ESA

Endangered Species Day

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The third Friday in May is Endangered Species Day, where we should “celebrate saving species.”

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.)

 

New Sage Grouse Draft Plan Released: Incorporates Ideas from Obama and Trump Admin Plans

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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;

BLM proposes stronger greater sage-grouse conservation plans

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.

  1. 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.

Rio Grande National Forest Plan Revision Litigation

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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.

We await a decision.

 

 

 

Building Trust or Not: Colorado’s Christmas Wolf Kerfuffle

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Photo from Lakota Wolf Preserve

Happy New Year everyone!

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.

Urbigkit is fairly supportive of CPW’s approach as in this op-ed piece.

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.

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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.

 

The Endangered Species Act turns 50

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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.”

 

Endangered Carnivore Friday

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There seem to be at least three different views of what should be done with endangered species.  1. Recover the species in a specific area; 2. Recover the species everywhere it ever was and 3. Manage for the species in areas where it currently isn’t, but might possibly go under climate change. It’s all a bit confusing to some of us as to what is legally required by ESA and what is just the druthers of some folks.

Oregon Wolves To Be Released in Colorado: Location Unknown

Yes, Colorado already had wolves who wandered down on their own from Wyoming. However a ballot initiative requires them to be reintroduced anyway (political reasons). Here’s a nice article in the Colorado Sun.

The wolves headed to Colorado currently live in Oregon. Once they’re captured, the volunteer flight service LightHawk, which assists conservation agencies with endangered species transportation, will bring them to Colorado.

Western Slope ranchers could start seeing wolves by mid-December. That troubles Lenny Klinglesmith, who runs between 600 and 1,000 head of cattle in Rio Blanco County, southwest of Meeker.

Klinglesmith said stress and anxiety are running high in him and his ranching neighbors, who’ve “been dreading it for quite awhile. Now, reintroduction is almost here but we don’t have a choice. It’s just the stress, not only for me but for our hunting community. They talk deterrents and conflict minimization like it’s easy, but wolves are there 24 hours a day, 365 days a year. And most [impacts] are going to happen in the middle of the night. It could be Christmas Eve. It’ll change lives forever.”

But Eric Odell, CPW’s species conservation manager, said CPW plans to help them with the transition by contracting a conflict minimization specialist with expertise in wolf reintroduction who has worked with several ranching communities in the past. The agency intends to hire more such specialists. And Odell said CPW has some of the materials needed for deterring wolves on hand, including “fladry” to string around livestock pastures or holding areas, and scare devices like sirens and strobe lights.

“We have some for loan and use, but not enough that will meet the demand,” he said. “And there will be lots and lots of demand.”

It seems to me like the wolves came in on their own, and people were adjusting.  Then came the “reintroduction” effort-voted for by people who live elsewhere and only narrowly passed at all.  I don’t think if a person’s goal was to help heal any urban rural divide, that this effort is helping. Just my two cents.

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Wolverines

This is from the Center for Western Priorities newsletter.

Human-driven climate change has led to the species’ decline, with the most recent estimates noting a population of around 300 in the Lower 48. Wolverines rely on deep snow through the late spring to build dens, but in recent decades, snowpack has been decreasing. The species used to roam from the northern United States to New Mexico, but now they exist only in small populations in the Rocky and Cascade mountains.

“The science is clear: snowpack-dependent species like the wolverine are facing an increasingly uncertain future under a warming climate,” Michael Saul, Defenders of Wildlife Rockies and plains program director, told National Parks Traveler. “Now it’s time to support the species’ future by bringing them back to the mountains of Colorado as well.”

I’m wondering why they would pick the most southern part of the range specifically to bring them back, the part conceivably least able to support them based on the warming climate.

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Grizzly Bears Translocation to Add Genetic Diversity

This one from Wyofile.

To me if the yellow lines were the target, it seems like the grizzlies are doing fairly well.

“We’re trying to demonstrate to everybody, the courts included, that connectivity isn’t an issue that should impede delisting,” said Ken McDonald, wildlife division chief for Montana Fish, Wildlife and Parks. “Until it’s happening regularly, naturally, we can cover this with human-assisted movements.”

The two grizzly bear populations aren’t far from each other — the leading edges are just 35 miles apart —  but there’s never been a documented case of a Northern Continental Divide Ecosystem grizzly traveling to the Yellowstone Ecosystem and procreating. Grizzlies have gone the other direction, trekking north well into Montana, but that doesn’t accomplish the goal of creating gene flow into the isolated population.

