Wildlife

Public lands endangered species news

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50TH! anniversary in 2023

 

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COURT CASES

On April 15, the Tenth Circuit Court of Appeals affirmed the district court and upheld the designation of critical habitat for the New Mexico meadow jumping mouse, which is found in dense riparian vegetation in the southwest.  Plaintiffs were federal grazing permittees.  The court was largely deferential to the Service’s consideration of economic impacts and the benefits of excluding some areas that it had decided to include.  (The opinion in Northern New Mexico Stockman’s Association v. U. S. Fish and Wildlife Service is here.)

On April 19, the Center for Biological Diversity moved to intervene as a defendant in a case filed in the District of Columbia district court on December 13, 2021 by the New Mexico Cattlegrowers’ Association against the U. S. Fish and Wildlife Service for denying their petition to delist the endangered southwestern willow flycatcher.  The species is found in riparian forests in the southwest, and has been the subject of litigation against cattle grazing on public lands.  Plaintiffs allege that the bird is not a valid subspecies that is eligible for listing.

On April 21, the Center for Biological Diversity filed a lawsuit against the U. S. Fish and Wildlife Service in the district court of Arizona for delaying a determination of whether to list the Suckley’s cuckoo bumblebee as threatened or endangered.  These parasitic pollinators were once common in prairies, meadows and grasslands across the western United States and Canada.  Suckley’s cuckoo bumblebees are threatened by declines in their host species, habitat degradation, overgrazing, pesticide use and climate change.  The survival of Suckley’s cuckoo bumblebees is dependent on the welfare of their primary host, western bumblebees, who have declined by 93%. The Center is also working to obtain Endangered Species Act protection for western bumblebees.

In response to three lawsuits brought by the Center for Biological Diversity, the U.S. Fish and Wildlife Service agreed to dates for decisions on whether 18 plants and animals from across the country warrant protection as endangered or threatened species under the Endangered Species Act. The Service will also consider identifying and protecting critical habitat for another nine species.  The species include the wide-ranging monarch butterfly and tri-colored bat, and two salamanders found on the Sequoia National Forest.

Another species is the eastern gopher tortoise, and the U.S. Fish and Wildlife Service will determine by Sept. 30 whether gopher tortoises in Florida, Georgia, South Carolina and eastern Alabama should be listed.  Gopher tortoises are already listed as threatened in Louisiana, Mississippi and western Alabama.  “The tortoises need large, unfragmented, long-leaf pine forests to survive,” the center said Tuesday in an announcement about the settlement. This lawsuit, which was filed last year in federal court in Washington, D.C., said the Fish and Wildlife Service found in 2011 that gopher tortoises merited listing because of threats “including habitat fragmentation and loss from agricultural and silvicultural practices inhospitable to the tortoise, urbanization, and the spread of invasive species.”  However, they were not given a high priority for listing by the agency.  (This article discusses the gopher tortoise.)

WildEarth Guardians and Wilderness Workshop have settled their lawsuit against the U. S. Fish and Wildlife Service for designating insufficient critical habitat for Canada lynx (leaving out parts of Montana) in 2014.  The reconsideration of critical habitat will occur by the end of 2024.  This comes after the Biden administration reversed a U.S. Fish and Wildlife Service decision to propose delisting the lynx in 2017 during the Trump administration. (Following that, another group of conservation organizations reached an agreement with the agency in November 2021 to write a draft recovery plan for lynx by the end of 2023.)

LISTING ACTIONS

On March 2, the U. S. Fish and Wildlife Service proposed designating two freshwater mussel species as threatened, and also proposed critical habitat.  The western fanshell is found on the Mark Twain and Ouachita national forests, and the Ouachita fanshell on the Ouachita.

Following litigation, on March 23, the U. S. Fish and Wildlife Service reversed its position and proposed to up-list the currently threatened northern long-eared bat to endangered status, primarily as a result of continued losses to the white nose syndrome disease.  The important change that will result is the removal of exceptions to incidental take requirements that are available for threatened species but not for those classified as endangered.  This will mean more involved consultation procedures for any actions that remove trees in the 38 eastern states in which the species is found.

On April 13, The Center for Biological Diversity and two other conservation organizations notified the U. S. Fish and Wildlife Service of their intent to sue for delaying a determination of whether the thick-leaf bladderpod should be listed under the Endangered Species Act.  This follows the failure of the BLM in southeastern Montana to act on its staff recommendations to close an area to mining to protect this species they classify as “sensitive” from potential gypsum mining.  Off-road vehicle use is also a factor.  (This news release has a link to the NOI).

On May 12, the Center for Biological Diversity notified the U. S. Fish and Wildlife Service of its intent to sue for delaying making listing decisions for 11 species.  One of these is the whitebark pine, found at high elevations in seven western states.  Two plants are threatened by cattle grazing in the southwest, and the slickspot peppergrass by grazing in southwest Idaho.  The sickle darter (a fish) is allegedly affected by logging near rivers in Tennessee and Virginia.

