the Trump administration approved in 2019 that gave states more leeway to greenlight projects near grouse breeding grounds and other sensitive habitat.
2. Sgamma thinks that it’s an improvement
“It’s positive that the preferred alternative seems to be a blend between the other approaches and prior plans, which indicates that BLM is trying to find a workable balance,” said Kathleen Sgamma, president of the Denver-based Western Energy Alliance.
3. WEG and CBD don’t like it.
People familiar with the plan under development at the BLM previously said they expected the proposal to include 11 million “acres of critical environmental concern” to safeguard priority grouse habitat. But the preferred alternative released Thursday did not include ACEC designations, which provide strict land-use regulations that would severely limit livestock grazing, recreation and other activities. Other alternatives, which could still be selected in the final plan, do include the conservation designations.
The proposal would also remove one of the most contentious aspects of the 2015 plans: the designation of 10 million acres of “sagebrush focal areas” considered vital to the bird’s survival, where mining and oil and gas development would be prohibited. These areas will now be managed as priority habitat management areas.
My understanding is that the focal areas were added at the last minute by folks in DC, and stuck in some craws of some State folks who had worked collaboratively on effort. If you remember from my story on it, that my source said:
Folks from Garfield County, CO did a FOIA and found out that the changes were associated in time with meetings with various environmental organizations, including Pew. One particular idea added during these last changes was the idea of “focal areas”. The States went ballistic.
The Governors sat down with Secretary Jewell and tried to negotiate.
4. Pew Does Like It
For whatever reason, Pew seems to have an outsized influence on federal decision making under this Admin and also the Obama Admin, so this could be significant.
Marcia Argust, director of the Pew Charitable Trusts’ U.S. Conservation program, applauded the BLM “for bringing the latest science, including planning for climate impacts, to this round of sage grouse plan updates.”
5. If Grouse don’t like roads and footprints of O&G operations, they probably don’t like roads and footprints of renewable energy and transmission lines.
This has become an issue as the Biden administration works to build renewable energy projects on federal lands as well as the transmission lines needed to carry that green energy to market. BLM press materials announcing the proposal mentioned “clean energy projects” in discussing how the plans will allow for multiple uses “in a manner that limits impacts to sensitive resources and can also help combat climate change — the main driver of greater sage-grouse habitat loss.”
Actually, what the press release says is “Populations once in the millions now number fewer than 800,000, largely due to habitat loss exacerbated by climate change, such as drought, increasing wildfires, and invasive species.” Habitat loss seems to be the actual main driver, not climate change.
6. RMP Amendments Around 2015 Sage Grouse Plans for Transmission Lines.
The BLM this month announced it was exploring amending three federal land-use plans to work around mandates in the 2015 grouse plans limiting the size of transmission lines and their proximity to priority grouse habitat. The BLM concedes it might need to do so in order to approve the 235-mile-long Greenlink North power line in Nevada that’s a Biden administration priority due to renewable energy
Hopefully those transmission lines will be well-maintained..and not cause further fires which are bad for sage grouse.
I believe the Rio Grande revision is one of only two developed under the 2012 Planning Rule that have been litigated (the Flathead being the other). Two lawsuits were filed against the Rio Grande in November 2021. One of them (Defenders of Wildlife v. U. S. Forest Service) was decided a year ago by the district court and is on appeal to the 10th Circuit. That case is worth some discussion, so here it is. There has not yet been a district court hearing for the other case (San Luis Valley Ecosystem Council v. Dallas). (The Colville revised plan litigation involved the previous 1982 planning regulations.)
On January 27, 2023, the district court upheld the Rio Grande revised forest plan’s compliance with the Endangered Species Act and NEPA for Canada lynx. The judge framed the issue in this case as whether the Forest failed to “protect the lynx by inadequately limiting logging in the Forest under a revised forest plan in violation of the ESA, the National Environmental Policy Act (“NEPA”), and the Administrative Procedure Act (“APA”).” The court found no violation of ESA in the Biological Opinion by the Fish and Wildlife Service, and it summarily dispensed with the NEPA and ESA claims against the Forest Service as being based on “substantially the same arguments.”
