ESA

The latest on forest plan revisions (and wildlife)

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In the past couple of months the Forest Service has increased its family of forest plans revised under the 2012 Planning Rule to six.  The Chugach and Rio Grande national forests have joined the Francis Marion, Flathead, El Yunque, and Inyo.  The Forest Service revision schedule is over six months old, but the Helena-Lewis and Clark National Forest may be next.

Here’s what looks like a news release from the Rio Grande.

The plan prioritizes the use of active management to foster sustainable and productive use of the forest. Compared to the 1996 plan, this new plan is less prescriptive and emphasizes flexibility and commitments to working with the public. Management direction has been updated for all plant and wildlife species.

This seems to capture the mood of the Forest Service these days.  The only commitments it has ever liked are those they have to do any way, especially if they are check-the-box kinds of procedural commitments like “working with the public.”  In their “update” for wildlife, rather than commit to protecting wildlife as required by NFMA and the Planning Rule, they infuse the plan with discretion.  Here’s some examples of what the Rio Grande seems to feel (based on the best available scientific information) would “provide the ecological conditions necessary to: contribute to the recovery of federally listed threatened and endangered species, conserve proposed and candidate species, and maintain a viable population of each species of conservation concern within the plan area” – which plan components “must” do (36 CFR §219.9(b)).

DC-SCC-2: Structure, composition, and function of coniferous forests, including late seral forests, meet the needs of associated species, including species of conservation concern. (Forestwide)

There is a series of these desired conditions for different ecosystems that all say the same thing, which is “we’ll figure out what these species need later.”  The Planning Rule requirement is for “plan components” to meet the forest plan requirement, not for project-by-project decisions about how to protect at-risk species.  Let’s see if the standards and guidelines add anything …

G-SCC-3: To maintain viability of species of conservation concern, reduce habitat fragmentation and maintain structural conditions of sagebrush ecosystems through design of management activities. Patch sizes should not be less than 5 acres. (Forestwide)

TEPC-G-1: To avoid or minimize adverse effects to listed species and their habitat, management actions should be designed with attention to threatened, endangered, proposed, or candidate species and their habitats. (Forestwide)

Wow.  Apparently any “structural conditions” will do, but they at least appear to concede that there is a minimum patch size needed for some species in sagebrush ecosystems (this is actually the kind of “specific” desired condition the Planning Rule envisioned), but conversely there is not enough science to tell them what is needed for anywhere else.  If the courts say this is good enough, then the Forest Service has essentially excised the diversity requirement for forest plans from NFMA.  (Never mind the question of “how much did the Forest Service spend on forest planning to get THIS?”)  (This is a continuation of a pattern discussed here, and may lead to some of the same kinds of problems under ESA.)

Batteries vs. Buckwheat: Mining for Lithium on Federal Lands

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Photo of rare buckwheat from CBD via AP.

This AP story has all the challenges of the “good industry” versus “bad industry” philosophical conundrum. We know that electric cars are good, at least if they are run off all carbon-free sources. Unfortunately, they require (as almost everything does) mining minerals to build them.

CBD says “not where they occur on federal land in Nevada, due to an endangered buckwheat.”

The company acknowledges Tiehm’s buckwheat hasn’t been documented anywhere else on earth, but denies the mine would lead to its extinction.

Company officials say they’ve been researching the plant since 2016, going to great lengths to ensure its protection and examining how it’s fared during previous mining operations at Rhyolite Ridge, near the small town of Tonopah, over the past 80 years.

They recently spent $60,000 for a yearlong study at the University of Nevada, Reno. Scientists there are growing hundreds of seedlings in a greenhouse to determine whether it’s feasible to transplant them into the wild to bolster the limited population, an estimated 43,000 plants covering a total of 21 acres (8.5 hectares).

“We have always been aware of the buckwheat. It didn’t come as a surprise,” Ioneer President Bernard Rowe told The Associated Press in a phone interview from Australia.