Congress agreed to again include in its fiscal year 2022 appropriations bill the rider that prohibits the U. S. Fish and Wildlife Service from listing sage-grouse under the Endangered Species Act.  This language has been included since 2014, allegedly as the result of oil and gas industry lobbying.  It became law on March 15.

OTHER WILDLIFE NEWS

On April 22, a county judge in Ventura County upheld two local ordinances that designate standards for development and require environmental reviews for projects that may hinder wildlife connectivity.  The ordinances help protect the wildlife corridors that connect the Los Padres National Forest, Santa Monica Mountains and Simi Hills.  Habitat connectivity is crucial for the survival of mountain lions, gray foxes, California red-legged frogs and other wildlife in the region, and the Forest Service participated in identifying the corridors.

The Shawnee National Forest has temporarily closed Service Road No. 345 to allow safe passage for many species of amphibians and snakes during a critical time of migration.

Migratory Bird Treaty Act and Wind Turbines

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Interesting AP story…MBTA meets wind turbines.  It seems that perhaps renewable energy companies (also) have bad actors.

Chris Szagola/AP

BILLINGS, Mont. — A wind energy company was sentenced to probation and ordered to pay more than $8 million in fines and restitution after at least 150 eagles were killed over the past decade at its wind farms in eight states, federal prosecutors said Wednesday.

NextEra Energy subsidiary ESI Energy pleaded guilty to three counts of violating the Migratory Bird Treaty Act during a Tuesday court appearance in Cheyenne, Wyoming. It was charged in the deaths of eagles at three of its wind farms in Wyoming and New Mexico.

In addition to those deaths, golden and bald eagles were killed at wind farms affiliated with ESI and NextEra since 2012 in eight states, prosecutors said: Wyoming, California, New Mexico, North Dakota, Colorado, Michigan, Arizona and Illinois. The birds are killed when they fly into the blades of wind turbines. Some ESI turbines killed multiple eagles, prosecutors said.

It’s illegal to kill or harm eagles under federal law.

The bald eagle — the U.S. national symbol — was removed from protection under the Endangered Species Act in 2007, following a dramatic recovery from its widespread decimation due to harmful pesticides and other problems. Golden eagles have not fared as well, with populations considered stable but under pressure including from wind farms, collisions with vehicles, illegal shootings and poisoning from lead ammunition.

The case comes amid a push by President Joe Biden for more renewable energy from wind, solar and other sources to help reduce climate changing emissions. It also follows a renewed commitment by federal wildlife officials under Biden to enforce protections for eagles and other birds under the Migratory Bird Treaty Act, after criminal prosecutions were halted under former President Donald Trump.

Companies historically have been able to avoid prosecution if they take steps to avoid bird deaths and seek permits for those that occur. ESI did not seek such a permit, authorities said.

The company was warned prior to building the wind farms in New Mexico and Wyoming that they would kill birds, but it proceeded anyway and at times ignored advice from federal wildlife officials about how to minimize the deaths, according to court documents.

“For more than a decade, ESI has violated (wildlife) laws, taking eagles without obtaining or even seeking the necessary permit,” said Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division in a statement.

ESI agreed under a plea agreement to spend up to $27 million during its five-year probationary period on measures to prevent future eagle deaths. That includes shutting down turbines at times when eagles are more likely to be present.

Despite those measures, wildlife officials anticipate that some eagles still could die. When that happens, the company will pay $29,623 per dead eagle, under the agreement.

NextEra President Rebecca Kujawa said collisions of birds with wind turbines are unavoidable accidents that should not be criminalized. She said the company is committed to reducing damage to wildlife from its projects.

“We disagree with the government’s underlying enforcement activity,” Kujawa said in a statement. “Building any structure, driving any vehicle, or flying any airplane carries with it a possibility that accidental eagle and other bird collisions may occur.”

Colorado Wolves: The Natural and the Initiative

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This Denver Post story by Conrad Swanson is a really excellent story on current wolf issues in Colorado, considering a variety of perspectives. For those of you who haven’t been following this issue, there are two things going on. First, there was an initiative on the ballot to reintroduce wolves.. You can see who voted for it, and to whom the negative impacts will occur, in the map above.

Meanwhile the wolves were already moving down from Wyoming, and people are dealing with them. It appears that people have different feelings about “wolves that are imposed by fiat” versus “wolves that made it on their own”, which to me is a pretty interesting twist on the wolf debates.

Gittleson said Jan. 26 that state and federal officials flew out an electric fence special for his property. They set it up in a day or two but then high winds in the area knocked parts of it down. He expressed concerns that wolves could jump over barriers but that wouldn’t make a difference if the fence was stuck on the ground anyway.

……….