The case involves changing forest plan management direction for Canada lynx from that included in the Southern Rockies Lynx Amendment in response to insect-killed trees and blowdown over a large portion of the Forest. The opinion asserts at the outset that, “Petitioner’s position is fundamentally flawed for at least three reasons.” Two of these are troubling.
The court minimizes (or perhaps rejects) the need for ESA consultation on national forest plans because they are “programmatic,” and (citing the BiOp), “no immediate consequences occur directly to Canada lynx caused by the proposed action,” and therefore “implementation cannot be said to jeopardize the lynx directly.” If plan cannot jeopardize a species, then there should be no need to consult.
These statements and this conclusion would be contrary to national Fish and Wildlife Service policy on consultation on “programmatic” or “tiered” decisions. Forest plans are decisions that both promote activities that could adversely affect species through desired conditions and objectives, and limit those activities through standards and guidelines. Consultation on such decisions is based on the effects that would be allowed to occur using the “design standards” in the decision. There is no requirement that consequences potentially leading to jeopardy be “immediate.”
The court’s conclusion is also at odds with other cases, which emphasized the broad scope of agency “actions” subject to ESA. The 10th Circuit has determined that, “Much like the promulgation of a regulation, we have little doubt after Norton that the act of approving, amending, or revising a LRMP constitutes “action” under § 7(a)(2) of the ESA.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1154 (2007). The 9th Circuit held, “RMPs are actions that “may affect” the protected salmon because the plans set forth criteria for harvesting resources within the salmon’s habitat.” Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1055 (1994). A requirement to consult on forest plans must presume that there could be some basis for finding substantive violations of ESA, so this court’s finding of a fundamental flaw here seems fundamentally flawed.
A second “fundamental flaw” results from the fact that, “lynx habitat in the Forest amounts to just over 2 percent of the lynx habitat in the contiguous United States,” and “none of that habitat was designated as critical.” Therefore, “even if the lynx were extirpated in the Forest, that would not significantly affect the status of the lynx across the contiguous United States.” This raises questions about the effectiveness of applying ESA’s requirements to wide-ranging species if no individual project or even a forest-wide plan could be viewed as capable of causing jeopardy. This is a reason why the western lynx amendments were applied across ranges of the lynx, and consultation occurred on multiple national forests simultaneously. The reasoning the court applied here highlights the risk of now disassembling a regional strategy on a forest-by-forest basis. Doing so on one forest should arguably trigger the need to reinitiate consultation across the range of lynx (in this case the southern Rockies national forests).
This court’s view of ESA highlights the need to challenge species conservation provisions of forest plans under the viability requirement of the 2012 Planning Rule, even for listed species. The requirements pertaining to species viability must be met based on their probability of persistence in the “plan area.” Various statements cited by the court would support a conclusion that lynx are not likely to persist on the Rio Grande National Forest plan area over time. This argues for strict scrutiny of forest plan components that would allow any adverse effects to occur from management activities. Similar to ESA, the viability requirement contemplates long-term consequences of multiple activities over time, and effects need not be direct or immediate. (In another context, the court points out that, “the revised forest plan is intended to remain in effect only until about 2036,” but it may be that management actions during the life of this plan would contribute to the “long-term” decline, which is the test applied by the 2012 Planning Rule).
There is a counter-argument that the 2012 Planning Rule applied the viability requirement explicitly only to “species of conservation concern,” which are defined to not include listed species, for which the requirement is to “contribute to recovery.” However, at the point at which the species recovers, it should immediately become an SCC (see Planning Handbook §12.52d.2.b) and would need to meet the viability requirement. Regardless, logic requires that what is needed to “contribute to recovery” should be something beyond what is needed to maintain viability after recovery, and that plan components for listed species must at least provide habitat for viable populations.
