ESA

Coastal pine marten proposed for listing as a threatened species

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The U. S. Fish and Wildlife Service has proposed listing the coastal (Humboldt) marten, found in older forests in California and Oregon, as a threatened species.

“Martens are vulnerable to predation and increased competition in habitats that have been subject to either high–moderate severity fires or intensive logging in the last 40 years because both of these events remove the structural characteristics of the landscape that provide escape cover and are important to marten viability (canopy cover, shrub cover, etc.). These older forests have declined substantially from historical amounts…”

As a threatened species, the prohibitions in ESA against incidental take (§9) would not apply, but the FWS usually applies them using a special §4(d) regulation, which it is doing here. As is also common, they carve out exceptions to the prohibitions where take of the marten would be allowed; two of which would be relevant to national forest management:

(1) Forestry management activities for the purposes of reducing the risk or severity of wildfire, such as fuels reduction projects, fire breaks, and wildfire firefighting activities.

(3) Forestry management activities consistent with the conservation needs of the coastal marten. These include activities consistent with formal approved conservation plans or strategies, such as Federal or State plans and documents that include coastal marten conservation prescriptions or compliance, and for which the Service has determined that meeting such plans or strategies, or portions thereof, would be consistent with this proposed rule.

Here is the rationale:

“Although these management activities may result in some minimal level of harm or temporary disturbance to the coastal marten, overall, these activities benefit the subspecies by contributing to conservation and recovery. With adherence to the limitations described in the preceding paragraphs, these activities will have a net beneficial effect on the species by encouraging active forest management that creates and maintains the complex tree and shrub conditions needed to support the persistence of marten populations, which is essential to the species’ long-term viability and conservation.”

What this means is that forestry management activities that are not for the purpose of limiting fire or not consistent with the species’ needs would violate ESA if they harm any martens (unless they obtain an incidental take permit).

Regarding (1), I would ask whether all it takes to comply is for a project to say that it is for this purpose, or considering some of the discussions on this blog, does there have to be scientific support for the idea that a particular practice would actually have the intended effect.

Regarding (3), there is obviously a role for forest plans to include coastal marten conservation prescriptions. Presumably, plan components to create and maintain complex tree and shrub conditions for martens would be consistent with the NFMA requirement to provide ecological integrity and conditions needed for viability of at-risk species. What I haven’t seen before is a process by which the FWS reviews a forest plan for consistency with §4(d) criteria for a threatened species.

There could be future challenges to projects for violation of §9 because they do not meet these criteria.  The Center for Biological Diversity believes that “industrial logging” could meet these criteria and continue to occur in marten habitat.  At least (1) seems like it could be an exception that swallows the rule.  If it were dropped for fuel reduction projects, they could still occur if consistent with marten conservation under (3).

New lawsuit to protect red tree voles from logging project

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(Complete story here.)

Three environmental groups are suing the U.S. Forest Service to stop an 847-acre logging project on the Umpqua National Forest in southern Oregon, about 22 miles southeast of Cottage Grove.

Red tree vole surveys were also conducted during the fall of 2016. According to the lawsuit, the Northwest Ecosystem Survey Team found 75 vole nests in the forests slated for logging, but the Forest Service decided to proceed with the project.

The North Oregon Coast population of voles is considered a candidate for listing under the Endangered Species Act by the U.S. Fish and Wildlife Service, from the Siuslaw River north to the Columbia River, due to habitat loss and fragmentation.

(A candidate species is warranted for listing, but precluded by higher priorities.)

But here’s the part I thought might be interesting:  “The Bureau of Land Management also lifted survey and management guidelines for the species in 2016.”  As things get worse off for a species everywhere else, the national forests will necessarily be under more pressure to provide regulatory mechanisms to protect the species, and conditions external to a national forest will make it harder and more important to provide conditions on the national forest that promote a viable population.  (Implications for revising the northwest forest plans?)

Oregon to look again at western forest habitat conservation plan

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The Oregon Department of Fish and Wildlife and the Oregon Department of Forestry have received a $750,000 federal grant to explore the possibility of a habitat conservation plan for state-owned forests west of the Cascades.  HCPs are authorized by §10 of ESA, and they allow the state to obtain an incidental take permit to kill or injure listed species if that happens in accordance with the plan.   The plan would consider species including the spotted owl and marbled murrelet and set guidelines for timber harvesting and recreational use.  A previous attempt to create a plan ended in 2008 without new guidelines being adopted. Without the HCP and permit, harming listed species is illegal for anyone.  “Harm” is defined to include significant habitat modification or degradation which “actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering” (50 C.F.R. § 222.102).