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Although state wildlife managers have committed to translocating grizzlies into the Greater Yellowstone Ecosystem, the current level of genetic diversity is not “in dire straits,” Interagency Grizzly Bear Study Team Leader Frank van Manen said.

Frank van Manen, leader of the Interagency Grizzly Bear Study Team, at the Interagency Grizzly Bear Committee’s Yellowstone Ecosystem Subcommittee meeting in Cody in May 2023. (Mike Koshmrl/WyoFile)

“We have a little bit lower genetic diversity than other populations, but it’s not declining further,” he said. “It’s moderate genetic diversity, is how I would classify it.”

The genetic augmentation appendix of Montana’s draft grizzly bear management plan calls the ecosystem’s genetic isolation a “long-term conservation concern.”

“The rate of inbreeding has been very low (0.2% over 25 years),” the document states, “and no inbreeding effects have been detected.”

As a geneticist, I would say “if it’s low and not decreasing, it’s not a problem.”

Nevertheless, U.S. District Court Judge Dana Christensen sided with environmental groups in 2018 on the question of genetic diversity, ending a short stint where the Northern Rockies states had jurisdiction over their Ursus arctos horribilis populations.

I went to the link above and this is what the Judge said:

In ordering the re-listing, the judge noted that delisting Yellowstone-area grizzlies might have an impact on other grizzly populations. But he also found threats to the Yellowstone-area bear itself. One worry is that the geographically isolated Yellowstone population may lack the genetic diversity necessary to persist.

The judge, over many pages in his order, mulled arguments about minimum populations, effective population sizes and other important factors, including federal law. He criticized federal scientists for “failing to recognize that all evidence suggests that the long-term viability of the Greater Yellowstone grizzly is far less certain absent new genetic material.

“Despite its recognition that continued isolation poses a threat to the Yellowstone grizzly, there is no regulatory mechanism in place to address the threat,” the judge wrote.

When the Fish and Wildlife Service decided in 2017 to delist the Yellowstone grizzly, the decision that prompted the successful lawsuit, it “misread the scientific studies it relied upon,” Christensen wrote.

“The Service failed to logically support its conclusion that the current Greater Yellowstone population is not threatened by its isolation.” The judge wrote. “The Service has failed to demonstrate that genetic diversity within the Greater Yellowstone Ecosystem, long-recognized as a threat to the Greater Yellowstone grizzly’s continued survival, has become a non-issue.”

So it appears that the Judge is not talking about the actual science, but the FWS not “logically supporting its conclusion.”

Sommers recalls something that Chris Servheen, the former lead government grizzly scientist, once told him. “We also have to remember bears have been isolated on Kodiak Island for 10,000 years and they’re doing just fine, ” Sommers paraphrased.

Alaska’s Kodiak population differs from Yellowstone in that there are about 3,500 Kodiak brown bears. (Many refer to both species as grizzlies, though they are slightly different.)

“How good is the science on the genetics issue,” Sommers asked, saying conservationists call to preserve natural migration corridors between the grizzly recovery zones in the Lower 48 “are just attempts to tie up policy [regarding] land use.

“I think this genetic connectivity issue is a red herring that underlies some groups’ efforts to try to manage, manipulate this larger landscape with regard to how they want to see [land-use] decision on the ground,” he said.

Back to the original article:

Thompson pointed out that genetic diversity was an issue decades ago when the Yellowstone region population was much lower and “bottlenecked,” but nowadays, with many times more bears, it isn’t much of a concern, he said.

“We’ve demonstrated it is not an issue anymore,” Thompson said, “but [translocation] is another way to address the issues that some people have.

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Update on Tulare Wolfpack and Legal Question

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A gray wolf is seen in the Sequoia National Forest.
Michelle Harris, Samantha Winiecki-Love, Ryan Slezak and Colibri Ecological Consulting/via the California Department of Fiash and WIldlife

I thought we’d take a break from the generalized permitting reform discussion to a specific question. Thanks to Claudia Elliot, we have a roundup of the news on the Tulare Wolfpack. I posted on the media coverage of the new wolf discovery here.  My legal question has to do with the discovery of new information on ongoing projects.

The Legal Question

Quoting from Claudia here:

The letter, dated Aug. 15, was on behalf of four organizations that have a long history of activism related to giant sequoia issues — the Kern-Kaweah Chapter of the Sierra Club, the Sequoia Taskforce of the Sierra Club, the John Muir Project of Earth Island Institute and Sequoia ForestKeeper.