This outcome would be consistent with court interpretations of the NFMA diversity requirement under the 1982 planning regulations. When the Forest Service argued that it did not have to meet the viability requirement for listed species, the 9th Circuit found, “The effect of the Forest Service’s position in this litigation, were it to be adopted, would be to reward the Forest Service for its own failures; the net result would be that the less successful the Forest Service is in maintaining viable populations of species as required under its regulations, the less planning it must do for the diversity of wildlife sought by the statute. This is directly contrary to the legislative purpose of the National Forest Management Act.” Seattle Audubon Society v. Evans, 952 F.2d 297, 301 (1991). (The San Luis Valley Ecosystem Counsel claims against the Rio Grande plan include NFMA violations for lynx and the Uncompahgre fritillary butterfly, but relative to the “contribute to recovery” requirement for listed species, and not the viability requirement.)
The third “overarching flaw” appears to derive from judicial deference principles. The court specifically notes that, “the Court does not find that the presumption of validity that attaches to agency action is overcome merely because the revised forest plan changes the way the SRLA was previously applied in the Forest.”
The remainder of the opinion discusses the scientific rationale provided by the agencies for their effects analysis and decisions, and finds that they properly address questions raised by plaintiffs, and the court was “not persuaded that implementation of the revised forest plan is likely to make conditions worse for the lynx.” (Perhaps under stricter scrutiny called for by the NFMA plan area viability requirement the court might have been persuaded.) So maybe the court’s findings of “fundamental flaws” were just window dressing?
On January 17, 2024 the 10th Circuit held a hearing (listen here) in this case. I have not read the briefs, but the hearing did not discuss the overarching issues reviewed above, so it appears that they are assuming (and apparently the government did not object) that the Rio Grande revised plan could theoretically cause jeopardy to lynx.
The hearing was narrowly focused on two issues, and particularly on the question of whether the northern portion of the Rio Grande should be managed as an area of low lynx use with less protection, as it is in the revised forest plan. That turned on the question of best available science. The only research on lynx that included the northern portion (Ivans) concluded that there could be high lynx use. The Fish and Wildlife Service concluded otherwise based on discussions with unnamed biologists that were not specifically documented. Importantly, there is no record of the reasons why the Ivans study was not accepted by the FWS (or the Forest Service). If there were no conflicting information in the record, the unattributed sources might be sufficient, but that is not the case here. The FWS conclusions could be considered arbitrary.
The second issue was about the importance of the lynx population on the Rio Grande, and/or the importance of the Colorado lynx population to the listed species. The record indicated that the Rio Grande lynx are important to the Colorado population. The FWS had also said elsewhere that all six populations in the lower 48 (the listed entity) are important, but then discounted the current importance of the Colorado lynx population because it was not historically important. Ultimately the question appeared to be whether the FWS properly considered the importance of these lynx in its jeopardy determination for the species.
I’ve been thinking about trust, mostly with regard to the use of prescribed fire and managed fire WFU or Fire With Benefits (FWB). Over the holidays, ten wolves were released in Colorado.
FWIW, I think they could have handled it better, trust-wise, and maybe some lessons could be learned from their efforts. First, let’s take a look at Cat Urbiquit’s reporting. The “invited guests” part, and the timing with the “Wolf Update” .. I don’t think the FS on its worst days would have done either. Transparency, accountability and meaningful involvement yield trust. Parties to which the affected communities are not invited.. held while they are invited elsewhere. It’s a bit creepy, really, to me.
Step 2: Private Party
Colorado Public Radio reported that the first of the wolf releases was kept secret from all but about 45 invited guests including Governor Polis, his husband, and top wolf advocates from around Colorado, as well as a few representatives of the media.
According to the Colorado news pool report of the event, “The crowd watched in awed silence, then some hugged each other and low murmurs started up. … When it all ended, viewers let out their breaths and small applause broke out.”
The release location had been kept secret, the pool report noted, because state wildlife officials “may reuse the release site and is concerned about protestors or the public attempting to stop or watch future releases.” Within a few hours, the location was posted on a hand-written sign outside a post office not far from the release site.
