Oregon governor wants an idea other than sale of state forest to raise school funds

Oregon Gov. Kate Brown suggested on Dec. 13 that the state’s Land Board should look for an alternative to the sale of Elliott State Forest as a way to raise funds to support public schools.

The proposed sale of the forest, which accounts for about two-thirds of the lands that support the Beaver State’s Common School Fund, has drawn one bid. The Cow Creek Band of Umpqua Indians and Lone Rock Timber Management Co. of Roseburg offered to pay about $220 million for the forest, which includes about 84,000 acres.

“Oregon’s public lands – our forests, parks, and beaches – are irreplaceable assets,” Brown said. “Even in the face of complicated challenges, we must strive to protect the values that Oregonians hold dear. Those include hunting, fishing, and hiking in the woods; they include the habitat for the marbled murrelet, northern spotted owl, and coastal coho salmon; and they include jobs critical to our rural economies.”

elliott-state-forest-oregon-courtesy-oregon-department-of-forestry
Elliott State Forest, Oregon – image courtesy Oregon Department of Forestry

The governor suggested that the Land Board, on which she serves as one of three members, instead consider the use of bonding authority in an amount up to $100 million as a way to contribute financially to the Common School Fund.

Located in the southwestern region of the state, the Elliott State Forest was the first established in Oregon’s system of state forests.

The proposed sale is not the only reason that the state’s management of the forest has been controversial. In 2011 the Land Board decided to increase the annual timber harvest there, increasing the annual harvest from 25 million to 40 million board feet and granting timber companies more latitude to engage in clear cutting.

The question whether a private purchaser of Elliott State Forest would be able to harvest timber there received new attention later in December as a federal judge in Eugene blocked an effort to clear-cut 49 acres.

U.S. district judge Ann Aiken found that the proposed timber extraction by Scott Timber Co., a subsidiary of the giant Roseburg Forest Products, would likely harm the marbled murrelet (Brachyramphus marmoratus).

B. marmoratus is a crepuscular sea bird and a member of the auk family. It nests in old-growth trees in forests along the country’s west coast from Alaska to south-central Florida.

Listed as a threatened species in California, Oregon, and Washington by the U.S. Fish & Wildlife Service since 1992, the Oregon Department of Fish and Wildlife is considering a petition that asks it to shift B. marmoratus from threatened to endangered status under state law.

“This demonstrates the incredible cynicism that underpins the state’s efforts to sell the Elliott off to private timber interests,” Bob Sallinger, conservation director of Portland Audubon Society, said. “Not only does it put fish and wildlife species at risk and eliminated use for future generations, but it also is predicated on those private timber companies returning to the illegal logging practices that the state was forced to abandon.”

The Oregon State Land Board may decide at its February meeting whether to adopt Brown’s proposal.

marbled-murrelet-courtesy-usfws
The marbled murrelet is a reclusive sea bird that relies on old-growth forests, such as Oregon’s Elliott State Forest, for nest sites. Image courtesy U.S. Fish & Wildlife Service.
 

 

Environmental group tells Obama administration it will sue over failure to give elephants ESA protection

african-elephant-courtesy-wwf
The number of African elephants has declined from about 3-5 million in 1900 to a few hundred thousand.
Photo courtesy World Wildlife Fund.

An environmental organization has notified the U.S. Department of Interior that it is prepared to sue in 60 days if the Obama administration does not classify two African elephant species as endangered.

The announcement by the Center for Biological Diversity comes about five months after expiration of a deadline set by the Endangered Species Act for a decision on a petition that sought the listing.

“If the current rate of poaching persists, savanna elephants could be extinct in roughly two decades and forest elephants long before that,” Tanya Sanerib, an attorney for the organization, said. “Only by recognizing the true, endangered status of the two species of African elephants can we highlight and address elephants’ plight and threats.”

The June 2015 petition also asked the U.S. Fish & Wildlife Service to formally classify elephants native to Africa into two species: those that are native to equatorial forests (Loxodonta cyclotis) and those that are indigenous to the continent’s vast grasslands (L. africana).

