ESA

Forest/BLM planning avoids sage grouse listing; states don’t like that

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While the wisdom of Congress prevents the U. S. Fish and Wildlife from saying so, the agency’s draft of the decision to not list the greater sage grouse under ESA states:

“The Federal Plans establish mandatory constraints and were established after notice and comment and review under the National Environmental Policy Act (NEPA).  Therefore, changes to the Federal Plans would require additional notice and comment and further analysis under NEPA. All future management authorizations and actions undertaken within the planning area must conform to the Federal Plans, thereby providing reasonable certainty that the plans will be implemented.”

In 2010, the FWS had found that sage grouse were warranted for listing, in part because of the lack of adequate regulatory mechanisms.  The new draft concludes now that, “regulatory mechanisms provided by Federal and three State plans (those with the greatest regulatory certainty) reduce threats on approximately 90 percent of the breeding habitat across the species’ range.”  This was a determining factor in reaching the “not warranted” conclusion this time.

Success?  Officials in Idaho and Nevada and some mining companies sued the federal government over new restrictions on mining, energy development and grazing that are intended to protect the sage grouse.

Idaho Gov. C.L. “Butch” Otter said Friday that federal officials wrongly ignored local efforts to protect the bird, leading him to sue in U.S. District Court in Washington, D.C.  “We didn’t want a (threatened or endangered) listing, but in many ways these administrative rules are worse,” the Republican governor said in a statement.  A similar lawsuit was filed in Nevada by an attorney for two counties and some mining companies.

If these plaintiffs are successful in rescinding the federal plan amendments, the decision to not list the sage grouse would probably no longer be justified (state plans are much more voluntary), and it shouldn’t take the FWS too long to rewrite their conclusion.  But I guess that is what the commodity interests want.

Forest planning contributes to listing species under ESA

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A recent federal court decision has invalidated the listing of the lesser prairie chicken.  A key reason for the court’s decision was that the Fish and Wildlife Service made an assumption that if it didn’t list the species, it would reduce the incentive for participation in a conservation plan.  The judge didn’t think that was a valid assumption.  The Forest Service seems determined to prove him wrong.

Under the 2012 Planning Rule, the Forest Service has the opportunity to help forestall the need to list species under ESA by identifying them as species of conservation concern and including protective plan components for them.  The wolverine received a positive 90-day finding that listing should be considered, but the FWS ultimately decided not to.   In response, the three forest plan revision efforts that are proceeding under the 2012 Rule and have wolverine habitat (Nez Perce-Clearwater, Flathead, Helena-Lewis & Clark) have determined that the wolverine should not be identified as a species of conservation concern.

The FWS will be looking for evidence their assumption was correct.  The lesser prairie chicken may have the Forest Service to thank when it eventually gets listed.  (And the wolverine, too.)

Forest Service actions lead to delisting threatened species

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The Daniel Boone National Forest is being credited with securing recovery of the white-haired goldenrod.  Here is what the forest plan says:

1.C-Goal 2. Bring about the delisting of white-haired goldenrod.
1.C-Objective 2.A. Complete recovery plan recommendations relating to white-haired
goldenrod sites.
1.C-Objective 2.B. Participate in the delisting procedure for white-haired goldenrod.

That’s pretty simple, but it does incorporate the requirements of the recovery plan as objectives (plan standards couldn’t have controlled recreational users causing the impacts).   This then led to projects to protect the species from the human activities that threatened it.  The results drew kudos from the Center for Biological Diversity, saying that the Endangered Species Act works (but failing to note that so does the National Forest Management Act).

This article also discusses the Kentucky arrow darter, a fish species that is part of the settlement agreement with CBD requiring a listing decision to be made.

The darter’s habitat has been “severely degraded” by pollution, siltation and loss of tree cover from surface mining, oil and gas exploration, logging, agricultural run-off and poor sewage disposal, according to the agency.  The conservation plan for the fish will include replacing some culverts on federal land that impede the movement of the fish and setting up a monitoring plan, officials said.

Delisting of the goldenrod is possible because results have been achieved on the ground.  That is usually not possible for pending listings because species are usually on a downward trend at that point.  A “conservation plan” incorporated into a forest plan by the Forest Service may contribute to avoiding listing as a regulatory mechanism if it protects the species against the threats identified in the listing process.

Forest plans may prevent listings under ESA

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Succinctly put by WildEarth Guardians:  “If the plans fall short of halting population declines and habitat destruction, then clearly the Endangered Species Act will be needed.”

This story is about sage grouse, but the principle applies whenever public land management is an important contributor to an at risk species’ habitat.  That’s because one of the five factors that must be considered in listing a species is “the inadequacy of existing regulatory mechanisms.”  Thus far courts have recognized only mandatory forest plan standards as being sufficiently regulatory in nature to address this ESA factor for federal lands.

The absence of such regulatory mechanisms in forest plans was a key factor in listing the Canada lynx, for example.   The addition of regulatory standards to forest plans is viewed as being necessary to de-list grizzly bears.  So what to make of the idea of reducing regulatory mechanisms in the Northwest Forest Plan?

