Keeping Northwest California Wild Since 1977

Sent via email to [email protected] on date down below

September 6, 2018

Jennifer L. Norris 1655 Heindon Road Arcata, CA 95521–4573

Re: Comments on Draft Forest Habitat Conservation Plan and Draft Environmental Impact Statement

On behalf of the Environmental Protection Information Center, Northcoast Environmental Center, Klamath Forest Alliance, and Safe Alternatives for our Forest Environment (collectively “EPIC”) please accept these comments on the Green Diamond Draft Forest Habitat Conservation Plan (HCP) and accompanying Draft Environmental Impact Statement (DEIS). EPIC is profoundly concerned that the proposed HCP will contribute to the decline of the northern spotted owl, hastening the species towards extinction. The HCP weakens existing habitat protections and allows the taking of numerous owls in an exchange for a commitment by Green Diamond to remove barred owls—a Faustian bargain that is not supported by sound science or policy.

Also attached to these comments, please find comments from Dr. Dominick Dellasala of the Geos Institute submitted on behalf of EPIC and the Geos Institute. (Attachment 1). If you have any questions or comments, please contact EPIC at [email protected].

The HCP Fails to Take “Hard Look” at Other Species

The HCP fails to take a “hard look” at the impact to other species. This is particularly concerning as the HCP could drastically impact rare, threatenened and endangered species, such as the marbled murrelet.

The National Environmental Policy Act (NEPA) has two objectives. “First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Baltimore Gas & Elec., Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (internal citations omitted). “NEPA does not mandate particular results, but simply provides the necessary process to ensure that federal Environmental Protection Information Center 145 G Street, Suite A, Arcata, CA 95521 ∣ (707) 822-7711 www.wildcalifornia.org Page 1 of 17 agencies take a hard look at the environmental consequences of their actions.” Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d 800, 814 (9th Cir.1999). “[T]he comprehensive ‘hard look’ mandated by Congress and required by the statute must be timely, and it must be taken objectively and in good faith, not as an exercise in form over substance, and not as a subterfuge designed to rationalize a decision already made.” Metcalf v. Daley, 214 F. 3d 1135, 1142 (9th Cir. 2000). “[G]eneral statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided.” Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1213 (9th Cir.1998) (internal quotation marks omitted).

The northern spotted owl functions as an “umbrella” species for other animals. That is, protection of the owl and its habitat benefits other species that share the same habitat. The HCP, compared to the no action alternative and the 1992 HCP, would allow more logging of nesting/roosting habitat. Species that are impacted by this increased logging Turning specifically to the marbled murrelet, potential increased logging of mature forests under the HCP can directly cause taking of murrelets and could inhibit murrelet recovery by foreclosing future habitat development. Marbled murrelets are curious seabird. Like northern spotted owls, murrelets are associated with late seral forests. Though they spend the majority of their lives at sea, fishing for some bait fish, murrelets nest on large branches only found only on old trees.

First, logging of mature forests under the HCP could directly take murrelet habitat. Green Diamond conducted property-wide surveys for the murrelet in the early 1990s. Since, the company has committed to protect known occupied habitat. However, the company has not performed murrelet surveys to find if murrelets have since reoccupied other areas. It is possible that some areas that are currently protected under the 1992 HCP and would be protected under take avoidance standards under the no action alternative could support murrelet nesting habitat. Absent surveys performed according to accepted protocols, all potential murrelet habitat should be assumed to be occupied. Even if murrelet habitat is not directly taken, increased harvest near occupied murrlet habitat could negatively impact the species by increasing edge effects.

Second, a reduction in the total amount of “reserves” could negatively impact murrelet recovery. Murrelet habitat takes over a hundred years to develop, perhaps even longer in the redwoods as heavy branching capable of supporting a murrelet nest can take longer than Douglas fir or western hemlock or other conifer species within its range. By allowing additional logging of mature forests, it will delay potential regrowth of murrelet habitat. For example, say that the HCP will result in the loss of a stand of forest that is 80 years old, as the stand no longer is protected by the reserve network of the 1992 HCP and Green Diamond is exempt from the take prohibition of the no action alternative. While it may still take a considerable amount of to become potential murrelet habitat, if it were logged that clock would restart to zero, taking an additional 80 years to achieve the same goal.