Ranchers aren’t paid for injured livestock, Uriarte said. Nor are they paid for the additional animals those killed could have birthed. Or for livestock pregnancies that end prematurely due to the stress of wolf packs living nearby.

Idaho has another $139,000 from that federal grant, Uriarte said, which can supplement ranchers’ efforts to prevent wolf attacks.

Trail cameras, noisemakers, alert systems and even additional hands on the ranch, can qualify for that reimbursement, Edmondson said.

Even more money could be available in Colorado, Malone said. Not only are those federal grants available but the state earmarks more than $1.2 million each year to reimburse ranchers and farmers for livestock killed by wildlife and prevention methods.

In 2019, Colorado Parks and Wildlife received $1.28 million for that purpose and spent just over half at $686,291, budget documents show.

That money can’t currently be used for wolf attacks, Malone said, but a small tweak to the language behind the funding could allow it. In addition, other resources like nonprofits exist to teach ranchers how to be more sustainable and avoid conflicts with wolves, she said.

“Your life has to change a little,” Malone said of ranchers. “It doesn’t have to change that much and it will change for the better.”

With all due respect to Ms. Malone, I don’t think it’s necessarily going to be better for them or their animals. I would have asked her how, exactly, that works.

Conrad Swanson, The Denver Post
Several high-altitude Angus cattle surround a cow wounded in a wolf attack the evening of Jan. 17, 2022, on Don Gittleson’s ranch, outside Walden. Gittleson was forced to put the cow down later that day.

They attacked a pair of cows on Don and Kim Gittleson’s ranch sometime on the night of Jan. 17. One of the black Angus, bred specifically for life at high altitudes, would recover but the other had to be put down later that day. Not by lethal injection, Don Gittleson told The Denver Post. Better, quicker to shoot her.

The pack attacked again the next morning. Kim Gittleson said they heard howling and rushed out to the pasture where they found another dead cow, mostly eaten. The pack had howled, she said, as though they were celebrating the kill.

And they’ll be back, she said.

“The wolves know where our cows are,” she said. “It’s like we’re their grocery store.”

Many other residents in Walden, the seat of Jackson County and its only incorporated town, seem to agree.

Ranchers, business people, barflies and parents say they fear the eight wolves living on the outskirts of town. They shake their heads and tally the dead on their calloused fingers. Three cows and two dogs, most agree. More are sure to follow, they say. Some parents say they’re afraid to let their children wander alone.

Not only do the people of Walden say they feel helpless as the wolves endanger their livelihoods, tourists and their outdoor lifestyle but they also feel ignored by state officials charged with managing the apex predators, which were hunted to near extinction generations ago.

If nothing changes, they say, other small, ranching communities and farming towns on Colorado’s Western Slope can also expect to lose livestock and business when state officials begin reintroducing gray wolves to the forests next year.

Ecologists, scientists and reintroduction advocates say the fears are understandable but rooted in a lack of familiarity with wolf behavior and the data collected elsewhere. But they, too, feel ignored by state officials and insist that the Department of Natural Resources should do more to buffer the people of Walden from the wolves while still protecting the endangered species.

I’m feeling a great sympathy for DPW here, who didn’t actually support the initiative, as  I recall. Now they are blamed by both sides for not doing it right.

Fletcher said he would prefer to live alongside the wolves. But he understands that they represent a threat to his livestock, pets and potentially his family and said he’d rather take a proactive management approach than a reactive one. As things are, he’s not sure whether he’ll be able to allow his cows to calve in the pasture or if they’ll have to relocate, which would increase costs dramatically.

Earlier this month, Colorado Parks and Wildlife Commission unanimously gave ranchers permission to haze, or frighten, wolves away from their properties.

Generally, hazing is understood to be anything that doesn’t kill or injure the wolves, said state Species Conservation Program Manager Eric Odell.

Fletcher gave thanks for the commission’s move but said it’s still not enough for him to be able to protect his ranch. Atencio and Don Gittleson said they’re still unclear on what they can or can’t do.

Propane cannons and rubber bullets could scare the wolves off, Atencio said. But one wrong shot could mean an injured or a dead wolf, which could carry with it a $100,000 fine, a year in jail and loss of hunting privileges for life.

Ranchers can’t watch around the clock, Atencio and Don Gittleson said. Nor can they afford to hire more hands.

The Gittlesons work their ranch with their two sons and a grandson. They own fewer than 180 cows. Every lost cow, every lost dollar counts.

But realistically, Phillips said wolf packs don’t represent a problem for the industry at large, though the losses sting more for smaller ranchers like the Gittlesons.

We recognize this argument…”see it’s not really a problem because if you average it out over a lot of other people, people who aren’t you , it’s not a problem!” We’ve heard that argument quite a bit around other issues.

It’s fascinating that because it’s an initiative, it seems like no matter how many wolves establish naturally, DPW will still be required to reintroduce them.. regardless of what they would normally consider.

