Colorado predator control decision sparks controversy

Cabinet
This undated photo shows a mountain lion resting in a tree somewhere in Colorado. Image courtesy Colorado Parks & Wildlife.

The  Colorado commission responsible for management of wildlife decided Dec. 14 to approve a program demanding that up to 15 more mountain lions and 25 more black bears be killed every year.

Individual animals will first be captured by U.S. Department of Agriculture Wildlife Services employees with cage traps, culvert traps, foot snares, and hunting dogs. They will then be shot.

Killings will largely occur in the Arkansas River and Piceance basins.

The predator control plan is intended to prop up the number of mule deer available for hunters to target. At present the population of mule deer is at about 80 percent of that considered desirable by Colorado wildlife officials.

Mule deer have been declining throughout the west since the 1980s.

Loss of habitat to livestock grazing, expansion of human development in rural areas, and the impacts of oil and gas exploration are considered to have a greater impact on the number of mule deer in the state than does the population of mountain lions and black bears.

CPW has not denied that these factors may have far more to do with mule deer declines than predator populations.

“We acknowledge that any and all those things can have an effect on mule deer,” Jeff Ver Steeg, the agency’s assistant director for research, policy, and planning, told commissioners at the Dec. 14 meeting.

Conservationists and scientists have sharply criticized the decision by the Colorado Parks & Wildlife Commission.

Aubyn Royball, Colorado state director for the Humane Society of the United States, told commissioners that their decision would cause the inevitable death of numerous cubs and kittens.

In a letter dated Nov. 30, 21 biologists accused the commission of considering a program that lacks validity as an effort to understand the relationship between predators and prey species and that violates the state’s legal requirement to manage wildlife as a public trust.

Colorado Parks & Wildlife, the agency under the commission’s oversight, relies heavily on the sale of hunting and fishing licenses for revenue. The agency relies on that source of funds for about 90 percent of its revenue.

CPW’s total budget in fiscal year 2015 was about $213 million. The agency has experienced a cut of about $50 million since 2009.

The experimental predator control program approved Dec. 14 would cost taxpayers about $4.5 million over nine years.

CPW said in October that it expects a budget shortfall of between $15-23 million by 2023. It has proposed increasing hunting license fees.

Hunters kill more than 450 mountain lions and more than 1,350 black bears every year in Colorado.

CPW estimates that there are about 17,000 black bears and about 4,500 mountain lions in the state.

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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.

 

Forest Service slaps Idaho wildlife agency for collaring wolves in wilderness area

The supervisor of an Idaho national forest has declared that the Gem State’s fish and wildlife agency violated a permit allowing use of a helicopter in the Frank Church-River of No Return Wilderness area by collaring wolves.

Salmon-Challis National Forest supervisor Chuck Mark entered an order of noncompliance on Wednesday.

“Helicopter landings in the Frank to collar wolves were not authorized, and constitute noncompliance with the terms and conditions of the permit,” Mark said.

Idaho’s Department of Fish & Game had been granted the permit on Jan. 6 so that the agency could collar elk in the Middle Fork section of the wilderness area. That operation was started on Jan. 7 and finished Jan. 9.

Environmental advocacy organizations have filed a lawsuit challenging the permit as a violation of the Wilderness Act. They also sought an injunction that would prevent the helicopter flights. No hearing on that request has occurred.

Four wolves were collared in violation of the permit granted to IDFG. Mark’s order of noncompliance does not require those collars to be removed. Instead, IDFG must “provide information as to how and why the decision to collar the wolves was made,” “participate in an after-action review with the Forest Service” during which the two agencies will examine why the helicopter landings to collar wolves in the wilderness area occurred, and “develop a plan to assure that IDFG will not utilize helicopter landings in the wilderness for any purposes other than those for which the Forest Service specifically approves landings in any future permits that may be issued.”

IDFG notified the Forest Service of the violation. The state agency called the wolf collaring incident a “mistake.”

The environmental group plaintiffs in the litigation pending before U.S. district judge B. Lynn Winmill have amended their complaint to ask that the court bar IDFG from using collar data to track wolves.

“There is every reason to believe that these new wolf collars will be used by a state trapper to locate wolves for the purpose of killing them in pursuit of a program to manipulate wildlife populations that is fundamentally at odds with the concept of wilderness,” Tim Preso, an attorney at Earthjustice who represents the environmental advocacy organizations, said in a statement.

Obama administration rejects petition to list gray wolf

The gray wolf (Canis lupus) is hunted in several western states. Photo courtesy U.S. Fish & Wildlife Service, photo by Gary Kramer.
The gray wolf (Canis lupus) is hunted in several western states. Photo courtesy U.S. Fish & Wildlife Service, photo by Gary Kramer.

The U.S. Fish and Wildlife Service has turned away an attempt to secure Endangered Species Act protection for all gray wolves in the country.

In a Federal Register notice published July 1, the agency said that a petition to classify Canis lupus as a threatened species throughout the country did not provide enough scientific support to justify the move.

“We are disappointed in the Fish and Wildlife Service’s decision not to consider this middle-ground approach to wolf management,” Michael Markarian, a spokesperson for the Humane Society of the United States, said in a statement. “A threatened listing is a reasonable compromise to this contentious issue, and it retains some federal protection for wolves, while providing more flexibility to the states in dealing with the occasional problem wolf.”

HSUS, along with 21 other animal welfare and environmental organizations, had asked FWS in January to designate the gray wolf as a threatened species under the Endangered Species Act.

The petition argued that hunting of gray wolves, especially in several western states, is likely to undermine recovery goals for the species.

Gray wolves are classified as endangered in much of the nation, but not in the states where most of their habitat actually exists. In Idaho, Montana, Oregon, and Washington the species is not protected by the ESA.