The DEIS provides no meaningful look at impacts to the marbled murrelet, Humboldt marten, tailed frog, southern torrent salamander, and all of the other rare, threatened or endangered Environmental Protection Information Center 145 G Street, Suite A, Arcata, CA 95521 ∣ (707) 822-7711 www.wildcalifornia.org Page 2 of 17 species that are protected under the owl’s “umbrella.” As such, the DEIS fails to take a hard look at impacts from the proposed HCP. Please correct the HCP by including a discussion of impacts to other species.

The HCP Provides Weaker Habitat Protections than No Action Alternative

Even in “no-take” DCAs, the HCP relies upon weaker habitat protections than USFWS has previously found was necessary to prevent the taking of spotted owls. The DEIS fails to discuss why the Service found departure from the previously established guidance was warranted. Furthermore, the existence of alternate take avoidance guidance calls into question whether the HCP meets issuance criteria.

The USFWS has issued take avoidance guidance for northern spotted owls in the redwood region. See Northern Spotted Owl Take Avoidance Analysis and Guidance for California Coast Forest District (“Attachment A”), March 15, 2011. This take avoidance guidance is based upon data made available to the Service from Green Diamond and other industrial property owners in the redwood region. Attachment A provides that to avoid take, landowners need to provide sufficient habitat:

Within the 0.7 mile radius (985 acres) of each Activity Center please use the following:

1) Retain habitat to maximize attributes desirable for NSO. 2) Retain at least 500 acres of suitable (Nesting/Roosting/Foraging) NSO habitat, post-harvest, as follows: a) Retain 200 acres of Nesting/Roosting Habitat within a 0.7 mile radius of the Activity Center consisting of: i) 100 acres of the 200 acres of Nesting/Roosting habitat retained should be contiguous, or contiguous as possible with the Activity Center. ii) An additional 100 acres of Nesting/Roosting with in the 0.7 mile radius: (1) If the second 100 acres of Nesting/Roosting habitat is also contiguous with the Activity Center, or within the same drainage, operations should retain a minimum of 66% of the pre-harvest basal area per acre of trees at least 11" DBH. (2) If the remaining 100 acres of Nesting/Roosting habitat is not contiguous with the Activity Center, retain at least Nesting/Roosting habitat. b) Retain at least 300 acres of Suitable NSO habitat, post-harvest, of at least Foraging quality. 3) Remove no more than 1/3 of the remaining suitable habitat in excess of 500 acres within 0.7 mile of an Activity Center during the life of the timber operations.

Attachment A at 6.

Environmental Protection Information Center 145 G Street, Suite A, Arcata, CA 95521 ∣ (707) 822-7711 www.wildcalifornia.org Page 3 of 17

At no place does the HCP or DEIS address why the Service agreed to more minimal take avoidance guidance. Furthermore, it is unclear whether the HCP minimizes taking to the maximum extent practicable if, absent the HCP, Green Diamond were to be held to a stricter habitat retention standard.

Location of DCAs Minimizes Conservation Benefit

Protection of owl habitat from timber harvest is primarily influenced by adoption of measures included in Green Diamond’s AHCP (i.e., riparian buffers) and by the protection of 44 DCAs (i.e., nest site protections). Based on EPIC’s analysis of Figure 2-2, it appears that all DCAs sit, at least in part, in land protected by the ACHP, such as in a riparian buffer area or geologically unstable area, or in areas otherwise off limits to timber harvesting.

This is problematic as Green Diamond has an obligation to minimized and mitigate the impact of take to the maximum extent practicable. If the DCAs are already largely protected, then the minimal addition protections afforded by a DCA are trivial and undercuts that take has been minimized (as under the no action alternative these nest sites would already largely be protected against taking).

This is further problematic as it undercuts the assertion made by Green Diamond that DCAs were chosen solely based on their previous occupancy and distribution across the landscape. It appears that Green Diamond is attempting to game the HCP to provide minimum habitat protections for the owl.

In the response to comments, please provide the following information:

(1) For the 44 DCAs, please indicate how many acres overlap with riparian areas or geologically unstable areas protected by the AHCP or other “reserves” established by prior agreements, such as the Humboldt Marten Safe Harbor Agreement. (2) Make publicly available GIS data showing location of DCAs so that the public can independently verify DCA attributes.

