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Amargosa Vole in the California Desert Conservation Area

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Amargosa Vole in the California Desert Conservation Area Because life is good. CENTER for BIOLOGICAL DIVERSITY working through science, law and creative media to secure a future for all species, great or small, hovering on the brink of extinction. VIA CERTIFIED MAIL AND ELECTRONIC MAIL August 19, 2021 Paul Souza, Regional Director Katrina Symons U.S. Fish and Wildlife Service Barstow Field Area Manager Region 8 - Pacific Southwest Region Bureau of Land Management 2800 Cottage Way, Room W-2606 2601 Barstow Rd, Sacramento, CA 95825 Barstow, CA 92311 Email: [email protected] Email: [email protected] Deb Haaland, Secretary Karen Mouritsen, California State Director Department of the Interior Bureau of Land Management 1849 C Street, N.W. 2800 Cottage Way, Suite W1623 Washington DC 20240 Sacramento, CA 95825 Email: [email protected] Email: [email protected]; [email protected] Andrew Archuleta, District Manager California Desert District Bureau of Land Management 22835 Calle San Juan De Los Lagos Moreno Valley, CA 92553 Email: [email protected]; [email protected] Re: Sixty-Day Notice of Intent to Sue the Secretary of the Interior, U.S. Fish and Wildlife Service, and Bureau of Land Management Pursuant to the Endangered Species Act for Actions Relating to Management of Endangered Amargosa Vole in the California Desert Conservation Area. Dear Secretary Haaland, Regional Director Souza, State Director Mouritsen, District Manager Archuleta, and Field Supervisor Symons, This letter serves as a sixty-day notice on behalf of the Center for Biological Diversity (“Center”) of intent to sue the Bureau of Land Management (“BLM”) and the U.S. Fish and Wildlife Service (“FWS”) over violations of Sections 2, 4, 7, and 9 of the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531, 1533, 1536, 1538, for actions and inactions related to the management of the endangered Amargosa Vole in the California Desert Conservation Area (“CDCA”). This letter is provided pursuant to the sixty-day notice requirement of the citizen suit Arizona ∙ California ∙ Colorado ∙ Florida ∙ N. Carolina ∙ New York ∙ Oregon ∙ Virginia ∙ Washington, DC∙ La Paz, Mexico Lisa T. Belenky • Senior Attorney ∙ 1212 Broadway, Suite 800 Oakland, CA 94612 tel: 510‐844‐7107 ∙ cell: 415‐385‐5694 ∙ fax: 510‐844‐7150 ∙ [email protected] www.BiologicalDiversity.org provision of the ESA, to the extent such notice is deemed necessary by a court. See 16 U.S.C.§ 1540(g). BLM has violated the ESA by failing to protect and conserve the Amargosa vole and its habitat in its management of lands within the CDCA pursuant California Desert Conservation Area Plan in reliance on the Fish and Wildlife Service’s 2002 Biological Opinion1 and/or 2016 Biological Opinion.2 While the BLM and FWS have made efforts to address habitat condition, water availability and other threats, the agencies have failed to address the significant threat to the vole from public recreational use of the Amargosa vole critical habitat particularly at Borehole Spring. As a result of BLM’s actions and inactions in managing the endangered Amargosa vole and its habitat on public lands within the CDCA, the Amargosa vole is at imminent risk of extinction in the wild. The Center is a national, nonprofit conservation organization with more than 1.7 million members and online activists dedicated to the protection of endangered species and wild places. The Center and its members are concerned with the conservation of imperiled species, including the Amargosa vole, management of public land, and the effective implementation of the ESA. The Center board, staff and members have visited the public lands at issue and intend to continue to do so in the future to monitor the health of the habitat and observe the Amargosa vole. Center staff and members have scientific, aesthetic, and spiritual interests in the survival of the Amargosa vole in the wild and protection of its habitat. The Center has raised our concerns with BLM and FWS for a number of years, regarding the management of public lands that provide habitat for the Amargosa vole at Borehole Spring and the decline of the vole populations, nonetheless, violations of the ESA continue. Specifically, the Center intends to file a lawsuit challenging BLM’s (1) failure to insure that the activities authorized under the existing management plan are not likely to jeopardize the continued existence of the Amargosa vole; (2) failure to timely reinitiate and complete consultation with FWS regarding the impacts of authorized or “casual use” activities at Borehole Spring on the Amargosa vole; and (3) continued authorization and approval of activities at Borehole Spring that may irreversibly and irretrievably commit resources and may foreclose the formulation or implementation of reasonable and prudent alternatives, prior to completing the re- initiated consultation regarding the impacts of authorized activities on the Amargosa vole. In addition, the Center intends to file a lawsuit challenging FWS’s failure to timely reinitiate and 1 U.S. Fish and Wildlife Service. 