Formal Notice of Intent

April 2, 2020

Sonny Perdue, David Bernhardt, Secretary of Agriculture Secretary of the Interior U.S. Dept. of Agriculture U.S. Dept. of the Interior 1400 Independence Ave., S.W. 1849 C Street, N.W. Washington, D.C. 20250 Washington, D.C. 20240 [email protected] [email protected]

Vicki Christiansen, Acting Chief Aurelia Skipwith, Director U.S. Forest Service 201 14th Street, S.W. Washington D.C. 20024 U.S. Fish and Wildlife Service 201 14TH Street, SW 1849 C Street, N.W. Washington, DC 20024 Washington D.C. 20240 [email protected] [email protected]

Elaine Kohrman, Acting Regional Forester Amy Lueders, Region 2 Regional Director U.S. Forest Service, Southwestern Region U.S. Fish and Wildlife Service 333 Broadway SE P.O. Box 1306 Albuquerque, NM 87102 Albuquerque, NM 87102 [email protected] [email protected]

Jeff Humphrey, Arizona State Supervisor Seth Willey, New Mexico State Supervisor U.S. Fish and Wildlife Service U.S. Fish and Wildlife Service 9828 North 31st Avenue, Suite C3 2105 Osuna Road NE Phoenix, Arizona 85051 Albuquerque, NM 87113 [email protected] [email protected]

Dear Messrs. Bernhardt, Perdue, Humphrey, and Willey, and Mses. Christiansen, Skipwith, Lueders, and Kohrman,

RE: Sixty‐Day Notice of Intent to Sue if you fail to remedy your Endangered Species Act Violations threatening the Mexican Spotted Owl in Arizona and New Mexico.

The U.S. Department of Agriculture Secretary, U.S. Forest Service ("USFS") Chief, Forest Service Southwestern Region Regional Forester, the U.S. Secretary of the Interior, U.S. Fish and

Wildlife Service ("USFWS") Director, USFWS Region 2 Director, USFWS Arizona Ecological Services Director and USFWS New Mexico Ecological Services Director are hereby notified that the Center for Biological Diversity and Maricopa Audubon Society intend to file suit, pursuant to the citizen suit provision of the Endangered Species Act (“ESA”), 16 U.S.C. § 1540(g), and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701‐706, to compel ESA Section 7 consultations1 to stop ongoing violations of law and to prevent the Forest Service Southwestern Region's coordinated and identical Region wide forest "restoration projects" from further jeopardizing the Mexican Spotted Owl ("MSO") and adversely modifying its Critical Habitat in Arizona and New Mexico. While these projects are labeled as "restoration," as presented in this Notice, they are highly likely to be jeopardizing MSO without modifications to the projects themselves, correction of the current unlawful guiding ESA documentary framework, and adherence to best available science. Currently, the coordinated and identical "site specific" projects under this Region wide "restoration" umbrella violate the best available MSO science and the law by, 1. widespread disregard for the MSO Recovery Plan's best available science recommendation for canopy cover2 and its proxy management of MSO nesting/roosting habitat basal area and management of the percentage of basal area by large trees "emphasize that values shown are minimums, not targets;"3 2. complete disregard for the best science available recommendation for at least 10 years of post‐treatment local monitoring;4 3. complete disregard for the best science available recommendation and the legal requirement to provide for the regionwide habitat monitoring necessary for Recovery and for any Jeopardy Analysis. No MSO Biological Opinion can provide a Jeopardy Analysis without regionwide population and habitat monitoring, as a

1 16 U.S.C. § 1536(a)(2) and 50 C.F.R. § 402.14(g). 2 MEXICAN SPOTTED OWL RECOVERY PLAN, FIRST REVISION (Strix occidentalis lucida); Southwest Region U.S. Fish and Wildlife Service; Albuquerque, New Mexico; September 2012.; page 267: "We used tree BA and large tree (>46 cm [18 inches] dbh) density to describe minimum conditions for owl nesting/roosting habitat (Table C.3). Other structures such as canopy cover, snags, and downed logs are important as well. However, we assume that when tree BA and density approach the levels given in Table C.3, then adequate amounts of canopy cover, snags, and downed logs either exist already or will develop over time."; and page 276: "Minimum canopy cover of 40% in pine‐oak and 60% in mixed conifer (Ganey et al. 2003)." 3 Id., page 278. THIS BOLDED EMPHASIS IS NOT ADDED, IT IS FROM THE RECOVERY PLAN ITSELF.; "Identification of distinguishing characteristics around middens of Mount Graham red squirrels," Smith, Andrew Allen, M.S.; The University of Arizona, 1992.; "Distinguishing Characteristics of Mount Graham Red Squirrel Midden Sites," Andrew A. Smith and R. William Mannan, J. WILDL. MANAGE. 58(3):437‐445; 1994.; "An Evaluation of the Minimum Habitat Quality Standards for Birds in Old‐ Growth Ponderosa Pine Forests," James Joshua Siegel; University of Arizona; 1989.; Minimum Standards and Forest Wildlife Management; Richard N. Conner; Wildlife Society Bulletin; Vol. 7, No. 4 (Winter, 1979), pp. 293‐296.; Harrison's Principles of Internal Medicine, 20th Edition, J. Larry Jameson and Anthony S. Fauci, et al. 4 Recovery Plan for the Mexican Spotted Owl (Strix occidentalis lucida), USFWS Southwestern Region, December 1995.; pages 78‐79.; WildEarth Guardians v. USFWS; Order, September 11, 2019.; page 11: "Defendants [Forest Service/USFWS] … admit that any monitoring for recovery would need to be done over a period of around 15 years “to generate any meaningful data on population trends.” Id. at 18. A monitoring period of one year before and two to three years after treatment is insufficient to provide population trend data for delisting. Again, this does not provide adequate information to guide a jeopardy analysis about recovery."

Jeopardy Analysis must consider the Regional Program projects' impact on Recovery which is dependent upon non‐existent range‐wide monitoring.;5 4. failure to heed Recovery Plan recommendations where "The Recovery Team recommends mechanical treatment in PACs only if such [large‐scale assessments] monitoring occurs.";6 and, 5. disregard for the best available MSO science7 in utilizing widespread mechanical thinning in PACs and in Recovery nesting/roosting habitat spite. USFWS is obligated by the ESA and its implementing regulations to produce both a programmatic regional Biological Opinion and an individual Biological Opinion for each of the "site specific" project actions undertaken in accordance with the programmatic Biological Opinion.8 Specifically, a "programmatic consultation," pursuant to 50 CFR § 402.02, must address "the effects of programmatic actions such as…[m]ultiple similar, frequently occurring…actions… providing a framework for future proposed actions."9

5 Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 931 (9th Cir. 2008).; Ctr. for Biological Diversity v. Rumsfeld, 198 F. Supp. 2d 1139, 1153‐54 (D. Ariz. 2002).; In addition, recently, the Court in WildEarth Guardians v. USFWS also recognized this fact: Order, WildEarth Guardians, Plaintiff, v. United States Fish and Wildlife Service and United States Forest Service, Defendants, Case No. 4:13‐cv‐151‐RCC, September 19, 2019.: "…The jeopardy analysis must consider both survival and recovery. Nat’l Wildlife Fed’n, 524 F.3d at 931; 50 C.F.R. § 402.02. [page 20] … Stand‐alone Forest Plan measures protecting habitat do not reasonably address recovery because even if all national forest land was preserved for the MSO, it will never provide enough information about population trends to allow for delisting nor an accurate [page 21] assessment of whether the population range‐wide is recovering. Therefore, it cannot be a basis for a no jeopardy determination. [pages 21‐22] … Finally, FWS argues that the range‐wide monitoring is for delisting—not for the jeopardy analysis. However, the two are interconnected because jeopardy must consider recovery, recovery must be geared towards eventual delisting, and delisting is dependent upon range‐wide monitoring. … The BiOps [of the Forest Plans] simply do not provide a route to recovery or a way to accurately assess it. The no‐jeopardy determination is unsupported, arbitrary, and capricious because the finding failed to account for recovery of the MSO." [page 24.] 6 MEXICAN SPOTTED OWL RECOVERY PLAN, FIRST REVISION (Strix occidentalis lucida); Southwest Region U.S. Fish and Wildlife Service; Albuquerque, New Mexico; September 2012.; page 73. THIS BOLDED EMPHASIS IS NOT ADDED, IT IS FROM THE RECOVERY PLAN ITSELF. The insert "large‐scale assessments" comes from the Recovery Plan's referral preceding its warning on monitoring for mechanical treatment, "see Box C.6 for details on how such monitoring might be structured." Box C.6. is on page 285. 7 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1.; Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018. 8 50 C.F.R. § 402.02 (defining “action”); id. (defining “programmatic consultation”); Incidental Take Statements, 80 Fed. Reg. 26832 (May 11, 2015). 9 50 CFR § 402.02 ‐ Definitions.

The Southwestern Region Forest Service is undertaking "[m]ultiple similar, frequently occurring…actions" across the region completely consistent with 50 CFR § 402.02. These "[m]ultiple similar, frequently occurring…actions" are the identical forest "restoration" activities that are occurring currently in MSO Critical Habitat throughout the Forest Service Southwestern Region. Based on the uniform approach taken for these multiple, coordinated, essentially identical, frequently occurring "site specific" "restoration" projects within MSO Critical Habitat across the Southwestern Region, we believe that a regional "restoration program" exists that has been and continues providing a framework for future proposed actions consistent with 50 CFR § 402.02.10 We thereafter refer to this program as the "Regional Program." 50 CFR § 402.02 states, "Framework programmatic action means, for purposes of an incidental take statement, a Federal action that approves a framework for the development of future action(s) that are authorized, funded, or carried out at a later time, and any take of a listed species would not occur unless and until those future action(s) are authorized, funded, or carried out and subject to further section 7 consultation."11 We have identified at least nine completed "site specific" Biological Opinions for Regional Program projects.12 All of these Biological Opinions present the same template analyses and conclusions, and all acknowledge take of MSO by the same "restoration" activities. By any logic, each of these consulted projects derives directly from the framework programmatic action, the Regional Program. Consequently, consistent with ESA law, only a programmatic Section 7 consultation on the Regional Program can ensure that any action authorized, funded, or carried out by the agency is not likely to jeopardize MSO or result in the destruction or adverse modification of MSO Critical Habitat consistent with ESA law.13 To date, USFWS has failed to provide a "framework" programmatic Biological Opinion14 for the Forest Service Southwestern Region's Regional Program. Instead, the Forest Service and

10 50 CFR § 402.02 ‐ Definitions. 11 Ibid. 12 These nine Regional Program projects and the dates of their Biological Opinion include, Pinaleño Ecological Restoration Project on the Coronado National Forest (August 5, 2011), Bill Williams Restoration Project on the Kaibab National Forest (May 5, 2015), Four Forests Restoration Initiative 1 on the Coconino and Kaibab National Forests (August 25, 2017), Flagstaff Watershed Protection Project on the Coconino National Forest (June 5, 2015), Cragin Watershed Restoration Project on the Coconino National Forest (July 23, 2018), Hassayampa Restoration Project on the Prescott National Forest (September 19, 2019), Luna Restoration Project on the Gila National Forest (May 2, 2019), Southwest Jemez Mountains Landscape Restoration Project on the Santa Fe National Forest (July 13, 2015) and Puerco Restoration Project on the Cibola National Forest (December 16, 2019). 13 16 U.S.C. § 1536(a)(2). 14 On May 11, 2015, USFWS amended the Section 7 regulations that for any "framework programmatic action" where both the Section 7 framework Biological Opinions are necessary but need not include incidental take statements so long as site‐specific Biological Opinions and Incidental Take Statements will authorize incidental take on a project by project basis, where the projects result from the framework Biological Opinion. See: Interagency Cooperation – Endangered Species Act of 1973, as Amended; Incidental Take Statements; Fish and Wildlife Service, Interior; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.; Final Rule.; 80 FR 26832; May 11, 2015. This notice says, "The two primary purposes of the amendments are to address the use of surrogates to express the amount or extent of anticipated incidental take and to refine the basis for development of incidental take statements for programmatic actions." [page 26832.]; and, "§

USFWS have set forth an elaborate scheme of piecemeal "site specific" evaluations designed to obscure widespread adverse cumulative effects on MSO and MSO habitat. In addition to the nine Regional Program projects with completed Biological Opinions noted already,15 we have also identified one project with a completed Concurrence,16 and three projects with pending Biological Opinions17 involved in this scheme. There are likely more Regional Program projects in MSO habitat across the region; however, we have been unable to secure a complete list of Regional Program projects impacting MSO habitat despite multiple requests directly to the Regional Forester. This scheme is very risky for MSO given the fact that there is no implementation of a required, regionwide habitat monitoring plan which is critical to ensure that the Regional Program actions will not jeopardize MSO. In addition, as will be presented in detail subsequently in this Notice, we have identified widespread violations of the best available scientific recommendations for management of "restoration" activities in MSO habitat throughout the region. Consequently, not only is a programmatic Biological Opinion for the Regional Program needed, all of the completed Biological Opinions and the Concurrence will need to be reinitiated and updated in order to be lawful. The following management measures are necessary for MSO recovery, and if undertaken will likely obviate the need for litigation and any injunctive relief: 1. in PACs and in MSO Recovery nesting/roosting habitat, no further reduction of (a) basal area, (b) percentage of large trees making up the basal area, and (c) the minimum density of large trees to levels substantively above the recommended minimums in the September 5, 2012, MSO Recovery Plan;18 2. no use of mechanical thinning in PACs and in Recovery nesting/roosting habitat that is not consistent with the best available MSO science;19

402.02 Definitions. … Framework programmatic action means, for purposes of an incidental take statement, a Federal action that approves a framework for the development of future action(s) that are authorized, funded, or carried out at a later time, and any take of a listed species would not occur unless and until those future action(s) are authorized, funded, or carried out and subject to further section 7 consultation." [page 26844.] 15 These nine Regional Program projects and the dates of their Biological Opinion include, Pinaleño Ecological Restoration Project on the Coronado National Forest (August 5, 2011), Bill Williams Restoration Project on the Kaibab National Forest (May 5, 2015), Four Forests Restoration Initiative 1 on the Coconino and Kaibab National Forests (August 25, 2017), Flagstaff Watershed Protection Project on the Coconino National Forest (June 5, 2015), Cragin Watershed Restoration Project on the Coconino National Forest (July 23, 2018), Hassayampa Restoration Project on the Prescott National Forest (September 19, 2019), Luna Restoration Project on the Gila National Forest (May 2, 2019), Southwest Jemez Mountains Landscape Restoration Project on the Santa Fe National Forest (July 13, 2015) and Puerco Restoration Project on the Cibola National Forest (December 16, 2019). 16 West Escudilla Restoration Project on the Apache‐Sitgreaves National Forests (May 2, 2017). 17 Four Forests Restoration Initiative 2 on the Apache‐Sitgreaves, Coconino, and Tonto National Forests; South Sacramento Restoration Project on the Lincoln National Forest, and Santa Fe Mountains Resiliency Project on the Santa Fe National Forest. 18 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; Table C.3. on page 278. 19 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a

3. implementation of a regionwide habitat monitoring plan prior to completion of the programmatic Regional Program Biological Opinion and the reinitiated "site specific" Regional Program projects' consultations20 because a lawful Jeopardy Analysis can be completed only after implementation of a regionwide habitat monitoring plan,21 4. fulfilment of items "1.", "2.", and "3." above until the lawful completion of (a) a programmatic Biological Opinion on the Regional Program and (b) lawful completion of all reinitiated Biological Opinions on the ten "site specific" projects with already completed Section 7 evaluations,22 that we have been able to identify to date.; 5. continuation of hand thinning and prescription burning within PACs and within Recovery nesting/roosting habitat consistent with the September 5, 2012, MSO Recovery Plan.; 6. continuation of the gathering of firewood, the cutting of Christmas trees, and other forest management activities in PACs and Recovery nesting/roosting habitat consistent with the September 5, 2012, MSO Recover Plan.; and, 7. continuation of forest management activities outside of PAC nest and roost Core Areas and outside of Recovery nesting/roosting habitat, consistent with the September 5, 2012, MSO Recovery Plan. If the above management measures are not undertaken, and if violations of law identified in this Notice are not remedied within 60 days, in accordance with the ESA citizen suit provision, 16 U.S.C. § 1540(g), the Center for Biological Diversity and Maricopa Audubon Society will seek judicial relief. changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1.; Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018. 20 Ctr. for Biological Diversity v. Rumsfeld, 198 F. Supp. 2d 1139, 1153‐54 (D. Ariz. 2002). 21 Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 931 (9th Cir. 2008).; Ctr. for Biological Diversity v. Rumsfeld, 198 F. Supp. 2d 1139, 1153‐54 (D. Ariz. 2002).; WildEarth Guardians v. United States Fish and Wildlife Service and United States Forest Service, Defendants, Case No. 4:13‐cv‐151‐RCC. 22 These ten Regional Program projects and the dates of their Biological Opinion include, Pinaleño Ecological Restoration Project on the Coronado National Forest (August 5, 2011), Bill Williams Restoration Project on the Kaibab National Forest (May 5, 2015), Four Forests Restoration Initiative 1 on the Coconino and Kaibab National Forests (August 25, 2017), Flagstaff Watershed Protection Project on the Coconino National Forest (June 5, 2015), Cragin Watershed Restoration Project on the Coconino National Forest (July 23, 2018), Hassayampa Restoration Project on the Prescott National Forest (September 19, 2019), Luna Restoration Project on the Gila National Forest (May 2, 2019), Southwest Jemez Mountains Landscape Restoration Project on the Santa Fe National Forest (July 13, 2015), Puerco Restoration Project on the Cibola National Forest (December 16, 2019), and West Escudilla Restoration Project on the Apache‐ Sitgreaves National Forests (May 2, 2017).

EXECUTIVE SUMMARY

We are the original petitioners for Endangered Species Act ("ESA") protection for the Mexican Spotted Owl ("MSO"). We filed our Petition23 to protect MSO on December 21, 1989. Mexican Spotted Owl (Strix occidentalis lucida):

23 Correspondence, from Robin Silver, M.D., to Michael Spear, Regional Director, Region 2, U.S. Fish and Wildlife Service, RE: FORMAL PETITION TO THE U.S. FISH AND WILDLIFE SERVICE TO LIST THE MEXICAN SPOTTED OWL (Strix occidentalis lucida) ON THE FEDERAL LIST OF THREATENED AND ENDANGERED SPECIES FOR FEDERAL PROTECTION AS PROVIDED BY THE ENDANGERED SPECIES ACT OF 1973, AS AMENDED IN 1982.; December 21, 1989.

7 been necessary (1) in 1991, to overcome USFWS efforts to thwart federal MSO listing;24 (2) in 1994, to compel USFWS to obey the law and designate MSO Critical Habitat;25 (3) in 1995, to compel USFS to submit for compulsory ESA MSO protective review its Forest Plan commitment to log approximately 40% of all MSO territories on Region 3 Forest Service lands;26 (4) in 1999, to compel USFWS to designate MSO Critical Habitat;27 (5) in 2001, to prevent USFWS from excluding USFS lands from MSO Critical Habitat;28 and (6) in 2010, 29 to stop Forest Service refusal to obey the 1995, Recovery Plan30 monitoring requirements that the Forest Service had committed to follow in a 2005, USFWS Biological Opinion.31 Now in 2020, we are forced to initiate our seventh major legal proceeding in order to protect MSO once again from habitual Forest Service and USFWS disobedience. The Forest Service Southwestern Region Regional Program is implementing or is in the process of implementing "restoration" projects adversely affecting at least 467 MSO Primary Activity Centers ("PACs")32 or 35.9% of the total number of 1,301 known MSO occupied sites range wide33 in the projects that we can identify. At least up to a total of approximately 27534 owls may be "taken"35 or harmed by Southwestern Region Regional Program projects with completed "site specific" Biological Opinions. As stated earlier, there are at least nine "site specific" Regional Program projects with completed Biological Opinions36 that we have identified. These nine Regional Program projects and the dates of their Biological Opinion dates include, Pinaleño Ecological Restoration Project on the Coronado National Forest (August 5, 2011), Bill Williams Restoration Project on the Kaibab National Forest (May 5, 2015), Four Forests Restoration Initiative 1 ("4FRI1") on the Coconino and Kaibab National Forests (August 25, 2017), Flagstaff Watershed Protection Project on the Coconino National Forest (June 5, 2015), Cragin Watershed Restoration Project

24 Correspondence, from Robin D. Silver, M.D., F.A.C.E.P.; to Manuel Lujan, Secretary of the Interior; RE: Notice of Intent to Sue; August 21, 1991. 25 Order, Silver v. Babbitt; CV 94‐337‐PHX‐CAM; October 6, 1994. 26 Order, Silver v. Babbitt, 924 F. Supp. 976 (D.Ariz. 1995). 27 Order, Sw. Center for Biological Diversity and Silver v. Babbitt and Clark, CIV 99‐519 LFG/LCS‐ACE (D.N.M. 2000). 28 Order, Center for Biological Diversity, et al., v. Gale Norton, Secretary of the Department of Interior, CV 01‐409 TUC DCB. 29 Order, Center for Biological Diversity, et al., v. United States Forest Service, et al.; CB‐10‐431‐TUC‐DCB, October 11, 2011. 30 Recovery Plan for the Mexican Spotted Owl (Strix occidentalis lucida), USFWS Southwestern Region, December 1995. 31 Programmatic Biological and Conference Opinion on the Continued Implementation of the Land and Resource Management Plans for the Eleven National Forests and National Grasslands of the Southwestern Region, Regional Office, Region 2, U.S. Fish and Wildlife Service; Cons. #2‐22‐03‐F‐366; June 10, 2005. 32 Flagstaff Watershed Protection Project (10), 4FRI 1 (70), 4FRI 2 (196), Luna (26), Puerco (7), Southwest Jemez (6), SSRP (78), Hassayampa (11), PERP (18), Bill Williams Mountain (1), Cragin (32), West Escudilla (8), and Santa Fe (4). 33 Mexican spotted owl (Strix occidentalis lucida) 5‐Year Review Short Form Summary; USFWS Arizona Ecological Services Office, Phoenix, Arizona; August 2013. 34 4FRI 1 (69); FWPP (16); Bill Williams (6); Cragin (24); Hassayampa (32); PERP (12); Luna (75); Southwest Jemez (5) and Puerco (36) 35 ESA Section 3(19): "The term take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 36 PERP, 8/5/11 (Coronado NF); Bill Williams Mountain, 5/5/15 (Kaibab NF); FWPP, 6/5/15 (Coconino NF); Southwest Jemez, 7/13/15 (Santa Fe NF); 4FRI 1, 8/25/17 (Coconino NF, Kaibab NF); Cragin, 7/23/18 (Coconino NF); Hassayampa, 9/19/19 (Prescott NF); Luna, 5/2/19 (Gila NF); and Puerco, 12/16/19 (Cibola NF).

on the Coconino National Forest (July 23, 2018), Hassayampa Restoration Project on the Prescott National Forest (September 19, 2019), Luna Restoration Project on the Gila National Forest (May 2, 2019), Southwest Jemez Mountains Landscape Restoration Project on the Santa Fe National Forest (July 13, 2015) and Puerco Restoration Project on the Cibola National Forest (December 16, 2019). We have found one Regional Program project, West Escudilla Restoration Project on the Apache‐ Sitgreaves National Forests with a completed USFWS Concurrence37 instead of a Biological Opinion. And we have found three Regional Program projects that have pending Biological Opinions. These projects are Four Forests Restoration Initiative Rim Country ("4FRI2") on the Apache‐Sitgreaves, Coconino, and Tonto National Forests; South Sacramento Restoration Project on the Lincoln National Forest, and Santa Fe Mountains Landscape Resiliency Project on the Santa Fe National Forest. These nine completed and three pending Biological Opinions and the one completed Concurrence represent an elaborate and sinister Forest Service and USFWS scheme of piecemeal "site specific" evaluations designed to obscure widespread adverse cumulative effects on MSO and MSO habitat. This scheme is very risky for MSO given the fact that there is no implementation of the required regionwide habitat monitoring critical to ensure that Regional Program actions will not jeopardize MSO. None of the nine completed Biological Opinions and the one Concurrence are lawful without implementation of a regionwide habitat monitoring plan. Failure to provide for a regionwide habitat monitoring plan represents failure to use the best available science. The best available science with respect to MSO monitoring is found in the September 2012, MSO Recovery Plan.38 Regarding MSO monitoring, the Recovery Plan says that "it is necessary to monitor trends in both habitat and the owl population"39 and that Recovery requires the implementation of "large‐scale monitoring of trends in owl abundance (or a surrogate for owl abundance) and habitat quantity and distribution."40 Without regionwide habitat monitoring, it is not possible to know if the Regional Program is jeopardizing MSO and it is not possible to know if the Regional Program is appreciably reducing the likelihood of MSO survival and recovery. This is not legal. This is not legal because a valid Biological Opinion must determine whether or not an agency action jeopardizes a federally listed species and then must issue a “jeopardy” or “no jeopardy” opinion41 based on “the best scientific and commercial data available.”42 An action jeopardizes a listed species if it "reasonably would be expected, directly or indirectly, to reduce

37 Correspondence, from: Steven L. Spangle, USFWS Arizona State Field Supervisor; to: Mr. Steve Best, Forest Supervisor, Apache‐Sitgreaves National Forests; RE: Concurrence for West Escudilla Restoration Project for "not likely to adversely affect" Mexican spotted owl; May 2, 2017. 38 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; pages VII, 93 and 96. 39 Id., page 93. 40 Ibid. 41 50 C.F.R. § 402.14(h)(3). 42 16 U.S.C. § 1536(a)(2).

appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species."43 Without regionwide MSO monitoring, USFWS cannot produce a legally valid MSO Biological Opinion on the Regional Program much less any individual "site specific" Regional Program project. A Biological Opinion must provide a rational analysis of its jeopardy decision.44 No MSO Biological Opinion can provide a rational analysis of its jeopardy decision without regionwide population and habitat monitoring as a jeopardy analysis must consider the Regional Program projects' impact on recovery which is dependent upon a currently non‐ existent range‐wide monitoring plan.45 Instead of providing for a legally required regionwide MSO habitat monitoring, the Forest Service's current strategy remains to promise creation and implementation of a regionwide MSO habitat monitoring plan sometime in the future. In fact, almost five years ago, on April 10, 2015, the Forest Service said, "There is mutual recognition of the need to evaluate the impacts of vegetation treatments on Mexican Spotted Owl (MSO) and its habitat at a broad scale. … We have agreed to convene a working group that will design such a study. …"46 To date, almost five years later, no working group has yet been convened and no regionwide MSO habitat monitoring program has yet been developed and implemented. This current Forest Service strategy of promising a monitoring plan sometime in the future has already been rejected as illegal by the Court.47 In 1999, the U.S. Army and USFWS tried this exact strategy to cover‐up harm to the San Pedro River and its dependent and representative endangered species by similarly promising a future monitoring plan in a October 27, 1999, non‐jeopardy Biological Opinion regarding Defense Department actions at Fort Huachuca in Southeast Arizona.48 But in Ctr. for Biological Diversity v. Rumsfeld,49 the Court concluded that by basing its no‐jeopardy ruling on future development of a long‐term plan, the agency "admi[tted] that what is currently on the table . . . is inadequate to support the FWS's "no jeopardy" decision").50

43 50 C.F.R. § 402.02. 44 Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701‐706. 45 Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 931 (9th Cir. 2008).; Ctr. for Biological Diversity v. Rumsfeld, 198 F. Supp. 2d 1139, 1153‐54 (D. Ariz. 2002). 46 Correspondence, from: Calvin N. Joyner, Regional Forester; to Mr. Jay Lininger, Center for Biological Diversity; RE: Response to the objections filed on the Four Forest Restoration Initiative (4FRI) Final Environmental Impact Statement (FElS) and Draft Record of Decision (DROD) released by the Forest Supervisors of the Coconino and Kaibab National Forests, Earl Stewart and Mike Williams, respectively; April 10, 2015.; page 17. 47 Ctr. for Biological Diversity v. Rumsfeld, 198 F. Supp. 2d 1139, 1153‐54 (D. Ariz. 2002). 48 Correspondence, from: ; to Michael W. Boardman, Colonel, U.S. Army, Garrison Commander, U.S. Army Intelligence Center and Fort Huachuca; RE: Impacts that may result from activities authorized, carried out, or funded by the Department of the Army at and near Fort Huachuca, Arizona; October 27, 1999. 49 Ctr. for Biological Diversity v. Rumsfeld, 198 F. Supp. 2d 1139, 1153‐54 (D. Ariz. 2002). 50 Ibid.