Use of Outdated Information

Almost all of the data concerning owl occupancy dates from 2015. Green Diamond surveys for owls yearly and newer data is available. The HCP and DEIS do not provide an adequate explanation as to why this information is used instead of more current data. This potentially violates the Service’s obligation to utilize the best commercial and scientific data available. Please provide updated information on owl occupancy for each of the known owl nest sites.

Lack of Assurances for Other Required Permits

Barred owl removal appears to be a critical component of the HCP. To take a barred owl, Green Diamond will need, at a minimum, a permit to take barred owls under the Migratory Bird Treaty

Environmental Protection Information Center 145 G Street, Suite A, Arcata, CA 95521 ∣ (707) 822-7711 www.wildcalifornia.org Page 4 of 17

Act (MBTA) and a permit from the California Department of Fish and Wildlife (CDFW). These permits are separate from the HCP and ITP and neither permit is guaranteed.

Pursuant to 14 U.S.C. § 1539(2)(B)(v), USFWS must receive “assurances” that core components of the HCP ‘will be implemented” prior to approving the plan. Green Diamond can provide no assurances. To the extent that USFWS can rely upon itself to issue future MBTA permits, this guarantee may violate the MBTA and its implementing regulations. To the extent permissible, USFWS cannot provide assurances that CDFW will issue its permits. The HCP therefore violates the Endangered Species Act. Furthermore, this failure to provide assurances introduces substantial uncertainties to the impact of the HCP.

The DEIS and HCP Applies an Illegal “Take” Definition

The DEIS and HCP are critically flawed in that they apply a definition of “take” that violates the Endangered Species Act, both as constructed in regulations and important precedent, such as Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995) and Marbled Murrelet v. Babbitt, 83 F.3d 1060 (9th Cir. 1996).

“Harm” under the ESA includes “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. § 17.3. Habitat modification does not constitute harm unless it “actually kills or injures wildlife.” 50 C.F.R. § 17.3; Defenders of Wildlife v. Bernal, 204 F.3d 920, 925 (9th Cir. 2000). However, the phrase “actual injury” does not mean only actual physical injury to a listed species. Marbled Murrelet v. Babbitt, 83 F.3d at 1065 (“the ordinary understanding of the word ‘harm’ supports an interpretation that does not require an act of direct violence to an animal”). Instead, “actual injury” within the definition of harm” expressly includes habitat modification that “significantly impair[s] essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. § 17.3. As the Ninth Circuit has directly stated, “a habitat modification which significantly impairs the breeding and sheltering of a protected species amounts to ‘harm’ under the ESA.” Marbled Murrelet v. Babbitt, 83 F.3d at 1067; see also Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 784 (9th Cir. 1995) (“[Plaintiff] does not seek to enjoin habitat modification alone, but rather, habitat modification that is reasonably certain to injure the Swartz Creek owl pair by impairing their essential behavioral patterns. Such a claim satisfies the ‘actual injury’ requirement”); Palila v. Hawaii Dep't of Land & Nat. Res., 852 F.2d 1106, 1108 (9th Cir. 1988) (“harm includes not only direct physical injury, but also injury caused by impairment of essential behavior patterns via habitat modification”); Defenders of Wildlife, 204 F.3d at 925 (“habitat modification that is reasonably certain to injure an endangered species by impairing their essential behavioral patterns satisfie[s] the actual injury requirement and [is] sufficient to justify a permanent injunction”); Babbitt v. Sweet Home, 515 U.S. at 709-10 (O’Connor, J., concurring) (discussing impaired breeding as an “injury” under the ESA, explaining “I do not find it as easy as [the dissent] does to dismiss the notion that significant impairment of breeding injures living creatures”).

Environmental Protection Information Center 145 G Street, Suite A, Arcata, CA 95521 ∣ (707) 822-7711 www.wildcalifornia.org Page 5 of 17

“Harass” within the ESA’s definition of “take” is defined even more broadly than harm, and includes any “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.” 50 C.F.R. § 17.3. While harm is defined as “an act which actually kills or injures wildlife,” id., harass is defined more expansively as “an intentional or negligent act or omission which creates the likelihood of injury to wildlife.” Id. While harm requires the significant “impairment” of “essential” behavioral patterns, harass requires only the significant “disruption” of “normal” behavioral patterns. Id. Thus, a significant “disruption” of behavioral patterns constitutes take, even if those behavioral patterns are not fully “impaired,” and such behavioral patterns need not be “essential,” but only “normal.” Id.