For those of you who are interested in how such an urban/rural dividing initiative came about, here’s the bucks.

And who contributes to the Rocky Mountain Wolf Action Fund? The usual dark money suspects.   A person might wonder whether sowing urban/rural divisions is a feature or a bug.

 

When Can Feds Talk During Litigation? Grizzly Bear Restoration Plan for the North Cascades

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Adult male grizzly bear with Wayne Kasworm.
The grizzly bear was captured as a research animal in the Yaak River drainage of northwest Montana.

When is it OK for employees to comment on topics/projects currently under litigation? Many of the FS stories we see say that the Forest Service can’t comment on existing litigation.  So I’ve described this as the litigation “cone of silence.”

But I recently ran across this article (many thanks to Nick Smith!). It’s interesting about grizzlies,  but also seems to focus on a current employee’s views of being stymied by the shutdown of a project- that a;so seems to be currently in litigation.  This may be an entirely different kettle of fish, and hopefully our legal TSW friends will explain why the situation is different.

The unexpected cancellation of the project took government biologists, wildlife managers and others aback.

“It was somewhat of an abrupt termination,” says U.S. Fish and Wildlife biologist Wayne Kasworm, a senior Interagency Grizzly Bear Committee member and principle figure for grizzly recovery programs in Washington’s Selkirk Mountains and Montana’s Cabinet Mountains. “It was a bit of a surprise to those of us who’d been working on it for years.”

….

Experience in Montana provided Kasworm with some background to relate to the Washington public during open meetings about what might occur in the Cascades if grizzlies were to be reintroduced there. Following presentations, he fielded just about every question in the grizzly book, including the obvious ones.

What are the chances of human injury? How many people have been killed by grizzlies over the past century? What are the potential impacts on livestock or the timber harvest? Why would we even want to recover grizzly bears?

That last question would occasionally come up during testier public forums.

“Well, we have the Endangered Species Act—plus the mission of a national park to maintain its natural environment and the species that reside there,” Kasworm would answer. “And because this is a recovery area for bears, there’s interest on the part of the U.S. Fish and Wildlife Service to look at this program and go through a public process …” And so on.

“It was just part of the whole process,” says Kasworm. “There are places where you run into a lot of supporters and it’s an easy meeting. And there are places where you run into more opposition. I’ve been through controversial subjects with grizzly bears a lot in the last 38 years. I recognize that it can be an emotional issue and people can get excited about it on both sides. But I’d say for the most part those public comment meetings went pretty well.”

Precisely how well is hard to say with a recovery plan that remains incomplete. But there was an overall trend.

I’m curious as to when it is OK for employees to talk about projects being litigated and when not.

Did the program’s sudden termination come as a shock to those who’d spent years working on it?

“Yeah,” says Kasworm, wary of going much deeper into a matter now in litigation.

Was there any clear explanation for the decision?

“Not that I’m aware of is the best thing I can say here,” he says. “The reasons for the termination lie with the Secretary of the Interior, Mr. Bernhardt, who made that call a couple of years ago.”

Was it frustrating?

“I probably shouldn’t say it, but yeah it’s frustrating. I mean, you work on something like this for several years. You’re partway through the whole thing. You’ve invested a whole lot of effort and money in the process. Then, all of a sudden, people just say ‘Stop.’ So yeah, there’s a certain degree of frustration.”

I felt the same way about the 1995 RPA Program that I worked on.. I totally get the frustration. Or the folks who worked in good faith on Alaska Roadless and were told from one side “your work doesn’t count, we’re going with no 2001 … and at the other end “your work doesn’t count we’re going with 2001.” That’s what I used to call the territory of “the pay’s the same” and “if you’re not the lead mule, the scenery never changes.”

Another interesting part of this article was about the reasons for reintroduction:

Why would we even want to recover grizzly bears?

That last question would occasionally come up during testier public forums.

“Well, we have the Endangered Species Act—plus the mission of a national park to maintain its natural environment and the species that reside there,” Kasworm would answer. “And because this is a recovery area for bears, there’s interest on the part of the U.S. Fish and Wildlife Service to look at this program and go through a public process …” And so on.

I think that’s pretty interesting.. because grizzly bears are currently expanding their range and increasing.  Plus National Parks occur everywhere within the former GB range… Santa Monica Mountains, Yosemite and so on.  Now why exactly do we “need” them back in California or Colorado?

From the reporter:

Now the target of a lawsuit brought by the Arizona-based Center for Biological Diversity, the aborted program provides a fascinating example of wildlife management that seems to eschew collaboration and transparency, produces unknown public expenditures, alienates researchers and turns creatures as mighty as grizzly bears into political footballs.

Hmm. Been there done that. Should grizzlies be exempt from football-hood?