Recently, the Court, in WildEarth Guardians v. USFWS, similarly also recognizes these facts.51 The Court says in its September 19, 2019, Order: "…The jeopardy analysis must consider both survival and recovery. Nat’l Wildlife Fed’n, 524 F.3d at 931; 50 C.F.R. § 402.02. [page 20] … Stand‐alone Forest Plan measures protecting habitat do not reasonably address recovery because even if all national forest land was preserved for the MSO, it will never provide enough information about population trends to allow for delisting nor an accurate [page 21] assessment of whether the population range‐wide is recovering. Therefore, it cannot be a basis for a no jeopardy determination. [pages 21‐22] … Finally, FWS argues that the range‐wide monitoring is for delisting—not for the jeopardy analysis. However, the two are interconnected because jeopardy must consider recovery, recovery must be geared towards eventual delisting, and delisting is dependent upon range‐wide monitoring. … The BiOps [of the Forest Plans] simply do not provide a route to recovery or a way to accurately assess it. The no‐jeopardy determination is unsupported, arbitrary, and capricious because the finding failed to account for recovery of the MSO." [page 24.] The best available MSO science regarding guidance for basal area, percentage of large trees making up the basal area, and the minimum density of large trees in PACs and Recovery nesting/roosting habitat is still found in the September 5, 2012, MSO Recovery Plan. The 2012, MSO Recovery Plan52 is very expressive about the need to be most protective of Protected Activity Centers where "[m]anagement recommendations are most conservative"53 and more. The 2012, Recovery Plan54 says, "Both this Recovery Plan and the original plan (USDI FWS 1995) rest heavily on the assumption that PACs (i.e., nest and roost habitat) are important to Mexican spotted owls. Available information suggests that these areas provide special habitat features for owls, and that in many cases these PACs may be occupied for long time periods … [page 72] …managers should proceed cautiously in terms of treatment intensity and extent. That is, initial treatments should be limited in spatial extent and treatment intensity, and should be aimed at balancing reduced fire risk with maintaining the mature forest structure that seems to be favored by spotted owls. Treatments in owl habitat should be linked to rigorous monitoring of owl response, to allow us to evaluate the effects of different types and extents of treatments in an adaptive management context (see Box C.6 for details on how such monitoring might be structured [Management can occur within stands that exceed these minimum

51 Order, WildEarth Guardians, Plaintiff, v. United States Fish and Wildlife Service and United States Forest Service, Defendants, Case No. 4:13‐cv‐151‐RCC., September 19, 2019. 52 MEXICAN SPOTTED OWL RECOVERY PLAN, FIRST REVISION (Strix occidentalis lucida); Southwest Region U.S. Fish and Wildlife Service; Albuquerque, New Mexico; September 2012. 53 Id., page VIII. 54 MEXICAN SPOTTED OWL RECOVERY PLAN, FIRST REVISION (Strix occidentalis lucida); Southwest Region U.S. Fish and Wildlife Service; Albuquerque, New Mexico; September 2012.

conditions, but such activities should not lower stand characteristics below these levels unless large‐scale assessments demonstrate that such conditions occur in a surplus across the landscape. {Box C.6., page 285]). The Recovery Team recommends mechanical treatment in PACs only if such [large‐scale assessments] monitoring occurs.55 … [page 73.] "Recovery Habitat Guidelines for Forest Habitats: General Approach … The overriding goal is to manage a specified portion of the landscape (see Table C.3) as recovery nest/roost habitat. … Because most project planning occurs at limited spatial scales, the percentages of area in Table C.3 should be regarded as a minimum56 level for a given planning area. … Even if the proportion of the planning area that meets nest/roost conditions is greater than the percentages in Table C.3, we recommend that no stands be lowered below these conditions until ecosystem assessments at larger spatial scales (e.g., landscape, subregion, and region) demonstrate that desired conditions occur in recommended amounts at these larger scales. … [page 267.] … Guidelines for Forested Recovery Habitat Managed as Nest/Roost Habitat … Because it takes many years for trees to reach large size, we recommend that trees ≥46‐ cm (18 inches) dbh not be removed in stands designated as recovery nest/roost habitat unless there are compelling safety reasons to do so or if it can be demonstrated that removal of those trees will not be detrimental to owl habitat. [pages 267‐8.] … We provide the following guidelines for Recovery foraging/non‐breeding habitats: … Retain Large Trees. Strive to retain (do not cut) all trees >61 cm (> 24 in) dbh, the average diameter of nest trees, unless overriding management situations require their removal to protect human safety and/or property … Retain Key Owl Habitat Elements. Design and implement management treatments within Forested Recovery Foraging/Non‐breeding habitat so that most hardwoods, large snags (>46 cm [18 in] dbh), large downed logs (>46 cm [18 in] diameter at any point), trees (>46 cm [18 in] dbh) are retained, unless this conflicts with forest restoration and/or owl habitat enhancement goals. … large trees are a key habitat correlate for owls, and removal of such trees should be done judiciously and only when truly necessary to meet specific resource objectives. [page 269.] … Management can occur within stands that exceed these minimum conditions, but such activities should not lower stand characteristics below these levels unless large‐scale assessments demonstrate that such conditions ["Minimum canopy cover of 40% in pine‐oak and 60% in mixed conifer (Ganey et al. 2003)... Diversity of tree sizes with goal of having trees ≥16” DBH contributing ≥50% of the stand BA (Willey

55 THIS BOLDED EMPHASIS IS NOT ADDED, IT IS FROM THE RECOVERY PLAN ITSELF. The insert "large‐scale assessments" comes from the Recovery Plan's referral preceding its warning on monitoring for mechanical treatment, "see Box C.6 for details on how such monitoring might be structured." Box C.6. is on page 285. 56 THIS BOLDED EMPHASIS IS NOT ADDED, IT IS FROM THE RECOVERY PLAN ITSELF.

1998, May and Gutiérrez 2002, Ganey et al. 2003, May et al. 2004)" {Table C.2., page 276.}] occur in a surplus across the landscape (see below). … In particular, small areas with high basal area, canopy cover, and densities of large trees appear to be important for providing suitable nest and roost sites (Ganey and Dick 1995, Ganey et al. 2003), and such patches should be retained where they exist. [pages 284‐285.] Table C.3.:

[page 278.] With respect to monitoring duration, the best available MSO science concludes, "Several biological reasons lead us to select a time span of 10‐15 years for monitoring. … In summary, we believe 10 years is a reasonable time span for monitoring because more than half of the adult population has turned over. Further, we expect that the population would have been subjected to adequate environmental variation during this 10‐year period. Once the species is delisted, the

additional five years of monitoring as required under the Act should provide further assurance that the population is nor declining."57 [pages 78‐79.] The best available science warnings from the 2012, MSO Recovery Plan that "values shown are minimums, not targets"58 are not unique to MSO. The inappropriateness of managing for minimums is a basic principle for the successful management of biological systems whether for critically ill humans or for endangered species. For critically ill humans, essentially all physicians learn this fundamental principle from Harrison's Principles of Internal Medicine59 edited by Larry Jameson and Anthony Fauci. For endangered species, even Senior Department of Justice Trial Attorney Andrew A. Smith acknowledges this important management principle in his 1992, Master's Thesis, "It is important to recognize that management for mean habitat conditions is biologically more sound than management for minimum conditions (Conner 1979)."60 In 1994, Andrew Smith, with Professor Bill Mannan, concludes similarly in their Journal of Wildlife Management publication, "Distinguishing Characteristics of Mount Graham Red Squirrel Midden Sites": "Management for mean habitat conditions is biologically more sound than management for minimum conditions (Conner 1979)."61 Earlier, James Joshua Siegel, in his report, "An Evaluation of the Minimum Habitat Quality Standards for Birds in Old‐Growth Ponderosa Pine Forests,62 similarly finds that, "Stands on relatively dry sites that meet, but do not greatly exceed, the USDA Forest Service's minimum standards for old‐growth ponderosa pine will not support all bird species associated with old‐growth pine habitat. … [page 75] … Conner (1979) and Raphael and White (1984) recommended managing for the average size of snag utilized by birds and not the minimum. They believed that snags that fulfilled only minimum size requirements may not be suitable if other habitat or weather conditions are marginal." … [page 75] … Maintaining wildlife resources at minimum levels (e.g., minimum viable population size or minimum habitat quality) is management close to a dangerous edge, that of regional or complete extirpation of species, and possibly, the impairment or loss of other ecosystem functions.

57 Recovery Plan for the Mexican Spotted Owl (Strix occidentalis lucida), USFWS Southwestern Region, December 1995. 58 MEXICAN SPOTTED OWL RECOVERY PLAN, FIRST REVISION (Strix occidentalis lucida); Southwest Region U.S. Fish and Wildlife Service; Albuquerque, New Mexico; September 2012.; page 278. THIS BOLDED EMPHASIS IS NOT ADDED, IT IS FROM THE RECOVERY PLAN ITSELF. 59 Harrison's Principles of Internal Medicine, 20th Edition, J. Larry Jameson and Anthony S. Fauci, et al. 60 "Identification of distinguishing characteristics around middens of Mount Graham red squirrels," Smith, Andrew Allen, M.S.; The University of Arizona, 1992. 61 "Distinguishing Characteristics of Mount Graham Red Squirrel Midden Sites," Andrew A. Smith and R. William Mannan, J. WILDL. MANAGE. 58(3):437‐445; 1994. 62 "An Evaluation of the Minimum Habitat Quality Standards for Birds in Old‐Growth Ponderosa Pine Forests," James Joshua Siegel; University of Arizona; 1989.

Instead, I recommend a more conservative approach to management, one that maintains a wider range of options for the future. This approach might include management of optimum levels of various habitat factors, or of populations, such as mean nest snag diameters (Conner 1979, Raphael and White 1984), or ecologically functional population levels (Conner 1988). Only with such an approach can we achieve the ultimate goal of multiple use management of our public lands — the sustainable yield of natural resources and values, and the continued performance of important ecosystem functions. …" [page 78] Andrew Smith, Bill Mannan and Joshua Siegel all quote from Richard Conner's classic 1979, Wildlife Society Bulletin article, "Minimum Standards and Forest Wildlife Management,"63 "I recommend that managers provide habitat as close as possible to the optimum for each important habitat‐variable for threatened and endangered species. For example, the mean age of loblolly pines (Pinus taeda) with newly completed red‐cockaded woodpecker (Picoides borealis) cavities is 80.6 years (Jackson et al. 1979). Based on this 1 suggest that in loblolly stands managed for this endangered species, the rotation age be set between 85 and 90 years or higher (depending on the range of trees necessary) to provide the optimum age range of suitable nest trees. By providing optimum quality trees for woodpeckers, or the optimum requirements of special habitat factors for other sensitive species, we may achieve the goal of multiple use without any gradual, negative effect on species we wish to preserve."64 With respect to mechanical thinning in PACs, the September 5, 2012, Recovery Plan warns, The Recovery Team recommends mechanical treatment in PACs only if such ["large‐scale assessments"] monitoring occurs." 65 [page 73] Since the release of the September 5, 2012, Recovery Plan, not only have "large scale assessments" still not been implemented, but the Recovery Plan is no longer the best available MSO science with respect to mechanical thinning. in MSO habitat, while initially the best available science for thinning in MSO habitat assumed that mechanical thinning would have widespread use without detrimental effects on owls, except in Core Areas66 and would be

63 Minimum Standards and Forest Wildlife Management; Richard N. Conner; Wildlife Society Bulletin; Vol. 7, No. 4 (Winter, 1979), pp. 293‐296. 64 "Minimum Standards and Forest Wildlife Management," Richard N. Conner, Wildl. Soc. Bull. 7(4) 1979.; pages 293‐296. 65 THIS BOLDED EMPHASIS IS NOT ADDED, IT IS FROM THE RECOVERY PLAN ITSELF. The insert "large‐scale assessments" comes from the Recovery Plan's referral preceding its warning on monitoring for mechanical treatment, "see Box C.6 for details on how such monitoring might be structured." Box C.6. is on page 285. 66 MEXICAN SPOTTED OWL RECOVERY PLAN, FIRST REVISION (Strix occidentalis lucida); Southwest Region U.S. Fish and Wildlife Service; Albuquerque, New Mexico; September 2012.; page 316.

15 accompanied by "large‐scale assessments";67 the best available MSO science regarding mechanical thinning has subsequently changed. The best available MSO science on mechanical thinning now finds that: "Existing studies on the effects of fuels reduction treatments on spotted owls universally suggest negative effects from these treatments."68 "[F]orest restoration and thinning activities also may threaten owls and their existing habitat, and thus may qualify as an emerging threat."69 "No empirical studies have evaluated these [the effects of forest thinning and restoration] management activities on the Mexican spotted owl."70 Again, we stress that even before publication of the above new research papers, no "large scale assessments"71 had been implemented. They still have not. In this Notice we present our findings upon review of all readily available decision and supporting documents for the Regional Program "site specific" projects. We note and present in this Notice multiple violations of the 2012, Recovery Plan's recommendations for basal area, large tree retention in PACs and in Recovery nesting/roosting habitat, and for monitoring of the nine Regional Program projects with completed Biological Opinions, the one project with a Concurrence, and the three projects with pending decisions. In addition, we note that widespread use of mechanical treatments is contrary to the best new available MSO science. For the 2012, Recovery Plan's recommendations regarding minimum desired conditions for percent Basal Area, where the Recovery Plan expressively attempts to "emphasize that values shown are minimums, not targets,"72 our findings are particularly concerning. For the nine Regional Program projects with completed Biological Opinions, only three, Pinaleño

67 Id., page 285. 68 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 69 Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018.; page 8. 70 Ibid. 71 MEXICAN SPOTTED OWL RECOVERY PLAN, FIRST REVISION (Strix occidentalis lucida); Southwest Region U.S. Fish and Wildlife Service; Albuquerque, New Mexico; September 2012.; page 285. 72 MEXICAN SPOTTED OWL RECOVERY PLAN, FIRST REVISION (Strix occidentalis lucida); Southwest Region U.S. Fish and Wildlife Service; Albuquerque, New Mexico; September 2012.; page 278. THIS BOLDED EMPHASIS IS NOT ADDED, IT IS FROM THE RECOVERY PLAN ITSELF.

Ecological Restoration Project on the Coronado National Forest, 4FRI1 on the Coconino and Kaibab National Forests and Luna Restoration Project on the Gila National Forest commit to exceed the minimum basal areas as recommended. Two Regional Program projects, Bill Williams Restoration Project on the Kaibab National Forest and Puerco Restoration Project on the Cibola National Forest aim to achieve the minimum Basal Areas. Four Regional Program projects, Flagstaff Watershed Protection Project on the Coconino National Forest, Southwest Jemez Mountains Landscape Restoration Project on the Santa Fe National Forest, Cragin Watershed Restoration Project on the Coconino National Forest, and Hassayampa Restoration Project on the Prescott National Forest, fail to achieve even the minimum recommended basal areas. For the Regional Program projects without a Biological Opinion, two, West Escudilla Restoration Project on the Apache‐Sitgreaves National Forests and 4FRI2 on the Coconino, Apache‐Sitgreaves and Tonto National Forests, aim to achieve the minimum Basal Areas. For South Sacramento Restoration Project on the Lincoln National Forest, owing to lack of presentation clarity, it is not clear if minimum Basal Areas will be achieved. This is particularly unacceptable given the fact that the Lincoln National Forest consistently fails to follow its commitments to protect endangered species and Critical Habitat.73 For the Regional Program projects with a pending Biological Opinion, 4FRI2 and South Sacramento Restoration Project fail to provide for retention of large trees as a percentage of the Basal Area. For West Escudilla Restoration Project, owing to lack of presentation clarity, it is not clear if retention of large trees as a percentage of the Basal Area will be achieved. Widespread failure to follow the Recovery Plan recommendations regarding Basal Area and large tree retention is new information contrary to the best available MSO science revealing that the effects of the forest thinning is affecting MSO and MSO habitat in a manner and to an extent not previously considered. Widespread failure to follow the Recovery Plan recommendations regarding Basal Area and large tree retention also represents modification of the Regional Program projects in a manner that causes effects to MSO and MSO habitat that was not considered in the Biological Opinions and the Concurrence. Consequently, reinitiation of consultation for all nine Regional Program projects and the one with a Concurrence will be necessary pursuant to 50 C.F.R. § 402.16. For large tree retention, owing to either lack of reporting and/or owing to lack of presentation clarity, large tree retention is uncertain for most of the "restoration" projects with Biological Opinions except for Hassayampa Restoration Project on the Prescott National Forest which clearly admits that they do not intend to meet the recommended retention of large trees as a percentage of the basal area. Failure to clearly present post‐treatment modeling of proposed actions precludes the Public's ability to logically evaluate the effects of any proposed action.

73 Correspondence, from Robin Silver, M.D., Center for Biological Diversity; to Secretary of the Interior David Bernhardt, USFWS Principal Deputy Director Margaret Everson, USFWS Regional Director Amy Lueders, USFS Acting Chief Vicki Christiansen, Regional Forester Cal Joyner, and Lincoln National Forest Supervisor Travis Moseley; RE: Sixty‐Day Notice of Endangered Species Act Violations, Lincoln National Forest; September 13, 2019.

Failure by the Forest Service to clearly present post‐treatment modeling is especially important for Public review and participation owing to the fact that, in particular, the track record of obeying endangered species law and Biological Opinion directions by the Apache‐ Sitgreaves, Coconino, Coronado, Gila, Lincoln, Prescott and Tonto National Forests is consistently abysmal. Specifically, just within the last two years, to stop Forest Service violations of endangered species law and disregard for Biological Opinion directions, we have needed to file Notices of Intent to Sue on April 13, 2018, against the Coronado National Forest;74 on June 27, 2019, against the Apache‐Sitgreaves National Forests; 75 on September 13, 2019, against the Lincoln National Forest,76 on January 20, 2020, against the Gila National Forest;77 and on March 16, 2020, against the Coconino, Prescott, and the Tonto National Forests.78 With no substantive remediating response from the Forest Service and from the Apache‐Sitgreaves and Gila NFs to our July 17, 2019, Notice of Intent to Sue ("NOI"),79 we were forced to file a lawsuit on January 13, 2020.80 With no substantive remediating response from the Forest Service and from the Apache‐Sitgreaves NFs to our June 27, 2019, NOI,81 we were

74 Correspondence, from: Robin Silver, M.D., Center for Biological Diversity; to Department of Agriculture Secretary Sonny Perdue, Forest Service Acting Chief Vicki Christiansen, Forest Service Regional Forester Cal Joyner, Coronado National Forest Supervisor Kerwin Dewberry, Department of the Interior Secretary Ryan Zinke, Fish and Wildlife Service Acting Director Greg Sheehan, Fish and Wildlife Service Regional Director Amy Lueders, Fish and Wildlife Service State Supervisor Steve Spangle, and Arizona Game and Fish Department Director Ty Gray; RE: Notice of Intent to Sue the U.S. Department of Agriculture (USDA), the U.S. Forest Service (USFS), the U.S. Department of Interior (DOI), and the U.S. Fish and Wildlife Service (USFWS) for failing to reinitiate Endangered Species Act (ESA) consultation on termination of the Columbine area special use permits in order to secure essential recovery habitat to aid survival of the critically endangered Mount Graham Red Squirrel.; April 13, 2018. 75 Correspondence, from Robin Silver, M.D., Center for Biological Diversity; to Secretary of the Interior David Bernhardt, USFWS Principal Deputy Director Margaret Everson, USFWS Regional Director Amy Lueders, USFS Acting Chief Vicki Christiansen, Regional Forester Cal Joyner, and Apache‐Sitgreaves National Forest Supervisor Steve Best; RE: Sixty‐Day Notice of Endangered Species Act Violations, Apache‐Sitgreaves National Forest; June 27, 2019. 76 Correspondence, from Robin Silver, M.D., Center for Biological Diversity; to Secretary of the Interior David Bernhardt, USFWS Principal Deputy Director Margaret Everson, USFWS Regional Director Amy Lueders, USFS Acting Chief Vicki Christiansen, Regional Forester Cal Joyner, and Lincoln National Forest Supervisor Travis Moseley; RE: Sixty‐Day Notice of Endangered Species Act Violations, Lincoln National Forest; September 13, 2019. 77 "Rapid Assessment of Cattle Impacts in Riparian Exclosures & Critical Habitat on the Gila National Forest," Prepared by the Center for Biological Diversity, January 2020. 78 Correspondence, from Robin Silver, M.D., Center for Biological Diversity; to Sonny Perdue, Secretary of Agriculture, David Bernhardt, Secretary of the Interior, Vicki Christiansen, Acting Chief, U.S. Forest Service, Aurelia Skipwith, Director U.S. Fish and Wildlife Service, Elaine Korhman, Acting Regional Forester, U.S. Forest Service, Southwest Region, Amy Lueders, Regional Director U.S. Fish and Wildlife Service, Laura Jo West, Forest Supervisor Coconino National Forest, Jeff Humphrey, Arizona State Supervisor U.S. Fish and Wildlife Service, Neil Bosworth, Forest Supervisor Tonto National Forest, and Dale Deiter, Forest Supervisor, Prescott National Forest; RE: RE: Sixty‐Day Notice of Endangered Species Act Violations, Verde River Drainage; March 16, 2020. 79 Correspondence, from: ; to: Apache‐Sitgreaves National Forests Supervisor Steve Best and Gila National Forest Supervisor Adam Mendonca, and others; from: Robin Silver, M.D., Center for Biological Diversity; RE: Sixty‐day Notice of Intent to Sue for Violations of Endangered Species Act Consultation Requirements Regarding the Impacts of Domestic Livestock Grazing on Streamside and Aquatic Species and their Critical Habitat on National Forest Lands Within the Upper Gila River Watershed; July 17, 2019, 80 Complaint for Declaratory and Injunctive Relief in the U.S. District Court for the District of Arizona; Center for Biological Diversity v. U.S. Forest Service and U.S. Fish and Wildlife Service, Case 4:20‐cv‐00020‐DCB; January 13, 2020. 81 Correspondence, from Robin Silver, M.D., Center for Biological Diversity; to Secretary of the Interior David Bernhardt, USFWS Principal Deputy Director Margaret Everson, USFWS Regional Director Amy Lueders, USFS Acting Chief Vicki Christiansen,