Also what to make of state objections to plan amendments for sage grouse?  It’s politically more difficult to get adequate regulatory mechanisms in place for private land, so I would think the states would be asking the feds to do whatever it takes to avoid listing.  Here’s another concise summary from a more objective source:  “A “not warranted” decision by the Service is possible — but they have made clear that it will only be possible if states, federal agencies, and private landowners put strong conservation measures in place.  (Neil Kornze, director of the Bureau of Land Management.)

Should federal lands bear the brunt of ESA conservation obligations?

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Sage grouse are putting that question out there.  BLM and the Forest Service are amending plans to adopt strategies for federal lands that are more ‘strict’ than what states would do.  States don’t like this; do you?

A related question – how important is it to have a consistent conservation strategy across jurisdictions?

I am disappointed by the many proposed differences between BLM’s Montana’s RMPs and the Montana Sage Grouse Habitat Conservation Program,” Bullock wrote in a 12-page letter to Jamie Connell, the BLM director for the state. “The difference between the Wyoming and Montana state plans and the Montana RMPs reflect inconsistencies that simply do not make sense when serving for a consistent approach to sage grouse conservation across significant and interconnected working landscapes.” 

Court takes an interest in habitat connectivity – so should the Forest Service

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Connectivity is a new buzzword in the 2012 Planning Rule. It is part of the requirement for ecological integrity, but the Forest Service seems reluctant to fully embrace it in its early revision efforts under the new rule.

On June 25th, the Arizona District Court invalidated a Forest Service grazing permit on the Coconino National Forest because the U. S. Fish and Wildlife Service failed to consider effects on habitat connectivity in areas designated as critical habitat for the Chiricahua leopard frog. The judge held (in Center for Biological Diversity v. Branton):

Viable dispersal corridors are needed to ensure that the Buckskin Hills can sustain a functioning metapopulation: without them, CLFs would be unable to spread from one stock tank to another, and would be unable to recolonize a stock tank should its local population die out (record citations omitted). Accordingly, adverse modification of the dispersal corridors would “appreciably diminish the value” of (the critical habitat unit). In short, the 2013 BiOp’s failure to account for the maleffects of livestock grazing in dispersal corridors renders its conclusion that the Proposed Action “should not significantly reduce or modify” PCE 2b (record citation omitted) arbitrary and capricious.

This was a project decision involving a listed species and critical habitat. However, the principles of metapopulation dynamics it recognizes should be equally applicable to NFMA requirements that forest plan components provide ecological conditions necessary for viable populations.   This opinion suggests that, where connectivity is necessary for an at-risk species, and where information about the connectivity value of specific areas is available, their locations should be identified in the planning process and probably given special protection by plan components.

In this case, a requirement in the forest plan to apply specific conservation measures to dispersal corridors might have saved this project. Moreover, fixing this project would not prevent the same thing from happening on other projects. This suggests that the Forest Service should amend the plan (which would be subject to the 2012 Planning Rule requirements for viability), or at least reinitiate consultation on the forest plan on critical habitat for this species (based on new information about effects – but wait – this is the 10th Circuit, where that is not required.) What should the Forest Service do?

FYI – Here’s what Defenders of Wildlife thinks the Forest Service should do about connectivity in its forest plans.  (I suppose I should explain that I did the work on this document on a contract, and that I contribute to this blog on my own time, so that I am not intending to represent the views of Defenders of Wildlife here.)

Forest Service Must Re-initiate Consultation With USFWS on Lynx

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This looks to have far-reaching effects on those National Forests within the “core habitats”. This looks like a forced settlement situation, where the Forest Service will probably pay dearly for their loss in court.

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/17/13-35624.pdf

Interesting:

Although the court granted summary judgment to Cottonwood and ordered reinitiation of consultation, it declined to enjoin any specific project.

Sage grouse plans are out

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Here are national and state perspectives.

 

The proposals to amend federal BLM and Forest Service plans to protect sage grouse have been released. I haven’t read the new plan components but I have followed the process since I was peripherally involved before I retired from the FS, and I was also more heavily involved in developing similar strategies for bull trout, lynx and grizzly bears. This is the way conservation planning on federal lands should be done – but BEFORE it gets to the point of possible listing and this kind of crisis management.

 

It would be nice to see this happening now in the forest plan revision process for species of conservation concern (for which a regional forester has found “substantial concern about a species’ capability to persist over the long-term in the plan area”). Instead of consistent conservation strategies being developed (based on ecosystem and/or species-specific plan components) we see species like wolverine, which recently barely (and maybe temporarily) dodged listing, not even being identified as a species of conservation concern in the Idaho and Montana plans that are being revised.   There doesn’t seem to be a learning process here.

 

But the states are worse. They’ve had jurisdiction over sage grouse for the last century or two, and we’ve seen what results. It’s pretty laughable for them to now say the feds should follow state plans for sage grouse.

 

This is just flat out wrong,” Rep. Rob Bishop (R-Utah), the chairman of the House Natural Resources Committee, said of the plan. “If the Administration really cares about the bird they will adopt the state plans as they originally said they would. The state plans work. This proposal is only about controlling land, not saving the bird.”