2002. Biological Opinion for the California Desert Conservation Area Plan [Amargosa vole] (6840(P) CA-063.50) (1-8-01-F-69). Dated September 23, 2002. Memorandum to State Director, Bureau of Land Management, Sacramento, California. From Field Supervisor, Ventura Fish and Wildlife Office. Ventura, California (“2002 BiOp”) at 29 (concluding that BLM management was not likely to jeopardize the Amargosa vole and not likely to destroy or adversely modify its critical habitat). 2 U.S. Fish and Wildlife Service. 2016. Biological Opinion on the Proposed Land Use Plan Amendment under the Desert Renewable Energy Plan [1340 (CA 930) P, 1150 (CA 930) P] (FWS-KRN/SBD/INY/LA/IMP/RIV- 16B0138-16F0200). Dated August 16, 2016. Memorandum to Deputy State Director, Division of Natural Resources, Bureau of Land Management, Sacramento, California. From Field Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, Carlsbad, California (“2016 DRECP BiOp”). The 2016 DRECP BiOp references the 2002 BiOp and provides no new analysis or basis for its finding that BLM management under the DRECP is not likely to adversely affect the Amargosa vole. (DRECP BiOp at 3, 13). NOI re Amargosa Vole August 19, 2021 Page 2 of 26 complete consultation concerning BLM’s ongoing management of public lands at Borehole Springs and its impacts on the Amargosa Vole. I. Requirements of the ESA Section 9 of the ESA and its implementing regulations prohibit the unauthorized “take” of listed species including the endangered Amargosa vole. 16 U.S.C. § 1538(a)(1); 16 U.S.C. § 1533(d); 50 C.F.R. § 17.31.3 “Take” is defined broadly to include harming, harassing, trapping, capturing, wounding or killing a protected species either directly or by degrading its habitat. See 16 U.S.C. § 1532(19). Taking that is in compliance with the terms and conditions specified in a biological opinion is not considered a prohibited taking under Section 9 of the ESA. 16 U.S.C. § 1536(o)(2). These protections are intended to ensure the conservation of listed species. Section 7 of the ESA requires all federal agencies to ensure that any action authorized, funded, or carried out by the agency is not likely to (1) jeopardize the continued existence of any threatened or endangered species or (2) result in the destruction or adverse modification of the critical habitat of such species. 16 U.S.C. § 1536(a)(2). For each federal action, the action agency must request from FWS whether any listed or proposed species may be present in the area of the agency action. 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12. If listed or proposed species may be present, the federal agency must prepare a “biological assessment” to determine whether the listed species may be affected by the proposed action. Id. The biological assessment must generally be completed within 180 days. 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12(i). The action agency may undertake the biological assessment as part of its compliance with NEPA, but the NEPA documents must provide sufficient information for the agencies to make informed biological assessment of effects of the proposed actions. 16 U.S.C. § 1536(c)(1). If the federal agency determines that its proposed action may affect any listed species or critical habitat, the agency must engage in formal consultation with FWS. 50 C.F.R. § 402.14. To complete formal consultation FWS must provide a “biological opinion” explaining how the proposed action will affect the listed species or habitat. 16 U.S.C. § 1536(b); 50 C.F.R. § 402.14. To comply with formal consultation regulatory requirements, FWS must evaluate both the current status of listed species as well as the effects of the proposed action and cumulative effects on the listed species. Id. § 402.14(g)(2)-(3). Agencies are required to “use the best scientific and commercial data available” in assessing impacts to protected species during the consultation process. 16 U.S.C. § 1536(a)(2); 50 C.F.R. §§ 402.14(d),4 (g)(8).5 Based on this 3 Although some amendments to the regulations implementing the ESA were adopted in 2019 and went into effect on October 28, 2019, the changes do not substantively affect the issues raised in this notice. 4 50 C.F.R. § 402.14(d) (“Responsibility to provide best scientific and commercial data available. The Federal agency requesting formal consultation shall provide the Service with the best scientific and commercial data available or which can be obtained during the consultation for an adequate review of the effects that an action may have upon listed species or critical habitat. This information may include the results of studies or surveys conducted by the Federal agency or the designated non-Federal representative.
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