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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." 2 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.
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