 

 

Large Carnivore Reintroductions and Environmental Justice: Alex McInturff’s Research

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Thanks to Som sai for this link of interest.. I do think that environmental justice or even plain old social justice has been somewhat overlooked with regard to many issues.   We need to think about it with regard to all the issues we face.  It seems to me that it’s like so many things in our world… there’s an abstraction.. biodiversity, climate change, environmental justice, social justice; but for some reason our thinking about them gets channelized (a thinking ditch) when if we arrayed all the choices, they would be more like a braided stream, multi-threaded and dynamic.

What unique challenges do large carnivore reintroductions pose that environmental justice can help address?

Large carnivores are a unique set of species for a lot of different reasons. They are involved in just about every kind of human-animal conflict you can imagine, so we thought they were a challenging but important place to start. Some of these challenges: People who make decisions about carnivore reintroductions sometimes don’t live near the places where the recovery efforts — and potential related animal-human conflicts — are occurring. Large carnivores themselves are wide-ranging and highly mobile. One animal’s erratic behavior can impact people’s view of the entire species. So, the challenges and the opportunities go hand in hand, and that makes this difficult, but also important, to tackle.

In the paper, you describe four components of environmental justice that are important to consider in conservation projects. Can you explain those in the context of large carnivore reintroductions? 

  • Distribution considers who is actually being harmed materially and who is benefiting
  • Participation asks who has a seat at the decision-making table
  • Recognition asks whose worldview is being recognized in the terms of the debate or in the discussion itself
  • And finally, affective (or emotional) justice considers how we appropriately account for people’s emotions — fear, anger, happiness, for example — toward the reintroduction of certain species

On this last point: On one hand, we should take emotions really seriously — fear can be life-changing and is very important to understand as a harm in and of itself. And at the same time, emotions can be difficult to estimate, and they can reorient power dynamics. In the case of large carnivores, we’ve often seen people who are not vulnerable or marginalized use emotions like fear to make themselves into victims. They wind up having an even bigger voice in the decision-making process than they might have had before.

So how can we use this environmental justice framework going forward in these reintroduction efforts?

Through a justice lens, we can ask questions about who is making decisions, and whether they are people who are in power, or people who are already marginalized. We can try to measure the ways in which material harm has been inflicted on different groups of people, or the ways in which impacts are unequally distributed. Social science, or humanistic, considerations tell us a bit about the bigger picture: What are the worldviews involved, how might those limit or enable discussions that weren’t possible before, and how are people’s emotional experiences shaping these conversations and the possible outcomes?

The reintroduction of wolves to Yellowstone National Park happened in 1995 and has been hugely divisive ever since. People have spent millions of dollars trying to address the problems that arose. But, in fact, it might be that a different kind of framing — one around justice — could offer an important new step toward addressing these problems.

This isn’t something folks love to hear, but I think the truth is, if you expect a framework like this to give you a single, perfect answer to solve problems, you’re setting yourself up for failure. Large carnivore reintroductions include a complicated and challenging set of circumstances, so having a process in place is really important, especially one that’s informed by a good understanding of justice.

What’s next with this work?

Our goal is to walk through this framework using a possible California grizzly bear reintroduction as a case study to lay out what it would actually look like to do this while thinking about environmental justice from the very beginning.

Another option would be to study the Colorado reintroduction of wolves. Certainly it started not very well from an ej (environmental justice) .. decision made by a state-wide initiative vote and won by Coloradans who don’t live in the country of reintroduction.   Arguably it would be interesting to  begin to consider ej at this point.

Large landscape connectivity – could the Forest Service be a leader?

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I watched a webinar provided by the Center for Large Landscape Conservation titled “Legal Protections for Large Landscape Conservation,” part of which focused on “Habitat Connectivity and the U. S. Forest Service.”  That segment can be seen here from 4:15 to 19:05.  The presentation goes over the elements of Forest Service planning that could be useful for habitat connectivity.  It includes a couple of examples of “innovations” from the Flathead and Carson/Santa Fe forest plan revisions, but concludes that few plan components that address connectivity are likely to be very effective.  It cites a familiar refrain that the agency is “unwilling to commit to specific direction,” and “lack of commitment and interest from line officers.”  However, the presenter observed that the movement of the Forest Service toward more centralized planning organizations might provide an opportunity to look at connectivity as a broader regional issue, and to develop regionally consistent approaches to planning for connectivity.

What if the Forest Service was actually interested in conserving the species that use its lands but require connectivity across other jurisdictions and ownerships (as it is required to do, “in the context of the broader landscape,” a phrase used seven times in the 2012 Planning Rule ), and what if the Forest Service played a leadership role in facilitating such cross-boundary connectivity by promoting large-landscape conservation strategies?

Maybe it would look something like what the Yellowstone to Yukon Initiative has accomplished since it began promoting large-scale landscape conservation in 1993.  As Rob Chaney reports in the Missoulian, they have recently evaluated the effectiveness of their program in “Can a large-landscape conservation vision contribute to achieving biodiversity targets?”  They found that in the Y2Y region where landscape connectivity was actively promoted, more public lands were dedicated to protection, more private lands were protected, wildlife highway crossing structures proliferated, and occupied grizzly bear habitat (as a proxy for actual benefits to wildlife) expanded.