All African elephants are at risk of extinction. According to the Great Elephant Census, a recent effort to estimate the number of the giant mammals now living in the wild on the bulk of the continent, there are less than 400,000 individuals left.

Savannah elephants are being killed so fast by poachers seeking the ivory of their tusks that they could disappear in 15 years. A recent scientific paper that examined the reproductive rate of forest elephants concluded that they, too, face a precarious future:

“The forest elephants Loxodonta cyclotis of Central Africa face the threat of extinction, with recent analysis of census data across their range showing a 62% decrease in their numbers for the period of 2002–2011 coupled with a loss of 30% of their geographical range (Maisels et al. 2013). Modelling of Monitoring of the Illegal Killing of Elephants (MIKE) data corroborates this, indicating that forest elephants are experiencing the greatest levels of poaching in Africa with potentially as much as 10–18% of the population killed per year (Wittemyer et al. 2014).

Section 4(b)(3) of the ESA forces FWS (or, in the case of marine organisms, the National Oceanic & Atmospheric Administration) to decide, within 90 days, whether a petition for listing is supported by “substantial scientific or commercial information indicating that the petitioned action may be warranted.”

The agency then has 12 months to decide whether to add the species to the list of threatened and endangered species.

FWS decided in Feb. 2016 that the CBD petition did meet the scientific prerequisite of ESA section 3. However, the administration has not yet acted on the merits of the petition. One explanation for FWS’s handling of it may be that a decision whether to “uplist” African elephants from threatened to endangered status is not included in the current agency workplan.

Sanerib expressed a belief that the Obama administration has mostly been focused on establishing regulations, called 4d rules after the section of the ESA that authorizes them, to govern trade in elephant ivory and so has not yet prioritized the listing petition.

“I’m not sure that it was necessarily an intentional step by the administration,” she said.

The 4d rule for African elephants, which was finalized on June 6, does largely prohibit the import of ivory into the United States. However, the regulation is not airtight. So-called “de minimis” quantities of ivory are not covered; neither are quantities of ivory that are more than 100 years old, ivory used in certain musical instruments or that is part of some “traveling exhibitions,” law enforcement, or scientific research.

“The U.S. and China have committed to these near-bans on ivory in our domestic markets,” Sanerib explained.

If the African elephant species are listed as endangered, those bans would become far more rigid. Under section 9 of the ESA, essentially all import, export, sale, or transportation of an African elephant, or of its body parts, would be illegal in the United States.

About 100,000 African elephants were killed between 2010-2012. The number of elephants in Africa has declined from an estimated three to five million at the end of the nineteenth century.

Sanerib said that she is not sure whether any litigation that aims to force FWS to make a decision about whether to recognize two species of African elephant and grant both endangered status will be filed before the end of the Obama administration.

“Given the need to send notice letters by certified mail, I think it’s incredibly likely that we will be dealing with the Trump administration on this,” she said.

UPDATE, Nov. 18, 2016, 10:48 pm MST: The discussion of the section of the Endangered Species Act provision relating to FWS’ obligations when presented with a petition to list a species was corrected. The author had inaccurately cited the section number of the statute and erred in stating that FWS has 30 days to evaluate a petition.

 

 

9th Circuit: ESA permits consideration of future climate change impacts in listing decisions

bearded Seal, Erignathus barbatus, , NOAA
Ice is vital to the survival of bearded seals in the Arctic. Image courtesy NOAA.

A federal appeals court ruled Oct. 24 that federal wildlife officials can consider future climate change impacts when deciding whether to grant Endangered Species Act protections.

The decision by the U.S. Court of Appeals for the Ninth Circuit in Alaska Oil & Gas Association v. Pritzker came in a dispute over the Obama administration’s move to add a population of Pacific bearded seals in Alaska to the list of threatened and endangered species.

“This is a huge victory for bearded seals and shows the vital importance of the Endangered Species Act in protecting species threatened by climate change,” Kristen Monsell, a staff attorney at the Center for Biological Diversity who argued the case, said in a statement.

The bearded seal (Erignathus barbatus)  is a pinniped that is native to both the Arctic and North Atlantic oceans. The Pacific bearded seal (E.b. nauticus), a subspecies, is found in marine environments around the Arctic region.