 

Are the states trying to save the bird, or do they just see this as another opportunity to exert their control on federal lands?

 

Rim Fire Images

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The media does like to sensationalize events like the Rim Fire, often implying that the lands have been “destroyed”. The Rim Fire is so huge and burned across so many differing kinds of vegetation that you cannot summarize too much. Even my own “sampling” from the access roads doesn’t cover very much of the impacts and effects of a 250,000 acre wildfire.

Much of the wildfire burned in plantations generated from previous wildfires. Here is an example of one of those plantations that wasn’t thinned. I can see why it wasn’t but, maybe a “pre-commercial thinning” kind of task could have been included into one of the other commercial plantation thinning projects that I worked on, back in 2000.

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In the same area were blocks of land that were left for “Mother Nature”, after the early 70’s Granite Fire. Here is what a 40 year old brushfield looks like. Those blocks are choked with deer brush, whitethorn and manzanita, with very few conifers, and fewer oaks than the “natural stands” (as they called the unburned portions).

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As you can see, sometimes there is a fine line between a total plantation loss and one that has survived a wildfire. This is one of the thinned plantations, near Cherry Lake.

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Here is another example of an “old growth” brushfield. While this one didn’t burn much, there are many examples of them burning at moderate to high intensities. Looking at Google Maps, I can find examples where the flames from the brushfields were pushed into the thinned plantations. The Forest Service should be treating those old brushfields with prescribed fire, instead of “whatever happens”.

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This unburned stand, within the fire perimeter, is a good example of the work we did back in 2000. I don’t really know of any other reason why this large patch, near Cherry Lake, didn’t burn

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The Clavey River, long-cherished by the local eco-community, acted like a conduit for the Rim Fire, as it burned so many acres in just one day. However, you can see that the intensity and damage is rather minimal. There is a fork in the river, down there, and the main fork of the fire went up that way, finding more conifers to burn. (It also found the big block of Sierra Pacific Industries lands.) I found it very interesting that the isolated pockets of Douglas-firs had very high mortality, but only a low-to-moderate intensity.P9206804-web

Here is one of those pockets, alongside the Clavey River. In the past, this kind of pocket would be thrown into a large helicopter salvage project.

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Feds to Update Endangered Species Act

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stakeholders-original

Here is an interesting post from Bob Berwyn’s blog. Thanks, Bob,  for finding this! I tried to simply “repost” it to this blog but had technical difficulties..

Below is an excerpt:

Details

The changes would provide greater clarity to the public and states on what information would best inform the evaluation of a species’ status and result in better coordination with state wildlife agencies, which often have unique information and insights on imperiled species.

As part of the Administration’s ongoing efforts, the Services will also be unveiling additional proposals over the coming year to achieve four broad goals:

Improving science and increasing transparency. To improve public understanding of and engagement in ESA listing processes, the Services will:
Strengthen procedures to ensure that all information that can be publicly disclosed related to proposed listing and critical habitat rule notices will be posted online; and

  • Adopt more rigorous procedures to ensure consistent, transparent, and objective peer-review of proposed decisions.
  • Incentivizing voluntary conservation efforts. Voluntary conservation programs, such as Safe Harbor agreements and Candidate Conservation Agreements, can improve conditions for listed and at-risk species, and conservation banking can make listed species and their habitats assets for landowners.

The Services will:

  • Update guidance on the use of these proactive tools to establish consistent standards; and
  • Adopt a policy promoting the expanded use of conservation banking and other advance mitigation tools.

Focusing resources to achieve more successes. The Services will work to focus limited resources on activities that will be most impactful. These actions include:

  • NOAA’s launch of a new initiative to focus resources on eight of the nation’s most vulnerable marine species with the goal of reducing, stabilizing, or reversing their rate of decline by 2020;
  • Proposed revisions to interagency consultation procedures to streamline the process for projects, such as habitat restoration activities, that result in a net conservation benefit for the species;
  • Updates to the Habitat Conservation Planning Handbook to make developing and permitting plans more efficient and timely.
  • Engaging the States. State fish and wildlife agencies, by virtue of their responsibilities and expertise, are essential partners in efforts to conserve threatened and endangered species. The Services will:
    Implement the aforementioned revised petition regulations to give states an opportunity to provide input prior to submission; and
  • Update policy regarding the role of state agencies to reflect advancements in collaboration between the Services and the States.

For more information on the proposed ESA petition regulations, go to http://www.fws.gov/home/feature/2015/proposed-revised-petition-regulations.pdf. Public comments on the proposed rule will be accepted on or before 60 days following its publication in the Federal Register.

Note from Sharon: These all sound like good ideas, and especially the science transparency one has oft been discussed on this blog. One wonders whether this would have been done without some pressure by Congress. I don’t believe in partisan enemizing, of course, but this does remind me of a quote from the Essays of James Vila Blake (the Unitarian minister):

Enemies make us watchful of ourselves and induce self-examination; for we must argue thus: our foe hates us with reason or without reason; if without reason, then he not really hates us, but some other sort of person for whom he mistakes us; but if with reason, then it is plain we should improve, and remove the reason.