18 forced to filed a lawsuit on February 20, 2020.82 With no substantive remediating response from the Forest Service and from the Lincoln National Forest to our September 13, 2019, NOI,83 we anticipate filing suit against the Lincoln Nation Forest in the immediate future. With no substantive remediating action by the Coronado National Forest to our April 13, 2018, NOI,84 we anticipate filing suit against the Coronado National Forest to prevent further jeopardy to the Mount Graham Red Squirrel by the Forest Service' and Coronado National Forest's stalling of the removal of the Columbine recreational cabins and abandoned bible camp. For the Regional Program projects with Biological Opinions, all nine projects fail to provide for post treatment local monitoring of sufficient duration to be meaningful where the recommendation is for at least 10 years.85 None of the Biological Opinions for these nine projects passes legal muster by failing to provide for the regionwide habitat monitoring necessary to assess MSO jeopardy resulting from Regional Program projects. All thirteen Regional Program projects that we have been able to identify, the nine with Biological Opinions, the one with a Concurrence and the three with pending Biological Opinions, plan to utilize widespread mechanical thinning in PACs and Recovery nesting/roosting habitat in spite of the best available MSO science now finding that: "Existing studies on the effects of fuels reduction treatments on spotted owls universally suggest negative effects from these treatments."86

Regional Forester Cal Joyner, and Apache‐Sitgreaves National Forest Supervisor Steve Best; RE: Sixty‐Day Notice of Endangered Species Act Violations, Apache‐Sitgreaves National Forest; June 27, 2019. 82 Complaint for Declaratory and Injunctive Relief, Center for Biological Diversity and Maricopa Audubon Society v. David Bernhardt, Secretary of the Interior, U.S. Fish and Wildlife Service; and U.S. Forest Service; Case 4:20‐cv‐00075‐JCZ; February 20, 2020. 83 Correspondence, from Robin Silver, M.D., Center for Biological Diversity; to Secretary of the Interior David Bernhardt, USFWS Principal Deputy Director Margaret Everson, USFWS Regional Director Amy Lueders, USFS Acting Chief Vicki Christiansen, Regional Forester Cal Joyner, and Lincoln National Forest Supervisor Travis Moseley; RE: Sixty‐Day Notice of Endangered Species Act Violations, Lincoln National Forest; September 13, 2019. 84 Correspondence, from: Robin Silver, M.D., Center for Biological Diversity; to Department of Agriculture Secretary Sonny Perdue, Forest Service Acting Chief Vicki Christiansen, Forest Service Regional Forester Cal Joyner, Coronado National Forest Supervisor Kerwin Dewberry, Department of the Interior Secretary Ryan Zinke, Fish and Wildlife Service Acting Director Greg Sheehan, Fish and Wildlife Service Regional Director Amy Lueders, Fish and Wildlife Service State Supervisor Steve Spangle, and Arizona Game and Fish Department Director Ty Gray; RE: Notice of Intent to Sue the U.S. Department of Agriculture (USDA), the U.S. Forest Service (USFS), the U.S. Department of Interior (DOI), and the U.S. Fish and Wildlife Service (USFWS) for failing to reinitiate Endangered Species Act (ESA) consultation on termination of the Columbine area special use permits in order to secure essential recovery habitat to aid survival of the critically endangered Mount Graham Red Squirrel.; April 13, 2018. 85 Recovery Plan for the Mexican Spotted Owl (Strix occidentalis lucida), USFWS Southwestern Region, December 1995. 86 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones,

"[F]orest restoration and thinning activities also may threaten owls and their existing habitat, and thus may qualify as an emerging threat."87 "No empirical studies have evaluated these [the effects of forest thinning and restoration] management activities on the Mexican spotted owl."88 The inappropriate use of utilizing widespread mechanical thinning represents new information that reveals effects of the action that may affect MSO and MSO habitat in a manner or to an extent not previously considered. When new information revealing that the effects of the action may affect a listed species or critical habitat in a manner or to an extent not previously considered, the ESA requires reinitiation of formal consultation pursuant to 50 C.F.R. § 402.16. Consequently, all nine Regional Program Biological Opinions and the one Concurrence will need to be reinitiated. The ESA says, "a Federal agency shall consult with the Secretary on any prospective agency action … if the applicant has reason to believe that an endangered species or a threatened species may be present in the area affected by his project and that implementation of such action will likely affect such species.89 The ESA defines "action" as" all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States."90 "Effects of the action" are defined as "all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action. A consequence is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur. Effects of the action may occur later in time and may include consequences occurring outside the immediate area involved in the action."91 For MSO, the effects of the action are taking place contemporaneously range‐wide and the effects of the action will also be occurring later in time. The effects of the action will continue to include consequences occurring outside of any "site specific" implementation of the action with contemporaneous range‐wide modification of MSO habitat. By hiding behind this "site specific" scheme, the nine completed Biological Opinions and the one Concurrence, the Forest Service and USFWS ignore the fact that the Regional Program is already manifesting "consequences"92 or will be causing "consequences"93 across the region

that would not have happened or will not happen "but for"94 the Regional Program "directly or indirectly causing modifications to the land, water, or air."95 The "but for" language comes directly from the 50 CFR § 402.02 definition of "effects of the action" where, "[e]ffects of the action are all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action. A "consequence" is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur. "Effects of the action" may occur later in time and may include consequences occurring outside the immediate area involved in the action."96 None of the individual "restoration" projects would be happening "but for" implementation of the Regional Program. The effects of the individual "site specific" "restoration" projects' actions will undoubtedly occur later in time and may include consequences outside of the immediate area because (1) MSO is wide ranging across Region 3, (2) the Region 3 Regional Program derives cumulatively from all Region 3 Forest Plans in Forests with MSO Critical Habitat, and (3) the best available science establishes that MSO Critical Habitat must be protected regionally for survival and Recovery.97 None of the nine "site specific" Biological Opinions and the one Concurrence are lawful because they (1) fail to utilize the best available science that mechanical thinning negatively affects MSO; that (2) the MSO Recovery Plan's best available science requirement for adequate basal area of large trees within Primary Activity Centers ("PACs") and Recovery nesting/roosting habitat is largely being ignored; (3) that the duration of "site specific" habitat monitoring is not sufficient;98 and that (4) no regionwide habitat monitoring is being implemented.99 Only a regionwide Biological Opinion will ultimately fully solve these legal deficiencies by (1) providing for a regionwide analysis of the cumulative effects of subjecting at least 467 MSO Primary Activity Centers ("PACs")100 or 35.9% of the total number of 1,301 known MSO occupied sites range wide;101 (2) by providing for and forcing implementation of a regionwide habitat monitoring plan; (3) by providing for standard and sufficient duration local project monitoring; and (4) by stopping the Forest Service's consistent site specific "managing for the minimum" recommendations for basal area and large tree retention.

93 Ibid. 94 50 CFR § 402.02 Definitions 95 50 CFR § 402.02 Definitions: Action means all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States…Examples include, but are not limited to: … (a) actions intended to conserve listed species or their habitat; … (d) actions directly or indirectly causing modifications to the land, water, or air. 96 50 CFR § 402.02 Definitions 97 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012. 98 Id., page 22. 99 Id., page 24. 100 Flagstaff Watershed Protection Project (10), 4FRI1 (70), 4FRI2 (196), Luna (26), Rio Puerco (7), Southwest Jemez (6), SSRP (78), Hassayampa (11), PERP (18), Bill Williams Mountain (1), Cragin (32), West Escudilla (8), and Santa Fe (4). 101 Mexican spotted owl (Strix occidentalis lucida) 5‐Year Review Short Form Summary; USFWS Arizona Ecological Services Office, Phoenix, Arizona; August 2013.

To fully pass legal muster for MSO in Region 3, "action" must be defined to reflect the fact that the Regional Program's modification of regional MSO habitat is a reality and is itself the action. Only a regionwide, programmatic Section 7 consultation can (1) produce and force implementation of the necessary and overdue regionwide habitat monitoring, can (2) address the current failure to use the best available forest thinning science with respect to mechanical thinning, and can (3) provide for clear mandatory and enforceable guidelines to ensure the application of substantive margins above the recommended best science for Basal Area and for retention of large trees. No irreversible and irretrievable commitment of MSO habitat should take place during this regionwide, programmatic consultation. To do any less, treats the Mexican Spotted Owl unfairly.

FACTUAL BACKGROUND

REGIONAL PROGRAM PROJECTS WITH BIOLOGICAL OPINIONS

The Regional Program piecemeal evaluation scheme has secured nine completed "site specific" Biological Opinions.102 None of these nine Biological Opinions satisfy the recommendations and requirements of the Recovery Plan or the best available science to recover MSO. None are lawful.

BILL WILLIAMS MOUNTAIN RESTORATION PROJECT

The Bill Williams Mountain Restoration Project is in the Upper Gila Mountains MSO Ecological Management Unit on the Kaibab National Forest. The May 5, 2015, Biological Opinion for the Bill Williams Restoration Project states that the Project provides for, "A total of 915 acres of the 1,018‐acre PAC will be thinned. Of that total, 107 acres will be thinned using conventional ["hand thinning or mechanical equipment"] methods, 393 acres will be thinned using steep slope mechanical equipment, 333 acres will be thinned using helicopters, and 12 acres will be thinned with "no mechanical" means such as hand crews. [page 18] … Nest/Roost Replacement Recovery Habitat … Thinning will occur in 1,207 acres of mixed conifer nest/roost, 549 acres of pine‐oak nest/roost, and 4,349 acres of pine‐oak, recovery habitat with the MSO I, 2, 4, 5, and 6 prescriptions.

102 Pinaleño Ecosystem Restoration Project, 8/5/11 (Coronado NF); Bill Williams Mountain, 5/5/15 (Kaibab NF); Flagstaff Watershed Protection Project, 6/5/15 (Coconino NF); Four Forests Restoration Initiative 1, 8/25/17 (Coconino NF, Kaibab NF); Cragin Watershed Protection Project, 7/23/18 (Coconino NF); Luna Restoration Project, 5/2/19 (Gila NF); Hassayampa Restoration Project, 9/19/19 (Prescott NF); and Puerco Restoration Project, 12/16/19 (Cibola NF).

Conventional methods will be used to treat 204 acres of mixed conifer nest/roost and 155 acres of pine‐oak nest/roost habitat. Steep slope mechanical equipment will be used to treat 703 acres of mixed conifer nest/roost and 347 acres of pine‐oak nest/roost habitat. [page 18] … Conventional Thinning (hand thinning or mechanical equipment) … Ground‐ based conventional thinning will occur on 11,110 acres and remove 310,800 tons of timber. Conventional treatment methods will occur in 177 acres of the Bill Williams PAC, and 204 acres of mixed conifer and 155 acres of pine‐oak in nest/roost replacement recovery habitat. Trees up to 18 inches dbh will be removed with the majority being trees less than 12 inches dbh on 530 acres. In pine‐oak recovery habitat, trees up to 24 inches dbh will be removed with the majority being trees less than 12 inches dbh on 4, 181 acres. [page 20] … Steep Slope Mechanical Thinning … Steep slope ground‐based thinning using steep slope harvester/forwarders to remove material will occur on 2,400 acres and remove 43,200 tons of timber. The method will be conducted in 393 acres of the PAC, 703 acres of mixed conifer, and 34.7 acres of pine‐oak in nest/roost replacement recovery habitat. In protected and nest/roost replacement recovery habitat, trees up to 18 inches dbh will be removed with the majority being trees less than 12 inches dbh on 1,443 acres. [page 20] … All of the 6,100 acres of Mexican spotted owl critical habitat within the treatment area are proposed for treatment. Within that total acreage, 2,378 acres will be thinned using conventional methods, 2,376 acres will be thinned using steep slope mechanical treatment, 969 acres will have material removed by helicopter, and 397 acres will be thinned without mechanical equipment (hand thinning)."103 [page 29] The July 2015, Bill Williams Mountain Restoration Project Final Environmental Impact Statement,104 in Table 3‐50 on page 174 shows existing Basal Area for Protected Habitat 915 Acres ("excludes core area") as 163 ± 44 (70‐247) with the After‐Treatment Effects will change these findings to 131 ± 45 (29‐203). Table 3‐50 on page 174 also shows existing Basal Area for Mixed Conifer Nest/Roost Replacement Recovery Habitat 1,207 Acres as 149 ± 43 (66‐199) with the After‐Treatment Effects will changing these findings to 123 ± 47 (55‐199). The minimum basal area for the Upper Gila Mountains MSO Ecological Management Unit recommended by the Recovery Plan for mixed‐conifer forest thinning is 120 sq ft/acre and for pine‐oak forest thinning is 110 sq ft/acre; where the Recovery Plan states "[w]e emphasize

103 Correspondence, to: Mr. Michael R. Williams, Forest Supervisor, Kaibab National Forest; from: Steven L. Spangle, Field Supervisor, Arizona Ecological Services Office; RE: Biological Opinion – Bill Williams Mountain Restoration Project; May 5, 2015. 104 Bill Williams Mountain Restoration Project Final Environmental Impact Statement, Kaibab National Forest, Coconino County, Arizona, USFS Southwest Region, July 2015.

23 that values shown [for minimal tree basal area] are minimums, (Recovery Plan's emphasis), not targets."105 As for monitoring, the Bill Williams Mountain Restoration Project Biological Opinion requires only, "[m]onitor the impacts of mechanical thinning, prescribed burning, and associated actions to the Mexican spotted owl affected by the Bill Williams Mountain Restoration Project."106 The Bill Williams Mountain Restoration Project Final Environmental Impact Statement states, however, that, "[d]ependent on available resources, post‐treatment monitoring would occur 1‐2 years after the first thinning or burning treatments within protected habitat."107 In summary for the Bill Williams Mountain Restoration Project, (1) mechanical thinning is adversely modifying MSO protected habitat in spite of new, best available science warning that "the effects of fuels reduction treatments on spotted owls universally suggest negative effects from these treatments"108 and that "forest restoration and thinning activities also may threaten owls and their existing habitat, and thus may qualify as an emerging threat.";109 (2) the basal area of MSO PACs will be lowered to and/or below the recommended minimum110 without any analysis of the cumulative effects of regionwide management for minimum PAC basal area, and (3) post treatment monitoring does not monitor a sufficient number of PACs to be statistically significant locally, and monitors the PACs for too short of a timeframe to be interpreted meaningfully, especially while habitat monitoring is nonexistent regionally.111

105 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012, page 268. 106 Correspondence, to: Mr. Michael R. Williams, Forest Supervisor, Kaibab National Forest; from: Steven L. Spangle, Field Supervisor, Arizona Ecological Services Office; RE: Biological Opinion – Bill Williams Mountain Restoration Project; May 5, 2015.; page 36. 107 Bill Williams Mountain Restoration Project Final Environmental Impact Statement, Kaibab National Forest, Coconino County, Arizona, USFS Southwest Region, July 2015.; page 40. 108 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 109 Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018.; page 8. 110 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 278. 111 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC.

FLAGSTAFF WATERSHED PROTECTION PROJECT

The Flagstaff Watershed Protection Project is in the Upper Gila Mountains MSO Ecological Management Unit on the Coconino National Forest. There are ten PACs in the Flagstaff Watershed Protection Project area.112 The June 5, 2015, Biological Opinion for the Flagstaff Watershed Protection Project113 states, "Mexican spotted owl nest habitat fuels reduction ‐ hand thinning: Hand thinning up to 5 inches dbh would occur within 80 percent of the Schultz Creek PAC nest core in coordination with the FWS (122 acres, DLH [Dry Lake Hills]). Approximately 20 percent of the nest core would be deferred from treatment in order to maintain denser patches for habitat. Residual basal area would be a minimum of 110 ft2 … [page 5] … Mexican spotted owl recovery nest/roost habitat ‐ mechanical thinning: Mechanical treatment would remove ponderosa pine in a variety of size classes; however, no trees greater than 18 inches dbh would be cut. Treatments would be designed to maintain a minimum residual basal area of 110 ft2 … [page 5] Table 11. Acres of proposed treatment type in Mexican spotted owl habitat. …Treatment PAC Acres PAC Fuels Reduction 2,787 …" [page 24] … The Final Environmental Impact Statement for the Flagstaff Watershed Protection Project ("FWPP")114 states,

"Alternative 2 Treatment Summary … The FWPP project area includes approximately 10,544 acres … Treatments would include mechanical and hand thinning as well as prescribed fire on the remaining acres (approximately 8,938 acres). Mechanical tree thinning would occur within Mexican spotted owl protected activity centers (MSO PACs) with a desired condition of trees greater than 16 inches dbh contributing more than 50 percent of the stand basal area and maintaining a minimum of 40 percent canopy cover in pine‐oak and 60 percent in mixed conifer per the MSO Recovery Plan (2012, pp. 276‐277), followed by prescribed burning. Hand thinning up to 5 inches dbh in approximately 80 percent of the Schultz Creek Nest Core and prescribed burning in all nest cores would occur. In addition, hand thinning

112 Correspondence, to: Mr. Scott Russell, Acting Forest Supervisor, Coconino National Forest; from: USFWS Field Supervisor Steven L. Spangle; RE: concerns the potential effects of mechanical thinning and burning activities implemented as part of the Flagstaff Watershed Protection Project (FWPP) on the Flagstaff Ranger District, Coconino National Forest (NF) in Coconino County, Arizona. The Forest Service has determined that the proposed action may affect, and is likely to adversely affect, the threatened Mexican spotted owl (Strix occidentalis lucida) an" its designated critical habitat.; June 5, 2015. 113 Ibid. 114 Final Environmental Impact Statement for the Flagstaff Watershed Protection Project Coconino National Forest Coconino County, Arizona Forest Southwest, MB‐R3‐04‐27, June 2015.

25 up to 9 inches dbh in the DLH, mechanical thinning up to 24 inches dbh on MM, and prescribed burning at both areas would also occur within MSO nest/roost habitat …" [page 62] … MSO Nest Fuels Reduction – Hand Thinning … Hand thinning up to 5” dbh would occur within 80% of the Schultz Creek nest core in coordination with the US Fish and Wildlife Service. Approximately 20% of the nest core would be deferred from treatment in order to maintain denser patches for habitat. Residual basal area would be a minimum of 110 ft2, and treatment would maintain a minimum of 60% canopy cover in mixed conifer. … [page 66] MSO Recovery Nest/Roost– Mechanical Thinning … Mechanical treatment would remove ponderosa pine in a variety of size classes however, no trees > 18” dbh would be cut. Treatments would be designed to maintain a minimum residual basal area of 110 ft2 … [page 67] Table 62: Existing Spotted Owl Habitat Forest Structure and Habitat Components… Habitat: Recovery Habitat – Nest/Roost … Project Site: DLH [Dry Lake Hills] … Cover Type: Mixed Conifer… Basal Area: 145; MM [Mormon Mountain] …Cover Type: Pine/Oak … Basal Area: 173. … Habitat: MSO PAC Habitat: Project Site: DLH…Cover Type: Mixed Conifer…Basal Area: 135…; Cover Type: Pine…Basal Area: 130; Project Site: MM…Cover Type: Mixed Conifer …Basal Area: 153…; Cover Type: Pine/Oak… Basal Area: 161. … Habitat: MSO PAC Habitat – Nest Core … Project Site: DHL … Cover Type: Mixed Conifer…Basal Area: 132…Cover Type: Pine …Basal Area: 55; Project Site: MM…Cover Type: Mixed Conifer … Basal Area: 140; Cover Type: Pine/Oak … Basal Area: 146… " [pages 205‐206]. … Table 70: Dry Lake Hills – Stand values of post vegetation treatment conditions (2013): MSO PAC treatments… Alt 2: BA 106 [pages 220‐221] MSO Nest Roost Recovery Habitat – Effects Common to all Action Alternatives: The MSO Nest Roost Recovery treatment area was identified as nest roost recovery habitat as part of an earlier analysis related to the 4FRI. This stand would be treated to meet the minimum habitat requirements for MSO nest roost recovery habitat under the 2012 revised MSO Recovery Plan. Under all three action alternatives, BA would be reduced from 173 to 120 ft² … [page 226] Table 73: Mormon Mountain – Stand values of current conditions and post treatment conditions for Ponderosa Pine Fuels Reduction treatments: MSO PAC treatments … Alt 2: BA 63 [page 227] … MSO Nest Roost Recovery … Alts 2, 3, & 4 … BA 120 [page 228]

Table 76: Dry Lake Hills – Stand values of current conditions and post treatment conditions for Dry Mixed Conifer: MSO Nest Roost Recovery Hand Thin … Alts 2 & 3 … BA (ft2): 99 [page 234] … MSO PAC Fuels Reduction… Alt 2 … BA (ft2): 81 … MSO PAC Fuels Reduction Hand Thin … Alts 2&3 … BA(ft2): 93 [page 234] … Table 82: Mormon Mountain – Stand values of current conditions and post treatment conditions for Wet Mixed Conifer … MSO PAC treatments … Alt. 2 … BA(ft2): 129 [pages 240‐1] … There would be two different treatments in the DLH’s nest cores. … After treatment, the average nest core conditions would be reduced from 112 to 92 ft² of BA [page 242] … Table 73 shows the stand attributes of all the combined treatments in all of the MSO PACs for MM. The average current condition has a BA of 158 ft² … After treatment, those numbers would be reduced to: 76 ft² of BA …" [page 244] The minimum basal area for the Upper Gila Mountains MSO Ecological Management Unit recommended by the Recovery Plan for mixed‐conifer forest thinning is 120 sq ft/acre and for pine‐oak forest thinning is 110 sq ft/acre where the Recovery Plan states "[w]e emphasize that values shown [for minimal tree basal area] are minimums, (Recovery Plan's emphasis), not targets."115 The Record of Decision for the Flagstaff Watershed Protection Project116 says, "Mechanical tree thinning up to 18 inches dbh would occur within Mexican spotted owl protected activity centers (MSO PACs)… [page 45] … Use combinations of thinning trees less than 9 inches in diameter (or less than 16 inches in the Clark PAC), mechanical fuel treatment and prescribed fire to abate fire risk in the remainder of the selected protected activity center outside the 100 acre "no treatment" area except as follows: Use combinations of thinning trees up to 18 inches dbh within: De Toro’s, Lockwood, Moore Well, Mormon Mountain, Mormon Mountain North, Weimer Springs, Schultz Creek, Mount Elden, Orion Spring, and Weatherford 2 PACs, mechanical fuel treatment and prescribed fire to abate fire in the remainder of the selected protected activity center outside the 100‐acre nest core area." [page 56] … As for monitoring, the Flagstaff Watershed Protection Project Biological Opinion says, "PAC monitoring will be completed one year pre‐treatment, during treatment year, and one, three, and five years post‐treatment."117

115 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012, page 268. 116 Record of Decision for the Flagstaff Watershed Protection Project, Coconino National Forest Coconino County, Arizona; Forest Service Southwest Region, MB‐R3‐04‐29, October 2015.

In summary for the Flagstaff Watershed Protection Project, (1) mechanical thinning is adversely modifying MSO protected habitat in spite of new, best available science warning that "the effects of fuels reduction treatments on spotted owls universally suggest negative effects from these treatments"118 and that "forest restoration and thinning activities also may threaten owls and their existing habitat, and thus may qualify as an emerging threat.";119 (2) the basal area of MSO PACs will be lowered to and/or below the recommended minimum120 without any analysis of the cumulative effects of regionwide management for minimum PAC basal area, and (3) post treatment monitoring does not monitor a sufficient number of PACs to be statistically significant locally, and monitors the PACs for too short of a timeframe to be interpreted meaningfully, especially while habitat monitoring is nonexistent regionally.121

SOUTHWEST JEMEZ MOUNTAINS LANDSCAPE RESTORATION PROJECT

The Southwest Jemez Mountains Landscape Restoration Project is in the MSO Southern Rocky Mountains Ecological Management Unit on the Santa Fe National Forest. There are six PACS in the Southwest Jemez Mountains Landscape Restoration Project.122

117 Correspondence, to: Mr. Scott Russell, Acting Forest Supervisor, Coconino National Forest; from: USFWS Field Supervisor Steven L. Spangle; Field Supervisor, USFWS Arizona Ecological Services Office; RE: concerns the potential effects of mechanical thinning and burning activities implemented as part of the Flagstaff Watershed Protection Project (FWPP) on the Flagstaff Ranger District, Coconino National Forest (NF) in Coconino County, Arizona. The Forest Service has determined that the proposed action may affect, and is likely to adversely affect, the threatened Mexican spotted owl (Strix occidentalis lucida) an" its designated critical habitat.; June 5, 2015.; page 48. 118 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 119 Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018.; page 8. 120 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 278. 121 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 122 Correspondence, from Wally J. Murphy, USFWS New Mexico Field Supervisor; to: Maria T. Garcia, forest Supervisor, Santa Fe National Forest; RE: Biological Opinion on the impacts of the Southwest Jemez Mountains Restoration Project Santa Fe National Forest Jemez Ranger District Sandoval County, New Mexico.; July 13, 2005.; page 30.

