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White Pine Creek Project — 60 Day Notice PACIFIC ENVIRONMENTAL ADVOCACY CENTER
Ann M. Veneman, Secretary of Agriculture Dale Bosworth, Chief Bob Castaneda, Supervisor Dear Ms. Veneman, Mr. Bosworth, and Mr. Castaneda, On behalf of Alliance of the Wild Rockies, we are writing to inform you that we intend to file suit against the United States Forest Service (FS) to remedy the Service's violation of the Endangered Species Act (ESA), 16 U.S.C. * 1533 et. seq. By approving Alternative 4 of the White Pine Creek Project in its June 2002 Record of Decision (ROD), the Forest Service has eschewed its mandatory duties under the ESA to comply with the ESA's section 7 consultation procedures, to ensure that its actions do not jeopardize grizzly bears, and to avoid take of grizzly bears as proscribed by the implementing regulations of the ESA, 50 C.F.R. * 17.40(b). This letter constitutes notice for purposes of 16 U.S.C. * 1540(g)(2). INTRODUCTION AND FACTUAL BACKGROUND Grizzly bears, (Ursus arctos horribilis), historically existed throughout the western half of the United States, from the mid-plains to California and from Canada to Mexico. In settling and developing the western half of the country, grizzlies were first extirpated from the Great Plains areas, and then from much of their remaining habitat in mountainous areas. Because the settlers perceived the bears as a threat, they were systematically eliminated. In 1975, when the species had been reduced from historical estimates of over 50,000 bears to less than 1000, grizzlies were listed as a threatened species. Only five areas in the lower 48 states currently contain remnant grizzly bear populations. In 1982, the original Grizzly Bear Recovery Plan was approved by the Fish and Wildlife Service (FWS); an amended plan was issued in September of 1993. Its stated objective is to delist each population as it achieves recovery targets. The amended plan delineates actions believed to be required to recover and/or protect the species. Among these are the minimization of human-bear conflict and the limitation of habitat loss or degradation because of human actions such as road building and timber harvest. 1993 Grizzly Bear Recovery Plan (Plan) at ii. The Plan has established five Recovery Zones to facilitate the protection of these population groups. It is the Cabinet/Yaak Ecosystem (CYE) and Grizzly Bear Recovery Zone that is of concern here because of its proximity to the White Pine Creek Project (Project). Although the Recovery Zone proper is on the opposite side of the Clark Fork River from the Project, most of the Project lies within 10 miles of the Recovery Zone. For the purposes of gauging the progress of the population's recovery, female grizzlies with cubs are counted both inside the Recovery Zone and within a 10 mile area immediately surrounding the Recovery Zone. Id. at 83. In the 1993 revision, the number of bears in the CYE was estimated to be less than 15, a number considered to be "far below the level necessary for viability." Id. at 86. Because of the small number of bears, a mortality goal of zero was set for the CYE. Id. at 83. This goal is slated to remain at zero until monitoring parameters indicated a population of approximately 100 bears. Id. at 85. The Project area has further significance to grizzlies because of the bears' spatial needs and the quality of habitat in the White Pine area. The Plan has stressed that on federal lands, road density guidelines should be phased in to make timber operations compatible with grizzly bear spatial and habitat requirements. Id. at 90. Scientific studies have indicated that the size of the current Recovery Zone may not be large enough to accommodate the present population goal of 100 bears in this ecosystem. See Bader, M. 2000c, Spatial Needs of Grizzly Bears in the U.S. Northern Rockies. The studies further indicate that this current goal is likely far below the actual numbers needed for a healthy population. Id. The project area lies just across the Clark Fork River from the Recovery Zone, and is well within the known dispersal distance for grizzly bears discussed in the Kootenai Forest Plan. Furthermore, while much of the Recovery Zone is steep, high alpine habitat with a lack of spring range, the Project area contains low elevation, productive habitat that could be even more important to grizzly recovery if managed for that purpose. In 1999, the Fish and Wildlife Service determined the reclassification of grizzly bears from threatened to endangered was "warranted but precluded" in both the Cabinet/Yaak and Selkirk Ecosystems. 64 Fed. Reg. 26725. The FWS also found that the Cabinet/Yaak and Selkirk populations should be combined as one distinct population segment because of their proximity and the fact that bears are known to travel between the two ecosystems. In an April, 2000 update to the Grizzly Bear Recovery Plan, the number of bears in the CYE was estimated at 30-40. April, 2000 Plan Update at 2. The number of bears in the Selkirk Ecosystem was estimated at 45-50. Id. These numbers fall far below the minimum numbers considered necessary to sustain a healthy population. Smaller populations are unable to absorb losses due to environmental changes (e.g., diseases or fires), and random genetic changes (i.e., inbreeding). (See Bader, and Report, below.) Because of the precariously small number of bears in these two populations, the ability of the bears to travel between these two zones and other zones is recognized to be of critical importance to their survival. The different populations are considered to exist in habitat "islands" which are at risk of extinction. U.S. Fish and Wildlife Service Linkage Zone Report (Report), 7/17/01 at 11. This FWS Report was the result of a mandate by the Plan to evaluate the potential for linkage between the ecosystems. It defines linkage zones as broad areas of seasonal habitat where animals can find food, shelter, and the necessary security allowing them to move between ecosystems. Movement between ecosystems is seen as a critical part of the application of metapopulation theory to grizzly bear conservation. Report at 13. Bear movement allows for gene flow, thus decreasing the probability of extinction. Currently, the amount of development occurring on private lands in the vicinity of the CYE has greatly limited the potential for linkage between these bears and other populations. The linkage between the CYE and the Selkirks is nearly completely severed by developments along US-95. Id. at 3-4. The potential for movement between the CYE and the Bitterroot and North Continental Divide ecosystems is also limited, although some opportunity for movement still remains. Id. The Report concludes that active management is necessary to conserve and enhance the remaining opportunities for linkage between the populations. Id. It sees changes in the way public lands are managed as necessary to linkage zone management. Id. at 77 An Interagency Grizzly Bear Committee (IGBC) memo indicated the support