Sent just one day after the California Department of Fish and Wildlife released news of the wolf pack, the letter states that the new information “implicates ongoing actions the Forest Service is currently implementing, including the Region 5 Post-Disturbance Hazardous Tree Management Project and the Emergency Response, R5 Giant Sequoia Fuels Grove Reduction and Restoration Projects.

“The Forest Service should place a pause on those actions and, in consultation with the U.S. Fish and Wildlife Service, determine whether any activities associated with those projects and others could adversely affect the wolves.”

in the letter, the authors state specifically:

Immediately, this new information implicates ongoing actions the Forest Service is currently implementing, including the Region 5 Post-Disturbance Hazardous Tree Management Project and the Emergency Response, R5 Giant Sequoia Groves Fuels Reduction and Restoration Projects. The Forest Service should place a pause on those actions and, in consultation with U.S. Fish and Wildlife Service, determine whether any activities associated with those and other projects could adversely affect the wolves.
*****

The significant new information of the presence of wolves requires supplemental analyses. In doing so, NEPA requires the Forest Service to consider the potential direct, indirect, and
cumulative effects on wolves. Moreover, the ESA requires that the Forest Service find ways to mitigate project and other effects to avoid potential take, including harassment.

It sounds like existing projects need to be reviewed because the wolves moved in. Would this be equally true for, say, the new discovery or movement into the area of endangered species if the project was a wind farm or solar facility or a transmission line? Is the process different for ongoing projects vs. designing new ones?

Update from Claudia Elliott

I’ve paused my twice-weekly Giant Sequoia News until January to allow time to establish what I hope will be a network of journalists and others to better cover giant sequoias and related Sierra Nevada issues. I’m planning an update about the wolves for early January.

In the meantime, here’s a recap of what’s been reported since news of wolves on Sequoia National Forest in August:

From Giant Sequoia News:

Aug. 14, 2023: ‘Wolf flowers’ and wolves – not just giant sequoias can be found in forests of Sierra Nevada

Sept. 11, 2023: ‘About those wolves… Groups call for a pause on Sequoia National Forest projects

Sept. 14, 2023: ‘More about those wolves… Forest Service acknowledges ESA ‘obligations’

Sept. 18, 2023: ‘What Sequoia National Forest had to say about gray wolves last week’

 

There was a flurry of reporting in August and September after the California Department of Fish and Wildlife made the first report about the wolves. More recently, The Guardian published a piece HERE that included news that the wolves were believed responsible for killing cattle on the Tule River Reservation. The reservation is surrounded on three sides by Sequoia National Forest/Giant Sequoia National Monument.

Since The Guardian report, Scientific American HERE, Newsweek HERE, and Wildfire Today HERE have published pretty much the same story.

As I reported on Sept. 11, four organizations that have a long history of activism related to giant sequoia issues — the Kern-Kaweah Chapter of the Sierra Club, the Sequoia Taskforce of the Sierra Club, the John Muir Project of Earth Island Institute and Sequoia ForestKeeper — called upon Sequoia National Forest to “pause” certain activities (specifically some of the giant sequoia emergency response work and Region 5 Post-Disturbance Hazardous Tree Management Project) to consult with the U.S. Fish and Wildlife Service ti determine whether any activities associated with those projects and others could adversely affect the wolves.

Regional Forester Jennifer Eberlien’s response to the letter was short and included this: “We, too, are thrilled to learn about the wolves. We appreciate your perspective on the potential effects to the wolves from current and future projects and your suggested design features. We acknowledge that we have obligations under the Endangered Species Act and National Environmental Policy Act to review new information.”

Here’s a link to the news release that Sequoia National Forest released on Sept. 14: https://www.fs.usda.gov/detail/sequoia/news-events/?cid=FSEPRD1138931

In mid-September, Jordan Traverso, a spokesperson for the CDFW, responded to my request for information about what concerns the state agency may have about forest management activities in the area of SQF where the wolves were found during the summer.  He said: “We have not offered a recommendation about fuel reduction in the Sequoia National Forest, though we are familiar with controlled burns as an important method of fuels management. We are tracking the discussion and will continue to work with partners, including the Tule River Tribe of California and U.S. Forest Service, to protect the wolves and their habitat regardless of whether prescribed burns proceed in the area or not.”