The December 2015, Record of Decision for the Southwest Jemez Mountains Landscape Restoration Project123 says, "The Selected Alternative authorizes the following activities for implementation over the next 8‐10 years or until objectives are met: … Mechanically treat approximately 30,000 acres of ponderosa pine and mixed conifer forest… [page 2.] Alternative 1 is the Santa Fe National Forest's selected alternative.124 The August 2015, Final Environmental Impact Statement for the Southwest Jemez Mountains Landscape Restoration Project125 ignores the minimum Basal Area recommendations of the Recovery Plan of ["Minimum tree BA²…We emphasize that values shown are minimums (Recovery Plan's emphasis), not targets." (Table C.3., page 278.)]:

[page 182.] The July 13, 2015, USFWS Biological Opinion on the Southwest Jemez Mountains Landscape Restoration Protection says, "Uneven‐aged Mechanical Treatments with Openings and Burning in Dry Mixed Conifer … Treatments will occur on slopes less than 40 percent and total approximately 5,800 acres across the project area (See Figure 9, pg. 25, DEIS). Uneven‐aged desired conditions will be achieved through mechanical treatments consistent with the management recommendations within the 2012 MSO Recovery Plan, … [page 6.] … Treatments in Wet Mixed Conifer … About 1,150 acres of mechanical thinning and harvest will occur within wet mixed conifer on slopes less than 40 percent. … [page 8.] … Treatments in Mexican Spotted Owl Protected Activity Centers … Prescribed fire will occur on approximately 3,112 acres. Mechanical thinning will occur on slopes less than 40 percent and on 414 acres to improve MSO habitat and move stands toward having larger trees and a multi‐storied canopy. Forested stands will be thinned of trees up to 18‐inches diameter at breast height (dbh) and material

123 Record of Decision for the Southwest Jemez Mountains Landscape Restoration Project; Santa Fe National Forest, Jemez Ranger District, Sandoval County, New Mexico, MB‐RJ‐10‐22; December 2015. 124 Id., page 1. 125 Final Environmental Impact Statement for the Southwest Jemez Mountains Landscape Restoration Project Santa Fe National Forest, Sandoval County, New Mexico; USDA Forest Service Santa Fe National Forest; MB‐R3‐10‐22; August 2015.

removed from the site. Nest areas will not receive mechanical treatments … [page 9.] … …the information provide in Table 9 indicates that stand basal area (BA) in all habitat types will be lower than the recommended value in Table C3 in the Revised Recovery Plan (USFWS 2012a), which recommends an overall minimum BA of 120 sq. ft./acre in mixed conifer PAC and nest/roost habitat[:]

[page 39.] The Forest Service shall monitor the effects of mechanical thinning and prescribed burning on owl occupancy and reproduction, and key habitat components (as defined in the Revised Mexican spotted owl Recovery Plan, table C.2) in all six PACs. Owl occupancy and reproductive data shall be collected for at least two years prior to treatment and two years post‐treatment. [page 78.] The minimum basal area for the Southern Rocky Mountains MSO Ecological Management Unit recommended by the Recovery Plan for mixed‐conifer forest thinning is 120 sq ft/acre; where the Recovery Plan states "[w]e emphasize that values shown [for minimal tree basal area] are minimums, (Recovery Plan's emphasis), not targets."126 In summary for the Southwest Jemez Mountains Landscape Restoration Project, (1) mechanical thinning is adversely modifying MSO protected habitat in spite of new, best available science warning that "the effects of fuels reduction treatments on spotted owls universally suggest negative effects from these treatments"127 and that "forest restoration and

126 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012, page 268. 127 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A.

30 thinning activities also may threaten owls and their existing habitat, and thus may qualify as an emerging threat.";128 (2) the basal area of MSO PACs will be lowered below the recommended minimum129 without any analysis of the cumulative effects of regionwide management for minimum PAC basal area, and (3) post treatment monitoring does not monitor a sufficient number of PACs to be statistically significant locally, and monitors the PACs for too short of a timeframe to be interpreted meaningfully, especially while habitat monitoring is nonexistent regionally.130

PINALEÑO ECOSYSTEM RESTORATION PROJECT

The Pinaleño Ecosystem Restoration Project is in the MSO Basin and Range West Ecological Management Unit on the Coronado National Forest. There are 18 PACs in the Pinaleño Ecosystem Restoration Project area.131 The August 5, 2011, Biological Opinion on the impacts from the Pinaleño Ecosystem Restoration Project132 states, "With the exception of one PAC (Moonshine) that is too steep to safely survey, surveys will occur in all PACs within the action area at least once every three years, with six to 10 PACs being surveyed every year on a rotating basis. Surveys will continue in this fashion throughout implementation of the project and for two years afterward. … [page 21.] … Upper Cunningham PAC (#0504013) … Trees up to nine‐inches dbh may be removed in the core area, while trees up to 18‐inches dbh may be removed from the PAC. These diameter limits do not follow the recommendations for Protected Habitat (including PACs) in the Recovery Plan (U.S. Fish and Wildlife Service 1995). … [page 62.] …

Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 128 Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018.; page 8. 129 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 278. 130 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 131 Correspondence, from: USFWS Arizona Field Supervisor Steven L. Spangle; to: Mr. James Upchurch, Forest Supervisor, Coronado National Forest; RE: Biological Opinion on the impacts that may result from the proposed Pinaleño Ecosystem Restoration Project planned to occur in the Pinaleño Mountains of the Safford Ranger District in Graham County, Arizona which is likely to adversely affect the Mount Graham red squirrel (Tamiasciurus hudsonicus grahamensis) Mexican spotted owl (Strix occidentalis lucida) (MSO), and MSO Critical Habitat.; August 5, 2011. 132 Ibid.

Treasure Park PAC (#0504014) … Approximately 333 acres (45 percent) of the Treasure Park PAC are proposed for treatment … Approximately 50 percent of the core area will be treated (Important Wildlife Area General Prescription). … Effects from silvicultural treatments, prescribed burning, and noise within this PAC may be significant, and are similar to those described in paragraphs two through six under the Upper Cunningham PAC analysis, above. … [page 64.] … Heliograph PAC (#0504016) … Approximately 375 acres (61 percent) of the Heliograph PAC is proposed for treatment … Approximately 53 percent of the core area will be treated (Important Wildlife Area General Prescription). Approximately 261 acres within the PAC will be treated with underburning, much of which will occur both within and near the core area. … Effects from silvicultural treatments, prescribed burning, and noise within this PAC may be significant, and are similar to those described in paragraphs two through six under the Upper Cunningham PAC analysis, above. … [page 64.] … Lower Cunningham PAC (#0504023) … Approximately 528 acres (74 percent) of the Lower Cunningham PAC are proposed for treatment … … Approximately 62 percent of the core area will be treated (Important Wildlife Area General Prescription). … Effects from silvicultural treatments, prescribed burning, and noise within this PAC may be significant, and are similar to those described in paragraphs two through six under the Upper Cunningham PAC analysis, above. … [page 64‐65.] … Broadcast burning and mechanical thinning may affect designated critical habitat by reducing snags, downed logs, woody debris, multi‐storied canopies, and dense canopy cover. … [page 70.] … The February 2010, Final Environmental Impact Statement for the Pinaleño Ecosystem Restoration Project133 states, "Approximately 3,705 acres of forest would receive various combinations of silvicultural prescriptive treatments and/or fuel reduction actions, which include mechanical treatments and prescribed fire. … [Abstract] … Alternatives 2 and 3 propose mechanical and thinning, mastication, hand pile and burning, and prescribed understory burning over a 10‐year period." … [page 137] … In summary for the Pinaleño Ecosystem Restoration Project, (1) mechanical thinning is adversely modifying MSO protected habitat in spite of new, best available science warning that "the effects of fuels reduction treatments on spotted owls universally suggest negative effects from these treatments"134 and that "forest restoration and thinning activities also may threaten

133 Final Environmental Impact Statement for the Pinaleño Ecosystem Restoration Project, Coronado National Forest, Graham County, Arizona, United States Department of Agriculture Forest Service Southwestern Region, MB‐R3‐05‐3, February 2010. 134 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal.

32 owls and their existing habitat, and thus may qualify as an emerging threat.";135 and (2) post treatment monitoring does not monitor a sufficient number of PACs to be statistically significant locally, and monitors the PACs for too short of a timeframe to be interpreted meaningfully, especially while habitat monitoring is nonexistent regionally.136

FOUR FORESTS RESTORATION INITIATIVE ("4FRI1")

The Four Forests Restoration Initiative Project Phase 1 ("4FRI1") is in the MSO Upper Gila Mountains Ecological Management Unit on the Coconino and Kaibab National Forests. There are 70 PACs in the 4FRI1 project area.137 The April 2015, Record of Decision for the Four‐Forest Restoration Initiative138 states, "Alternative B – Proposed Action … Alternative B is the proposed action. It incorporates comments and recommendations received during eight months of collaboration with individuals, agencies, and organizations. This alternative would mechanically treat 384,966 acres of vegetation and use prescribed fire on 583,330 acres. It proposes mechanically treating trees up to 16 inches in diameter (d.b.h.) in 18 Mexican spotted owl protected activity centers. … [page 11.] … Alternative C – Preferred Alternative … Alternative C is the preferred alternative. This alternative would mechanically treat 431,049 acres of vegetation and use prescribed fire on 586,110 acres. … It proposes to mechanically treat trees up to 17.9 inches d.b.h. in 18 Mexican spotted owl protected activity centers… [page 12.] … Restoration activities will: … Mechanically cut trees on approximately 430,261 acres. This includes: (1) mechanically treating trees up to 17.9 inches d.b.h. within 18

Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 135 Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018.; page 8. 136 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 137 Correspondence, from: Steven L. Spangle, USFWS Arizona Field Supervisor; to: Mr. M. Earl Steward and Mr. Michael R. Williams, Forest Supervisors, Coconino and Kaibab National Forests; RE: Biological Opinion concerning the potential effects of mechanical thinning and burning activities implemented as part of the Four Forest Restoration Initiative Project (4FRI) on the Coconino and Kaibab National Forests (NFs) in Coconino and Yavapai Counties, Arizona; October 20, 2014; page 12. 138 Record of Decision for the Four‐Forest Restoration Initiative, Coconino and Kaibab National Forests, Coconino County, Arizona; Forest Service Southwestern Region, MB‐R3‐04‐28; April 2015.

Mexican spotted owl protected activity centers…In 18 protected activity centers, trees up to 17.9 inches d.b.h. may be cut … [page 13.] … Amendment 1 will allow mechanical treatments up to 17.9 inches d.b.h. to improve habitat structure (nesting and roosting habitat) in 18 Mexican spotted owl protected activity centers (PACs). Trees up to 17.9 inches d.b.h. may be cut … [page 16.] … These PACs will be managed for a minimum basal area of 110. …" [page 17.] … The October 20, 2014, Biological Opinion on Four Forest Restoration Initiative Project Phase 1139 states, "Restoration activities specifically within Mexican spotted owl habitat include the actions listed below. These acreages are a sub‐set of the total acreages listed above. • Mechanical thinning of trees up to 18 inches diameter‐at‐breast height (dbh) within 18 Mexican spotted owl protected activity centers (PACs) on 12,587 acres. • Thin and burn 6,712 acres in target and 1,976 acres of threshold restricted … [page 5] … On January 20, 2015, we noted in our Objections to the 4FRI 1 Final Environmental Impact Statement and draft Record of Decision that, "forest‐specific biological opinions [as well as project specific biological opinions like that for 4FRI 1] fail to account for range‐wide impacts to MSO and its critical habitat, and none requires monitoring of MSO population or habitat trends," and, "[w]e have specific questions regarding the monitoring plan for MSO, including but not limited to: (1) criteria for selection of paired treatment and control sites; (2) criteria for selection of measurable indicators of change; (3) sampling design power analysis and expected observational error rates; (4) sampling procedures including monitoring cycle; (5) confidence levels to be applied in data analysis and reporting; (6) timeframe for evaluation of results; and (7) triggers for management adaptation using new information."140 In resolving our objection to the 2015, 4FRI 1 FEIS and draft Record of Decision ("ROD"), on April 10, 2015, the Forest Service acknowledged, "There is mutual recognition of the need to evaluate the impacts of vegetation treatments on Mexican Spotted Owl (MSO) and its habitat at a broad scale. There is

139 Correspondence, from: Steven L. Spangle, USFWS Arizona Field Supervisor; to: Mr. M. Earl Steward and Mr. Michael R. Williams, Forest Supervisors, Coconino and Kaibab National Forests; RE: Biological Opinion concerning the potential effects of mechanical thinning and burning activities implemented as part of the Four Forest Restoration Initiative Project (4FRI) on the Coconino and Kaibab National Forests (NFs) in Coconino and Yavapai Counties, Arizona; October 20, 2014. 140 Correspondence, from: Jay Lininger, Senior Scientist, Center for Biological Diversity; to: Calvin Joyner, Regional Forester, USDA Forest Service; RE: Objection: Four Forests Restoration Initiative Final Environmental Impact Statement and Draft Record of Decision; November 21, 2014.

also a mutual understanding that the desired evaluation is beyond the scope of a single project such as the Four Forest Restoration Initiative. We have agreed to convene a working group that will design such a study. … The group will review the best available science and develop a consistent monitoring approach across multiple administrative units, expanding upon existing monitoring efforts where appropriate."141 We also object to the fact that the first Four Forest Restoration Initiative Project ("4FRI 1") Biological Opinion provides for the monitoring of too few ("three treatment and three reference")142 mechanically treated PACs for too short of a time period ("for at least two years prior to treatment and two years post‐treatment").143 In response to our Objection, one additional treatment PAC and one additional reference PAC were added to the local monitoring plan.144 In the April 10, 2015, Forest Service' Objection Resolution correspondence, the Forest Service acknowledged that as of the date of the Objection Resolution (April 10, 2015), no regionwide MSO habitat monitoring program had been initiated in spite of its being required by the September 5, 2012, MSO Revised Recovery Plan.145 To date, no regionwide MSO habitat monitoring program has yet to be developed and implemented. In summary for 4FRI 1, (1) mechanical thinning is adversely modifying MSO protected habitat in spite of new, best available science warning that "the effects of fuels reduction treatments on spotted owls universally suggest negative effects from these treatments"146 and

141 Correspondence, from: Calvin N. Joyner, Regional Forester; to Mr. Jay Lininger, Center for Biological Diversity; RE: Response to the objections filed on the Four Forest Restoration Initiative (4FRI) Final Environmental Impact Statement (FElS) and Draft Record of Decision (DROD) released by the Forest Supervisors of the Coconino and Kaibab National Forests, Earl Stewart and Mike Williams, respectively; April 10, 2015.; page 17. 142 Correspondence, from: Steven L. Spangle, USFWS Arizona Field Supervisor; to: Mr. M. Earl Steward and Mr. Michael R. Williams, Forest Supervisors, Coconino and Kaibab National Forests; RE: Biological Opinion concerning the potential effects of mechanical thinning and burning activities implemented as part of the Four Forest Restoration Initiative Project (4FRI) on the Coconino and Kaibab National Forests (NFs) in Coconino and Yavapai Counties, Arizona; October 20, 2014; page 37. 143 Ibid. 144 Correspondence, from: Calvin N. Joyner, Regional Forester; to Mr. Jay Lininger, Center for Biological Diversity; RE: Response to the objections filed on the Four Forest Restoration Initiative (4FRI) Final Environmental Impact Statement (FElS) and Draft Record of Decision (DROD) released by the Forest Supervisors of the Coconino and Kaibab National Forests, Earl Stewart and Mike Williams, respectively; April 10, 2015.; page 15. 145 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012. 146 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1.

that "forest restoration and thinning activities also may threaten owls and their existing habitat, and thus may qualify as an emerging threat.";147 and (2) post treatment monitoring does not monitor a sufficient number of PACs to be statistically significant locally, and monitors the PACs for too short of a timeframe to be interpreted meaningfully, especially while habitat monitoring is nonexistent regionally.148

CRAGIN WATERSHED PROTECTION PROJECT

The Cragin Watershed Protection Project is located within the MSO Upper Gila Mountains Ecological Management Unit on the Coconino National Forest. There are 32 PACs within the Cragin Watershed Protection Project.149 The May 20, 2018, Cragin Watershed Protection Project (CWPP) Final Environmental Assessment150 states, "Table 4. Summary of existing and desired tree density in terms of basal area for CWPP forest habitat types. … Forest Cover and Habitat Type MSO Protected Activity Center – Pine Oak Existing Basal Area: 132; Desired Basal Area (stand‐level), NestCore: 100 to 125, PAC: 80 to 140. Table 4. Summary of existing and desired tree density in terms of basal area for CWPP forest habitat types. … Forest Cover and Habitat Type MSO Protected Activity Center – Mixed Conifer Basal Area: 140; Desired Basal Area (stand‐level), NestCore: 115 to 135, PAC: 90 to 150. … [page 23.] Mexican Spotted Owl ‐ Protected Activity Center, Mixed Conifer … Desired future conditions for stands of mixed conifer inside MSO PACs … At the stand level, PAC basal areas would range from 90 ft² to 150 ft2 per acre. Nest core basal areas would range from 115 ft² to 135 ft². … Mexican Spotted Owl Protected Activity Center, Ponderosa pine‐oak … Desired future conditions for stands of ponderosa pine inside MSO PACs … At the stand level, PAC basal areas would range from 80 ft² to 140 ft2 per acre. Nest core basal areas would range from 100 ft² to 125 ft². … [page 25.]

147 Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018.; page 8. 148 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 149 Correspondence, from: Laurel Barnhill, Acting Field Supervisor, USFWS Arizona Ecological Services Office; to: Ms. Laura Jo West, Forest Supervisor, Coconino National Forest; RE: Biological Opinion on the impacts that may result from the proposed Cragin Watershed Protection Project (CWPP) located in Coconino County, Arizona. The proposed action may affect the threatened Mexican spotted owl (Strix occidentalis lucida) and its designated critical habitat.; July 23, 2018.; page 18. 150 Cragin Watershed Protection Project Final Environmental Assessment; Coconino National Forest; May 20, 2018.

MSO ‐ PAC Treatment, Ponderosa Pine – Gambel Oak … Within MSO PACS proposed for treatment, mechanical treatments would be designed to reduce surface and ladder fuels … The tree stocking would range from 80 to 140 ft2 per acre in pine‐ oak forest. … Mechanical treatments would be either preceded by or followed by an initial entry or maintenance prescribed burn, depending on the implementation schedule. No mechanical or hand thinning treatments would occur within any PAC nest core. … MSO ‐ PAC Treatment, Mixed Conifer … Within MSO dry mixed conifer PAC habitat, treatments would be designed to reduce surface and ladder fuels … The treatment is similar to the pine‐oak PAC treatment with a focus on retaining fire‐ resistant, shade‐intolerant conifers (ponderosa pine, Douglas fir, Southwestern white pine). The tree stocking would range from 90 to 140 ft2. … Mechanical treatments would be either preceded by or followed by an initial entry or maintenance prescribed burn, depending on the implementation schedule. No mechanical or hand thinning treatments would occur within any PAC nest core. … [page 50] Table 17. Comparison matrix for vegetation resources in terms of basal area per acre by treatment type one year after treatment. … COMPARISON MATRIX FOR VEGETATION RESOURCES … Desired Condition … Basal Area per Acre (BA) Alternative 2 [chosen alternative] … MSO PAC Mixed Conifer … BA: 123 … Table 17. Comparison matrix for vegetation resources in terms of basal area per acre by treatment type one year after treatment. … COMPARISON MATRIX FOR VEGETATION RESOURCES … Desired Condition … Basal Area per Acre (BA) Alternative 2 [chosen alternative] … MSO PAC Pine‐Oak … BA: 88 …" [page 65] The July 23, 2018, Biological Opinion on the Cragin Watershed Protection Project states, "Mexican spotted owl Mechanical Treatments … PAC Treatment, Ponderosa Pine–Gambel Oak … Within Mexican spotted owl PACs proposed for treatment, mechanical treatments would be designed to reduce surface and ladder fuels while enhancing and maintaining forest health and key habitat components for the spotted owl. … Mechanical treatments would create a diversity of patch sizes with a minimum patch size of 2.5 acres. No trees greater than 18 inches dbh would be removed. The residual basal area post‐treatment would range from 80 to 140 ft2/acre, with trees greater than 16 inches dbh contributing more than 50 percent of the stand basal area. … [page 5.] PAC Treatment, Mixed Conifer … Within dry mixed conifer Mexican spotted owl PAC habitat …, The treatment is similar to the pine‐oak PAC treatment with a focus on retaining ponderosa pine, Douglas fir, and Southwestern white pine. No trees greater than 18 inches dbh would be removed. The residual basal area post‐ treatment would range from 90 to 140 ft2/acre, and trees greater than 16 inches dbh would contribute more than 50 percent of the stand basal area. … [page 6]

Approximately 1,636 acres in 16 PACs, or approximately eight percent of the PAC habitat in the project footprint, will be mechanically thinned. This includes 483 acres of mixed conifer PAC habitat and 1,153 acres of ponderosa pine‐Gambel oak PAC habitat." … [page 21.] The July 27, 2018, Decision Notice and Finding of No Significant Impact for the Cragin Watershed Protection Project151 states, "MSO ‐ PAC Treatment, Ponderosa Pine ‐ Gambel Oak … Within MSO PACS proposed for treatment, mechanical treatments will be designed to reduce surface and ladder fuels while enhancing and maintaining forest health and key habitat components for the spotted owl. Possible treatment tools include single tree and group selection tree regeneration methods, intermediate thinning, stand improvement thinning, and prescribed fire. The treatments will mimic natural disturbance patterns by incorporating irregular tree spacing and various opening sizes into the treatment design. Mechanical treatments will create a diversity of patch sizes with a minimum patch size of 2.5 acres. The tree stocking will range from 80 to 140 ft2 per acre in pine‐oak forest. Trees greater than 16 inches dbh will contribute more than 50 percent of the stand basal area and maintain a minimum of 40 percent canopy cover in pine‐oak per the 2012 MSO Recovery Plan. Openings ranging from 0.1 to 2.5 acres in size will be implemented across 10 to 15 percent of the treatment acres. Treatments will retain trees greater than 18 inches dbh, woody debris larger than 12 inches in diameter, all snags, to the extent practicable, and hard wood trees. Mechanical treatments will be either preceded by or followed by an initial entry or maintenance prescribed bum, depending on the implementation schedule. No mechanical or hand thinning treatments will occur within any PAC nest core. … MSO‐PAC Treatment, Mixed Conifer … Within MSO dry mixed conifer PAC habitat, treatments will be designed to reduce surface and ladder fuels while enhancing and maintaining forest health and key habitat components for the spotted owl. The treatment is similar to the pine‐oak PAC treatment with a focus on retaining fire resistant, shade‐intolerant conifers (ponderosa pine, Douglas fir, Southwestern white pine). No trees greater than 18 inches dbh will be removed. The tree stocking will range from 90 to 140 ft2 … [page 9.] Mechanically cut trees on approximately 1,354 acres within 12 Mexican spotted owl PACs." … [page 5] The minimum basal area for the Upper Gila Mountains MSO Ecological Management Unit recommended by the Recovery Plan for mixed‐conifer forest thinning is 120 sq ft/acre and for pine‐oak forest thinning is 110 sq ft/acre; where the Recovery Plan states "[w]e emphasize

151 Decision Notice and Finding of No Significant Impact for the Cragin Watershed Protection Project; USDA Forest Service Mogollon Rim Ranger District Coconino National Forest; Coconino County, Arizona; Coconino National Forest Supervisor Laura Jo West; July 27, 2018.

that values shown [for minimal tree basal area] are minimums, (Recovery Plan's emphasis), not targets."152 As for monitoring, the May 20, 2018, Cragin Watershed Protection Project Final Environmental Assessment153 says, "Project Monitoring … Mexican Spotted Owl … The revised Mexican Spotted Owl Recovery Plan (USDI Fish and Wildlife Service, 2012) provides guidance for vegetation and prescribed burning treatments and emphasizes the need for monitoring and feedback loops to allow management to be adaptive. Well‐designed monitoring would provide valuable information on the effects of these activities on the owls and their habitat. A monitoring plan that would contribute to determining the effects of thinning and burning on Mexican spotted owls and their habitat would be implemented and follow methodologies similar to those developed for other projects that involved treatments in occupied owl habitat such as the Flagstaff Watershed Protection Project. The monitoring plan would include the details for sample selection, treatment specifics, measurement protocols including timing, and planned analyses. The monitoring plan will be reviewed as part of the consultation process for treatments planned to occur within PACs." [page 430.] But the July 27, 2018, Record of Decision for the Cragin Watershed Protection Project154 says only, "Alternative 2 incorporates a number of design features, best management practices, and project monitoring. These are included in Appendix B of the Environmental Assessment. In addition to the design features in Appendix B of the Final Environmental Assessment, the Forest Service will adhere to the following reasonable and prudent measures based on the project Biological Opinion: … The Forest Service shall monitor incidental take resulting from the selected alternative and report to the FWS the findings of that monitoring." [page 16.] But the Cragin Watershed Protection Project Biological Opinion155 adds no further details regarding post treatment modeling: "The Forest Service shall monitor the project area and other areas that could be affected by the proposed action to ascertain effects to the Mexican spotted owl and/or loss or modification of its habitat that causes harm or harassment to the species." [page 38.]