E.b. nauticus is not a deep water species. Instead, as explained by the Alaska Department of Fish & Game, “[t]he distribution of bearded seals appears to be strongly associated with shallow water and high biomass of the benthic prey they feed on. They are limited to feeding depths of less than 150–200m.”

The Pacific bearded seal uses ice floes as a platform for mating, birthing, and nursing of their pups and the subspecies is an important food source for polar bears, killer whales, and Pacific walrus.

bearded-seal-range-map-courtesy-noaa
This map shows the range of the bearded seal. Graphic courtesy NOAA.

In 2008 the Center for Biological Diversity asked the National Oceanic & Atmospheric Administration, an agency of the U.S. Department of Commerce that is responsible for marine mammal conservation, to list two distinct population segments of E.b. nauticus – one native to the Sea of Okhotsk, another native to the Bering and Chukchi Seas – and two other seal species native to Alaskan waters as threatened under the ESA.

NOAA finalized the listing in December 2012, explaining its decision as a necessary response to ongoing human alteration of the planet’s climate:

“The main concern about the conservation status of bearded seals stems from the likelihood that their sea ice habitat has been modified by the warming climate and, more so, that the scientific consensus projections are for continued and perhaps accelerated warming in the foreseeable future. A second concern, related by the common driver of carbon dioxide (CO2) emissions, is the modification of habitat by ocean acidification, which may alter prey populations and other important aspects of the marine ecosystem.”

Before finalizing the listings, NOAA commissioned a report to examine the conservation status of Pacific bearded seals. Published in 2010, that report used data from the Fourth Assessment Report of the Intergovernmental Panel on Climate Change to conclude that E.b. nauticus would experience enough loss of its favored shallow water ice floe habitat during the species’ mating, birthing, and nursing seasons to be at risk of extinction by the latter part of this century.

The state of Alaska, an oil and gas industry association, and a native Alaskan government sued the Obama administration in federal court in Anchorage in an effort to overturn the listing of both E.b. nauticus populations. Their challenge to the Okhotsk DPS failed because U.S. district judge Ralph R. Beistline held that the plaintiffs lacked standing. That ruling was not challenged on appeal.

As for the Beringia DPS, the plaintiffs main line of legal attack was that the listing was not based on the “best scientific and commercial data available,” as required by 16 U.S.C. § 1533(b)(1)(A). They supported that claim with assertions that there is, at present, a fairly high number of individuals in that population, the size of the population at which extinction would become a realistic threat is not known, that use of climate models to project sea ice conditions past 2050 is not permitted by the ESA, and that NOAA had not shown a connection between seasonal sea ice loss and the continuing viability of the Beringia DPS of E.b. nauticus. The industry-led coalition also pointed to NOAA’s refusal to consider sea ice losses in listing decisions involving other species.

The federal appeals court panel, in an opinion written by Judge Richard A. Paez, had little difficulty in rejecting the arguments. Paez pointed out that the Ninth Circuit has held, in a Feb. 2016 opinion rejecting another ESA challenge brought by AOGA, that IPCC climate models do represent “best available science” and that the U.S. Court of Appeals for the District of Columbia Circuit has also rejected arguments that IPCC models cannot be used in connection with ESA listing decisions.

The panel emphatically rejected the argument that a lack of certainty inherent in the climate models NOAA used renders them useless as a foundation for a listing decision:

“The fact that climate projections for 2050 through 2100 may be volatile does not
deprive those projections of value in the rulemaking process. The ESA does not
require [the agency] to make listing decisions only if underlying research is ironclad and absolute.”
Monsell pointed out that the Ninth Circuit panel’s decision solidifies the role of climate science in making decisions about implementing the ESA, at least in cases of organisms dependent on frozen Arctic habitats.

“The court firmly affirmed the notion that there’s no debate that temperatures will continue to increase over the remainder of the century and that the effects will be particularly acute in the Arctic,” she said. “It affirmed the notion that the scientific consensus accepted by an overwhelming majority of climate scientists, is that Arctic sea ice will continue to recede through 2100.”