Come to think of it, wouldn’t that be a great assignment for the Biden Administration to give the Forest Service (both the National Forest System and State and Private Forestry divisions) to promote its 30 X 30 conservation agenda?

 

 

Recent forest plan litigation

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Litigation about the validity of a forest plan doesn’t happen very often, but two revised forest plans have been in the news for that lately.

Flathead court decision

The Montana District Court has decided the first case reviewing a forest plan revised under the 2012 Planning Rule, and it rejected decisions made in the Flathead plan related to roads because of the Fish and Wildlife Service and Forest Service had not adequately analyzed the effects of roads on grizzly bears and bull trout.  The court held that the process of revising the forest plan violated the Endangered Species Act; plaintiffs did not challenge compliance with NFMA or the Planning Rule. The court found no violations of NEPA and travel planning requirements.  The revised plan remains in effect pending additional analysis, but additional analysis will also be required for ongoing projects.  I haven’t read the opinion yet, and it’s not clear to me why these projects should not also be required to comply with the old plan direction for roads, which would have limited road construction, unless/until the revised plan complies with ESA.

This article quotes the judge on the crux of the case regarding grizzly bears:

“The mere fact that the (NCDE) population was increasing from 2004-2011 does not justify moving away from the existing management requirements of Amendment 19. In effect, by recognizing that Amendment 19 laid the foundation for recovery of the NCDE population and then using that recovery as justification for getting rid of the existing access conditions, the Fish and Wildlife Service eschews Amendment 19 precisely because it was working. This action is arbitrary and capricious,” Molloy wrote.

Additionally, the article continues:

Molloy agreed the choice of conditions in 2011 was arbitrary. Even had the choice been acceptable, the U.S. Fish and Wildlife Service should have analyzed whether the new Forest Plan would have exceeded the 2011 baseline, which was a reflection of conditions existing while Amendment 19 influenced the plan. But the agency didn’t do that.

The USFWS also didn’t explain why it didn’t recommend culvert removal as part of road abandonment to aid bull trout survival. Molloy pointed out that the agency’s 2015 Bull Trout Recovery Plan emphasizes the importance of culvert removal and road decommissioning. But then the agency backed off, saying culvert removal wasn’t necessary in its 2017 biological opinion on the Flathead National Forest plan. Molloy acknowledged that part of the reasoning is because the roads aren’t being accessed, but evidence showed that at least two-thirds are being used.

Finally, Molloy said the Fish and Wildlife Service had failed to analyze how the new plan would harm grizzly bears on Forest Service land outside of the NDCE core area. So the biological opinion is flawed, as is the agency’s calculation of bears killed or affected by the plan, and the Flathead National Forest erred in basing its plan on a flawed opinion, Molloy wrote.

A key factor in the decision was apparently evidence presented by plaintiffs that requirements for road closures in the forest plan would actually result in continued public use of the closed roads.

This article quotes timber industry intervenors:

“It’s a pretty thorough and nuanced opinion,” said Lawson Fite, an American Forest Resource Council attorney representing the Montana Logging Association.

Colville new lawsuit

There may be more legal action ahead involving NFMA in new litigation filed on the recently revised Colville Forest Plan, which was summarized here (this plan was revised using the 1982 planning regulations). Most of the attention is probably on the Sanpoil Project, where plaintiffs raise issues related to the site-specificity of the analysis (see condition-based NEPA). They also make a NEPA claim related to our many discussions of historic/natural variability (versus an alternative that “was actually focused on maximizing timber revenue”); more on the forest plan aspects of that below.

One of the forest plan issues is old growth – specifically the elimination of the Eastside Screens which imposed a diameter limit on trees harvested, and whether the revised plan direction adequately provides for viability of old growth species in accordance with the provisions of the 1982 planning regulations, which require that old growth be “well-distributed.”  The revised plan also eliminated pileated woodpeckers and American marten as management indicator species for old growth and did not replace them with anything.

The Forest prepared an “issue paper” on old growth as part of the objection process, which I will highlight below (you might want to keep in mind our recent HRV vs NRV discussions, though this is not an explicit requirement of the 1982 regulations):

The proposed Forest Plan replaces Eastside Screens with a series of desired HRV conditions (described in FEIS, Vol. 1, pp. 92-94, 99-132) but allows cutting of individual large trees when needed to meet desired conditions for structural stages, along with several other exceptions (FEIS, Vol. I, pp. 28-30). It provides a desired condition for forest structure (FW-DC-VEG-03) that provides for a diversity in forage and wildlife habitat. Additionally, forest-wide desired condition (FW-DC-WL-03 and FW-DC-WL-13) state that habitat conditions should be consistent with the historical range of variability.