152 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012, page 268. 153 Cragin Watershed Protection Project Final Environmental Assessment; Coconino National Forest; May 20, 2018. 154 Decision Notice and Finding of No Significant Impact for the Cragin Watershed Protection Project; USDA Forest Service Mogollon Rim Ranger District Coconino National Forest; Coconino County, Arizona; Coconino National Forest Supervisor Laura Jo West; July 27, 2018. 155 Correspondence, from: Laurel Barnhill, Acting Field Supervisor, USFWS Arizona Ecological Services Office; to: Ms. Laura Jo West, Forest Supervisor, Coconino National Forest; RE: Biological Opinion on the impacts that may result from the proposed Cragin Watershed Protection Project (CWPP) located in Coconino County, Arizona. The proposed action may affect the threatened Mexican spotted owl (Strix occidentalis lucida) and its designated critical habitat.; July 23, 2018.;

In summary for the Cragin Watershed Protection Project, (1) mechanical thinning is adversely modifying MSO protected habitat in spite of new, best available science warning that "the effects of fuels reduction treatments on spotted owls universally suggest negative effects from these treatments"156 and that "forest restoration and thinning activities also may threaten owls and their existing habitat, and thus may qualify as an emerging threat.";157 (2) the basal area of MSO PACs will be lowered to and/or below the recommended minimum158 without any analysis of the cumulative effects of regionwide management for minimum PAC basal area, and (3) post treatment monitoring, assuming as stated by the Cragin Watershed Protection Project that "[a] monitoring plan … would be implemented … similar to … the Flagstaff Watershed Protection Project,"159 does not monitor a sufficient number of PACs to be statistically significant locally, and monitors the PACs for too short of a timeframe to be interpreted meaningfully, especially while habitat monitoring is nonexistent regionally.160

LUNA RESTORATION PROJECT

The Luna Restoration Project is in the MSO Upper Gila Mountains Ecological Management Unit on the Gila National Forest. There are 26 PACs within the action area.161

156 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 157 Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018.; page 8. 158 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 278. 159 Cragin Watershed Protection Project Final Environmental Assessment; Coconino National Forest; May 20, 2018.; page 430. 160 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 161 Correspondence, from: USFWS New Mexico Acting Field Supervisor Jodie Mamuscia; to: Adam Mendonca, Forest Supervisor, Gila National Forest, RE: Biological Opinion on the implementation of the Luna Restoration Project on the Quemado Ranger District of the Gila National Forest.; May 2, 2019.; page 35.

The April 2019, Luna Restoration Project Final Environmental Impact Statement162 says, "Mechanical and hand thinning are proposed in Mexican spotted owl habitat." … [page 84.] The May 2, 2019, Biological Opinion on the Luna Restoration Project163 says, "Mechanical Thinning, Hand Thinning, and Slash Treatment … There are a total of 26 PACs within the action area, comprising 16,717 acres. Mechanical thinning will occur via small diameter tree removal (<9 inches diameter at breast height (dbh) and associated slash treatment on approximately 1,310 PAC acres (approximately 8%) in the action area. Specifically, this will impact 8 out of the 26 PACs (approximately 31%) within the action area (Bill Knight, Swapp Booth 2, Divide, Lower Left Hand Canyon, Upper Left Hand Canyon, Laney Spring, Lily 2, and Lily 3) (Figure 4; Table 6). … [page 46] The Service identified up to 15 PACs which may be affected by the Luna Restoration Project. Of those 15 PACs, eight PACs will receive mechanical vegetation treatment … " [page 56] In conjunction with the proposed mechanical treatment, the Forest will be conducting monitoring within treatment and control PACs. They have established one group of treatment PACs and one group of control PACs which share similar vegetative characteristics. Prior to treatment within a PAC, monitoring would occur for 2 years, followed by 3 years of monitoring post‐treatment within the treatment PAC and a corresponding control PAC to document and compare results (Table 8). [page 46] … Owl occupancy and reproductive data shall be collected for at least two years prior to treatment and two years post‐treatment." … [page 83] In summary for the Luna Restoration Project, (1) mechanical thinning is adversely modifying MSO protected habitat in spite of new, best available science warning that "the effects of fuels reduction treatments on spotted owls universally suggest negative effects from these treatments"164 and that "forest restoration and thinning activities also may threaten owls

162 Luna Restoration Project Final Environmental Impact Statement, Forest Service Apache National Forest (Administered by Gila National Forest) Quemado Ranger District, Publication # MB‐R3‐06‐13; April 2019. 163 Correspondence, from: USFWS New Mexico Acting Field Supervisor Jodie Mamuscia; to: Adam Mendonca, Forest Supervisor, Gila National Forest, RE: Biological Opinion on the implementation of the Luna Restoration Project on the Quemado Ranger District of the Gila National Forest.; May 2, 2019. 164 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones,

and their existing habitat, and thus may qualify as an emerging threat.";165 and (2) post treatment monitoring does not monitor a sufficient number of PACs to be statistically significant locally, and monitors the PACs for too short of a timeframe to be interpreted meaningfully, especially while habitat monitoring is nonexistent regionally.166

HASSAYAMPA LANDSCAPE RESTORATION PROJECT

The Hassayampa Landscape Restoration Project is in the Basin and Range West MSO Ecological Management Unit with a small portion of the forest in the Upper Gila Mountain Ecological Management Unit on the Prescott National Forest. There are 15 MSO PACs within the Hassayampa Landscape Restoration Project.167 The December 13, 2017, amended October 1, 2019, Hassayampa Landscape Restoration Project Terrestrial Wildlife Report168 presents the modeled changes for PACs and PAC cores. For example, "Table 18. Modeled changes in protected activity center forest structure between 2019 (post‐mechanical treatment), 2021 (post‐prescribed fire), 2037 and 2057, relative to the existing condition (2017), under the proposed action … Forest Structural Attribute: Live Basal Area (ft /ac) … Silver Spruce [PAC] (Mixed Conifer): 2017: 299 [BA]; 2019: 133 [BA]; 2021: 78 [BA]…; … 18" + dbh Trees per Acre: 2017: 42; 2019: 22… Table 18. Modeled changes in protected activity center forest structure between 2019 (post‐mechanical treatment), 2021 (post‐prescribed fire), 2037 and 2057, relative to the existing condition (2017), under the proposed action … Forest Structural Attribute: Live Basal Area (ft /ac) … Snowdrift (Mixed Conifer): 2017: 210 [BA]; 2019: 91 [BA] … 18" + dbh Trees per Acre: 2017: 44; 2019: 16… [page 47.] … Table 19. Modeled changes in forest structure for the Snowdrift and Towers Mountain Protected Activity Center Cores between 2019 (post‐mechanical treatment), 2021 (post‐prescribed fire), 2037 and 2057, relative to the existing

B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 165 Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018.; page 8. 166 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 167 Correspondence, from: USFWS Arizona Field Supervisor Jeffrey A. Humphrey; to: Mr. Dale A. Deiter, Forest Supervisor, Prescott National Forest; RE: Biological Opinion on the effects that may result from the proposed Hassayampa Landscape Restoration Project that may affect the threatened Mexican spotted owl (Strix occidentalis lucida, owl or MSO) and its designated critical habitat.; September 19, 2019.; page 15. 168 Hassayampa Landscape Restoration Project Terrestrial Wildlife Report Prepared by: Katherine Malengo, Wildlife Biologist, USDA Forest Service Enterprise Program; for: Bradshaw Ranger District, Prescott National Forest, December 13, 2017; Amended October 1, 2019 by: Noel Fletcher, Wildlife Biologist, USDA Forest Service Prescott National Forest.

condition (2017), under the proposed action … Forest Structural Attribute: Live Basal Area (ft /ac) … Snowdrift Protected Activity Center Core (Mixed Conifer): 2017: 147 [BA]; 2019: 121 [BA]; 2021: 112 [BA] … [page 49.] … Table 19. Modeled changes in forest structure for the Snowdrift and Towers Mountain Protected Activity Center Cores between 2019 (post‐mechanical treatment), 2021 (post‐prescribed fire), 2037 and 2057, relative to the existing condition (2017), under the proposed action … Forest Structural Attribute: Live Basal Area (ft /ac) … Recovery Habitat Stands Average Objective: Reduce surplus to desired conditions: 18" + dbh Trees per Acre: Desired Condition: 12; 2017: 29; 2019: 12; … " [page 49.] … The June 2018, Hassayampa Landscape Restoration Project Environmental Assessment169 says, "The Recovery Plan establishes 100‐acre core areas in order to protect Mexican spotted owl nests or primary roost areas. All activities within the core area should undergo consultation with the appropriate U.S. Fish and Wildlife Service office. The target attributes for these areas are as follows: • 120 square feet per acre or greater aggregate total live stand basal area (total live stand density) in mixed conifer stands and 110 square feet per acre of live stand basal area in pine‐oak stands …" [page 15.] … ; Table 34. Existing condition (2017) attributes of forest structure associated with nesting/roosting habitat in sampled Mexican spotted owl habitats…Stand: Snowdrift; Vegetation Type: Mixed Conifer; Mexican Spotted Owl Category: Core (nest); Live Basal Area (ft²/ac): 147; Percent Basal 18 inches + dbh DC: >30: 45; Current Status: Exceeds all 4 attributes … Table 34. Existing condition (2017) attributes of forest structure associated with nesting/roosting habitat in sampled Mexican spotted owl habitats…Stand: Silver Spruce; Vegetation Type: Mixed Conifer; Mexican Spotted Owl Category: Protected Activity Center; Live Basal Area (ft²/ac): 299; Percent Basal 18 inches + dbh DC: >30: 42; Current Status: Exceeds all 4 attributes …" [page 69.] The September 19, 2019, USFWS Biological Opinion on the Hassayampa Landscape Restoration Project170 says, "Treatments would occur within 11 of the 17 existing MSO PACs on the Forest, including 4,375 acres of thinning and 1,235 acres of fuel breaks [Fuel breaks would be linear and up to 330 feet in width.] within owl habitat (Table 3). This would include 1,054 acres of fuel breaks in PACs, 181 acres of fuel breaks in cores, 3,664 acres of thinning in PACs, and 708 acres of thinning in nest cores …" [page 4.] …

169 Hassayampa Landscape Restoration Environmental Assessment; USDA Forest Service Prescott National Forest Bradshaw Ranger District; June 2018. 170 Correspondence, from: Jeffrey A. Humphrey, USFWS Arizona Field Supervisor; to: Dale Deiter, Forest Supervisor, Prescott National Forest; RE: Hassayampa Landscape Restoration Project; September 19, 2019.

Summary of Effects … The Forest Service proposes to conduct mechanical and hand thinning within a large percentage of the nest cores (77%), PACs (75%), and nest/roost replacement recovery habitats (91%) within the project boundary. … These treatments could result in the loss of important habitat components for owls and reduce the availability of nesting and roosting habitat, which is a limiting factor for MSO. Thinning may change the structure of prey habitat, affecting composition and abundance of prey in the short‐term. … The project would result in fuel breaks in nest cores (19%), PACs (21%), and nest/roost replacement recovery habitat (9%) within the project boundary. Fuel breaks would also occur on 13 percent (640 acres) of foraging/non‐breeding recovery habitat in the project area. Fuel breaks would remove hardwoods, downed woody debris, soft snags, and other key habitat variables identified in the Recovery Plan (USFWS 2012). Fuel breaks could result in the long‐term loss of key habitat components for MSO habitat in some areas and would reduce the opportunity for roosting and nesting habitat… Six PACs would have extensive tree removal (including thinning and fuel breaks)." [page 22.] In addition, in Table 2, the September 19, 2019, Biological Opinion says, "Target basal area ranges for Ponderosa Pine/Oak thinning for PAC Basal Area is 60‐ 110 sq ft/acre for 1379 acres … " [page 36.] The minimum basal area for the Basin and Range West and Upper Gila Mountains MSO Ecological Management Units recommended by the Recovery Plan for mixed‐conifer forest thinning is 120 sq ft/acre and for pine‐oak forest thinning is 110 sq ft/acre; where the Recovery Plan states "[w]e emphasize that values shown [for minimal tree basal area] are minimums, (Recovery Plan's emphasis), not targets."171 The September 19, 2019, Biological Opinion on the Hassayampa Landscape Restoration Project documents that, "The Forest is proposing to place fuel breaks adjacent to private property and other high value resources to improve the ability of the Forest to manage fire behavior in these areas. Fuel breaks would be linear and up to 330 feet in width. [page 4.] … Fuel Breaks … The Forest Service would create fuel breaks within approximately 1,054 acres of PAC habitat. This includes 285 acres in mixed conifer and 317 acres in ponderosa pine/oak. Fuel breaks would be up to five chains (330 feet) in width and would include the removal of some large trees and soft snags. These areas would be very open and likely reduce the opportunity for roosting and nesting habitat (since they would remove soft snags and multi‐layered canopy from this area). [page 17.] ...

171 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012, page 268.

The project would result in fuel breaks in nest cores (19%), PACs (21%), and nest/roost replacement recovery habitat (9%) within the project boundary." [page 21.] … The project will create fuel breaks of 1054 acres in PACs and 181 acres in PAC cores of which 1000 acres in PACs and 164 acres in PAC cores will be mechanically thinned.172 The Biological Opinion does not address the necessity for alternatives to the callousness of the Prescott NF's creating 330‐foot‐wide fuel breaks in PACs and cores when the fuel breaks can and should be created on the adjoining private property. In summary for the Hassayampa Landscape Restoration Project, (1) mechanical thinning will adversely modify MSO protected habitat in spite of new, best available science warning that "the effects of fuels reduction treatments on spotted owls universally suggest negative effects from these treatments"173 and that "forest restoration and thinning activities also may threaten owls and their existing habitat, and thus may qualify as an emerging threat.";174 (2) the basal area of MSO PACs will be lowered to and/or below the recommended minimum175 without any analysis of the cumulative effects of regionwide management for minimum PAC basal area, and (3) no post treatment monitoring included in the Biological Opinion, when habitat monitoring is nonexistent regionally.176

172 Id., page 37. 173 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 174 Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018.; page 8. 175 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 278. 176 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC.

PUERCO RESTORATION PROJECT

The Puerco Restoration Project is in the MSO Colorado Plateau Management Unit on the Cibola National Forest. There are seven PACs in the Puerco Restoration Project.177 The July 2018, Puerco Restoration Project Environmental Analysis178 says, "Mechanically thin and/or implement prescribed fire on up to 3,694 acres of Mexican spotted owl (MSO) protected activity centers (PACs), up to 1,697 acres of MSO recovery habitat … [pages 2, 30.] … "The treatment area contains about 6,416 total acres of Mexican spotted owl protected habitat. There are 7 PACs (about 5,900 acres) in the Puerco treatment area. The remaining protected habitat occurs on steep slopes where timber harvest has not occurred in the previous 20 years and is not planned for mechanical treatment. [page 143.] … Affects are expected for Plan amendment 1. Mechanical thinning up to 17.9 inches d.b.h. in 7 Mexican spotted owl PACs would affect 1 percent or less of the forest wide management area acres (Table A‐2). [Page 144.] … Amendment 1. Mexican Spotted Owl Habitat Management Mechanical Treatment Up to 17.9 inches d.b.h. in Select PACs (3,694 acres). [page 220.] … Treatments that would improve habitat by treating up to 17.9 inches d.b.h. is consistent with direction for retaining large trees in the revised Mexican spotted owl recovery plan (page 268 and table C.1‐C.3 on pages 274 to 278). [Page 226.] … Mechanical treatment would affect 7 (12 percent) of the 60 (includes 4 new proposed PACs in the Puerco Project) Cibola NF PACs and 3,694 acres (58 percent) of PAC habitat in the entire treatment area. Outside of PACs, there are 14,110 acres of mixed conifer and pine‐oak forest type in the Puerco Project." [page 230.]

177 Correspondence, from: USFWS New Mexico Field Supervisor Susan S. Millsap; to: Steven Hattenbach, Forest Supervisor, Cibola National Forest and National Grasslands; RE: Biological Opinion for the Puerco Collaborative Forest Landscape Restoration Project on the Mount Taylor Ranger District of the Cibola National Forest and National Grasslands; December 16, 2019.; page 21. 178 Puerco Restoration Project Environmental Analysis; Mount Taylor Ranger District, Cibola National Forest and National Grasslands, Cibola and McKinley Counties, New Mexico; July 2018.

The December 16, 2019, Biological Opinion on the Puerco Collaborative Forest Landscape Restoration Project179 says, "The proposed action will implement several direct restoration actions in Mexican spotted owl habitat. These actions will include mechanical thinning and slash removal, prescribed burning, road rehabilitation and drainage repair, fence construction, pipeline construction, drilling of wells and development of water systems, and stream crossing improvements. [page 26.] … Summary of Effects … The Service identified up to seven PACs (6‐Mile, Foster, Milk Ranch, Agua Remora, Hogback, Brennan Spring, and Smith Canyon) which may be affected by the Puerco Restoration Project. All seven PACs are anticipated to receive mechanical vegetation treatment and a prescribed burn treatment (Tables 5 and 6). [page 36.] … In mixed‐conifer habitat (both PACs and recovery habitat), tree density may range from 20‐100 trees/acre and 30‐120 ft2 of basal area/acre, which meets the minimum requirements for recovery nest/roost habitat. [page 32.] … On approximately 1,503 acres (10% of the desired pine‐oak type), the Forest Service will manage for MSO Recovery Nest ‐ Roost minimum desired conditions of: 30% of basal area in trees 12‐18 in dbh, 30% of basal area in trees >18 in dbh, and 110 square feet of basal area per acre. On approximately 194 acres (25% of the desired mixed conifer type), the Forest Service will manage for recovery nest‐roost habitat minimum desired conditions of: 30% of basal area in trees 12‐18 in dbh; 30% of basal area in trees >18 in dbh; 120 square feet of basal area per acre; and twelve >18 in dbh trees per acre. … " [page 37] … The minimum basal area for the Colorado Plateau MSO Ecological Management Unit recommended by the Recovery Plan for mixed‐conifer forest thinning is 120 sq ft/acre and for pine‐oak forest thinning is 110 sq ft/acre; where the Recovery Plan states "[w]e emphasize that values shown [for minimal tree basal area] are minimums, (Recovery Plan's emphasis), not targets."180 With regard to monitoring, the December 16, 2019, Biological Opinion181 on the Puerco Collaborative Forest Landscape Restoration Project says, "The Forest Service shall monitor the effects of mechanical thinning and prescribed burning on owl occupancy and reproduction, and key habitat components (as defined in the Revised Mexican spotted owl Recovery Plan, table C.2) within an appropriate number of treatment and reference PACs, as determined in coordination

179 Correspondence, from: USFWS New Mexico Field Supervisor Susan S. Millsap; to: Steven Hattenbach, Forest Supervisor, Cibola National Forest and National Grasslands; RE: Biological Opinion for the Puerco Collaborative Forest Landscape Restoration Project on the Mount Taylor Ranger District of the Cibola National Forest and National Grasslands; December 16, 2019. 180 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012, page 268. 181 Ibid.

with the New Mexico ESFO. Owl occupancy and reproductive data shall be collected for at least two years prior to treatment and two years post‐treatment. Vegetation data should be collected pretreatment and at defined intervals post‐treatment. The specific plan development, selection of PACs, and monitoring framework shall be developed in coordination with the New Mexico ESFO and Forest Service District Staff to ensure coordination with other projects and monitoring efforts within 90 days of the publishing of this biological opinion. The monitoring plan shall be designed and implemented to evaluate the effects of thinning and prescribed fire on owl occupancy and reproduction, and retention of or movement toward desired habitat conditions within PACs, as defined in the 2012 MSO Recovery Plan (Service 2012)." [page 45.] … In summary, for the Puerco Restoration Project, (1) mechanical thinning will adversely modify MSO protected habitat in spite of new, best available science warning that "the effects of fuels reduction treatments on spotted owls universally suggest negative effects from these treatments"182 and that "forest restoration and thinning activities also may threaten owls and their existing habitat, and thus may qualify as an emerging threat.";183 (2) the basal area of MSO PACs will be lowered to and/or below the recommended minimum184 without any analysis of the cumulative effects of regionwide management for minimum PAC basal area, and (3) no post treatment monitoring included in the Biological Opinion, when habitat monitoring is nonexistent regionally.185

182 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 183 Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018.; page 8. 184 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 278. 185 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC.

REGIONAL PROGRAM PROJECTS IN MSO HABITAT WITHOUT BIOLOGICAL OPINIONS

WEST ESCUDILLA RESTORATION PROJECT

The West Escudilla Restoration Project is in the MSO Upper Gila Mountain Ecological Management Unit on the Apache‐Sitgreaves National Forests. There are eight MSO PACs in the West Escudilla Restoration Project.186 The West Escudilla Restoration Project has a USFWS concurrence,187 not a Biological Opinion. The May 2017, West Escudilla Restoration Project Environmental Assessment188 says,

[page 40.]

186 West Escudilla Restoration Project Environmental Assessment; Alpine Ranger District, Apache‐Sitgreaves National Forests, Apache and Greenlee Counties, Arizona; U.S. Forest Service Southwestern Region; May 2017.; page 105. 187 Correspondence, from: Steven L. Spangle, USFWS Arizona State Field Supervisor; to: Mr. Steve Best, Forest Supervisor, Apache‐Sitgreaves National Forests; RE: Concurrence for West Escudilla Restoration Project for "not likely to adversely affect" Mexican spotted owl; May 2, 2017. 188 West Escudilla Restoration Project Environmental Assessment; Alpine Ranger District, Apache‐Sitgreaves National Forests, Apache and Greenlee Counties, Arizona; U.S. Forest Service Southwestern Region; May 2017.

"… In the recovery nest/roost habitat and some protected habitat, broadcast burning appears to have dropped the minimum BA below recommended thresholds. Stand prescriptions however would be written to exceed the minimum BA requirement of 120 BA for mixed conifer and 110 BA for Pine‐Oak stands (Table 23). By exceeding the minimum basal areas in the cutting treatments it will allow for fire related mortality and keep the stand at or above the desired conditions. … [page 69.] … Mechanical treatments … Mechanical treatments would occur on 523 acres of Protected Habitat in PACs, or 16% of Protected Habitat in the project area. These treatments would consist of intermediate thinning of smaller trees up to 16” DBH. We would maintain 120 BA (calculated with all tree species) in areas where it currently exists, retaining 30% of BA in trees 12‐18” DBH and retaining 30% of BA in trees 18” DBH and larger, as well as retaining all hardwood species (oak). … Mechanical treatments would also occur on 265 acres of Recovery Nest/Roost habitat, or 25% of the Nest/Roost acres across the project area (1054 acres). ,,, [page 106.] … Terrestrial Mexican Spotted Owl Protected Activity Center (PAC) Monitoring Strategy … Protocol surveys will also be conducted during the two breeding seasons following thinning and two breeding seasons following prescribed burning. … [Appendix D page 92.] All treatments were determined by the District to “may affect, not likely to adversely affect” the Federally listed species and their critical habitat and affirmed by the US Fish and Wildlife Service through consultation (Letter of Concurrence, April 28, 2017). …" [page 24.] The May 2, 2017, USFWS Concurrence on the West Escudilla Restoration Project189 says, Mexican Spotted Owl Recovery Foraging/Non‐breeding Habitat (1,385 acres): … The BA describes the following silviculture guidelines for this treatment: … Prescribed burning after mechanical treatments is planned for all areas and would be coordinated with a wildlife biologist. [pages 3‐4.] … Mexican Spotted Owl Recovery Nest/Roost Habitat and Dry Mixed Conifer inclusions (265 Acres). … The BA describes the following silviculture guidelines for this treatment: … PACs within mixed conifer stands would be managed for 120 square feet basal area per acre; … PACs within pine‐oak stands would be managed for 110 square feet basal area per acre… [page 4.] … MSO PACs outside Core Areas (523 Acres) ‐Mechanical treatment is proposed within PACs, but outside of core areas. … The BA describes the following silviculture guidelines for this treatment: … Maintain a 120 square feet basal area per acre which includes all tree species in the treatment area; [pages 4‐5.] …

189 Correspondence, from: Steven L. Spangle, USFWS Arizona State Field Supervisor; to: Mr. Steve Best, Forest Supervisor, Apache‐Sitgreaves National Forests; RE: Concurrence for West Escudilla Restoration Project for "not likely to adversely affect" Mexican spotted owl; May 2, 2017.