Spokespersons for both AOGA and the state of Alaska told Alaska Dispatch News on Oct. 24 that those entities will consider whether to seek en banc review of the panel decision in Alaska Oil & Gas Association v. Pritzker or whether to ask the U.S. Supreme Court to review the case.

Monsell said that she does not think such further review is likely.

“En banc petitions are rarely granted and cert petitions are granted even less frequently,” she explained. “We think the Ninth Circuit opinion is well-reasoned, the right one under the law, and will be upheld and that it’s unlikely to even be reconsidered.”

One of the first disputes that may be affected by the Ninth Circuit’s decision in the bearded seal case is a challenge to the listing of the Arctic subspecies of ringed seal (Phoca hispida hispida) as a threatened species. CBD included P.h. hispida in the same petition that asked for the listing of E.b. nauticus.

NOAA listed P.h. hispida as threatened in December 2012 and, as they did in response to the designation of the Pacific bearded seal as threatened, the oil industry and several native Alaskan organizations challenged that action in federal court.

In March 2016 U.S. district judge Ralph R. Beistline ruled, as he had in the challenge to the bearded seal listing, that NOAA’s use of climate science models to project habitat loss later in the 21st century is inconsistent with the ESA’s mandate to use only the “best available scientific and commercial data available” when making listing decisions.

Monsell said that she is optimistic that the Ninth Circuit will reverse Beistline’s decision in the Arctic ringed seal case, too.

“There’s a stronger case for listing the ringed seal in some ways because of the unique habitat needs,” she explained. “Ringed seals, unlike other seal species, dig snow caves and they need not only a certain amount of ice, but also a certain amount of snow on top of the ice to build them.”

The legal limbo to which NOAA’s sister wildlife agency, the U.S. Fish & Wildlife Service, consigned Pacific walrus (Obodenus rosmaurs divergens) in 2011 may also be affected. USFWS specified that O.r. divergens is a candidate for ESA listing on grounds that it lacks the resources to do the work needed to add the animal to the federal list of threatened and endangered species.

A July 2011 litigation settlement agreement between USFWS and CBD requires USFWS to make a decision about listing the Pacific walrus before the end of August 2017.

Not all organisms affected by ongoing human alteration of the atmosphere are found in the Arctic. USFWS is likely to face decisions about whether to list other species that are likely to lose habitat, and which may already be experiencing habitat loss, as climate change proceeds.

Monsell pointed to the American pika (Ochotona princeps), a subspecies of moose (Alces alces andersoni) that is native to the upper Midwest, and the wolverine (Gulo gulo) as examples of American wildlife species that may now be more likely to be added to the federal list of threatened and endangered species as a result of the decision.

USFWS has twice rejected petitions to add the American pika to the list of threatened or endangered species, most recently last month. But new research indicates that O. princeps will suffer as rising temperatures affect their high elevation habitat. A paper published earlier this year concluded that the tiny relative of the rabbit is likely to be extirpated in at least some of its refuges scattered around mountainous areas of the West.

“The consensus of all the projections is decline,” Dr. Chris Ray, a biologist at the University of Colorado at Boulder’s Institute for Arctic and Alpine Research who has extensively studied the species, said. “I would hazard an estimate that most projections under moderate climate scenarios project maybe a loss of at least 50 percent of the suitable habitat during this century.”

Unfortunately, the plight of the pika also indicates that currently available climate models may not help scientists assess conservation prospects for every species.

Ray explained that biologists do not yet understand enough about the impacts of a warming atmosphere on the sub-surface habitat pikas depend upon to escape daytime heat.

“We don’t necessarily have enough information about the process by which pikas are affected by climate or other stressors,” she said. “We don’t understand the process well enough to model them in great detail.”

american-pika-courtesy-wikimedia
The American pika is native to the mountains of the west and is usually found in boulder fields above treeline. Image courtesy Wikimedia.

That uncertainty has also been a barrier to securing ESA protection for  the wolverine.

Opponents of a listing argued that models of future snow cover, an indication of habitat quality for the species, are too unreliable.