 

 

The next extinction on the national forests

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Based on this year’s winter survey, the federally endangered South Selkirk mountain caribou herd may be down to three individuals – all females.  That would not be good for continued viability of the species on national forest lands.  We can try to blame Canada for what’s happened to this cross-boundary herd, but, “The mountain caribou have struggled as old growth forests have been thinned by logging and other industrial activities, George said. With thinner forests the caribou have become more susceptible to predation.”  There has been a lot of that on the Idaho Panhandle and Colville national forests over the years, though maybe not recently.  However, as recently as 2007, the Forest Service lost a lawsuit brought because of their failure to protect caribou from snowmobiles.

It would be hard to say that national forest management has had nothing to do with their current status.  Mark Hebblewhite, a Canadian wildlife biologist at the University of Montana and a science adviser to the Canadian government put it this way:

“It’s game over …  The functional loss of this herd is the legacy of decades of government mismanagement across caribou range.  It is completely unsurprising. Bad things happen to small populations.”

Meanwhile, north of the border, the boreal woodland caribou may become Canada’s spotted owl, as conflicts with logging are driving it towards extinction.   A letter from the Alberta government to Ottawa said “now is not the time to impede” an economic recovery currently underway in Alberta.  Maybe when there are three females left.

Which comes first, the NEPA or the ESA (process)?

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My experience was generally that the consulting agencies wanted to have the last word. That is that they didn’t want to consult on anything unless it was the final decision by the Forest Service. The expectation was that the FS would just incorporate any needed changes that resulted from the consultation process. I wondered if the public needed be involved in these changes in the decision, but I didn’t think NEPA would apply because any changes required by ESA would further mitigate adverse impacts and/or be non-discretionary.

The court’s recent opinion in Bark v. Northrop discusses this part of the NEPA process. It involves a proposal to build the Timberline Ski Area Mountain Bike Trails and Skills Park on the Mt. Hood National Forest. As approved, the project is a chairlift-assisted mountain biking development with seventeen miles of bike trails and a small skills park within an area designated for managed recreation.

It turns out that after consulting with NMFS on the project’s effects on the Lower Columbia River steelhead the Forest Service issued a New Information Report (“NIR”) and concluded that NMFS’s discussion of the Project’s effects was consistent with the effects considered and disclosed in the project EA. (This actually happened twice, and the Forest Service made the point that the second set of terms and conditions were actually more protective so that impacts had been decreased.)

The court agreed that no supplemental NEPA analysis was necessary because “the mere fact that NMFS found likely adverse effects does not trigger further NEPA analysis unless NMFS’s finding implicates impacts that could significantly affect the environment in a manner not already considered by the Forest Service.”  The effects were minor, and the difference in effects was minor.  (The court reached a similar conclusion for new information about the western bumblebee, a FS-designated sensitive species.)

The Forest Service has little guidance on how to make determinations in accordance with NEPA regarding the significance of new information, never mind how that interfaces with ESA. “NIRs” are not a “thing” recognized in the agency NEPA directives. But the FS got it right this time.

Forest plan contributes to recovery of the lesser long-nosed bat

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This cave-roosting nectar-feeding bat was listed as endangered in 1988, and has just been delisted.   According to the U. S. Fish and Wildlife Service:

The primary concern regarding future viability of this subspecies continues to be roost site disturbance or loss. This is primarily an issue related to human activities and destructive actions at these roost sites.

One of the three recovery criteria is “Protect Roost and Forage Plant Habitats.”  In its final delisting rule, the FWS cites the recently revised Coronado National Forest Plan as an existing regulatory mechanism that would protect the species (one of the 5 factors to be considered in listing a species, and a key one for this species):

More than 75 percent of the range of this species in the United States is on federally managed lands and these federal agencies have guidelines and requirements in place to protect lesser long-nosed bats and their habitats, particularly roost sites… If the lesser long-nosed bat is delisted, protection of their roost sites and forage resources will continue on Federal lands because agency land-use plans and general management plans contain objectives to protect cave resources and restrict access to abandoned mines, both of which can be enforced by law enforcement officers. In addition, guidelines in these plans for grazing, recreation, off-road use, fire, etc., will continue to prevent or minimize impacts to lesser long-nosed bat forage resources. The Coronado National Forest’s 2017 Land and Resource Management Plan (LRMP) includes standards and guidelines to retain and enhance areas with paniculate agaves in order to benefit the lesser long-nosed bat.