of the Committee for the concept of linkage zones (date unknown; found
on the internet at
Increase in road densities is known to negatively affect grizzly bears through habitat avoidance behavior and increased risk of mortality. In its June, 2002 White Pine Creek Project Record of Decision, the Forest Service approved a "project-specific" amendment to the Kootenai Forest Plan allowing an increase in open road density requirements from .75 miles per square mile (mi/mi2) to 2.23 mi/mi2. ROD at 30. Road density is one of the factors mentioned in both the (Recovery) Plan and the Report as having the potential to negatively impact bear habitat. Road densities of > 2.00 mi/mi2 are reported to have low impact when they are inside a secure core area (SCA), moderate impact outside the SCA and high impact if they are within a human influence zone. Report at 24. According to the Plan and bear researchers, securing adequate effective habitat is "the most crucial element in grizzly recovery." Plan at 21. The Plan further provides that roads are likely the most imminent threat to grizzly habitat. Id. Additional evidence of the detrimental effect of road density on grizzlies' use of habitat is found in the Fish and Wildlife Service's Incidental Take Statement (ITS) for the Kootenai Forest Plan. The ITS recognizes that, "Roads and excessive road densities are among the most serious adverse impacts on the security of grizzly bear habitat and have negatively influenced grizzly bear population and habitat use patterns in numerous, widespread areas." Fish and Wildlife Service Incidental Take Statement, July 27, 1995 at 3 (citing IGBC study). One consequence of human encroachment is a bear's avoidance of preferred habitat because of disturbance and annoyance from vehicle and other human related noise. Id at 4. The ITS cites timber harvest as an example of disturbance which can displace bears from a historically used area. Because cubs learn behavior from their mothers, this displacement and avoidance can persist for several generations. Id. The ITS also recognizes that the most serious direct consequences of roads are bear mortality and change in habituation. Id. at 3. Habituation is a loss of a bear's natural wariness of humans due to continued exposure to human presence without negative consequences. Over a nine-year period in the CYE, all known bear mortality was a result of exposure to people. Id. In October of last year, the FWS found a 4 year old male grizzly from the Selkirk population shot to death near the Washington\Idaho border. In a news account of the shooting, a FWS official asserted that shooting mortality is "the major hurdle to recovery facing the great bears." Other reports indicate that 16 Yellowstone area grizzlies have been killed this year. Grizzlies are known to occur in the White Pine Project area. The Biological Assessment (BA) for the White Pine Project provides that they are expected to occur within the influence area in transient and resident capacity. BA at 6. The BA recognizes that although there is no documented denning activity in the project area, there have been reports of "grizzlies and grizzly sign." BA at 7. Recent mapping by the Forest Service has confirmed that grizzly bear distribution outside the Recovery Zone includes the White Pine area. Over the past two years, a female grizzly and three yearlings were documented just to the north of the project area on the south side of the Clark Fork River. This may be the bear that was recently found dead on the railroad tracks. DNA tests are currently being performed to determine the sex of the dead bear and its relationship to two juvenile bears found wandering in the area. In its Draft Environmental Impact Statement (DEIS) leading up to the Decision, the Forest Service acknowledges that Section 9 of the ESA prohibits "take," including harm and harassment, of threatened and endangered species, regardless of whether they occur outside recovery area boundaries. DEIS at 3-96. However, the FS went on to conclude in its biological assessment (BA) that the project "may affect, is not likely to adversely affect" the grizzlies. BA at 3. It then submitted this finding to the FWS, which concurred in the FS conclusion of "may affect, is not likely to adversely affect" based on the documentation sent by the FS, thus eliminating the need for formal consultation. September 13, 2001 Letter from FWS. Apparently, FWS reconsidered its concurrence in March of 2002. In telephone and e-mail communications in March, 2002, FWS suggested that the Forest Service consider augmenting its analysis of the Project's impacts on grizzlies. The FS rejected this idea, and insisted on relying on FWS's original concurrence with the FS's "not likely to adversely affect" call. RELEVANT LAW AND ANALYSIS The purpose of the ESA is to "provide a program for the conservation of endangered and threatened species and to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved." 16 U.S.C. * 1531(b). "Conserve" is defined as using all "methods and procedures which are necessary" to make further measures under the ESA unnecessary. 16 U.S.C. * 1532(3). In other words, to conserve is to restore the species to a state where it no longer requires listing under the Act. Essentially, this is the point at which the recovery of the species has been achieved. 1. The Forest Service has failed to comply with its procedural and substantive duties under Section 7 of the Endangered Species Act.
2. The Forest Service has failed to comply with its duty to avoid take of a grizzly under Section 9 of the Endangered Species Act.
CONCLUSION The Forest Service, through approval of the White Pine Project, has failed in its duties to comply with the ESA's consultation procedures, ensure that its actions do not jeopardize grizzlies, and avoid take of grizzly bears. The FS is attempting to count grizzlies outside the recovery area towards the number of bears needed to eventually delist the species while at the same time setting up a mortality sink in the project area which creates a risk to the bears. This is certainly arbitrary and capricious behavior on the part of the Forest Service. Unless the FS complies fully with its obligations under the Act, we will reluctantly be forced to take legal action to protect the grizzly bear. If you have any questions about the issues raised in this letter or wish to discuss steps to remedy the problems detailed above, please contact me at (503) 768-6707.
Respectfully submitted,
Daniel J. Rohlf Read AWR's Press Release on the lawsuit
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