USFWS ultimately backed away from an earlier proposal to designate G. gulo as threatened because, among other reasons, the agency did “not have sufficient information to understand the specific response of wolverines to future effects of changes in climate.”

A U.S. district judge in Montana rejected that rationale in April 2016. In his decision, Judge Dana Christensen ordered USFWS to reconsider its decision to deny the wolverine ESA protection. He emphasized that federal wildlife agencies are to take a proactive approach to species conservation under the ESA:

“It is the undersigned’s view that if there is one thing required of the Service under the ESA, it is to take action at the earliest possible, defensible point in time to protect against the loss of biodiversity within our reach as a nation.”

As for the moose of the upper Midwest, USFWS decided in June that the population of the animal in Michigan, Minnesota, North Dakota, and Wisconsin is a candidate for addition to the list of threatened and endangered species.

 

Obama talks conservation in Nevada and Hawaii

President Barack Obama spoke Wednesday about the virtues of conservation before audiences at Lake Tahoe and in Honolulu, emphasizing the connection to fighting climate change and highlighting its benefits to wildlife and people.

Addressing the annual Lake Tahoe Summit, the chief executive explained that public policies aimed at conserving land and waters are essential to the entire range of Earth’s biodiversity.

“Conservation is critical not just for one particular spot, one particular park, one particular lake,” Obama said. “It’s critical for our entire ecosystem.”

The President told the audience that there is no doubt that human activities are causing the planet’s climate to change and, later in the speech, bluntly warned that any meaningful effort to address climate change must include preservation programs:

“A changing climate threatens even the best conservation efforts. Keep in mind, 2014 was the warmest year on record until, you guessed it, 2015. And now 2016 is on pace to be even hotter. For 14 months in a row now, the Earth has broken global temperature records. And because climate and conservation are challenges that go hand in hand, our conservation mission is more urgent than ever.”

Obama addressed the twentieth annual gathering of federal, state, and local leaders involved in ongoing efforts to protect Lake Tahoe’s water quality and aquatic life.

Emerald Bay, Lake Tahoe - photo courtesy Wikimedia
Lake Tahoe’s Emerald Bay is shown in this photograph. Image courtesy Wikimedia.

The lake, which is the largest alpine lake and second deepest lake in the nation, is warming rapidly as greenhouse gas emissions accumulate in the atmosphere. According to a report released by the University of California, Davis’ Tahoe Environmental Research Center, during 2015 Lake Tahoe’s surface reached a temperature higher than at any time in recorded history.

Water at greater depths is also warming as fast as 15 times greater than the historic norm and only about 6.5 percent of precipitation in the 6,000 foot-plus elevation Lake Tahoe ecosystem now falls in the form of snow.

Since the first Lake Tahoe Summit in 1997, governments have spent more than $1.8 billion on projects aimed at restoring wetlands, building transportation infrastructure, improving roads to reduce carriage of polluted runoff into the lake, and lower wildfire risks in the national forest that surrounds the lake.

The administration announced Wednesday that the administration would invest more than $29 million more into Lake Tahoe-related conservation efforts during the coming fiscal year.

A fact sheet released by the  White House said that the money would finance ongoing programs to reduce the number of dead and dying trees to reduce the likelihood of wildfire and improve stormwater systems.

In addition, the National Forest Foundation will pump at least $4 million into efforts to restore watersheds and assure that recreational activities are consistent with the region’s ecological health.

The administration also announced a draft of a compensatory mitigation policy that would allow individuals and entities to trade habitat for endangered and threatened species for credits that could be sold to developers.

The tool, called a habitat exchange, has been used in efforts to conserve a number of imperiled species. They include the monarch butterfly, greater sage grouse, and lesser prairie chicken.

“By adding habitat exchanges to the suite of preferred mitigation solutions, the Service is providing a foundational step to unleash the untapped potential of America’s working lands – its farms, ranches and forests – to reverse habitat loss and stop the extinction crisis,” Eric Holst, an associate vice president at Environmental Defense Fund, said in a statement.

Later in the day Obama spoke to leaders of Pacific Rim nations attending the International Union for Conservation of Nature World Congress in Hawaii.