Federal land management plans directly address the main threats to the species, providing assurance that improving trends in population numbers would continue, and allowing delisting to be warranted.  Recovery of listed species should be an important goal for plan components in revisions of the rest of the national forest plans.  (Even where the value of a species is not as obvious as being “vital to the tequila industry.”)

Huron-Manistee forest plan contributes to recovery of the Kirtland’s warbler

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The U. S. Fish and Wildlife Service has proposed removing the Kirtland’s warbler from the list of endangered species.  It inhabits young stands of jack pine in the Great Lakes region and was one of the first species listed in 1967 due to fire suppression and parasitic cowbirds.  More background from the FWS is here.

The 2006 Huron-Manistee forest plan includes many plan components designed to promote the species’ recovery.  One management area includes 7 areas identified as essential Kirtland’s warbler habitat or emphasis areas.  In these areas, among other things, the forest plan prohibits grazing, trail construction, and common variety minerals mining, and there are breeding season restrictions on recreation.

The forest plan also says:

A considerable portion of the dry sand outwash plains on the Huron National Forest in Management Area 4.2 will be managed as essential habitat for the Kirtland’s warbler… This prescription area contains approximately 45 percent of all National Forest System lands on the Huron-Manistee National Forests, which includes approximately 136,000 acres of Kirtland’s warbler emphasis areas.

Objectives:

Create approximately 1,600 acres of essential breeding habitat each year. Approximately 15,960 acres of essential breeding habitat will be available at any one time into the foreseeable future. This will enable the Forests to provide for a minimum of 420 pairs of Kirtland’s warblers.

Forest-wide standards and guidelines:

Habitat and population objectives are in accordance with the Kirtland’s Warbler Recovery Plan (USDI-Fish and Wildlife Service 1985) and Strategy for Kirtland’s Warbler Habitat Management (USDA-Forest Service 2001)

Management area standards and guidelines:

  • Develop Kirtland’s warbler breeding habitat by designing and configuring treatment blocks that mimic the regeneration effects of wildfire.
  • Prepare treatment blocks for regeneration by clearcutting.
  • Treatment blocks will be no greater than 550 acres unless reviewed by the Regional Forester.
  • Provide 15 to 25 snags per acre in treatment blocks.

By specifically incorporating science-based conservation and recovery strategies into the forest plan, the plan has guided the projects that have promoted recovery, and has limited activities with adverse effects.  The forest plan may also serve as a regulatory mechanism that the FWS can cite supporting its future outlook for the species.  This is a good example of what the 2012 Planning Rule directs forest plans to do.  (It’s too bad that Forest Service is less enthusiastic about including conservation strategies that restrict timber harvest.)

 

Coastal pine marten trending toward extinction on national forests

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The coastal marten is at a high risk for extinction in Oregon and northern California in the next 30 years due to threats from human activities, according to a new study.

“The study, published today in the online journal PeerJ, will be available to federal and state wildlife agencies for their consideration to determine whether distinct geographic population segments of the coastal marten warrant state or federal listing as threatened or endangered, said Katie Moriarty, a certified wildlife biologist and lead co-author on the study.

Their population assessment revealed that the central Oregon population of coastal martens is likely fewer than 87 adults divided into two subpopulations separated by the Umpqua River. Using a population viability analysis, they concluded that the extinction risk for a subpopulation of 30 martens ranged from 32 percent to 99 percent.

In the short term, limiting human-caused deaths of the coastal martens would have the greatest impact on the animal’s survival, said Moriarty, who has studied the animals for several years. In the long term, the species requires more habitat, which perhaps could be accomplished by making the adjacent federal land in Siuslaw National Forest suitable for martens.”

So this isn’t just new information for use in the ESA listing process, but it also raises new questions about whether existing forest plans would provide conditions needed for viable populations.  I look forward to seeing how the Forest Service answers this question.  (And yes, the Forest Service does have the authority to limit trapping.)