All site activity has been undertaken with the “protection of the buckwheat first and foremost in mind,” Rowe said. He added the company’s mitigation strategy “will ensure protection and, in fact, the expansion of the buckwheat population.”

“We’re seeing evidence of that at the greenhouse at UNR,” Rowe said. “We’ve got a reasonably high degree of confidence we can successfully propagate these plants and protect them.”

But what I thought was most interesting about this article, given our discussions about abstraction, are quotes from the scientists involved (caveat, they may have been misquoted, but I’m taking this at face value).

Leger, who also serves as director of UNR’s Museum of Natural History, said those who dismiss the flowers as weeds unworthy of all the fuss don’t understand the value of biodiversity.

“Weed is a human construct. A weed is a plant that grows anywhere a human doesn’t want it,” she said, adding biodiversity is “magic” and a safeguard against future loss.

Biodiversity is actually a human construct, as is the idea of species, especially when we get to telling closely related species apart.

I’m a little concerned with a scientist saying that that biodiversity is “magic”, though. Anyway, it’s interesting what it means to potentially lose “a species” of buckwheat that grows on 21 acres as opposed to losing “biodiversity”. Is it more compelling, or magic, or less compelling or magic?

Meanwhile, Donnelly of CBD (not a scientist) says:

He acknowledged a difference between transplanting plants and growing them from seeds, but said it’s “beside the point, really.”

“A species is more than a set of genetic material. A species is inextricable from its habitat,” Donnelly said. “To allow a species’ habitat to be wiped out and put it someplace else, is functionally allowing it to go extinct.”

I always thought ESA was about “sets of genetic material” but maybe CBD intends to raise the bar.

Supreme Court to look at science and politics

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In my experience, there have been lots of controversies where the issue is about what scientific information was considered by an agency but was suppressed or ignored by an administrator, often for allegedly political reasons.  It’s not unusual for the results of litigation to turn on documents that show an agency decision being arbitrary and capricious (violating the Administrative Procedure Act) because it is not supported by the record.  But do those kinds of documents have to be available to the public, and what if they weren’t?  The Supreme Court will be addressing such questions in U. S. Fish and Wildlife Service v. Sierra Club.  The case involves the Freedom of Information Act, and its requirement to make government records available subject to exceptions that may cause harm, in particular protection of an agency’s “deliberative process.”  (This exception generally lines up with requirements for what must be in an agency’s administrative record for a decision.)

The dispute stems from the Environmental Protection Agency’s 2011 proposal to change how it regulates power plants’ cooling water intake structures, which can crush or boil fish and other aquatic creatures.

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service advised the agency on how the plan would affect threatened and endangered species. The services crafted draft opinions that said the EPA’s proposal was likely to harm protected species, but they later changed their conclusion and issued a “no jeopardy” finding.

When the Sierra Club used FOIA to get records related to the consultation process, the agencies withheld the draft opinions. After years of litigation, the U.S. Court of Appeals for the Ninth Circuit in 2018 ordered the government to turn over the records.

The Trump administration in October asked the Supreme Court to step in, arguing that the circuit court ignored FOIA Exemption 5, which protects records from an agency’s “deliberative process.” The Sierra Club countered that the documents were labeled drafts but functioned as final opinions.

While this article doesn’t talk about it, the major federal environmental statutes have requirements to use the “best science,” including the Endangered Species Act involved in this case, but also NEPA and the Forest Service Planning Regulations.  Agencies must prove they have done this by “showing their work.”  This includes disclosing contrary science, and providing the rationale for not relying on it.  It seems to me that any changes in the use of science or how it is viewed would be relevant to this requirement and must be explained to the public.  This is probably why there are comments like these on this case:

Margaret Townsend, a Center for Biological Diversity attorney who focuses on government transparency, said her group will be watching the case closely, as the Supreme Court “has a crucial opportunity to tell agencies they can’t hide science at the expense of our endangered animals and plants.”