 

Field Trip to Buffalo Gap National Grassland, Wall, South Dakota: One of the Forest Service’s Little-Known Treasures

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A recent Rocky Mountaineers (Forest Service retiree organization) annual gathering included a field trip to the Buffalo Gap National Grassland.  Wall, South Dakota is also the home of the National Grasslands Visitor Center that tells the story of the National Grasslands.. an important part of our country’s natural heritage.  For those of you who like field trips, you can get some of the fun without the travel. Travis Mason-Bushman (with the hat) and all those young people we met are outstanding at telling their stories and answering questions.   They are dedicated, committed, professional with a depth of knowledge and experience.   I know I can shuffle off this mortal coil and these folk will take care of the National Grasslands and Forests just fine.

One of the videos has some breathing at the beginning, which is distracting, but it goes away.

The story of the black-footed ferret recovery is very interesting, including how they are being managed to protect from disease, and their genetics.  The black-footed ferrets that are alive today in the United States come from a foundation of seven ferrets.There’s even a discussion in the video of using high-tech techiques.. cloning.. to increase genetic diversity.  Tissue samples of Willa, a captured ferret from Meeteetse, were cryopreserved when she passed away. They were thawed and used to produce a cloned ferret who was an exact clone of Willa. Unfortunately she (Elizabeth Ann) required surgery and cannot be bred.  If you’re interested, this from the Meeteetse Museums has all the juicy and technical details.   The mechanisms that organisms have to continue to live, thrive and survive small population sizes are not really understood.  Estimates of MVP are based on many assumptions of things we don’t know and don’t understand.  It’s a mysterious human process by which “best guess at this time” is transmuted into “scientists tell us” and then directly into policy.

This is the story of some dispersed recreation challenges the District has.  This area is adjacent to the Badlands National Park, which has limited camping, and camping has mushroomed.  While the District has little recreation funding or staff; they are doing what they can.

 

Travis does a great job, as always, explaining the history of the Grasslands.  I don’t see it exactly the same way, though.   Travis says something like “people determined that the land was best left alone” which I don’t think is how people thought in the 1930s.   They wanted to get vegetation back.. hence reseeding and shelterbelts, so that the land could be used for grazing.  The idea was also to show neighboring farmers better practices.

Here’s an example from a Pawnee National Grassland history:

The area along Crow Creek near Briggsdale was the first reclamation and demonstration plot in this area. Seventy acres of meadow improvement began with the construction of two dams and three diversion ditches to spread the flood water over the meadows and provide limited irrigation on other areas. Throughout the other acquired areas, existing fences were torn down, moved or new fences constructed to surround an economically manageable pasture. Springs were developed and wells dug. Windmills were erected and “catch basins” constructed to collect as much run-off water as possible. The policy was “no cow would have to go more than three-quarters of a mile for water.” The plowed and denuded lands were planted to mostly crested wheatgrass, an introduced species from Russia which is well adapted to our climate and is palatable to livestock. Trees were planted to form wind breaks and provide habitat for wildlife. Within two years, the planted grasses revegetated the plowed areas and grazing was allowed on a limited basis.

And

This was not accomplished without trials, anger and frustration. Attempts were made to have the land returned to private ownership, but were defeated. The deep-seated individualism of the westerner made it difficult for them to accept a change from the old ways. Successful demonstrations and evident restoration of the land occurred and gradually the new, proven methods of land management were accepted by most of the population, both association members and nonmembers.

One of the reasons I bring this up is that it reminds me of watershed restoration which seems agreed upon and in some senses easier than some of the ideas we have now about “ecological restoration” which requires, in some cases, attempting to bring back all the plants and animals that previously lived there (at the correct densities and age structures, but of course not the same genetics). “We don’t want dirt to blow away and we want vegetation to cover the soil, hopefully something edible for cows” is a water and soil based restoration.. and fast forwarding, if we were to focus on these basics (soil, water, and air) and let the plants and animals fall where they may, the work of restoration would be simpler. Then hydrologists and soil scientists would be in charge instead of economists, endangered species biologists, historic vegetation ecologists, or climate modellers. It would be an interesting thought experiment, anyway.

In researching this post, I ran across an interesting website called the Encyclopedia of the Great Plains. Many interesting topics to browse there, and here’s the entry for climate.