His address there took on a personal tone. The President emphasized the need for a unified approach to climate change policy.

“When it comes to climate change, there is a dire possibility of us getting off course, and we can’t allow that to happen,” Obama said. “That’s why our united efforts are so important.”

Referring to the convention facility in Honolulu, he also spoke of his personal ties to Hawaii:

“[F]or me, this is especially meaningful. I was telling my staff, a lot of my life started about a mile from around here. My mother and father met probably a couple hundred yards from here. It’s true. I went to school about a mile from here. I was actually born about a mile from here. My grandmother and my grandparents lived most of their lives a short way away from here.

“And so since Malia was born, since my oldest child was born, I’ve brought them here every Christmas for the last 18 years now. And I want to make sure that when  they’re bringing their children here, or their grandchildren here, that they are able to appreciate the wonders and the beauty of this island and of the Pacific, and every island.”

Obama planned to visit Midway Atoll on Thursday. While there, the President is to see some of the ocean territory included in a marine national monument he expanded  an executive order issued last week.

 

Bush-era mining rule struck down

A federal district judge has ruled that the administration of former President George W. Bush violated the Endangered Species Act when it weakened a mining regulation in a way that allowed streams and rivers in Appalachia to be filled with debris from mountaintop removal.

The court held Thursday that the Office of Surface Mining Reclamation and Enforcement, an agency of the U.S. Department of Interior, should have consulted with the U.S. Fish & Wildlife Service about the impact of the change to the regulation on endangered and threatened wildlife in Appalachia.

“Faced with clear evidence that habitats within stream buffer zones are home to threatened and endangered species and that mining operations affect the environment, water quality, and all living biota, OSM’s determination that the revisions to the stream protection rule encompassed by the 2008 [r][ule would have no effect on threatened and endangered species or critical habitat was not a rational conclusion,” Judge Barbara Rothstein wrote.

Issued under the authority of the Surface Mining Control and Reclamation Act, the principal federal law affecting coal mining, the 2008 regulation replaced a prior regulation that had been in effect since 1983. Under the earlier Stream Buffer Zone Rule, mining companies could not obtain a waiver allowing the deposit of debris into streams or rivers unless the discharge would “not cause or contribute to the violation of applicable State or Federal water quality standards, and will not adversely affect the water quantity and quality or other environmental resources of the stream.”

The 2008 regulation eliminated that constraint on OSM’s discretion to grant a waiver, substituting for it language that allowed much more latitude to lower the water quality of Appalachian streams and rivers: “The permit application must demonstrate, and the regulatory authority must find, that avoiding disturbance of the stream is either not reasonably possible or not necessary to meet the fish and wildlife and hydrologic balance protection provisions of the regulatory program.”

The Bush-era regulation also exempted certain mining activities from water pollution limitations altogether, including the diversion of streams and the construction of excess spoil fills, if OSM concluded that “avoiding disturbance of the stream is not reasonably possible.”

The term “spoil fill” refers to the mound of soil, rock, and other debris removed from the mining area in order to open up access to the material sought.

The goal of mountaintop removal mining is the removal of coal.

Judge Rothstein rejected an argument by the National Mining Association that OSM could rely on a 1996 biological opinion by FWS that determined the agency’s regulations  would not be likely to harm species listed under the ESA.

She also refused to remand the 2008 regulation to OSM, which would have enabled it to remain in effect while consultation with FWS occurred, holding instead that the regulation must be vacated. That decision means that OSM will have to start its rulemaking process over again if the Obama administration determines that it wants to loosen the constraints imposed by the 1983 regulation.

The 2008 OSM regulation struck down Thursday was a “midnight rule,” one of many regulations proposed and finalized by the Bush administration during the weeks between President Barack Obama’s election and his inauguration on Jan. 20, 2009. It went into effect just eight days before Obama took office.

A study of the environmental impacts of mountaintop removal mining completed by the U.S. Environmental Protection Agency in 2005 concluded that the practice buried or damaged almost 2,000 miles of Appalachian streams and rivers since the mid-1970s.

The case is National Parks Conservation Association v. Jewell, No. 09-00115.