State lawmakers urge feds to move on lynx recovery |

State lawmakers urge feds to move on lynx recovery

BOB BERWYNsummit daily news

SUMMIT COUNTY – With Colorado’s lynx re-introduction program showing early signs of suceess, state lawmakers want the federal government to stop dragging its feet and complete a recovery plan that would provide a road map for ultimately delisting the wild cat, listed as threatened under the federal Endangered Species Act.A joint resolution in the Colorado House and Senate urges the U.S. Fish and Wildlife Service to “promptly adopt a formal recovery plan for the Canada lynx that clearly identifies recovery goals and the steps required to achieve recovery of this native Colorado cat.”House Joint Resolution 06-1022 has broad co-sponsorship from across the state, but it’s not clear if the Legislature will get around to voting on the measure during the last few hectic days of the session. “The Division of Wildlife has worked long and hard to effectively do the reintroduction program only to be thwarted by the U.S. Fish and Wildlife Service … bureaucracy,” said State Rep. Gary Lindstrom of Breckenridge.”I am getting sick and tired of the anti-environmental attitude of the federal government. It is my understanding that the opponents (of the House resolution) now are the sheep growers. I think that their fears are not well founded and that they are being obstructionists. We need to move forward post haste,” Lindstrom said. “Even if the lynx is delisted there must be a recovery program before that happens. It appears that the federal government is not doing anything or enough to assist in the recovery program.”Federal action on lynx recovery has been bogged down in a morass of adminstrative and legal proceedings, including a painfully slow effort by the U.S. Forest Service to develop a set of forest plan standards and guidelines for national forests in the Southern Rockies where lynx roam. The agency has been working on those measures for about six years, with leadership of the project being handed around like a hot potato.Most recently, the fish and wildlife service, responsible for managing endangered and threatened species, released – under order of a federal judge – a draft critical habitat plan that didn’t include Colorado and the rest of the Southern Rockies.State lawmakers are not looking for a critical habitat designation in Colorado. In fact, the hope is that a clearly defined recovery plan that acknowledges Colorado’s reintroduction program could lead to a de-listing, a move that would remove the potential for any draconian land use restrictions.Conservation groups, on the other hand, say that protecting habitat is the key missing piece of the lynx recovery puzzle.Protected habitat is needed to enable a connection among pods of lynx populations to create functional metapopulations and to protect against foreseeable threats like global climate change, highway expansions and development in lynx habitat, including ski area expansions, oil and gas drilling, as well as logging and mining, a coalition of conservation groups wrote in a formal comment letter on the draft federal habitat plan.For more Summit Daily lynx stories and a video of a recent lynx release, go to view the Colorado Legilsature’s lynx resolution, go to the latest U.S. Fish and Wildlife Service information on the lynx critical habitat draft plan, go to more information on the Forest Service’s Southern Rockies lynx plan, go to Berwyn can be reached at (970) 331-5996, or at

Re: Proposed Critical Habitat Rule for Canada LynxCENTER FOR NATIVE ECOSYSTEMS1536 Wynkoop, Suite 302Denver, Colorado 80202303.546.0214cne@nativeecosystems.orgwww.nativeecosystems.orgFebruary 7, 2006Field Supervisor, U.S. Fish and Wildlife ServiceMontana Ecological Services Office100 N. Park Avenue, Suite 320Helena, MT 59601Fax: 406-449-5339fw6_lynx@fws.govAttn: lynx commentsTo Whom It May Concern:We submit these comments on the proposed critical habitat rule for Canada lynx on behalf of the undersigned organizations and our thousands of members across Colorado and the United States. In short, we strongly support the designation of critical habitat for lynx because of the importance such designations play in providing for the recovery of listed species. We are extremely disappointed, however, that the proposal entirely excludes key habitat across the range necessary for the lynxs recovery, including the Southern Rockies region, the one region in which a successful lynx recovery effort is currently under way. To remedy these biologically and legally indefensible flaws, the U.S. Fish and Wildlife Service (FWS) must adopt a final rule designating a substantially greater area of key lynx habitat as critical habitat than would the current proposal.Our more specific comments are as follows:1. The Endangered Species Act (Act) requires FWS to designate all lands required for recovery.Although we recognize that precisely identifying those areas required for biological recovery, as required by the Act, presents a challenge, this does not obviate FWS need to adopt a critical habitat representing the best available scientific information on the issue. This proposed rule flatly fails