Instead of fixed reserves in the current Forest Plan the proposed Forest Plan would have late structure contained throughout the landscape and all actions that affect forest vegetation would be assessed and compared to HRV, with the goal of moving the overall landscape toward HRV.

The proposed Forest Plan will result in approximately 780,592 acres of late forest structure in 100 years, which is slightly less than the current Forest Plan (810,583 acres). The proposed Forest Plan would, however, allow structure classes to shift around the landscape in response to disturbance and may result in more resilient forest landscapes.

The effects analysis described in the FEIS shows that maintaining a 21″ diameter limit reduces the ability to attain the desired future condition of having a majority of most vegetation types in late structure.

It’s great that they actually projected the amount of late forest structure.  Based on the planned/expected reduction, I would have to conclude that their assessment told them they had too much of this compared to historic conditions.  I think that would be fairly unique and create a burden to demonstrate that using best available science (which plaintiffs seem to be disputing).  The last two paragraphs are a little hard to reconcile since the current plan would produce more old growth, but maybe there is too much of some old growth vegetation types and not enough of others?

The forest structure desired condition (FW-DC-VEG-03) includes an evaluation of the historical range of variability (HRV) and vegetation treatments at the project level will need to show movement toward this desired condition. This means that until the desired condition is reached, existing late structure would need to be maintained on the landscape.

This is an important interpretation of what they think their forest plan requires.  Hopefully it says something close to this in the plan itself, but regardless, their EIS effects analysis would have been based on it and they should be held to it when project consistency is evaluated.

Practice of Litigation Friday: Fire in Pacific Fisher Habitat

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U. S. Fish and Wildlife Service

This recently filed case (the complaint is at the end of the article) hasn’t generated a lot of news coverage, but it directly raises some of the questions we have discussed at length about the effects of fuel reduction activities.

On March 26, 2021, three California conservation groups filed a complaint for declaratory judgment and injunctive relief against the Forest Service and Fish and Wildlife Service in the federal district court for the Eastern District of California (Unite the Parks v. U. S. Forest Service).  They are challenging, “the failure … to adequately evaluate, protect, and conserve the critically endangered Southern Sierra Nevada Pacific fisher … on the Sierra, Sequoia, and Stanislaus National Forests …” after a substantial reduction in habitat since 2011 resulting from a multi-year draught, significant wildfires and Forest Service vegetation management.  Many of the variables considered in a prior 2011 analysis have been adversely affected by these changes. The plaintiffs implicate 45 individual Forest Service projects.

This fisher population was listed as an endangered species on May 15, 2020, and the agencies conducted “programmatic” consultation at that time on 40 already-approved projects.  The agencies reinitiated consultation because of the 2020 wildfires, but did not modify any of the projects.  The purported rationale is that the short-term effects of the vegetation management projects are outweighed by long-term benefits, but plaintiffs assert, “There is no evidence-based science to support this theory…,” and “the agencies ignored a deep body of scientific evidence concluding that commercial thinning, post-fire logging, and other logging activities conducted under the rubric of ‘fuel reduction’ more often tend to increase, not decrease, fire severity (citing several sources, emphasis in original).  The complaint challenges the adequacy of the ESA consultation on these projects, and the failure to “prepare landscape-level supplemental environmental review of the cumulative impacts to the SSN fisher…” as required by NEPA.

Not mentioned in the lawsuit is the status or relevance of forest plans for these national forests, two of which (Sierra and Sequoia) are nearing completion of plan revision.  However, the linked article refers to an earlier explanation by the Forest Service that they would not be making any changes in the revised plans based on the 2020 fires because they had already considered such fires likely to happen and had accounted for them.  ESA consultation will also be required on the revised forest plans, and should be expected to address the same scientific questions, arguably at a more appropriate scale.  Reinitiation of consultation on the existing plans based on the changed conditions should have also occurred under ESA.  (This is another area where legislation has been proposed to excuse the Forest Service from reinitiating consultation on forest plans, similar to the “Cottonwood” legislation that removed that requirement for new listings or critical habitat designation.)

(And in relation to another topic that is popular on this blog, Unite the Parks also supports the establishment of the Range of Light National Monument in the affected area.)

The Ghosts of Spotted Owls Yet to Come

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Bird is still declining.. have we learned anything?  (original caption on TSW file photo)

This is what has happened to northern spotted owls north of the Canadian border without an Endangered Species Act.  Could this happen here?

Spotted owls have all but vanished from B.C., the only place they were found in Canada. Biologists estimate there were once 1,000 spotted owls in southwestern B.C.’s old-growth forests of Douglas fir, western hemlock and western red cedar.

Today, following the destruction and fragmentation of much of their habitat, only three spotted owls are known to exist in the province’s wild. Until the breeding pair was discovered in the Spuzzum Valley, the three were thought to be individuals with no offspring.