This broad definition reflects Congress’s intent to define take “in the broadest possible manner to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.” Babbitt v. Sweet Home, 515 U.S. at 704 (quoting S. Rep. No. 93-307, p. 7(1973)). As the Supreme Court explained in Babbitt, the broad definition of harassment would,for example, “prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young.” Id. at 704-05 (quoting H.R.Rep. No. 93–412, p. 15 (1973)).

Turning to the HCP, USFWS correctly states, “On the temporal scale, a take is determined to occur when timber harvesting of a particular stand leads to impairment of occupancy or fecundity at a site.” HCP at 6-16. Stated another way, from the moment logging activity disrupts an essential behavioral pattern, take occurs. In determining whether a take has occurred, USFWS departs from the law.

The HCP creates an elaborate mechanism to judge taking. First, a take evaluation is “triggered” by “timber harvest timber harvest or other covered activity” that results in one of more of the following conditions:

 Suitable nesting, roosting or foraging habitat is removed or destroyed within a 500- foot radius of an NSO site center  less than 89 acres of stands ≥ 46 years old remain, post-harvest, within a 0.5-mile radius of an NSO site  less than 233 acres of stands ≥31 years old within a 0.5-mile radius of an NSO site (Section 5.3.5.1)  Timber harvest within a 0.5-mile radius of an NSO site that is currently below thresholds or that reduces habitat below thresholds (<89 acres of stands ≥ 46 years old and < 233 acres of stands ≥31 years old) post-harvest HCP at 6-15.

The HCP notes that upon this trigger, a “designation of take will be based on the post-harvest demographic performance of NSO.” HCP at 6-15. The HCP then lists a number of criteria under which take did not occur, such as three years after triggering a take assessment, “NSO nest

Environmental Protection Information Center 145 G Street, Suite A, Arcata, CA 95521 ∣ (707) 822-7711 www.wildcalifornia.org Page 6 of 17

(whether successfully or not) in at least 2 years; or NSO nest in 1 year with 2 years occupancy (at least 1 year of pair occupancy with pair prior to timber harvest or single NSO at sites without pairs)”. HCP at 6-15. There are at least two problems with the performance criteria.

First, the performance criteria fail to appreciate some forms of take. Imagine that the spring following a timber harvest, owls fail to nest and display territorial behavior consistent with occupation. That is a take pursuant to the Endangered Species Act as the activity disrupted essential behavioral patterns. This take would not be recognized by the HCP should the owls occupy the site the following year and nest the year after, then according to the HCP, the initial take wasn’t actually a take. This is contrary to the law. Take occurs the moment when, among other things, essential behavioral functions are negatively affected.

Second, by focusing on the nest site, the take evaluation fails to appreciate taking of individuals. Indeed, the ESA’s take language is explicitly focused on individuals. See Forest Conservation Council, 50 F.3d at 784 (“The Secretary's use of the term ‘actually’ was not intended to foreclose claims of an imminent threat of injury to wildlife. Rather, because the Secretary was concerned that the old definition of "harm" could be read to mean habitat modification alone, the Secretary inserted the phrase "actually kills or injures wildlife" to preclude claims that only involve habitat modification without any attendant requirement of death or injury to protected wildlife. 46 Fed.Reg. 54748-49 (1981).”) The HCP states, “The performance criteria are based upon occupancy and/or reproduction of any NSO at a site….” HCP at 6-15 (emphasis added). To illustrate, the HCP provides an example: a “different NSO occupying a site will be judged as if the same individual NSO continuously occupied and reproduced at the site.” That is, under these take this scenario could occur: one pair of owls is displaced by timber operations; another “floater” paid then subsequently occupies

These are not hypothetical possibilities; rather, the implementation of the 1992 makes clear this is actually commonplace. For “direct displacements,” where harvesting with 152 m of an owl center, owls were displaced 29 times but returned 19 times. HCP at C-24. For “indirect displacements,” all other habitat modification that may have caused take, displacement occurred 26 times and owls returned 8. In reality, take therefore occurred 27 more times than was “charged” against Green Diamond’s allowance.