Meanwhile, two counties away in Craig, Colorado Parks and Wildlife officials were making presentations to ranchers at a previously scheduled “Wolf Update for Livestock Producers” meeting hosted by Colorado State University Extension. Steamboat Radio reported, “Halfway through the meeting, CPW Area Manager Kris Middledorf told the ranchers that five wolves had just been released a few hours earlier, onto public land in Grand County.” When 9News contacted local elected officials (mayor, county commissioners and legislator) and learned none had been told about the release beforehand.
The state wildlife agency was between a rock and a hard place in moving this program forward by the imposed deadline and hurried to make the best of a less-than-desirable situation. The agency had to make choices between hard postures on opposing sides, eventually selecting moderate options. Nothing would make everyone happy.
Colorado was banking on other states to cooperate with its plans, only to learn that most weren’t going to cooperate. Oregon agreed to provide wolves to Colorado, but when it came to sourcing the wolves, all but one came from packs that were involved in livestock depredations (something that was obviously problematic).
Unfortunately, Colorado wasn’t up front with that information, so when it became public the rosy optics of the wolf release were tainted.
Instead of being forthright with the reasons why those wolves were selected (that the voters had imposed a strict deadline and no wolves were available that weren’t from packs that hadn’t already been involved in livestock depredations) and outlining how it weighed the ramifications, the administration was silent.
When the information became public and caused the predictable controversy, a resident of the governor’s mansion attempted to discredit the reporter who had revealed the details and told the public that “everything you need to know” about the wolf release was in the government press release.
Nothing sets off alarm bells like someone in power (or in this case, power-adjacent) telling the public that all they need to know comes from a government press release.
Which makes me wonder if Colorado has the only elected official’s spouse that goes after specific journalists on Facebook? I have no idea how common that is. Cat noting that CPW was between a rock and a hard place and had to make a series of perhaps suboptimal decisions makes me think that perhaps wildlife management by initiative is not the best idea.
I also wonder whether simply treating those directly negatively affected respectfully.. giving the ranchers a heads-up; perhaps involving both sets of ranchers (Oregon and Colorado) in picking the wolves; issuing a press release simply stating they had done the best they could…
So what is it? Either CPW, the DNR, the Govs Office or some combo doesn’t care about the communities impacted by their policies? They care but don’t have good trust-building/communication skills? Individuals do have those skills but are overruled by others higher in the food chain? Perhaps the State should do a lessons learned, like the FS did with prescribed fire; at least that would send the message that they care about building trust with these citizens of Colorado.
****************************
More details for those interested in depredation, packs and lethal removal in Oregon and Colorado are below.
Meanwhile apparently CPW is refusing to remove non-reintroduced wolves that have been killing cattle, dogs and sheep. Apparently there are only two left of these left, so CPW told rancher Gittleson
“After consulting with the U.S. Fish and Wildlife Service, Colorado Parks and Wildlife has made the determination not to lethally remove these two wolves at this time. The division considered the entire history of depredation events in your area, including the most recent history of depredation events in November and December of 2023. Our assessment considered the change in pack dynamics that took place over the preceding year when most of the pack left the area and did not return. With only two of the original wolves remaining, the number and frequency of events has dropped in 2023. “
So CPW seems to be saying, “you need to take more losses because folks in Wyoming have been shooting them.” It seems like it would be in everyone’s interest to not let folks kill wolves that don’t attack livestock (parts of Wyoming) and let folks kill the ones attacking livestock.
In that vein, I thought that this was interesting from CPW.
CPW defended their selection of source wolves from Oregon, saying in a statement there were two depredation events by members of the Five Points Pack in July 2023. The state of Oregon has a Wolf Management Plan that details how to respond to livestock depredation and per the plan, ODFW provided the producer with a lethal removal permit after they requested it. The producer’s agent lethally removed four wolves from the pack in early August. The pack has not depredated since. This change in pack behavior and the lack of current depredations met CPW criteria for accepting the animals.