“The northern spotted owl is back from the dead in Canada — where once there was a flat line there is now a shimmer of hope,” Foy said. “What Canada does next in the way of protecting habitat may just tip the balance in favour of life.”

The B.C. government has repeatedly said captive-bred spotted owls will be re-introduced to the wild. But not a single captive-bred owl has been released since the breeding program began more than a decade ago.

Pepper-Smith said the Spuzzum Valley spotted owl pair represents the only proven option for maintaining the wild population, given there is no evidence that owls raised at the breeding facility can be successfully introduced to the wild.

“This is the last known breeding pair — and I think it’s hard to over emphasize how important it is that they continue to survive and breed,” Pepper-Smith said in an interview.

In June, The Narwhal reported that the B.C. forests ministry issued more than 300 logging approvals — totalling almost 2,000 hectares — in the spotted owl’s range between October 2018 and May 2020.

That was last fall.  And now, this spring …

An agreement to delay logging of an old-growth stand of British Columbia forest has given a one-year reprieve to one of Canada’s most endangered species.

But governments now have to come up with a permanent way to protect the vanishing spotted owl and other endangered species in the province, said Kegan Pepper-Smith of Ecojustice, which has been pushing the federal government on the issue.

B.C. claims about 281,000 hectares of protected spotted owl habitat. Pepper-Smith disputes that, saying much of that land is subject to logging.

Take Cover: Even a post-fire specialist needs a break from the burn for part of its life cycle: from BirdPop!

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A mix of low-severity and high-severity burn provides covered places for fledglings while adults forage for grubs in dead trees. Photo by Jean Hall.

Scientific information is conditional on the approach to the study (framing), discipline(s)involved, methodology used, and the specifics of time and place. The more information expands, the more we know, even though it might feel like we are the blind person dealing with the elephant. Yet there is a balance between accepting the conclusions and understanding that for most topics, what you know is a a function of the step you’re on and not the final story. And as the climate (and people and whatever) changes, there may never be a “final story.” Just note the ubiquity of the expression in scientific papers “previous studies concluded x, but we have found y.”

Here’s one example of Stillman et al.’s work from Bird Pop!. There a link to the paper on the blog site.

But the simple assumption that more fire always equals good news for a post-fire specialist wasn’t holding up. Stillman’s earlier work, in collaboration with IBP, his PhD advisor UCLA Professor Morgan Tingley, and the US Forest Service, showed that Black-backed Woodpeckers prefer to nest near the edge of severely burned patches. Now fledgling woodpeckers, hatched in nests within burned forests, were moving out of the burn and into adjacent forest that burned at low severity or sometimes hadn’t burned at all.

A new story began to emerge. Perhaps Black-backed Woodpeckers nest close to the edges of burned patches so that, upon fledging, their young can take cover in unburned or less severely burned patches nearby — presumably to take advantage of greater vegetation cover and avoid predation. “We started thinking of the food-rich high severity burn as a grocery store and the high-cover low severity burn as a nursery,” says Stillman. “If you’re going to build a home, you want to place it close to both the food source and the nursery!” But if this was indeed what was going on, you’d expect survival of juvenile woodpeckers to be higher in the less severely burned areas with more live vegetation.

To test this prediction, Stillman and collaborators tracked the habitat use and survival of 84 fledgling Black-backed Woodpeckers from 39 nests in seven different recently burned areas in the Sierra Nevada and Cascade Mountains of Washington and California. Tracking during the first 35 days was done the hard way — hiking many rugged miles with handheld receivers. As the juveniles got older and dispersed, tracking was done by driving and with the generous help of the skilled volunteer pilots of LightHawk Conservation Flying. “We expected survival to be lower in the high-severity patches compared to low-severity patches — and that’s what we show in this paper. However, it was surprising to us just how much of a difference it made,” says Stillman. “If you’re a fledgling Black-backed Woodpecker, you have a 53% chance of surviving 35 days if you spend your time in low-severity burned patches — about average for a baby bird. But if you instead choose to spend all your time in the high-severity burn (which is good habitat for adults), your chance of surviving 35 days plummets to just 13%.” Most fledgling deaths were due to predation.

Another surprise: the identity of the predators. Most juvenile Black-backed Woodpecker deaths could be attributed to birds of prey including Cooper’s Hawks, Northern Goshawks, Red-tailed Hawks, and even a Western Screech-owl. Apparently if you are a bird of prey, fledgling woodpeckers in open stands of burned snags are the easy-to-grab, juicy hamburgers.

Previous research has shown that increased pyrodiversity yields more diverse habitat types across the landscape, which in turn increases diversity in the bird community. But this study and Stillman’s other dissertation research shows that pyrodiversity can be a good thing even for a single species. This is an example of habitat complementation: when a species has different habitat requirements for different parts of its life history. Forest managers can support and enhance pyrodiversity through management practices before fire, and by protecting pyrodiverse areas after fire.