to do so. In fact, this rule fails even to include those areas where lynx are currently known to exist and reproduce. The critical habitat designation must include both occupied and suitable but unoccupied habitat required for recovery. Primary considerations should include: 1) opportunities to connect lynx population centers into functional metapopulations; 2) opportunities for lynx to expand into other areas of suitable habitat to improve resilience and genetic diversity; 3) opportunities for lynx to establish home ranges and expand their range into currently suitable but unoccupied habitat; and 4) protection against all foreseeable threats such as global climate change, highway expansion and construction, and development in lynx habitat, ski area expansions, energy exploration and development, logging, mining, trapping and shooting, and other activities.The current scientific knowledge on lynx habitat and recovery needs, while not complete, is sufficient to establish a scientifically and legally appropriate critical habitat designation that ensures sufficient habitat is protected for recovery.2. The Act requires FWS to designate as critical the lands necessary for the recovery of the species; it is biologically and legally improper to eliminate lands because they are not now house a viable lynx population.Critical habitat designation covering only lands with occupied breeding populations is contrary to the Endangered Species Act and its implementing regulations requiring that critical habitat designations be sufficient to recover species. The standard is species recovery. Absence or presence is simply not a legitimate criterion, as lynx may need to expand into areas not currently occupied to secure their future survival and recovery. Thus the elimination of substantial portions of known historic lynx habitat because it is not currently occupied is unlawful and biologically indefensible. Even more inexplicable and indefensible is FWS elimination of the current Southern Rockies population from consideration because of current uncertainty that a self-sustaining lynx population will become established. The lynx recovery effort spearheaded by Colorado Division of Wildlife has resulted since it began in 1999 in a large number of adult lynx roaming across Colorado, Wyoming, New Mexico, and even Utah and the birth of more than 100 lynx kittens in the wild. The critical missing component for ensuring long-term viability is ensuring that key lynx habitat is adequately protected. This critical missing component is, in other words, precisely the habitat protection that would be provided by a critical habitat designation.The importance of designating critical habitat in the Southern Rockies is underscored by the proposal, currently being contemplated by the U.S. Forest Service, to allow construction of a 10,000 person city in the middle of a critical lynx movement corridor near Wolf Creek Pass, Colorado. Without critical habitat, the question before FWS and the Forest Service in assessing the projects impacts is whether the proposal will jeopardize the continued existence of Canada lynx. Because there is no critical habitat, FWS will almost certainly approve the project (potentially with some required mitigations) despite its potentially severe impacts to lynx movement through this key corridor. If this area was protected by critical habitat, FWS and the Forest Service would instead consider if the proposal would adversely modify the critical habitat, a substantially more protective standard that would likely ensure the continued biological integrity of the corridor.3. FWS incorrectly assesses the value of critical habitat designation; critical habitat plays a key role in the protection and recovery of listed species.FWS asserts, in its now-traditional critical habitat disclaimer language, that in most circumstances, the designation of critical habitat is of little additional value for most listed species. 70 Fed. Reg. 68295. The facts simply do not support this assertion. Critical habitat imposes a distinct standard for use during consultations between FWS and federal action agencies. When consultation occurs, action agencies and FWS are required to avoid adverse modification of critical habitat as opposed to the much lesser standard, in force where there is no critical habitat, of avoiding jeopardizing the continued existence of the species in question. These standards are different on their face and, as multiple federal courts in multiple circuits have plainly and expressly found, they are different in their application as well. The biological data bear this out. Based on FWS own data, species with critical habitat are less likely to be declining and more than twice as likely to be recovering than those without critical habitat. We incorporate by reference the attached document Bush Administration Attacks Endangered Species Act with additional information on the value and importance of critical habitat. We also incorporate by reference and attach Taylor et al. (2005), a recent published study quantifying some of these benefits of critical habitat (Taylor, Marin F., Kieran F. Suckling, and Jeffrey J. Rachlinksi, The effectiveness of the Endangered Species Act: A quantitative analysis. BioScience 55(4), April 2005.) 