The Great Plains, therefore, has a large range in both annual and daily temperatures. During the midwinter months (January and February), when cold, dry air from central Canada dominates, temperatures are very cold, with mean temperatures varying from 40ºF across the Southern Plains to as low as 10ºF across the Canadian Prairies. During midsummer (July and August), when the Plains are dominated by either warm, moist air from the Gulf of Mexico or warm, dry air from the Southwest, mean temperatures increase to approximately 80ºF through the Southern Plains and approximately 66ºF across the Canadian Prairies. This gives the region a much larger range in annual temperature than is found elsewhere in North America. For example, the range in mean monthly temperature between January and July in Omaha, Nebraska, is approximately 56ºF, while in Philadelphia, Pennsylvania, and San Francisco, California (each at a similar latitude), the ranges are 46ºF and 14ºF respectively.

***

The year-to-year variability in temperature and precipitation across the Great Plains is very large. This variability is especially evident in the recurrent problem of drought. The very warm and often dry summer weather that is characteristic of the Plains leads to high evaporation and transpiration (water loss from plants) rates. Soils are often depleted of their moisture, leading to stressed natural and cultivated vegetation. A measure of the lack of available soil moisture for plants, the soil moisture deficit, has been calculated for the entire Great Plains region for the period 1895 through 1994. From this it is clear that the Plains as a whole has undergone recurrent periods of drought over the last century, especially during the 1930s (the Dust Bowl years) and the 1950s. The large annual (within one year) and interannual (year-to-year) variability of Great Plains climate makes the region a natural laboratory for studying the effects of climate variability on a host of problems associated with the interaction of humans with their environment.

Perhaps the people, animals and plants of the Great Plains have something to teach us about adapting to any changes in climate and climate variability.

Honeybees on public lands?

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Western bumblebee (Xerces Society / Rich Hatfield)

The rusty-patched bumblebee and Franklin’s bumblebee have been listed under ESA and other species are being considered.  The Xerces Society considers 11 species of bumblebee to be at-risk.  The Forest Service and BLM allow special use permits for non-native honeybee apiaries on their lands based on categorical exclusions.  Here is the one applicable to the Forest Service (36 CFR 220.6(d)(8)):

(8) Approval, modification, or continuation of minor, short-term (1 year or less) special uses of National Forest System lands. Examples include but are not limited to: (i) Approving, on an annual basis, the intermittent use and occupancy by a State licensed outfitter or guide; (ii) Approving the use of National Forest System land for apiaries; and (iii) Approving the gathering of forest products for personal use.

The science?  According to this article:

Most scientists agree that honeybees are not native to the Americas. They were imported to the continent in the 1600s on cargo ships from Europe and arrived in Utah in the mid-1800s.

Honeybees tend to outcompete native bees for pollen. Tepedino said, “if you put enormous numbers of honeybees on public lands … the native bee population must, by necessity, be deprived.”

A study by Tepedino concludes that the honeybees in a single apiary can, in just four months, remove enough pollen to raise five to 13 million native bees.

O’Brien said that competition is also worsened by climate change. Because climate change leads to more drought and as a result fewer flowers, it is becoming more difficult for native bees to compete with honeybees, she said.

Mary O’Brien (a botanist) also said the CE was instituted in the 1980s, before scientists knew very much about native bees. She points to the western bumblebee, a species she said is “critically imperiled” in Utah. It is particularly threatened by diseases, including ones that are transmitted by honeybees.

Project Eleven Hundred was born about five years ago in response to a request for a permit to place 100 hives each at 49 sites in the Manti-La Sal National Forest.  That permit was denied, but there is currently a permit on the Uinta-Wasatch-Cache National Forest that is up for renewal at the end of this year, which is being contested and may be litigated.  Project 1100 has also petitioned to remove the CE.

In forest planning under the 2012 Planning Rule, species of conservation concern are to be designated SCC if there is a risk to their persistence in the plan area.  Both listed species and SCC must be addressed in forest planning to ensure that the plan decisions (components) adequately protect these species from threats.  Since commercial non-native apiaries are a threat to these species, a forest plan should consider, and probably adopt standards that regulate or prohibit issuance of permits for honeybees.  (I’m guessing wild honeybees are found on most national forests.)

The proposed revision of the Manti-La Sal National Forest Management Plan  allows apiaries, subject to a standard stating that permits “shall not be issued for placement of hives within 5 miles of known insect-pollinated, at-risk plant species locations or at-risk insect populations.” It also states that a maximum of 20 hives can be issued for each apiary special use permit (which is arguably “not commercially viable”).  O’Brien said this is an impossible precaution to enforce. “As if they know where [native bees] are,” she said. “…The western bumblebee would be considered at risk, and they don’t know where it flies.”