Mexican Spotted Owl and Its Critical Habitat … The BA identified eight spotted owl protected activity centers (PACs) in the proposed action area which comprise 1,970‐acres (1,695 noncore acres and 275 core acres). Three PACs (Butler, Turner Peak, and Jackson Springs) are not identified for any treatment. The Bob Thomas Creek PAC will only be treated with prescribed fire with hand thinning of trees up to 5 inches in dbh prior to burning (Table I). Portions of the remaining four PACs will be treated with mechanical thinning and prescribed fire. … [page 11,] … The BA identified approximately 8,670 acres of the total 68,500 acres (56 percent) [SIC] of the proposed action area as suitable critical habitat as described by the Mexican Spotted Owl Recovery Plan (USFWS 2012) that would be treated under this plan. … [page 12.] … We concur with your determination that the proposed action may affect, but is not likely to adversely affect this species or its critical habitat for the following reasons: … Mechanical thinning will not occur in Mexican spotted owl nest cores … A basal area of 120 square feet per acre (all tree species) will be maintained in sites meeting that criteria …" [page 13.] The August 2, 2017, Decision Notice and Finding of No Significant Impact for the West Escudilla Restoration Project190 says, "In looking at existing conditions, there are currently 5,170 acres that are classified as MSO recovery habitat with only 75 acres in three stands that currently meet MSO recovery nesting / roosting habitat requirements. The MSO recovery plan guidelines require that a minimum 25% of mixed‐conifer and 10% of pine oak habitat are designated to be managed for recovery nesting / roosting habitat. Due to the current deficit of nesting / roosting habitat in the project area 18 mixed‐conifer stands totaling 480 acres and 19 pine oak stands totaling 499 acres in MSO recovery habitat were selected to be managed towards nesting / roosting conditions. These stands were selected by: 1. Best potential of meeting nesting / roosting conditions. 2. Geographic proximity to MSO protected habitat. [page 4.] Mexican Spotted Owl (MSO) Habitat Proposed Treatments … MSO Protected Activity Centers (PAC’s) Outside Core Areas example prescription (523 Acres) –– Intermediate thinning up to 16 inches DBH. Some slopes may require hand thinning and piling due to steep slopes and only smaller diameter trees may be removed depending on the amount of material left as residual slash. … [page Appendix 3] … Typical Silviculture Guidelines: … Intermediate thinning from below up to 16 inches DBH … 120 sq. ft. BA – include all species … Retain 30% of BA in trees 12 to 18 inches DBH … Retain 30% of BA in trees 18 inches DBH and larger … [Appendix pages 4‐5.] …

190 Decision Notice and Finding of No Significant Impact for the West Escudilla Restoration Project USDA Forest Service Alpine and Springerville Ranger Districts Apache‐Sitgreaves National Forests Apache and Greenlee Counties, Arizona; August 2, 2017.

MSO Recovery Nest/Roost Habitat and Dry Mixed Conifer inclusions example prescription (265 Acres) … Typical Silviculture Guidelines: … Retain all trees 24 inches and larger … 120 sq. ft. BA – include all species ( mixed‐conifer stands) … 110 sq. ft. BA – include all species (pine oak stands) … Retain 30% of BA in trees 12 to 18 inches DBH … Retain 30% of BA in trees 18 inches DBH and larger … Manage for a minimum of 12 TPA of trees 18 inches and larger per acre … [Appendix pages 5 & 6.] Wildlife‐Terrestrial: Resource Protection Measures … Species‐specific Conservation Measures … Mexican Spotted Owl … No mechanical thinning in MSO nest cores. … Manage for a minimum of 12 TPA of trees 18 inches and larger per acre …" [Appendix page 35.] In summary for West Escudilla Restoration Project, (1) mechanical thinning will be adversely modifying MSO protected habitat in spite of new, best available science warning that "the effects of fuels reduction treatments on spotted owls universally suggest negative effects from these treatments"191 and that "forest restoration and thinning activities also may threaten owls and their existing habitat, and thus may qualify as an emerging threat.";192 (2) the basal area of MSO PACs will be lowered to and/or below the recommended minimum193 without any analysis of the cumulative effects of regionwide management for minimum PAC basal area, and (3) the post treatment monitoring scheme is too short, while habitat monitoring is nonexistent regionally.194

FOUR FOREST RESTORATION INITIATIVE RIM COUNTRY PROJECT ("4FRI2")

The Four Forest Restoration Initiative Rim Country Project ("4FRI2") is in the MSO Upper Gila Mountains and in the Basin and Range West Ecological Management Units. There are 196

191 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 192 Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018.; page 8. 193 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 278. 194 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC.

PACs in 4FRI2.195 In addition, the Rim Country DEIS also recognizes that 29 additional PACs "either fall outside of the Rim Country boundary are or occur in other project areas" that "would have some other type of restoration."196 The October 2019, 4FRI Rim Country Project Draft Environmental Impact Statement, Volume 1197 says, "Issue 1 – Treatments in MSO PACs The proposed action may have negative effects on Mexican spotted owl (MSO) by cutting trees up to 17.9 inches in diameter in MSO protected activity centers (PACs). The Forest Service should act conservatively to protect MSO habitat and consider all cautions identified in the revised Recovery Plan for MSO (USDI Fish and Wildlife Service 2012). There is a concern about how MSO will respond to the removal of trees up to 17.9 inches in diameter, given a lack of monitoring data. How Issue 1 is addressed This issue is addressed in the effects analysis for all alternatives using the best available science and with design features and conservation measures as outlined in the 2012 revised MSO Recovery Plan to apply to treatments in MSO PACs. The wildlife analysis will reference all available monitoring information from the 1st 4FRI EIS and from other sources across the region. [page 25.] … Alternative 2 [preferred] also includes treatments to restore habitat for wildlife and rare species (Table 10, Table 11, Figure 5, Figure 6, and Figure 7). Proposed activities include: Mechanically thin trees and/or implement prescribed fire on up to 953,130 acres. … Implement mechanical thinning and prescribed fire on approximately 454,020 acres including: … Mechanically thin and/or implement prescribed fire on approximately 82,280 acres (in target and non‐target vegetation cover types) of Mexican spotted owl (MSO) protected activity centers (PACs) including ‐‐ Approximately 23,550 acres of mechanical thinning and/or prescribed fire … Approximately 58,730 acres of prescribed fire only … [page 30.] … Mechanically thin and/or implement prescribed fire on approximately 82,280 acres (in target and non‐target vegetation cover types) of Mexican spotted owl (MSO) protected activity centers (PACs) including ‐‐ Approximately 23,550 acres of mechanical thinning and/or prescribed fire … Mechanically thin and/or implement prescribed fire on approximately 25,290 acres of MSO replacement nest/roost recovery habitat. … [page 30.] …

195 4FRI Rim Country Project Draft Environmental Impact Statement, Volume 2; Apache‐Sitgreaves, Coconino, and Tonto National Forests Coconino, Yavapai, Gila, and Navajo Counties, Arizona; Forest Service Southwestern Region MB‐R3‐04‐34; October 2019.; page 321. 196 Ibid. 197 4FRI Rim Country Project, Draft Environmental Impact Statement, Volume 1, Apache‐Sitgreaves, Coconino, and Tonto National Forests, Coconino, Yavapai, Gila and Navajo Counties, Arizona; USDA Southwestern Region, October 2019.;

Mechanically thin and/or implement prescribed fire on approximately 61,700 acres (in target and non‐target vegetation cover types) of Mexican spotted owl (MSO) protected activity centers (PACs) including: … Approximately 19,650 acres of mechanical thinning and/or prescribed fire … Mechanically thin and/or implement prescribed fire on approximately 19,590 acres of MSO replacement nest/roost recovery habitat. …" [page 39.] The October 2019, 4FRI Rim Country Project Draft Environmental Impact Statement, Volume 2198 says, "It was determined that 12 of the 196 PACs assessed did not need mechanical treatments, and that mechanical treatments were possible in 24,875 acres of PACs. … [page 322.] … Two critical habitat units occur partially or completely within the Rim Country project area (Figure 84). They encompass 488,974 acres of Forest Service land, including mixed‐conifer forest, but do not include state, private, Naval Observatory, or certain wildland‐urban interface areas. A total of 266,149 acres of MSO habitat occurs within the critical habitat units in the Rim Country project area. … [page 323.] … Alternative 2 – Proposed Action … Under Alternative 2, mechanical treatments would occur in portions of all MSO habitats, except for core areas which would be only be burned (Table 71). Total treatments in MSO habitat include 241,585 acres of mechanical thinning and low‐severity prescribed fire (about 71 percent of the total MSO habitat in the project area). This represents the largest number of MSO habitat acres ever treated with prescribed fire. The minimum post‐treatment basal area for nesting and roosting habitat would be 110 square feet per acre. Adjustments would be made during implementation to retain a basal area of at least 110 square feet per acre wherever possible. Low‐severity prescribed fire would be applied to all MSO habitats. No trees greater than 24 inches in diameter would be cut in MSO habitat. Trees up to 18 inches in diameter could be thinned in PACs. … Treatments in nest/roost habitat would not lower forest structure values below the minimum nest/roost levels described in the forest plans and in Table C.3 of the Revised Recovery Plan (USDI FWS 2012b). It is assumed that mechanical treatments and two low‐severity fires would be implemented during the project’s lifespan (2019‐ 2049). [pages 357‐358.] … Forest Structure … Under Alternative 2, the FVS modeling of treatments over the next 30 years indicates that most forest structure, as it pertains to habitat variables important to the MSO in PACs, is preserved through time. Trees per acre would be reduced from the existing 1,291 in mixed conifer and 1,276 in pine‐oak, to

198 4FRI Rim Country Project Draft Environmental Impact Statement, Volume 2; Apache‐Sitgreaves, Coconino, and Tonto National Forests Coconino, Yavapai, Gila, and Navajo Counties, Arizona; Forest Service Southwestern Region MB‐R3‐04‐34; October 2019.

227 in mixed conifer and 232 in pine‐oak in 2039 (Table 68). Reducing trees per acre closer to NRV protects PACs and restores conditions for MSO by managing for less dense and encroached forested conditions. Openings created by bringing tree size classes to desired condition would provide habitat for a variety of prey species and would slow or reduce fire severity by breaking the continuity of dense tree canopies and ladder fuels. The average of all basal areas from saplings (Size Class 1) to old growth or large trees (Size Class 6) show that intermediate‐sized trees (Size 3 with BA 5 to 12 inches and Size 4 with BA 12 to 18 inches are currently predominant on the landscape and vastly departed from NRV) would be lowered closer to desired condition as a result of treatments through 2049. The basal area average would be decreased from the existing 173 in mixed conifer and 144 in pine‐oak, to 127 in mixed conifer and 106 in pine‐oak in 2039. … [page 361.] … The basal area average would decrease from the existing 188 in mixed conifer, 164 in pine‐oak, and 190 in modeled recovery habitat on the Tonto, to 127 in mixed conifer, 112 in pine‐oak, and 102 in modeled recovery habitat on the Tonto in 2029." … [page 364.] … As for monitoring, in the Four Forest Restoration Initiative Rim Country Draft Environmental Impact Statement, Volume 1, the Forest Service inappropriately and inaccurately claims that concern that the "proposed action may have negative effects" on MSO "is addressed" because the "wildlife analysis will reference all available monitoring information from the 1st 4FRI EIS and from other sources across the region."199 In summary for 4FRI 2, (1) mechanical thinning will be adversely modifying MSO protected habitat in spite of new, best available science warning that "the effects of fuels reduction treatments on spotted owls universally suggest negative effects from these treatments"200 and that "forest restoration and thinning activities also may threaten owls and their existing habitat, and thus may qualify as an emerging threat.";201 (2) the basal area of MSO

199 4FRI Rim Country Project, Draft Environmental Impact Statement, Volume 1, Apache‐Sitgreaves, Coconino, and Tonto National Forests, Coconino, Yavapai, Gila and Navajo Counties, Arizona; USDA Southwestern Region, October 2019; page 25. 200 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 201 Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018.; page 8.

PACs will be lowered to and/or below the recommended minimum202 without any analysis of the cumulative effects of regionwide management for minimum PAC basal area, and (3) while post treatment monitoring scheme for 4FRI 2 is nebulous and inadequate, habitat monitoring is nonexistent regionally.203

SOUTH SACRAMENTO RESTORATION PROJECT

The South Sacramento Restoration Project is in the MSO Basin and Range East Unit on the Lincoln National Forest. There are 78 PACs in the South Sacramento Restoration Project.204 The February 2019, South Sacramento Restoration Project Draft Environmental Impact Statement205 says, "Desired Conditions for Protected Activity Centers The following minimum parameters have been established within nest cores in established protected activity centers: • Stands should have a minimum basal area of 145 square feet per acre and a minimum density of 15 trees per acre in the greater than 18‐inch DBH size class; • Maintain a minimum of 60 percent canopy cover in mixed conifer; • Trees in the 12‐ to 18‐inch DBH size class should comprise at least 30 percent of stand basal area. Trees in the greater than 18‐inch DBH size class should comprise at least 30 percent of stand basal area; and • Retain dead and down woody material and snags per current recovery plan guidelines. The following minimum parameters have been established outside of nest cores in established protected activity centers: • Strive for tree species diversity, especially with a mixture of hardwoods and shade‐ tolerant species, to be improved and maintained • Strive for diverse composition of vigorous native herbaceous and shrub species to be improved and maintained • Emphasize the retention of large hardwoods

202 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 278. 203 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 204 South Sacramento Restoration Project Draft Environmental Impact Statement, Lincoln National Forest Sacramento Ranger District; February 2019.; page 283. 205 South Sacramento Restoration Project Draft Environmental Impact Statement; USDA Forest Service Lincoln National Forest, Sacramento Ranger District; February 2019.

• Maintain a minimum of 60 percent canopy cover in mixed conifer forest. Pure ponderosa pine stands would be managed to appropriate canopy cover requirements. Canopy cover would be managed within stands. • Trees greater than 16 inches DBH would contribute at least 50 percent of the stand basal area • Opening sizes would vary between 0.1 and 2.5 acres. Openings within a forest are different than natural meadows. Small canopy gaps within forested patches provide for prey habitat diversity. Openings should be small in nest/roost core areas, may be larger in rest of protected activity … [page 31.] Vegetation Thinning Treatments within Mexican Spotted Owl Protected Activity Centers … The objectives of the vegetation thinning treatments in Mexican spotted owl protected activity centers are described in Table 2‐5. … Ecological Response Unit: Nest Core…Vegetation Thinning Treatments: Thinning from Below: Basal Area Objectives (sqft/acre): 90 to 160. [pages 48‐50.] Within Mexican spotted owl protected activity centers, vegetation treatments objectives would be as follows (see Table 2‐5): Deferment would occur where stand conditions are healthy and sustainable: • mixed conifer with aspen forest (non‐core) stands or partial stands having less than 140 square feet/acre of basal area composed of tree patches of healthy mid‐sized to large trees • mixed conifer frequent fire forest (non‐core) with stands or partial stands having less than 120 square feet/acre of basal area composed of tree patches of healthy mid‐sized to large trees • ponderosa pine forest (non‐core) with stands or partial stands having less than 110 square feet/acre of basal area composed of patches of healthy mid‐sized to large trees Free Thinning would be used to maintain mature aspen components of stands where sapling and young conifer trees are beginning to compete with the mature aspen overstory: • residual basal areas would range between 80 and 150 square feet/acre Thinning from Below would occur infrequently in nest cores to address concerns with ladder fuels: • residual basal areas would range between 90 and 160 square feet/acre • nest cores are typically composed of mid‐size to large tree states (VSS 4‐6), only understory trees less than 9 inches DBH would be removed … Approximately 20 percent of total non‐core protected activity center acres within the project area could be mechanically treated; these areas would be selected with the assistance of the U.S. Fish and Wildlife Service. … [page 51]

This is obviously very confusing. Much still needs to be clarified here, particularly, by the Lincoln NF, who has such a consistently poor record of protecting endangered species and their habitats.206 The February 2019, South Sacramento Restoration Project draft Environmental Impact Statement207 also contains essentially nothing but contradictory outlines of a proposed local monitoring plan: "Pre‐ and post‐treatment monitoring would occur so the impacts of treatments can be understood before proceeding with treatments in additional protected activity centers. Monitoring criteria and methods are described under the Implementation, Adaptive Management, and Maintenance section of Section 2.2.2. [Page 45.] … Implementation, Adaptive Management, and Maintenance [Page 81.] … Implementation would generally follow these steps: … 3. The Forest Service develops detailed treatment prescriptions and a monitoring plan is developed, based on survey data. … 7. Project is completed. 8. U.S. Forest Service interdisciplinary team reviews project results and outcomes. 9. Monitoring is conducted to determine if treatments were effective at meeting project objectives. [Page 85.] … Monitoring would be completed using best available science and collected data would be used to inform the adaptive management process. … Monitoring results would be documented and reviewed to determine whether adjustments in design features should be made to maintain or improve resource conditions. The type and frequency for this monitoring would include: … Effectiveness Monitoring: Scheduled and unscheduled monitoring for the effectiveness of management activities in maintaining or achieving the desired conditions would occur. Monitoring would follow the established monitoring plan written during the site‐specific prescription development (see implementation step 3 above). … The U.S. Fish and Wildlife Service and Forest Service will monitor owl occupancy rate, reproductive output, and habitat changes as a result of the vegetation thinning and prescribed burning treatments. Occupancy and reproduction monitoring would be implemented for both reference and treatment protected activity centers 1 year prior to treatment, during treatment, and 5 consecutive years

206 Correspondence, from Robin Silver, M.D., Center for Biological Diversity; to Secretary of the Interior David Bernhardt, USFWS Principal Deputy Director Margaret Everson, USFWS Regional Director Amy Lueders, USFS Acting Chief Vicki Christiansen, Regional Forester Cal Joyner, and Lincoln National Forest Supervisor Travis Moseley; RE: Sixty‐Day Notice of Endangered Species Act Violations, Lincoln National Forest; September 13, 2019. 207 South Sacramento Restoration Project Draft Environmental Impact Statement, Lincoln National Forest Sacramento Ranger District, February 2019.

after treatment. Vegetation condition monitoring would be done 1 year before treatment implementation and no later than 1 year after it is completed." [Page 86.] Obviously an actual, comprehensible monitoring plan does not yet exist for this project. In summary, for the South Sacramento Mountains Restoration Project, (1) mechanical thinning will be adversely modifying MSO protected habitat in spite of new, best available science warning that "the effects of fuels reduction treatments on spotted owls universally suggest negative effects from these treatments"208 and that "forest restoration and thinning activities also may threaten owls and their existing habitat, and thus may qualify as an emerging threat.";209 (2) it is not clear if the basal area of MSO PACs will be lowered to and/or below the recommended minimum,210 only that there is no analysis of the cumulative effects of regionwide management for minimum PAC basal area, and (3) the Lincoln NF's proposed treatment monitoring scheme is too short, while habitat monitoring is nonexistent regionally.211

SANTA FE MOUNTAINS LANDSCAPE RESILIENCY PROJECT

The Santa Fe Mountains Landscape Resiliency Project is in the MSO Southern Rocky Mountains Ecological Management Unit. There are four PACs in the Santa Fe Mountains Landscape Resiliency Project. 212 The June 10, 2019, Santa Fe Mountains Resiliency Project Scoping Document213 says essentially nothing with respect to MSO Recovery Plan guidelines. There is an expressed intention to use widespread dependence on mechanical thinning,

208 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 209 Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018.; page 8. 210 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 278. 211 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 212 Santa Fe Mountains Landscape Resiliency Project Scoping Document, Espanola and Pecos/Las Vegas Ranger Districts, Santa Fe National Forest, Santa Fe County and San Miguel County, New Mexico; June 10, 2019.; page 9. 213 Ibid.

"Areas characterized by unnaturally dense forested stands and a closed canopy structure offer habitat for some species such as Mexican spotted owls, but are poor habitat for many species that rely on a healthy understory for forage such as deer, rodents and turkey. … The Forest Service classifies the condition of subwatersheds into one of three condition classes based on the quality of aquatic and terrestrial habitat: Functioning Properly, Functioning at Risk, or Impaired. With the exception of Arroyo Hondo (which is Functioning Properly), all the project subwatersheds are functioning at risk. [page 10.] To meet the purpose and need for the Santa Fe Mountains Landscape Resiliency Project and move the project area towards the desired conditions, the Santa Fe National Forest proposes a combination of activities/treatments, including: … Mechanical and hand‐thinning treatments; [page 11.] Ponderosa Pine & Dry Mixed Conifer (up to 14,000 acres) … Thinning methods would include hand‐crews using chainsaws and mechanized equipment such as masticators and feller‐bunchers. …" [page 12.] In summary, for Santa Fe Mountains Resiliency Project, in order to pass legal muster, the Project will need to comply with MSO basal area and large tree retention Recovery Plan guidance, best science with respect to mechanical thinning, and monitoring that is covered by regionwide program. To date, because only a scoping document is available, nothing more can be concluded regarding this project.

LEGAL STATUTORY AND REGULATORY FRAMEWORK ENDANGERED SPECIES ACT

Section 4 of the ESA directs the Secretary of the Interior to designate species that are threatened or endangered with extinction, and to designate “critical habitat” for such species. 16 U.S.C. § 1533(a). Section 4 also requires the Secretary to develop and implement recovery plans for the conservation and survival of threatened and endangered species, unless the Secretary finds that such a plan will not promote the conservation of the species. 16 U.S.C. § 1533(f). Section 7 of the ESA requires each federal agency, in consultation with FWS, to ensure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of any threatened or endangered species, or result in the destruction or adverse modification of the critical habitat of such species. 16 U.S.C. § 1536(a)(2). For each proposed action, the action agency must request from FWS whether any listed or proposed species may be present in the area of the proposed action. 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12. If listed or proposed species may be present, the action agency must prepare a “biological assessment” to determine whether the listed species may be affected by the

proposed action. Id. If the 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 the action agency with 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. The biological opinion “is required to address both the ‘no jeopardy’ and ‘no adverse modification’ prongs of Section 7.” Center for Biological Diversity v. Bureau of Land Management, 422 F. Supp. 2d 1115, 1127 (N.D. Cal. 2006), citing 50 C.F.R. § 402.14(g)(4). If FWS concludes in the biological opinion that the proposed action will jeopardize the continued existence of a listed species, or will result in the destruction or adverse modification of critical habitat, FWS must outline “reasonable and prudent alternatives” to the proposed action that FWS believes would not jeopardize listed species or result in the destruction or adverse modification of critical habitat. 16 U.S.C. § 1536(b)(3)(A). If the biological opinion concludes that the proposed action is not likely to jeopardize the continued existence of a listed species, or result in the destruction or adverse modification of critical habitat, FWS must provide an “incidental take statement,” specifying the amount or extent of such incidental taking on the species, any “reasonable and prudent measures” that FWS considers necessary or appropriate to minimize such impact, and setting forth the “terms and conditions” that must be complied with by the agency to implement those measures. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). In order to monitor the impacts of incidental take, the agency must report the impact of its action on the listed species to FWS. 50 C.F.R. § 402.14(i)(3). If during the course of the action the amount or extent of incidental taking is exceeded, the agency must reinitiate consultation immediately. 50 C.F.R. § 401.14(i)(4); see also 50 C.F.R. § 402.16. The ESA requires the action agency and FWS to reinitiate formal consultation where discretionary federal involvement or control over the action has been retained or is authorized by law and: (1) if the amount or extent of taking specified in the incidental take statement is exceeded; (2) if new information reveals effects of the action that may affected listed species or critical habitat in a manner or to an extent not previously considered; (3) if the action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or (4) if a new species is listed or critical habitat designated that may be affected by the action. 50 C.F.R. § 402.16. In addition to the obligation to avoid jeopardizing species under section 7(a)(2), Section 7(a)(1) of the ESA also imposes an obligation on all federal agencies, in consultation with the FWS, to "carry out programs for the conservation" of listed species. 16 U.S.C. § 1536(a)(1). This provision imposes an "affirmative duty on each federal agency to conserve each of the species listed." Sierra Club v. Glickman, 156 F.3d 606,616 (5th Cir. 1998); accord Pyramid Lake Paiute Tribe of Indians v. Dep’t of the Navy, 898 F.2d 1410, 1416‐17 (9th Cir. 1990) (noting that federal agencies have "affirmative obligations to conserve under [S]ection 7(a)(1)"). "Conserve" is defined by the Act to mean recovery, i.e., the "use of all methods and procedures which are

necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter arc no longer necessary." 16 U.S.C. § 1536(a)(1). We have recently reaffirmed the obligation of all federal agencies to "carry out programs for the conservation" of listed species in Center for Biological Diversity, et al., v. Tom Vilsack, et al.214 Section 7(a)(4) requires Federal agencies to confer with the Services on actions likely to jeopardize the continued existence of any species proposed for listing or result in the destruction or adverse modification of any proposed critical habitat. When new species are added to the federal list and are affected by federal actions such as grazing on Forest Service land, the law requires that the Forest Service consults with USFWS to ensure that Forest Service's activities will not jeopardize survival and recovery of these species.215 USFWS is obligated by the ESA and its implementing regulations to produce both a Regional Program programmatic Biological Opinion and individual Biological Opinion for the "site specific" actions taken in accordance with the programmatic Biological Opinion.216 On May 11, 2015, USFWS amended the Section 7 regulations that for any "framework programmatic action" where both the Section 7 framework Biological Opinions are necessary but need not include incidental take statements so long as site‐specific Biological Opinions and Incidental Take Statements will authorize incidental take on a project by project basis, where the projects result from the framework Biological Opinion.217 USFWS May 11, 2015, Federal Register amendment notice says, "Framework programmatic actions will trigger formal consultation if the action may affect listed species or their designated critical habitat. … [page 26833.] The section 7 regulatory definition of Federal ‘‘action’’ includes Federal agency programs. See 50 CFR 402.02. Such programs may include a collection of activities of a similar nature…or an action adopting a framework for the development of future actions." [page 26835.] Section 9 of the ESA and its implementing regulations prohibit the unauthorized “take” of any endangered or threatened species of fish or wildlife. 16 U.S.C. § 1538(a)(1); 16 U.S.C. §

214 Order, Center for Biological Diversity, et al., Plaintiffs, v. Tom Vilsack, et al., Defendants; Case No. 2?13‐cv‐01785‐RFB‐GWH; August 1, 2017. 215 16 U.S.C. § 1536(a)(2) and 50 C.F.R. § 402.14(g). 216 50 C.F.R. § 402.02 (defining “action”); id. (defining “programmatic consultation”); Incidental Take Statements, 80 Fed. Reg. 26832 (May 11, 2015). 217 Interagency Cooperation – Endangered Species Act of 1973, as Amended; Incidental Take Statements; Fish and Wildlife Service, Interior; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.; Final Rule.; 80 FR 26832; May 11, 2015. This notice says, "The two primary purposes of the amendments are to address the use of surrogates to express the amount or extent of anticipated incidental take and to refine the basis for development of incidental take statements for programmatic actions." [page 26832.]; and, "§ 402.02 Definitions. … Framework programmatic action means, for purposes of an incidental take statement, a Federal action that approves a framework for the development of future action(s) that are authorized, funded, or carried out at a later time, and any take of a listed species would not occur unless and until those future action(s) are authorized, funded, or carried out and subject to further section 7 consultation." [page 26844.]