Brett Hartl, government affairs director for the center, noted that expanded use of FOIA’s “deliberative process” exemption could allow the EPA and others to block disclosure of critical documents that explain agency decisions.

Lewis and Clark Law School professor Daniel Rohlf said a win for the government at the Supreme Court could help agency leaders overrule their own scientists and other experts.

Here’s what the government would like us to believe (according to the apparently pro-government-secrecy advocates the Pacific Legal Foundation):

“And here the agencies decided that the draft should not be finalized because further consultation was necessary, and then actually engaged in more consultation before issuing a final opinion.”

Consultation with whom, I wonder.  Since the Supreme Court agreed to review the case, the assumption is they would like to reverse in favor of the government.  The Sierra Club may decide to fold, also because FOIA has been amended since this case was filed to restrict the use of this FOIA exemption and promote greater disclosure.

Bats and bighorns and bears (oh my?)

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Two of these were originally posted as comments related to other posts and the third I would have, but Sharon intimated that they might not get noticed there, so here they are at the top end of a post.

BATS

We were discussing how the wolverine is most affected by climate change, and yet ESA requires mitigation of other less harmful activities that we have more control over. The effect of an introduced disease on bats also came up there.  A federal judge has just overturned a decision by the U.S. Fish and Wildlife Service to protect northern long-eared bats as threatened rather than endangered under the Endangered Species Act.  Here’s the Center for Biodiversity’s read-out of the judge’s opinion (there’s a link to the opinion, but I haven’t read it):

The Service argued that since the species was primarily threatened by disease, there was no need to protect its habitat.  But the court rightly noted that, in combination with disease, habitat destruction and other threats can cumulatively affect the bats, and thus are cause for concern.

It’s a point of contention these days whether climate change should be a factor in listing decisions when there is little likelihood of reducing its effects, but the law says it’s important to address and potentially mitigate other actions that may harm the species.

BIGHORNS

The Bridger-Teton National Forest is considering a restocking request for returning domestic sheep to two vacated allotments in the Wyoming Range.  It hinges on changing the forest plan to deemphasize protections for the Darby Mountain bighorn sheep herd. This would purportedly be consistent with the State of Wyoming’s bighorn plans.  The Forest is proposing to do a “focused amendment” to their forest plan,  but …

Bighorn advocates and conservationists who have watchdogged the restocking conversations wanted the Forest Service to instead deal with the issue in its forest plan (revision). The years-long revision process was supposedly coming up, though O’Connor said it’s now indefinitely on hold. Wyoming Wild Sheep Foundation Director Steve Kilpatrick said the Darby Mountain Herd deserves the longer, closer look.

I’m not sure the Forest is going to be able to do a “focused amendment” for this issue, since bighorn sheep should be a species of conservation concern under the 2012 Planning Rule, which warrants greater attention. Maybe this is a case where the inability to revise a forest plan is going to cause some problems. Then there is the question of why these allotments were vacant. The permittees were “bought out” through the efforts of the National Wildlife Federation (to protect bighorns?). Would they need to be paid back?

GRIZZLY BEARS

The discussion of reintroducing wolves to Colorado brought up the experience with grizzly bears in the Selway-Bitterroot Wilderness in Montana and Idaho.  A reintroduction proposal was rejected in 2001, but at least two bears have been documented there in recent years.  Here is the recent news about that.  The Fish and Wildlife Service has written to the Forest Service that bears that have made it there are fully protected by the Endangered Species Act (not an experimental population). All four of these forests are revising or will soon revise their forest plans and will have to provide conditions to support grizzly bear recovery.  The Nez Perce-Clearwater is farthest along but has been avoiding doing that.

Now what happens when a new species on a national forest is listed under ESA?

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Once upon a time, when a new species was listed under ESA, the Forest Service was required to reinitiate consultation on its forest plan regarding the effects of the plan on the species.  Projects were often held up while this was occurring.  As a result of the Cottonwood litigation, involving a new designation of critical habitat for Canada lynx, the law was recently changed so that neither new critical habitat nor listings require new consultation on existing forest plans (as discussed here).