Separation of Powers in Action: The Cottonwood Fix

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Indeed, the idea of separation of powers among judicial, legislative and executive branches in the US is intended to provide checks and balances. This one (the Cottonwood Fix) is a little hard to figure out unless you are familiar with the details of how ESA is carried out, that is, consulting and reconsulting on plans and projects. I used the description from an AFRC attorney in his Congressional testimony here. As always, others are free to post their own perspectives. Shorthand.. Circuits disagree, Executive branch asks Supremes, they decline and Congress fixes.

According to Fite, the fix was bipartisan

“It is no surprise that this common-sense legislation has attracted the support of lawmakers from both parties, from state and local governments, and prominent environmental groups including Trout Unlimited and the National Wildlife Federation. AFRC offers the strongest possible support, as do many industry groups including Intermountain Forestry Association, Montana Wood Products Association, California Forestry Association, and Federal Forest Resource Coalition.
In brief, S. 605 will allow projects to move forward under existing forest plans if an appropriate plan-level ESA consultation is completed. It will eliminate any requirement for the Forest Service or Bureau of Land Management to reinitiate consultation due to new ESA listings or critical habitat at the plan level—and only at the plan level. The bill does not change existing law regarding applicable requirements to consult on individual projects, new forest plans or plan
revisions. The Ninth Circuit requires consultation on new plans, while the Tenth Circuit does not. S. 605 leaves this circuit split in place.

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The Obama Administration, including Secretary Vilsack, asked the Supreme Court to review Cottonwood in 2016, but was denied. That fall, the Forest Service began the arduous process of consulting on 11 National Forests and more than 35,000 square miles of lynx habitat. This July, the Forest Service completed its biological assessment—the first piece of the consultation process. It is unclear when a biological opinion will be complete at the plan level. Then, project-level analyses will have to be reviewed against the plan-level opinion. This process will not be completed in 2017 and will likely stretch well into the 2018 forest management operating season. Of course, each step will be subject to multiplying lawsuits and injunctions.

Since nearly every forestry project already undergoes ESA consultation, this plan-level exercise has no real conservation benefit. A plan-level analysis generally assesses an amount of specieswide impact that is sustainable. Projects can proceed as long as their impacts fall within the plan-level approved impacts. When a project is evaluated without plan-level clearance, there is no such buffer for the agency to rely on. Therefore, ESA consultation at the project-specific
level is likely to be more conservative.

S. 605 simply and directly fixes Cottonwood. It provides that re-initiation of plan-level consultation is not required due to a new species listing or critical habitat designation. It does not affect any applicable requirement to consult on a new plan or a significant plan revision. The bill applies to both the Forest Service and the BLM, which each manage significant forestlands.

Sierra Nevada Lidar Study of Spotted Owls Suggests That Thinning Understory Might Be OK

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Here is an interesting story from UCDavis via Treesource.

Remote sensing technology has detected what could be a win for both spotted owls and forest management, according to a study led by the University of California, Davis, the USDA Forest Service Pacific Southwest Research Station and the University of Washington.

For 25 years, many forests in the western United States have been managed to protect habitat for endangered and threatened spotted owls. A central tenet of that management has been to promote and retain more than 70 percent of the forest canopy cover.

However, dense levels of canopy cover leave forests prone to wildfires and can lead to large tree mortality during droughts. Thus, the disconnect between two significant land management goals.

In the study, published in the journal Forest Ecology and Management, scientists found that cover in tall trees is the key habitat requirement for spotted owls — not total canopy cover. It indicated that spotted owls largely avoid cover created by stands of shorter trees.

“This could fundamentally resolve the management problem because it would allow for reducing small tree density through fire and thinning,” said lead author Malcolm North, a research forest ecologist with UC Davis’ John Muir Institute of the Environment and the USDA Pacific Southwest Research Station. “We’ve been losing the large trees, particularly in these extreme wildfire and high drought-mortality events. This is a way to protect more large tree habitat, which is what the owls want, in a way that makes the forest more resilient to these increasing stressors that are becoming more intense with climate change.”

“The analysis helps change the perception of what is important for owls — the canopy of tall trees rather than understory trees,” said co-author and spotted owl expert R.J. Guitiérrez, a professor emeritus at the University of Minnesota. “The results do not mean a forest should be devoid of smaller trees because owls actually use some of those smaller trees for roosting. But it suggests a high density of small trees is likely not necessary to support spotted owls.”

Here’s the study. Of course, the press release format doesn’t cover the usual scientific caveats like they only studied part of California and so on..

I’m interested in how this fits in with what our readers in California have observed.