1533(d); 50 C.F.R. § 17.31. “Take” is defined broadly under the ESA to include harming, harassing, trapping, capturing, wounding or killing a protected species either directly or by degrading its habitat. 16 U.S.C. § 1532(19).

VIOLATIONS OF THE ENDANGERED SPECIES ACT

The Region 3 Regional Program as secured at least nine "site specific" Regional Program projects with completed USFWS Biological Opinions and one with a completed USFWS Concurrence.218 These nine Regional Program projects with completed USFWS Biological Opinions include, Four Forests Restoration Initiative 1 on the Coconino and Kaibab National Forests, Flagstaff Watershed Protection Project on the Coconino National Forest, Bill Williams Restoration Project on the Kaibab National Forest, Cragin Watershed Restoration Project on the Coconino National Forest, Hassayampa Restoration Project on the Prescott National Forest, Pinaleño Ecological Restoration Project on the Coronado National Forest, Luna Restoration Project on the Gila National Forest, Southwest Jemez Mountains Landscape Restoration Project on the Santa Fe National Forest and Puerco Restoration Project on the Cibola National Forest. One Regional Program project, West Escudilla Restoration Project on the Apache‐ Sitgreaves National Forests has a USFWS Concurrence instead of a Biological Opinion. These 10 "site specific" Regional Program projects with final USFWS opinions and the three projects with pending Biological Opinions represent an elaborate and sinister Forest Service and USFWS scheme of piecemeal "site specific" evaluations designed to obscure widespread adverse cumulative effects on MSO and MSO habitat. With 35.9% of all number of known range‐wide occupied MSO sites currently being impacted or proposed to be impacted regionwide, the action itself can no longer be illegally piecemealed via "site specific" actions with no regional cumulative effects analysis and no regional habitat monitoring. The Endangered Species Act mandates against such breaking of an agency action into separate parts that "consult on the effects of programmatic actions such as: [m]ultiple similar, frequently occurring, or routine actions expected to be implemented in particular geographic areas; and … providing a framework for future proposed actions…,"219 and where the "analysis

218 PERP, 8/5/11 (Coronado NF); Bill Williams Mountain, 5/5/15 (Kaibab NF); FWPP, 6/5/15 (Coconino NF); Southwest Jemez, 7/13/15 (Santa Fe NF); 4FRI 1, 8/25/17 (Coconino NF, Kaibab NF); Cragin, 7/23/18 (Coconino NF); Hassayampa, 9/19/19 (Prescott NF); Luna, 5/2/19 (Gila NF); and Puerco, 12/16/19 (Cibola NF). 219 50 CFR § 402.02 Definitions says: "Programmatic consultation is a consultation addressing an agency's multiple actions on a program, region, or other basis. Programmatic consultations allow the Services to consult on the effects of programmatic actions such as: (1) Multiple similar, frequently occurring, or routine actions expected to be implemented in particular geographic areas; and (2) A proposed program, plan, policy, or regulation providing a framework for future proposed actions."

lays out the species‐specific standards within which all individual activities will be conducted."220 The Court, in Ctr. for Biological Diversity v. Rumsfeld,221 addressed a similar federal agency attempt to obscure the effects of harmful projects on endangered species and Critical Habitat: "The ESA mandates that the biological opinion analyze the entire agency action to ensure that the action is fully protective of the endangered species and its habitat. 16 U.S.C. § 1536(b)(3)(A). The scope of the agency action is critical to whether the consultation process considers all the effects of the action and adequately mitigates potential impacts. Courts have [page 12] "analyze the effect of the entire agency action," Conner v. Burford, 848 F.2d 1441, 1453 (9th Cir. 1988), cert. denied, Sun Exploration & Production v. Luganm 489 U.S. 1012, 103 L. Ed. 2d 184, 109 S. Ct. 1121 (1989) (emphasis added), including all indirect and cumulative effects of the action on threatened and endangered species, 50 C.F.R. § 402.14(g)(3); 50 C.F.R. § 402.02. An agency may not ignore future aspects of a federal action by segmenting that action into phases. In fact, in Conner, the Court held that all phases of oil and gas leasing had to be evaluated for potential impacts at the leasing stage, even though the final phase ‐construction of oil and gas wells ‐ was uncertain to occur. Conner, 848 F.2d at 1453‐1458; See also North Slope Borough v. Andrus, 206 U.S. App. D.C. 184, 642 F.2d 589, 608 (D.C. Cir. 1980 (agency may not deal exclusively with one stage of the project). In Connor, the FWS issued a biological opinion only with regard to the leasing stage because it did not have sufficient data to render a comprehensive [**40] opinion beyond the initial leasing phase. Instead of issuing a comprehensive biological opinion the FWS concluded that the leasing phase did not jeopardize endangered species. The FWS envisioned an "incremental‐step consultation approach, with additional biological evaluations prior to subsequent activities. The court rejected this. The fact that insufficient evidence was available did not excuse the FWS from rendering a comprehensive opinion on the entire agency action. The court explained, as follows: Although we recognize that the precise location and extent of future oil and gas activities were unknown at the time, extensive information about the behavior and habitat of the species in the areas covered by the leases was available ... We agree with appellees that incomplete information about post‐leasing activities does not excuse the failure to comply with the statutory requirement of a comprehensive biological opinion using the best information available. Conner, 848 F.2d at 1453‐1454."222

220 Endangered Species Consultation Handbook Procedures for Conducting Consultation and Conference Activities Under Section 7 of the Endangered Species Act, U.S. Fish & Wildlife Service and National Marine Fisheries Service, March 1998, Final.; page E‐17. 221 Ctr. for Biological Diversity v. Rumsfeld, 198 F. Supp. 2d 1139, 1153‐54 (D. Ariz. 2002).

We will further address Forest Service' and USFWS' unlawful failure to provide for a programmatic regionwide Regional Program Section 7 ESA consultation at the end of this section but we first address the violations of law for each of the nine "site specific" Regional Program Biological Opinions and the one Concurrence.

BILL WILLIAMS MOUNTAIN RESTORATION PROJECT

The Bill Williams Mountain Restoration Project is in the Upper Gila Mountains MSO Ecological Management Unit on the Kaibab National Forest. The May 5, 2015, Biological Opinion for the Bill Williams Restoration Project223 violates the law in that it: 1. approves adverse modification of MSO protected habitat mechanical thinning despite the best available MSO science.224 This action is antithetical to the best available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.; 2. approves that basal area of MSO Recovery mixed conifer nest/roost habitat will be lowered to the recommended minimum225 without any analysis of the cumulative effects of consistent regionwide management for minimum PAC basal area. This action is antithetical to the best available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.;

222 Ctr. for Biological Diversity v. Rumsfeld, 198 F. Supp. 2d 1139, 1153‐54 (D. Ariz. 2002).; pages 12‐13. 223 Correspondence, to: Mr. Michael R. Williams, Forest Supervisor, Kaibab National Forest; from: Steven L. Spangle, Field Supervisor, Arizona Ecological Services Office; RE: Biological Opinion – Bill Williams Mountain Restoration Project; May 5, 2015. 224 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 225 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 278.

3. (a) provides for post treatment monitoring that does not monitor a sufficient number of PACs to be statistically significant locally, (b) monitors the PACs for too short of a timeframe to be interpreted meaningfully, and (3) provides limited monitoring that means little in the current setting where a regionwide monitoring plan is nonexistent regionally. These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).;226 and, 4. provides an inadequate "Jeopardy Determination" analysis by (a) failing to include in "Effects of the Action" identical actions contemporaneously occurring in multiple other region wide locations, and by (b) ignoring the inability to determine if the action will be appreciably reducing the likelihood of MSO survival and recovery where a regionwide monitoring plan is nonexistent regionally.227 These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).228

FLAGSTAFF WATERSHED PROTECTION PROJECT

The Flagstaff Watershed Protection Project is in the Upper Gila Mountains MSO Ecological Management Unit on the Coconino National Forest. The June 5, 2015, Flagstaff Watershed Protection Project Biological Opinion229 violates the law in that it: 1. approves adverse modification of MSO protected habitat mechanical thinning despite the best available MSO science.230 This action is antithetical to the best

226 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 227 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 228 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 229 Correspondence, to: Mr. Scott Russell, Acting Forest Supervisor, Coconino National Forest; from: USFWS Field Supervisor Steven L. Spangle; RE: concerns the potential effects of mechanical thinning and burning activities implemented as part of the Flagstaff Watershed Protection Project (FWPP) on the Flagstaff Ranger District, Coconino National Forest (NF) in Coconino County, Arizona. The Forest Service has determined that the proposed action may affect, and is likely to adversely affect, the threatened Mexican spotted owl (Strix occidentalis lucida) an" its designated critical habitat.; June 5, 2015. 230 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones,

available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.; 2. approves that basal area of MSO PACs will be lowered to below and Recovery nest/roost habitat will be lowered to the recommended minimum231 without any analysis of the cumulative effects of consistent regionwide management for minimum PAC basal area. This action is antithetical to the best available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.; 3. (a) provides for post treatment monitoring that does not monitor a sufficient number of PACs to be statistically significant locally, (b) monitors the PACs for too short of a timeframe to be interpreted meaningfully, and (3) provides limited monitoring that means little in the current setting where a regionwide monitoring plan is nonexistent regionally. These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).;232 and, 4. provides an inadequate "Jeopardy Determination" analysis by (a) failing to include in "Effects of the Action" identical actions contemporaneously occurring in multiple other region wide locations, and by (b) ignoring the inability to determine if the action will be appreciably reducing the likelihood of MSO survival and recovery where a regionwide monitoring plan is nonexistent regionally.233 These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).234

B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 231 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 278. 232 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 233 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 234 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC.

SOUTHWEST JEMEZ MOUNTAINS LANDSCAPE RESTORATION PROJECT

The Southwest Jemez Mountains Landscape Restoration Project is in the MSO Southern Rocky Mountains Ecological Management Unit on the Santa Fe National Forest. The July 13, 2015, Southwest Jemez Mountains Landscape Restoration Project Biological Opinion235 violates the law in that it: 1. approves adverse modification of MSO protected habitat mechanical thinning despite the best available MSO science.236 This action is antithetical to the best available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.; 2. approves that basal area of MSO PACs and nest/roost habitat will be lowered to below the recommended minimum237 without any analysis of the cumulative effects of consistent regionwide management for minimum PAC basal area. This action is antithetical to the best available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.; 3. (a) provides for post treatment monitoring that does not monitor a sufficient number of PACs to be statistically significant locally, (b) monitors the PACs for too short of a timeframe to be interpreted meaningfully, and (3) provides limited monitoring that means little in the current setting where a regionwide monitoring

235 Correspondence, from Wally J. Murphy, USFWS New Mexico Field Supervisor; to: Maria T. Garcia, forest Supervisor, Santa Fe National Forest; RE: Biological Opinion on the impacts of the Southwest Jemez Mountains Restoration Project Santa Fe National Forest Jemez Ranger District Sandoval County, New Mexico.; July 13, 2005. 236 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 237 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 278.

plan is nonexistent regionally. These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).;238 and, 4. provides an inadequate "Jeopardy Determination" analysis by (a) failing to include in "Effects of the Action" identical actions contemporaneously occurring in multiple other region wide locations, and by (b) ignoring the inability to determine if the action will be appreciably reducing the likelihood of MSO survival and recovery where a regionwide monitoring plan is nonexistent regionally.239 These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).240

PINALEÑO ECOSYSTEM RESTORATION PROJECT

The Pinaleño Ecological Restoration Project is in the MSO Basin and Range West Ecological Management Unit on the Coronado National Forest. The August 5, 2011, Pinaleño Ecological Restoration Project Biological Opinion241 violates the law in that it: 1. approves adverse modification of MSO protected habitat mechanical thinning despite the best available MSO science.242 This action is antithetical to the best available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action

238 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 239 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 240 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 241 Correspondence, from: USFWS Arizona Field Supervisor Steven L. Spangle; to: Mr. James Upchurch, Forest Supervisor, Coronado National Forest; RE: Biological Opinion on the impacts that may result from the proposed Pinaleño Ecosystem Restoration Project planned to occur in the Pinaleño Mountains of the Safford Ranger District in Graham County, Arizona which is likely to adversely affect the Mount Graham red squirrel (Tamiasciurus hudsonicus grahamensis) Mexican spotted owl (Strix occidentalis lucida) (MSO), and MSO Critical Habitat.; August 5, 2011. 242 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1.

affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.; 2. (a) provides for post treatment monitoring that does not monitor a sufficient number of PACs to be statistically significant locally, (b) monitors the PACs for too short of a timeframe to be interpreted meaningfully, and (3) provides limited monitoring that means little in the current setting where a regionwide monitoring plan is nonexistent regionally. These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).;243 and, 3. provides an inadequate "Effect of the Take" analysis by (a) failing to include in "Effects of the Action" identical actions contemporaneously occurring in multiple other region wide locations, and by (b) ignoring the inability to determine if the action will be appreciably reducing the likelihood of MSO survival and recovery where a regionwide monitoring plan is nonexistent regionally.244 These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).245 Because most of the identical actions contemporaneously occurring in multiple other region wide locations were not known at the time of the

FOUR FORESTS RESTORATION INITIATIVE ("4FRI")

The Four Forests Restoration Initiative Project Phase 1 ("4FRI 1") is in the MSO Upper Gila Mountains Ecological Management Unit on the Coconino and Kaibab National Forests. The October 24, 2014, 4FRI 1 Biological Opinion246 violates the law in that it: 1. approves adverse modification of MSO protected habitat mechanical thinning despite the best available MSO science.247 This action is antithetical to the best

243 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 244 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 245 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 246 Correspondence, from: Steven L. Spangle, USFWS Arizona Field Supervisor; to: Mr. M. Earl Steward and Mr. Michael R. Williams, Forest Supervisors, Coconino and Kaibab National Forests; RE: Biological Opinion concerning the potential effects of mechanical thinning and burning activities implemented as part of the Four Forest Restoration Initiative Project (4FRI) on the Coconino and Kaibab National Forests (NFs) in Coconino and Yavapai Counties, Arizona; October 20, 2014; page 12. 247 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane,

available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.; 2. approves that basal area of MSO PACs will be lowered to the recommended minimum248 without any analysis of the cumulative effects of consistent regionwide management for minimum PAC basal area. This action is antithetical to the best available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.; 3. (a) provides for post treatment monitoring that does not monitor a sufficient number of PACs to be statistically significant locally, (b) monitors the PACs for too short of a timeframe to be interpreted meaningfully, and (3) provides limited monitoring that means little in the current setting where a regionwide monitoring plan is nonexistent regionally. These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).;249 and, 4. provides an inadequate "Jeopardy Determination" analysis by (a) failing to include in "Effects of the Action" identical actions contemporaneously occurring in multiple other region wide locations, and by (b) ignoring the inability to determine if the action will be appreciably reducing the likelihood of MSO survival and recovery where a regionwide monitoring plan is nonexistent regionally.250 These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).251

D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 248 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 278. 249 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 250 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 251 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC.

CRAGIN WATERSHED PROTECTION PROJECT

The Cragin Watershed Protection Project is located within the MSO Upper Gila Mountains Ecological Management Unit on the Coconino National Forest. The July 23, 2018, Cragin Watershed Protection Project Biological Opinion252 violates the law in that it: 1. approves adverse modification of MSO protected habitat mechanical thinning despite the best available MSO science.253 This action is antithetical to the best available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.; 2. approves that basal area of MSO PACs will be lowered to and/or below the recommended minimum254 without any analysis of the cumulative effects of consistent regionwide management for minimum PAC basal area. This action is antithetical to the best available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.; 3. (a) provides for post treatment monitoring that does not monitor a sufficient number of PACs to be statistically significant locally, (b) monitors the PACs for too short of a timeframe to be interpreted meaningfully, and (3) provides limited monitoring that means little in the current setting where a regionwide monitoring

252 Correspondence, from: Laurel Barnhill, Acting Field Supervisor, USFWS Arizona Ecological Services Office; to: Ms. Laura Jo West, Forest Supervisor, Coconino National Forest; RE: Biological Opinion on the impacts that may result from the proposed Cragin Watershed Protection Project (CWPP) located in Coconino County, Arizona. The proposed action may affect the threatened Mexican spotted owl (Strix occidentalis lucida) and its designated critical habitat.; July 23, 2018.; page 18. 253 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 254 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 278.

plan is nonexistent regionally. These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).;255 and, 4. provides an inadequate "Jeopardy and Adverse Modification Analysis" by (a) failing to include in "Effects of the Action" identical actions contemporaneously occurring in multiple other region wide locations, and by (b) ignoring the inability to determine if the action will be appreciably reducing the likelihood of MSO survival and recovery where a regionwide monitoring plan is nonexistent regionally.256 These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).257

LUNA RESTORATION PROJECT

The Luna Restoration Project is in the MSO Upper Gila Mountains Ecological Management Unit on the Gila National Forest. The May 2, 2019, Luna Restoration Project Biological Opinion258 violates the law in that it: 1. approves adverse modification of MSO protected habitat mechanical thinning despite the best available MSO science.259 This action is antithetical to the best available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.;

255 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 256 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 257 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 258 Correspondence, from: USFWS New Mexico Acting Field Supervisor Jodie Mamuscia; to: Adam Mendonca, Forest Supervisor, Gila National Forest, RE: Biological Opinion on the implementation of the Luna Restoration Project on the Quemado Ranger District of the Gila National Forest.; May 2, 2019.; page 35. 259 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1.

2. (a) provides for post treatment monitoring that does not monitor a sufficient number of PACs to be statistically significant locally, (b) monitors the PACs for too short of a timeframe to be interpreted meaningfully, and (3) provides limited monitoring that means little in the current setting where a regionwide monitoring plan is nonexistent regionally. These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).;260 and, 3. provides an inadequate "Jeopardy Determination" analysis by (a) failing to include in "Effects of the Action" identical actions contemporaneously occurring in multiple other region wide locations, and by (b) ignoring the inability to determine if the action will be appreciably reducing the likelihood of MSO survival and recovery where a regionwide monitoring plan is nonexistent regionally.261 These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).262

HASSAYAMPA LANDSCAPE RESTORATION

The Hassayampa Landscape Restoration is in the Basin and Range West MSO Ecological Management Unit with a small portion of the forest in the Upper Gila Mountain Ecological Management Unit on the Prescott National Forest. The September 19, 2019, Hassayampa Landscape Restoration Biological Opinion263 violates the law in that it: 1. approves adverse modification of MSO protected habitat mechanical thinning despite the best available MSO science.264 This action is antithetical to the best

260 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 261 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 262 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 263 Correspondence, from: USFWS Arizona Field Supervisor Jeffrey A. Humphrey; to: Mr. Dale A. Deiter, Forest Supervisor, Prescott National Forest; RE: Biological Opinion on the effects that may result from the proposed Hassayampa Landscape Restoration Project on the proposed action that may affect the threatened Mexican spotted owl (Strix occidentalis lucida, owl or MSO) and its designated critical habitat.; September 19, 2019. 264 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones,

available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.; 2. approves that basal area of MSO PACs and the percentage of basal area by size class will be lowered to and/or below the recommended minimum265 without any analysis of the cumulative effects of consistent regionwide management for minimum PAC basal area. This action is antithetical to the best available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.; 3. (a) provides for post treatment monitoring that does not monitor a sufficient number of PACs to be statistically significant locally, (b) monitors the PACs for too short of a timeframe to be interpreted meaningfully, and (3) provides limited monitoring that means little in the current setting where a regionwide monitoring plan is nonexistent regionally. These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).;266 and, 4. provides an inadequate "Jeopardy and Adverse Modification Analysis" by (a) failing to include in "Effects of the Action" identical actions contemporaneously occurring in multiple other region wide locations, and by (b) ignoring the inability to determine if the action will be appreciably reducing the likelihood of MSO survival and recovery where a regionwide monitoring plan is nonexistent regionally.267 These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).268

B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 265 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 278. 266 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 267 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 268 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC.

PUERCO RESTORATION PROJECT

The Puerco Restoration Project is in the MSO Colorado Plateau Management Unit on the Cibola National Forest. The December 16, 2019, Puerco Restoration Project269 violates the law in that it: 1. approves adverse modification of MSO protected habitat mechanical thinning despite the best available MSO science.270 This action is antithetical to the best available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.; 2. approves that tree density of MSO PACs and recovery habitat will be lowered to the recommended minimum Recovery Nest‐Roost large tree percentage of basal area and basal area will be lowered to the recommended minimum271 without any analysis of the cumulative effects of consistent regionwide management for minimum PAC basal area. This action is antithetical to the best available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.; 3. (a) provides for post treatment monitoring that does not monitor a sufficient number of PACs to be statistically significant locally, (b) monitors the PACs for too short of a timeframe to be interpreted meaningfully, and (3) provides limited monitoring that means little in the current setting where a regionwide monitoring

269 Correspondence, from: USFWS New Mexico Field Supervisor Susan S. Millsap; to: Steven Hattenbach, Forest Supervisor, Cibola National Forest and National Grasslands; RE: Biological Opinion for the Puerco Collaborative Forest Landscape Restoration Project on the Mount Taylor Ranger District of the Cibola National Forest and National Grasslands; December 16, 2019. 270 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 271 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 278.

plan is nonexistent regionally. These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).;272 and, 4. provides an inadequate "Jeopardy Determination" analysis by (a) failing to include in "Effects of the Action" identical actions contemporaneously occurring in multiple other region wide locations, and by (b) ignoring the inability to determine if the action will be appreciably reducing the likelihood of MSO survival and recovery where a regionwide monitoring plan is nonexistent regionally.273 These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).274

WEST ESCUDILLA RESTORATION PROJECT

The West Escudilla Restoration Project is in the MSO Upper Gila Mountain Ecological Management Unit on the Apache‐Sitgreaves National Forest. The West Escudilla Restoration Project275 received a Concurrence instead of a Biological Opinion because USFWS says in the Concurrence, "[w]e concur with your determination that the proposed action may affect, but is not likely to adversely affect this species or its critical habitat for the following reasons: … Mechanical thinning will not occur in Mexican spotted owl nest cores … A basal area of 120 square feet per acre ( all tree species) will be maintained in sites meeting that criteria … [page 13.] But the May 2017, West Escudilla Restoration Project Environmental Assessment276 commits to extensive mechanical thinning including in MSO PACs,277 and fails to recognize that the West Escudilla Restoration Project is only one of many similar contemporaneous projects region wide. A Concurrence for West Escudilla Restoration Project is not appropriate.

272 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 273 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 274 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 275 Correspondence, from: Steven L. Spangle, USFWS Arizona State Field Supervisor; to: Mr. Steve Best, Forest Supervisor, Apache‐Sitgreaves National Forests; RE: Concurrence for West Escudilla Restoration Project for "not likely to adversely affect" Mexican spotted owl; May 2, 2017. 276 West Escudilla Restoration Project Environmental Assessment; Alpine Ranger District, Apache‐Sitgreaves National Forests, Apache and Greenlee Counties, Arizona; U.S. Forest Service Southwestern Region; May 2017. 277 Id., page 106.