The western bumblebee was NOT designated as an SCC in the Manti-La Sal’s draft of its revised forest plan.

Public Lands Litigation – update through October 5, 2023

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I wanted to wrap up the latest before my own “blogging break.”  Not a lot where the Forest Service is a party, and mostly related to the Endangered Species Act, but should be relevant and hopefully interesting.

FOREST SERVICE

New lawsuit

On September 25, Native Ecosystems Council and Alliance for the Wild Rockies filed a lawsuit in the Montana federal district court to oppose the Middleman Project on the Helena-Lewis and Clark National Forest.  The complaint says the project area encompasses 141,799 acres and includes 53,151 acres of tree cutting and burning, 46 miles of new temporary road construction and 90 miles of road reconstruction.  The effects of roads on grizzly bears, changes in mapping of lynx habitat and effects on elk habitat are issues raised by plaintiffs, who allege violations of NEPA and NFMA.

ENDANGERED SPECIES ACT

Litigation follow-up to Center for Biological Diversity v. Bernhardt (D. D.C.)

On September 28, the U.S. Fish and Wildlife Service and National Park Service released a draft plan and EIS analyzing options to restore grizzly bears to the North Cascades in Washington. This step follows the Center for Biological Diversity’s litigation challenging the Trump administration’s 2020 termination of a previous restoration plan.  The draft plan and the lawsuit complaint are linked to this news release.  (Plaintiffs refer to the litigation as “successful,” but I haven’t found a court opinion.)

Supreme Court review denied in San Luis Obispo Coastkeeper et al. v. Santa Maria Valley Water Conservation District (9th Cir.)

On October 2, the U. S. Supreme Court denied a request from the operators of Twitchell Dam to avoid measures to protect the endangered Southern California steelhead in the Santa Maria River system.  The decision leaves in place a ruling by the 9th Circuit Court of Appeals that the Bureau of Reclamation and the Santa Maria Valley Water Conservation District can release water from Twitchell Dam to comply with the Endangered Species Act.   Said ForestWatch executive director Jeff Kuyper, “With simple changes to the Dam’s water release schedule, we can give fish a fighting chance at reaching their historic spawning grounds in Los Padres National Forest while maintaining plentiful water supplies for our farms and communities.”   (The 9th Circuit opinion is here.)

New lawsuit:  Center for Biological Diversity v. Haaland (E.D. N.C.)

On October 4, plaintiffs challenged the Fish and Wildlife Service’s failure to respond to their 2016 petition to change the designation of the population of the 13 remaining wild red wolves as “non-essential” and restrict red wolf shootings by private landowners.  The Endangered Species Act defines an experimental (reintroduced) population as ‘essential’ if the loss of the population would significantly reduce the likelihood of the species’ survival in the wild.  Additional background is provided here.

  • Proposed ESA listings

Two species have recently been proposed for listing under ESA by the Fish and Wildlife Service, both after lawsuits initiated by the Center for Biological Diversity.

On September 29, the FWS proposed listing the northwestern and southwestern pond turtles, found throughout Washington, Oregon and California, as a threatened species.  They may be found at elevations up to 6500 feet.  The CBD news release is here and the Federal Register Notice is here.

On October 2, the FWS proposed listing the short-tailed snake as threatened.  The short-tailed snake has adapted to live primarily underground in sandy upland sandhill, scrub and hammock habitat in central and north Florida.  Silviculture is among the threats to its persistence.  This news release includes a link to the Federal Register notice.

On October 5, the Fish and Wildlife Service listed the Lassics lupine as endangered, and designated 512 acres of critical habitat on the Six Rivers National Forest.  It is found at high elevations only along the California-Nevada border.  Said Vicky Ryan, of the Arcata Fish and Wildlife Office, “We’re grateful for our partnership focused on Lassics lupine conservation and habitat management with Six Rivers National Forest.”  The article includes a link to the notice (and it does not mention the Center for Biological Diversity).

On September 26, President Biden vetoed two Republican-sponsored Senate joint resolutions seeking to undo Endangered Species Act protections for the northern long-eared bat and the lesser prairie-chicken, which became effective in January, 2023.  While the prairie chicken is primarily found on private, non-forested lands, the effect of up-listing the bat to endangered status could affect logging and federal lands.  (This legislative procedure is authorized by the Congressional Review Act.)

IRONIC HEADLINE OF THE MONTH:  “PRESCRIBED BURNS PLANNED FOR SMOKEY BEAR RANGER DISTRICT”