According to a statement, CPW teams in Oregon passed on several larger and easier-to-access packs because they had recent depredation or had a chronic or ongoing depredation history.
But not all these wolves were from the Five Points..
According to Oregon wolf depredation records, Five Points Pack wolves injured one calf and killed another in separate depredations in July of 2023; killed a cow on Dec. 5, 2022; and injured a 900-pound yearling heifer on July 17, 2022. The Noregaard Pack was involved in the confirmed killing of a calf and one possible kill in June, the Desolation Pack was involved in the confirmed kill of a steer in September and an attack on two calves in May; and two wolves came from the Wenaha Pack that had confirmed kills in September and October. One wolf released into Colorado was not associated with a pack.
So Oregonians get lethal removal permits and it sounds like Coloradans don’t. That’s not a trust-building thing either.
According to Cat’s article:
CPW’s Technical Working Group (TWG) on the reintroduction program wrote this into its final recommendations to the agency: “No wolf should be translocated that has a known history of chronic depredation, and sourcing from geographic areas with chronic depredation events should not occur.”
The TWG wrote: “There is nuance in determining depredation habits, with consideration of trends in the behavior of an individual and a pack. If a wolf is depredating livestock, the pack it belongs to is likely to depredate as well; additionally, if a pack is depredating, it is difficult to exclude one individual as non-depredating. A known wolf or pack of wolves that have been identified as chronic depredators by the source location should not be used for translocation to Colorado.” (Citations omitted)
As all of us former bureaucrats know, “should” leaves the agency flexibility. But once the CPW knew it had to go that way, better communications it seems to me (contacting key folks in the ranching community) even with bad news, would lead to more trust than not telling and ranting at the journalist who investigates.
You can read any number of articles right now about this that say ESA was adopted by a nearly unanimous Congress and signed by President Nixon on December 28, 1973. Its supporters find success in its protection of 99% of the species listed from extinction, while critics complain that only 3% have been recovered. To me, that’s apples vs oranges, because it is much easier for a law to stop bad things from happening than to make good things happen. I’d love to see those who complain about ESA out there arguing for more money to implement recovery plans. (And I fail to see the logic of opposing additional listings because recovery is unlikely, when recovery without listing is even less likely.)
But I was curious about what the Forest Service might have to say about this momentous anniversary, and this posting showed up on their website. It’s written about California, but must represent the agency’s perspective. The current priority is evident in the second paragraph:
Large, extremely hot fires have ripped through many of these lands, charring if not destroying habitat crucial to species survival. To help reduce the risk of large, devastating fires, the Forest Service is working to remove vegetation that could feed a fire and is working with the U.S. Fish and Wildlife Service to simultaneously support the conservation of listed species.
That would be listed species that depend on “vegetation that could feed a fire,” which would be removed. We’ve seen that with spotted owls, the Fish and Wildlife says this should mean focusing fuel reduction projects on areas that are less important to the species. It would be interesting to hear about how this approach is being implemented through agency policy, forest plans, and/or implementation strategies. This explanation by the Forest Service falls a little short of a “strategy” for accomplishing this.
The U.S. Fish and Wildlife Service, which manages the species program, often partners with the Forest Service on steps to protect species listed under the act. Collaborative efforts carry intertwined goals forward. Wildlife specialists and biologists from each agency review project plans, survey forests for species populations, collect data, and analyze the best available science. The Forest Service often includes wildlife conservation measures in as part of land management planning, which means on-the-ground activities needed to increase forest resilience align with the needs of wildlife.
For example, specific types, sizes and heights of trees are left in areas of a forest known to be actively used as nesting or denning sites by threatened or endangered species. The Forest Service plans work to occur during times of the year that will not disrupt key life stages, such as mating season or when adults are caring for young. The Fish and Wildlife Service reviews these plans before work is started to ensure that species needs are being met.
I like that they recognize the importance of forest plan standards as a key tool for protecting species, but I’d like to know more about “Collaborative efforts carry intertwined goals forward.”