The West Escudilla Restoration Project violates the law in that it: 1. approves adverse modification of MSO protected habitat mechanical thinning despite the best available MSO science.278 This action is antithetical to the best available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.; 2. approves that basal area of MSO PACs and Recovery Nest/Roost habitat and the percentage of large trees of basal area will be lowered to the recommended minimum279 without any analysis of the cumulative effects of consistent regionwide management for minimum PAC basal area. This action is antithetical to the best available science. Failure to "use the best scientific … data available" violates 16 U.S.C. § 1536(2). It represents new information revealing effects of the action affecting MSO and MSO habitat in a manner or to an extend not previously considered. It requires reinitiation pursuant to 50 C.F.R. § 402.16.; 3. (a) provides for post treatment monitoring that does not monitor a sufficient number of PACs to be statistically significant locally, (b) monitors the PACs for too short of a timeframe to be interpreted meaningfully, and (3) provides limited monitoring that means little in the current setting where a regionwide monitoring plan is nonexistent regionally. These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).;280 and, 4. fails to provide any "Jeopardy Determination" analysis inappropriately concurring with the Forest Service' "may affect, but is not likely to adversely affect" determination. Consequently, USFWS (a) fails to include an "Effects of the Action" analysis including identical actions contemporaneously occurring in multiple other region wide locations, and (b) ignores the inability to determine if the action will be appreciably reducing the likelihood of MSO survival and recovery where a

278 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1. 279 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 278. 280 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC.

regionwide monitoring plan is nonexistent regionally.281 These actions represent failure to "use the best scientific … data available" which violates 16 U.S.C. § 1536(2).282

FAILURE TO PROVIDE FOR A PROGRAMMATIC BIOLOGICAL OPINION FOR THE REGIONAL PROGRAM

USFWS is obligated by the ESA and its implementing regulations to produce both a Regional Program programmatic Biological Opinion and an individual Biological Opinion for the "site specific" actions taken in accordance with the programmatic Biological Opinion.283 On May 11, 2015, USFWS amended the Section 7 regulations that for any "framework programmatic action" where both the Section 7 framework Biological Opinions are necessary but need not include incidental take statements so long as site‐specific Biological Opinions and Incidental Take Statements will authorize incidental take on a project by project basis, where the projects result from the framework Biological Opinion.284 USFWS May 11, 2015, Federal Register amendment notice says, "Framework programmatic actions will trigger formal consultation if the action may affect listed species or their designated critical habitat. … [page 26833.] The section 7 regulatory definition of Federal ‘‘action’’ includes Federal agency programs. See 50 CFR 402.02. Such programs may include a collection of activities of a similar nature…or an action adopting a framework for the development of future actions." [page 26835.] "Action" means "all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States … but are not limited to: … (a)

281 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 282 Ibid.; Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995).; Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; WildEarth Guardians v. U.S. Fish and Wildlife Service and U.S. Forest Service, Case No. 4:13‐cv‐151‐RCC. 283 50 C.F.R. § 402.02 (defining “action”); id. (defining “programmatic consultation”); Incidental Take Statements, 80 Fed. Reg. 26832 (May 11, 2015). 284 Interagency Cooperation – Endangered Species Act of 1973, as Amended; Incidental Take Statements; Fish and Wildlife Service, Interior; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.; Final Rule.; 80 FR 26832; May 11, 2015. This notice says, "The two primary purposes of the amendments are to address the use of surrogates to express the amount or extent of anticipated incidental take and to refine the basis for development of incidental take statements for programmatic actions." [page 26832.]; and, "§ 402.02 Definitions. … Framework programmatic action means, for purposes of an incidental take statement, a Federal action that approves a framework for the development of future action(s) that are authorized, funded, or carried out at a later time, and any take of a listed species would not occur unless and until those future action(s) are authorized, funded, or carried out and subject to further section 7 consultation." [page 26844.]

actions intended to conserve listed species or their habitat … (d) actions directly or indirectly causing modifications to the land, water, or air."285 "[A]ction area" means " all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action."286 "Effects of the action" are "all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action. A consequence is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur. Effects of the action may occur later in time and may include consequences occurring outside the immediate area involved in the action. (See § 402.17).287 "Reasonably certain to occur" includes an evaluation of "[p]ast experiences with activities that have resulted from actions that are similar in scope, nature, and magnitude to the proposed action … [an] [e]xisting plans for the activity…" 288 The Regional Program is an "action."289 The effects of the Regional Program are taking place contemporaneously range‐wide and the effects of the Regional Program will also be occurring later in time. The effects of the Regional Program will continue to include consequences occurring outside of any "site specific" implementation of the Regional Program with contemporaneous range‐wide modification of MSO habitat. By hiding behind the current "site specific" scheme, the nine completed Biological Opinions and the one Concurrence, the Forest Service and USFWS ignore the fact that the Regional Program as an "action" and as a "framework programmatic action"290 is already manifesting "consequences"291 or will be causing "consequences"292 across the region that

285 50 CFR § 402.02 ‐ Definitions. 286 Ibid. 287 Ibid. 288 50 CFR § 402.17 Other provisions. 289 50 CFR § 402.02 ‐ Definitions. 290 Interagency Cooperation – Endangered Species Act of 1973, as Amended; Incidental Take Statements; Fish and Wildlife Service, Interior; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.; Final Rule.; 80 FR 26832; May 11, 2015. This notice says, "The two primary purposes of the amendments are to address the use of surrogates to express the amount or extent of anticipated incidental take and to refine the basis for development of incidental take statements for programmatic actions." [page 26832.]; and, "§ 402.02 Definitions. … Framework programmatic action means, for purposes of an incidental take statement, a Federal action that approves a framework for the development of future action(s) that are authorized, funded, or carried out at a later time, and any take of a listed species would not occur unless and until those future action(s) are authorized, funded, or carried out and subject to further section 7 consultation." [page 26844.] 291 50 CFR § 402.02 Definitions: "Effects of the action are all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action. A consequence is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur. Effects of the action may occur later in time and may include consequences occurring outside the immediate area involved in the action. 292 Ibid.

80 would not have happened or will not happen "but for"293 the Regional Program "directly or indirectly causing modifications to the land, water, or air."294 None of the individual "site specific" Regional Program projects would be happening "but for" implementation of the Regional Program. The effects of the individual "site specific" "restoration" projects' actions will undoubtedly occur later in time and may include consequences outside of any immediate "site specific" area because (1) MSO is wide ranging across Region 3, (2) the Regional Program is already implementing at least ten projects295 and has proposed at least three proposed projects296 that we know of; and (3) the best available science establishes that MSO Critical Habitat must be protected regionally for survival and Recovery.297 The Forest Service and USFWS have failed to provide for a Section 7 Consultation for the Forest Service' Regional Program as required by law.298

CONCLUSION

The Forest Service and USFWS continue to treat MSO poorly. The December 1995, MSO Recovery Plan299 was revised in 2012,300 in good part because (1) the Forest Service failed to monitor as required by the December 1995, MSO Recovery Plan and as required by the June 10, 2005, Programmatic Biological and Conference Opinion Biological Opinion,301 and (2) to allow the Forest Service "management flexibility."302 Forest

293 50 CFR § 402.02 Definitions 294 50 CFR § 402.02 Definitions: Action means all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States…Examples include, but are not limited to: … (a) actions intended to conserve listed species or their habitat; … (d) actions directly or indirectly causing modifications to the land, water, or air. 295 These nine Regional Program projects and the dates of their Biological Opinion dates include, Pinaleño Ecological Restoration Project on the Coronado National Forest (August 5, 2011), Bill Williams Restoration Project on the Kaibab National Forest (May 5, 2015), Four Forests Restoration Initiative 1 on the Coconino and Kaibab National Forests (August 25, 2017), Flagstaff Watershed Protection Project on the Coconino National Forest (June 5, 2015), Cragin Watershed Restoration Project on the Coconino National Forest (July 23, 2018), Hassayampa Restoration Project on the Prescott National Forest (September 19, 2019), Luna Restoration Project on the Gila National Forest (May 2, 2019), Southwest Jemez Mountains Landscape Restoration Project on the Santa Fe National Forest (July 13, 2015) and Puerco Restoration Project on the Cibola National Forest (December 16, 2019). West Escudilla Restoration Project on the Apache‐Sitgreaves National Forests has a USFWS Concurrence (May 2, 2017). 296 Four Forests Restoration Initiative 2 on the Apache‐Sitgreaves, Coconino, and Tonto National Forests; South Sacramento Restoration Project on the Lincoln National Forest, and Santa Fe Mountains Resiliency Project on the Santa Fe National Forest. 297 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012. 298 16 U.S.C. § 1536(a)(2) and 50 C.F.R. § 402.14(g). 299 Recovery Plan for the Mexican Spotted Owl (Strix occidentalis lucida), USFWS Southwestern Region, December 1995. 300 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012. 301 Programmatic Biological and Conference Opinion on the Continued Implementation of the Land and Resource Management Plans for the Eleven National Forests and National Grasslands of the Southwestern Region, Regional Office, Region 2, U.S. Fish and Wildlife Service; Cons. #2‐22‐03‐F‐366; June 10, 2005. 302 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 268.

Service' persistent refusal to undertake monitoring as required by law and by Biological Opinion direction has been recognized by the Court on October 11, 2011,303 and again recently on September 19, 2019.304 Specifically, the September 5, 2012, Recovery Plan says, "Recovery Strategy…[for] forest habitat management and vigilant monitoring [where] goals are flexible in that they allow local land managers to make site‐specific decisions."305 Further, the Recovery Plan says, "…management recommendations proposed here are tightly targeted, with relatively strict guidelines proposed for occupied roost/nest habitat, flexible guidelines proposed for other areas with potential for use by owls… [page 258.] … As noted earlier, we assume that the primary limiting factor for Mexican spotted owls in forests is the amount and distribution of nesting and rooting habitat … [page 266.] … Our intent is to manage Recovery Habitat so that important but difficult‐to‐replace habitat elements are conserved while allowing management flexibility." [page 268.] But as documented in this Notice, the Forest Service pays little heed to the Recovery Plan's clearly expressed and highlighted warning that the "values shown [for Recovery nesting/roosting habitat, and also for PACs and Nesting Cores] are minimums, not targets."306 The Recovery Plan's desire to allow the Forest Service "management flexibility"307 has proven to be a bad mistake. At this point, there is an urgent need to reconvene the MSO Recovery Team, not only to provide for a regionwide monitoring program to be further discussed below, but also to amend the Recovery Plan to prevent any further abuse of discretion by the Forest Service. In this Notice, we expose: 1. widespread disregard for the MSO Recovery Plan's best available science recommendation for canopy cover308 and its proxy management of MSO

303 Order, Center for Biological Diversity, et al., v. United States Forest Service, et al., CV‐10‐431‐TUC‐DCB; October 11, 2011. 304 Order, WildEarth Guardians, Plaintiff, v. United States Fish and Wildlife Service and United States Forest Service, Defendants, Case No. 4:13‐cv‐151‐RCC., September 19, 2019. 305 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; pages VII and 68. 306 MEXICAN SPOTTED OWL RECOVERY PLAN, FIRST REVISION (Strix occidentalis lucida); Southwest Region U.S. Fish and Wildlife Service; Albuquerque, New Mexico; September 2012.; page 278. THIS BOLDED EMPHASIS IS NOT ADDED, IT IS FROM THE RECOVERY PLAN ITSELF. 307 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; page 268. 308 MEXICAN SPOTTED OWL RECOVERY PLAN, FIRST REVISION (Strix occidentalis lucida); Southwest Region U.S. Fish and Wildlife Service; Albuquerque, New Mexico; September 2012.; page 267: "We used tree BA and large tree (>46 cm [18 inches] dbh) density to describe minimum conditions for owl nesting/roosting habitat (Table C.3). Other structures such as canopy cover, snags, and downed logs are important as well. However, we assume that when tree BA and density approach the levels given in Table C.3, then adequate amounts of canopy cover, snags, and downed logs either exist already or will develop over time."; and page 276: "Minimum canopy cover of 40% in pine‐oak and 60% in mixed conifer (Ganey et al. 2003)."

nesting/roosting habitat basal area and management of the percentage of basal area by large trees "emphasize that values shown are minimums, not targets;"309 2. complete disregard for the best science available recommendation for at least 10 years of post‐treatment local monitoring;310 3. complete disregard for the best science available recommendation and the legal requirement to provide for the regionwide habitat monitoring necessary for Recovery and for any Jeopardy Analysis. No MSO Biological Opinion can provide a Jeopardy Analysis without regionwide population and habitat monitoring, as a Jeopardy Analysis must consider the Regional Program projects' impact on Recovery which is dependent upon non‐existent range‐wide monitoring.;311 and, 4. failure to heed Recovery Plan recommendations where "The Recovery Team recommends mechanical treatment in PACs only if such [large‐scale assessments] monitoring occurs.";312 and, 5. complete disregard in utilizing widespread mechanical thinning in PACs and in Recovery nesting/roosting habitat spite of the best available MSO science to the contrary.313

309 Id., page 278. THIS BOLDED EMPHASIS IS NOT ADDED, IT IS FROM THE RECOVERY PLAN ITSELF.; "Identification of distinguishing characteristics around middens of Mount Graham red squirrels," Smith, Andrew Allen, M.S.; The University of Arizona, 1992.; "Distinguishing Characteristics of Mount Graham Red Squirrel Midden Sites," Andrew A. Smith and R. William Mannan, J. WILDL. MANAGE. 58(3):437‐445; 1994.; "An Evaluation of the Minimum Habitat Quality Standards for Birds in Old‐ Growth Ponderosa Pine Forests," James Joshua Siegel; University of Arizona; 1989.; Minimum Standards and Forest Wildlife Management; Richard N. Conner; Wildlife Society Bulletin; Vol. 7, No. 4 (Winter, 1979), pp. 293‐296.; Harrison's Principles of Internal Medicine, 20th Edition, J. Larry Jameson and Anthony S. Fauci, et al. 310 Recovery Plan for the Mexican Spotted Owl (Strix occidentalis lucida), USFWS Southwestern Region, December 1995.; pages 78‐79.; WildEarth Guardians v. USFWS; Order, September 11, 2019.; page 11: "Defendants [Forest Service/USFWS] … admit that any monitoring for recovery would need to be done over a period of around 15 years “to generate any meaningful data on population trends.” Id. at 18. A monitoring period of one year before and two to three years after treatment is insufficient to provide population trend data for delisting. Again, this does not provide adequate information to guide a jeopardy analysis about recovery." 311 Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 931 (9th Cir. 2008).; Ctr. for Biological Diversity v. Rumsfeld, 198 F. Supp. 2d 1139, 1153‐54 (D. Ariz. 2002).; In addition, recently, the Court in WildEarth Guardians v. USFWS also recognized this fact: Order, WildEarth Guardians, Plaintiff, v. United States Fish and Wildlife Service and United States Forest Service, Defendants, Case No. 4:13‐cv‐151‐RCC, September 19, 2019.: "…The jeopardy analysis must consider both survival and recovery. Nat’l Wildlife Fed’n, 524 F.3d at 931; 50 C.F.R. § 402.02. [page 20] … Stand‐alone Forest Plan measures protecting habitat do not reasonably address recovery because even if all national forest land was preserved for the MSO, it will never provide enough information about population trends to allow for delisting nor an accurate [page 21] assessment of whether the population range‐wide is recovering. Therefore, it cannot be a basis for a no jeopardy determination. [pages 21‐22] … Finally, FWS argues that the range‐wide monitoring is for delisting—not for the jeopardy analysis. However, the two are interconnected because jeopardy must consider recovery, recovery must be geared towards eventual delisting, and delisting is dependent upon range‐wide monitoring. … The BiOps [of the Forest Plans] simply do not provide a route to recovery or a way to accurately assess it. The no‐jeopardy determination is unsupported, arbitrary, and capricious because the finding failed to account for recovery of the MSO." [page 24.] 312 MEXICAN SPOTTED OWL RECOVERY PLAN, FIRST REVISION (Strix occidentalis lucida); Southwest Region U.S. Fish and Wildlife Service; Albuquerque, New Mexico; September 2012.; page 73. THIS BOLDED EMPHASIS IS NOT ADDED, IT IS FROM THE RECOVERY PLAN ITSELF. The insert "large‐scale assessments" comes from the Recovery Plan's referral preceding its warning on monitoring for mechanical treatment, "see Box C.6 for details on how such monitoring might be structured." Box C.6. is on page 285.

For MSO, we are at a historic threshold. Current Region 3 forest "restoration" projects underway or proposed will subject 467 MSO PACs314 or 35.9% of the total number of 1,301 known MSO occupied sites range‐wide315 to modifications that "suggest negative effects,"316 "may threaten owls and their existing habitat,"317 and for which "[n]o empirical studies have evaluated these management activities."318 Especially now with climate change, MSO cannot be treated so cavalierly if it is to survive. If we need to go to Court again, it will be our seventh successful major legal action319 since the filing of our original MSO listing Petition on December 21, 1989.320 Hopefully, these proceedings will finally put to rest the Region 3 Forest Service' culture of "minimums are targets" and "so sue us" attitude. If the violations of law identified in this Notice are not remedied within 60 days, in accordance with the ESA citizen suit provision, 16 U.S.C. § 1540(g), the Center for Biological Diversity and Maricopa Audubon Society will seek judicial relief.

313 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1.; Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018. 314 Flagstaff Watershed Protection Project (10), 4FRI1 (70), 4FRI2 (196), Luna (26), Rio Puerco (7), Southwest Jemez (6), SSRP (78), Hassayampa (11), PERP (18), Bill Williams Mountain (1), Cragin (32), West Escudilla (8), and Santa Fe (4). 315 Mexican spotted owl (Strix occidentalis lucida) 5‐Year Review Short Form Summary; USFWS Arizona Ecological Services Office, Phoenix, Arizona; August 2013. 316 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11. 317 Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018.; page 8. 318 Ibid. 319 Correspondence, from: Robin D. Silver, M.D., F.A.C.E.P., to Manuel Lujan, Secretary of the Interior, RE: Notice of Intent to Sue, August 21, 1991.; Order, Silver v. Babbitt; CV 94‐337‐PHX‐CAM; October 6, 1994.; Order, Silver v. Babbitt, 924 F. Supp. 976 (D.Ariz. 1995).; Order, Sw. Center for Biological Diversity and Silver v. Babbitt and Clark, CIV 99‐519 LFG/LCS‐ACE (D.N.M. 2000).; Order, Center for Biological Diversity, et al., v. Gale Norton, Secretary of the Department of Interior, CV 01‐409 TUC DCB.; and, Order, Center for Biological Diversity, et al., v. United States Forest Service, et al.; CB‐10‐431‐TUC‐DCB, October 11, 2011. 320 Correspondence, from Robin Silver, M.D., to Michael Spear, Regional Director, Region 2, U.S. Fish and Wildlife Service, RE: FORMAL PETITION TO THE U.S. FISH AND WILDLIFE SERVICE TO LIST THE MEXICAN SPOTTED OWL (Strix occidentalis lucida) ON THE FEDERAL LIST OF THREATENED AND ENDANGERED SPECIES FOR FEDERAL PROTECTION AS PROVIDED BY THE ENDANGERED SPECIES ACT OF 1973, AS AMENDED IN 1982.; December 21, 1989.

The following management measures are necessary for MSO recovery, and if undertaken will likely obviate the need for litigation and any injunctive relief: 1. in PACs and in MSO Recovery nesting/roosting habitat, no further reduction of (a) basal area, (b) percentage of large trees making up the basal area, and (c) the minimum density of large trees to levels substantively above the recommended minimums in the September 5, 2012, MSO Recovery Plan;321 2. no use of mechanical thinning in PACs and in Recovery nesting/roosting habitat that is not consistent with the best available MSO science;322 3. implementation of a regionwide habitat monitoring plan prior to completion of the programmatic Regional Program Biological Opinion and the reinitiated "site specific" Regional Program projects' consultations323 because a lawful Jeopardy Analysis can be completed only after implementation of a regionwide habitat monitoring plan,324 4. fulfilment of items "1.", "2.", and "3." above until the lawful completion of (a) a programmatic Biological Opinion on the Regional Program and (b) lawful completion of all reinitiated Biological Opinions on the ten "site specific" projects with already completed Section 7 evaluations,325 that we have been able to identify to date.;

321 Mexican Spotted Owl Recovery Plan, First Revision (Strix occidentalis lucida), Southwest Region U.S. Fish and Wildlife Service, Albuquerque, N.M., September 5, 2012.; Table C.3. on page 278. 322 Conflicting Perspectives on Spotted Owls, Wildlife, and Forest Restoration, Joseph L. Ganey, Ho Yi Wan, Samuel A. Cushman, and Christina D. Vojta; Fire Ecology, 2017.; page 11.; citing, Meiman, S., R. Anthony, E. Glenn, T. Bayless, A. Ellingson, M.C. Hansen, and C. Smith. 2003. Effects of commercial thinning on home‐range and habitat‐use patterns of a male northern spotted owl: a case study. Wildlife Society Bulletin 31: 1254‐1262.; Seamans, M.E., and R.J. Gutiérrez. 2007. Habitat selection in a changing environment: the relationship between habitat alteration and spotted owl territory occupancy and breeding dispersal. Condor 109: 566‐576. doi: 10.1650/8352.1.; Stephens, S.L., S.W. Bigelow, R.D. Burnett, B.M. Collins, C.V. Gallagher, J. Keane, D.A. Kelt, M.P. North, L.J. Roberts, P.A. Stine, and D.H. Van Vuren. 2014a. California spotted owl, songbird, and small mammal responses to landscape fuel treatments. BioScience 64: 893‐906. doi: 10.1093/biosci/biu137.; Tempel, D.J., R.J. Gutiérrez, S.A. Whitmore, M.J. Reetz, R.E. Stoelting, W.J. Berigan, M.E. Seamans, and M.Z. Peery. 2014. Effects of forest management on California spotted owls: implications for reducing wildfire risk in fire‐prone forests. Ecological Applications 24: 2089‐2106. doi: 10.1890/13‐2192.1.; and Tempel, D.J., R.J. Gutiérrez, J.J. Battles, D.L. Fry, Y. Su, Q. Guo, M.J. Reetz, S.A. Whitmore, G.M. Jones, B.M. Collins, S.L. Stephens, M. Kelly, W.J. Berigan, and M.Z. Peery. 2015. Evaluating short‐ and long‐term impacts of fuels treatments and simulated wildfire on an old‐forest species. Ecosphere 6: 261. doi: 10.1890/ES15‐00234.1.; Managing emerging threats to spotted owls. The Journal of Wildlife Management, Ho Yi Wan, H., Joseph L. Ganey, Christina D. Vojta, and Samuel A. Cushman; 2018. 323 Ctr. for Biological Diversity v. Rumsfeld, 198 F. Supp. 2d 1139, 1153‐54 (D. Ariz. 2002). 324 Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 931 (9th Cir. 2008).; Ctr. for Biological Diversity v. Rumsfeld, 198 F. Supp. 2d 1139, 1153‐54 (D. Ariz. 2002).; WildEarth Guardians v. United States Fish and Wildlife Service and United States Forest Service, Defendants, Case No. 4:13‐cv‐151‐RCC. 325 These ten Regional Program projects and the dates of their Biological Opinion include, Pinaleño Ecological Restoration Project on the Coronado National Forest (August 5, 2011), Bill Williams Restoration Project on the Kaibab National Forest (May 5, 2015), Four Forests Restoration Initiative 1 on the Coconino and Kaibab National Forests (August 25, 2017), Flagstaff Watershed Protection Project on the Coconino National Forest (June 5, 2015), Cragin Watershed Restoration Project on the Coconino National Forest (July 23, 2018), Hassayampa Restoration Project on the Prescott National Forest (September 19, 2019), Luna Restoration Project on the Gila National Forest (May 2, 2019), Southwest Jemez Mountains Landscape Restoration Project on the Santa Fe National Forest (July 13, 2015), Puerco Restoration Project on the Cibola National Forest (December 16, 2019), and West Escudilla Restoration Project on the Apache‐ Sitgreaves National Forests (May 2, 2017).

5. continuation of hand thinning and prescription burning within PACs and within Recovery nesting/roosting habitat consistent with the September 5, 2012, MSO Recovery Plan.; 6. continuation of the gathering of firewood, the cutting of Christmas trees, and other forest management activities in PACs and Recovery nesting/roosting habitat consistent with the September 5, 2012, MSO Recover Plan.; and, 7. continuation of forest management activities outside of PAC nest and roost Core Areas and outside of Recovery nesting/roosting habitat, consistent with the September 5, 2012, MSO Recovery Plan.

CONTACT INFORMATION

If you have further questions, please contact Robin Silver, M.D., Center for Biological Diversity, P.O. Box 1178, Flagstaff, AZ 86002, by mail; by phone: (602) 799‐3275, or by Email: [email protected].

Sincerely,

Robin Silver, M.D. Co‐Founder and Board Member Center for Biological Diversity