The candy darter (CBD photo) was listed as endangered in late 2018 and it is found on the Monongahela National Forest.  The Center for Biological Diversity provided this news release regarding a proposed timber sale in a watershed where the species is found and where critical habitat for it is being considered:

The U.S. Forest Service this week announced it will withdraw a 2,400-acre logging project in West Virginia’s Monongahela National Forest following objections raised by conservation groups about harm to an endangered fish.

The project would likely have caused significant erosion and sent sediment into rivers and streams, threatening the rare fish and other animals.

“Friends of Blackwater and all of our supporters are very pleased that the Monongahela National Forest supervisor has withdrawn the Big Rock Timber Project proposal,” said Judy Rodd, director of Friends of Blackwater. “Hopefully this is a step toward fully protecting the candy darter, a tiny jewel of a fish found in the timbering proposal area, near the world-famous Cranberry Glades.”

The Forest Service announcement said the project would have been the first of its kind to require formal consultation under the Endangered Species Act for the brightly colored candy darter, which was listed as endangered in November 2018. The Fish and Wildlife Service would have had to calculate how many, if any, candy darters could be killed or harmed by the proposed project. The Fish and Wildlife Service also plans to include portions of the logging project area in its final designation of the fish’s critical habitat. Those issues contributed to the decision to pull the project.

Presumably the Monongahela has come to a full stop on projects that may affect the darter, while they figure out a strategy for consulting with the Fish and Wildlife Service.  This is pretty close to the same result that would have occurred without the “Cottonwood fix.”  This is a situation where consultation on a forest plan has proven beneficial.  It should result in a species conservation strategy that “fully protects” the species’ habitat on the forest that the FWS supports and that can be included in the forest plan.  The FWS may then rely on the forest plan decisions and their biological opinion for analysis of its overall effects, which would simplify and streamline the consultation process for projects.

Post-Cottonwood, they could now choose instead to proceed on an individual project-by-project basis, but why?

(PS – This looks like an example where the administrative objection process prevented the Forest Service from losing a lawsuit.)

Winter motorized recreation planning – behind the curve again?

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credit

The trend continues – technology makes it easier for more people to get farther into the less trammeled  parts of public lands.  Good planning would project future changes in technology over the life of a plan and – plan for it.  I haven’t researched this question directly, but my impression is that winter travel planning (required by Forest Service regulations) mostly responds to the current state of technology.  I’ve even seen statements like, “we don’t need to worry about closing these areas,” or at least “we don’t need to worry about people complaining if we close these areas,” because people can’t get to them.  What happens when that is no longer true?  NEPA requires consideration of new information relevant to environmental impacts, which may lead to changing a decision.

“Snowbikes” – I imagine there are some national forests that ought to be thinking about going back to the drawing board on their winter travel management plans (and maybe forest plans).  Especially where there are snow-dependent species like lynx and wolverine that are listed under ESA (where new information must be consulted on) or at risk of being listed (and regulatory mechanisms are a consideration).

“After Polaris bought Timbersled in 2015, that’s when things took off,”

“The snowbike market is in its infancy right now, but it’s exploding,”

“It’s a riot,”  “You can make your own line wherever you want to go.”

 

“They’re so agile,”  “You’re able to get into places you never would get into with a snowmobile.”

“It’s just like riding a dirt bike in the woods,”

“For those who have never ridden a snow bike, the best analogy I can think of is this; it is like riding a Jet Ski on sand dunes. There is a freedom unlike anything else I have ever done.”

 

Recent Endangered Species Act news of interest

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

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

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

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

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

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

Samo-Samo for CASPO

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No Threatened Status for the California Spotted Owl. Current protections remain. The article is a good read, with some of the “usual suspects”.

http://www.calaverasenterprise.com/news/article_a866d476-14d2-11ea-b7e0-7b830918c726.html

Recovery planning for the Gunnison sage-grouse

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

CBD:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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