4. FWS cannot exclude habitat on the basis of adoption of land use plan amendments by federal land management units.While the adoption of forest plan amendments targeting lynx management might provide a conservation benefit to the species, it is unlawful for FWS to rely on such amendments as a basis for excluding areas from critical habitat protection. Such amendments do not provide any assurance that whatever level of protection they provide will be sustained for any length of time, much less for long enough to secure recovery and delisting, since they may be amended at any time by the land management agency in question. Land management agencies cannot ensure that funding and political desire will be sufficient for full implementation of the identified conservation measures, nor that such measures will be effective at providing for lynx recovery, nor that funding for monitoring will be sufficient to assess their effectiveness and improve it where needed. Moreover, even if such assurances were possible, these amendments rarely provide a comparable level of protection. It was for these reasons, in fact, that the courts have specifically rejected precisely this logic. In his ruling dated January 13, 2003, for example, U.S. District Court Judge David C. Bury ruled against the U.S. Fish and Wildlife Service for the same interpretation of critical habitat regulations pertaining to the Mexican spotted owl. Judge Bury wrote:Defendant [Interior Secretary Gale Norton] and FWS have been told by no fewer than three federal courts, including the Ninth Circuit, that its position is untenable and in contravention of the ESA. Nonetheless, with apparent disregard of the courts, Defendant decided not to designate critical habitat on FS lands or those of the Navajo Nation and Mescalero Apache in Arizona and New Mexico on the basis that adequate plans were already in place and additional protection was unnecessary. This argument has already failed three times, and it fails again here.(Center for Biological Diversity v. Gale Norton, Arizona District Court, CV 01-409 TUC DCB).At best, the notion that land use plan amendments will be sufficient to restore lynx across a region is a working hypothesis, not a legitimate basis on which to exclude agency lands from the critical habitat designation The proposed amendments in the Forest Services Region 2, for example, while loosely based on the Lynx Conservation Assessment and Strategy, incorporated such sweeping exemptions to its original provisions that, if adopted, would provide little conservation benefit to lynx of any kind. Not only would this regionwide forest plan amendment fail to match the level of protection afforded by critical habitat designation, it would be unlikely to provide any considerable conservation benefit to lynx, and would almost certainly fail to advance lynx recovery.5. FWS cannot exclude habitat on the basis of adoption of conservation agreements by federal land management agencies.For similar reasons, FWS cannot exclude land on the basis of conservation agreements with other federal land management agencies or other entities. In fact, the conservation agreements provide even less protection, fewer assurances of long-term implementation, and an even lower likelihood of resulting in conservation benefits to lynx (much less providing for actual recovery, as required by the Act).6. Protection of lynx habitat in the Southern Rocky Mountains is essential to the recovery of Canada lynx.The Southern Rocky Mountains, as clearly articulated and documented by the Lynx Science Report, the Lynx Conservation Assessment and Strategy, and other documents (e.g., the attached memo, incorporated by reference, from FWS Colorado Field Office to their Montana Field Office, indicating that lynx are believed to have been historically comparatively common in portions of each major geographic area), constitutes a key portion of the lynxs range. This is due, in part, to the significant proportion of the lynxs overall range represented by the Southern Rockies. This is consistent with the best available scientific information as synthesized in the documents noted above as well as other newer documents on the historic range and distribution of lynx. In fact, a new study (Frey, Jennifer. Inferring species distributions in the absence of occurrence records: An example considering wolverine and Canada lynx in New Mexico. Biological Conservation. In press.) clearly concludes that the mountains of north-central New Mexico should be considered within the natural range of wolverine and lynx. We are attaching the study and incorporating it by reference. The habitat is clearly sufficient to support reproduction, as evidenced by several years of successful reproduction by reintroduced lynx. There is an increasing body of scientific evidence highlighting the importance of populations on the periphery of the core population, which applies to some populations of lynx (e.g., Southern Rockies) insofar as they represented the periphery of the overall range. We cite a passage from an Endangered Species Act listing petition for the Black Hills dipper discussing this issue:As an isolated and peripheral population, the Black Hills population of American dipper is most likely extremely important for the survival and evolution and to the overall conservation of the taxon. A number of studies have addressed the characteristics of peripheral and isolated populations and their potential influences on and importance to the remainder of a taxon. Peripheral and isolated populations may experience increased directional selection due to varied habitats or species compositions, exhibit adaptations specific to these different selective pressures, demonstrate genetic consequences of reduced gene flow, and have different responses to human impacts.Biodiversity Conservation Alliance et al., Petition to List the Black Hills DPS of American Dipper, March 2003, citations omitted). Although not attached, we incorporate by reference that document as well (and are happy to provide a copy on request). The proposed listing rule for lynx further substantiates this factor (62 Fed. Reg. 28653, 28654). Finally, given the challenge of recovering lynx across its range such that it meets biological recovery criteria and can be removed from the Endangered Species Act list, it is nonsensical to dismiss and entirely exclude the Southern Rockies from the critical habitat designation. The comment letter submitted by Center for Native Ecosystems et al. (April 29, 2004, attached and incorporated by reference) to the U.S. Forest Service regarding the Draft Environmental Impact Statement for the Southern Rockies Canada Lynx Amendment further elucidates these issues.7. FWS should include additional habitat in the critical habitat designation than might otherwise appear necessary to accommodate the potential impacts of global climate change.The potential negative impact of global climate change on lynx means that the agency should err on the side of protecting more unoccupied habitat than might otherwise appear necessary (as opposed to less than appears necessary, as does the current proposal). A recovery-based standard should incorporate, as a baseline condition, the likely effects of climate change on the species, and hence designate additional unoccupied habitat that the species could, and to recover, may need to, expand into under likely climate change scenarios. This must include habitat required to accommodate shifts in range as well as movement corridors to provide for those long-term shifts. Moreover, the potential for adverse effects from climate change reinforces the importance of conserving all of the areas where the Service knows that lynx populations have existed (e.g., the Southern Rockies).8. FWS must correct the deficiencies and adopt a final critical habitat rule within its current legal deadline.FWS must correct the severe deficiencies of the proposed critical habitat rule and adopt a final biologically and legally sufficient rule within its current legal deadline (as imposed by law and by the courts), namely within one year of publishing the proposed rule. FWS appears to believe that it is allowed to contract critical habitat designations from what was proposed without going through a new round of public comment but cannot expand without doing so. This is without basis in law and, in any case, the Service can correct the deficiencies in this proposed rule and provide for a new public comment period on a corrected proposal while still meeting its non-discretionary deadline obligations for a final critical habitat rule.We appreciate your careful consideration of these comments and look forward to a final critical habitat designation that is consistent with the requirements of both biological recovery and the law.Sincerely,Jacob Smith, Executive DirectorCenter for Native Ecosystems1536 Wynkoop St., Suite 302Denver, Colorado 80202and:Wendy Keefover-Ring, Carnivore Protection DirectorSinapu1911 11th Street, Ste. 103Boulder, CO 80302Sloan Shoemaker, Executive DirectorWilderness WorkshopP.O. Box 1442Carbondale, Colorado 81623Christine Canaly, Executive DirectorSan Luis Valley Ecosystem Council P.O. Box 223 Alamosa, CO 81101 Jeremy Nichols, Wild Species Program DirectorBiodiversity Conservation AllianceP.O. Box 1512Laramie, Wyoming 82073Rocky Smith, Forest Watch Campaign DirectorColorado Wild1030 Pearl St., #9Denver, Colorado 80203Sandy Shea, Public Lands Director High Country Citizens’ AllianceP.O. Box 1066 ~ 724 Elk AvenueCrested Butte, Colorado 81224Mark Pearson, Executive DirectorSan Juan Citizens AllianceP.O. Box 2461Durango, Colorado 81302Kieran Suckling, Policy DirectorCenter for Biological DiversityP.O. Box 710Tucson, Arizona 85702Michael Rogers, Interim Executive DirectorUpper Arkansas South Platte Project1420 Pinewood Rd.Florissant, Colorado 80816Monique DiGiorgio, Executive DirectorSouthern Rockies Ecosystem ProjectP.O. Box 2461Durango, CO 81302CENTER FOR NATIVE ECOSYSTEMS1536 Wynkoop, Suite 302Denver, Colorado 80202303.546.0214cne@nativeecosystems.orgwww.nativeecosystems.orgField Supervisor, U.S. Fish and Wildlife ServiceMontana Ecological Services Office100 N. Park Avenue, Suite 320Helena, MT 59601Fax: 406-449-5339fw6_lynx@fws.govAttn: lynx comments

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