That the 1992 HCP applied a wrong take definition is perhaps forgivable. The 1992 HCP predate the important judicial considerations of the definition of “take” in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995) and Marbled Murrelet v. Babbitt, 83 F.3d 1060 (9th Cir. 1996). But there is no excuse to continue to use an illegal take definition.

In conclusion, the DEIS and HCP evaluate take in a manner that violates the ESA. By allowing for “returning” owls that were displaced, the Service shifts the burden of proof of take from the applicant to the owl. This matters because any lost year to breeding is important to the owl. As discussed ad naseum elsewhere, the owl is doing very poorly and potential recovery is difficult, given, inter alia, the low number of eggs that the owl lays per year and high rate of juvenile mortality. Every lost breeding opportunity puts the owl closer to extinction.

Environmental Protection Information Center 145 G Street, Suite A, Arcata, CA 95521 ∣ (707) 822-7711 www.wildcalifornia.org Page 7 of 17

The Definition of “Active” and “Vacant” Sites is Contrary to Existing Policy and Science

The HCP’s definitions of “vacant” and “active” sites contradicts USFWS guidance and the best available science. In no place does the DEIS attempt to explain these discrepancies.

The HCP holds that a site is considered vacant if it is occupied for three consecutive years. HCP at 6-21. Similarly, the HCP described that “NSO Sites” includes all “active sites,” which the HCP defines as “occupied in at least one of the last three years.” This definition conflicts with previous guidance from the USFWS to CAL FIRE concerning “active” nest sites.

As described in the 2008 memo “Technical Assistance for Determination of Unoccupied and Abandoned Status for Northern Spotted Owl Sites,” the Service expressly repudiates previous survey protocol concerning “active” nest sites. The memo states that the 1992 “Protocol for Surveying Proposed .Management Activities that May Impact Northern Spotted Owls” allowed for sites to be considered unoccupied “[i]f no responses have been obtained from an historical site after 3 years of survey…barring other evidence to the contrary.” 2008 memo at 2. The Service notes that this protocol no longer reflected the best available science:

New research information available on NSO site occupancy indicates that sites may be unoccupied (or NSOs fail to respond) for more than 3 years and then subsequently are utilized by nesting NSO. The Yreka Fish and Wildlife Office has records from our review of timber harvest plans where 3 or more years of surveys failed to detect NSO within historic sites, and where owls were then later determined to be present. In addition, it has been recently noted among NSO research biologists that NSO seem to exhibit reduced responses when barred owls are present …. In some cases, our evaluation of the survey history reveals that NSO have not abandoned the historic activity center, but have moved to an alternate nest site within their core area or home range. Territorial NSOs may shift nest areas in response to habitat changes; presence of predators or competitors such as great horned owls, northern goshawks, or barred owls; or other factors. In these cases, the original nest area is not considered ‘abandoned,’ it is simply part of the nesting habitat used over time by the NSO.

Id. The Service’s own guidance requires that to find a site is unoccupied or abandoned, an individual must consult with USFWS who would make a determination whether a site is vacant; absent that site-specific consultation.

The HCP and DEIS provide no explanation for the change in USFWS’ position. Together with the rest of the HCP, it appears that Green Diamond is receiving special treatment from the agency. This is wrong. USFWS has a an obligation to adhere to the best available science and not industry pressure.

The DEIS Confuses Ongoing Management Activities with Action Alternatives

Environmental Protection Information Center 145 G Street, Suite A, Arcata, CA 95521 ∣ (707) 822-7711 www.wildcalifornia.org Page 8 of 17

Many of the mitigations measures described in the action alternatives included to lessen impacts to listed species are activities that Green Diamond is already doing or has committed to do as part of a separate permitting program. Green Diamond is, in effect, “double-dipping,” claiming ongoing forest management activities as HCP-generated mitigation measures. In this manner, these activities are not new or triggered by the action; rather, they should be considered as part of the no action alternative

In particular, EPIC wishes to call to attention commitments made pursuant to Green Diamond’s recent Safe Harbor Agreement (Agreement) with CDFW to benefit the Humboldt marten. The Agreement was approved by CDFW in April 2018 . Many of the measures promised in this HCP are likewise measures that Green Diamond has already committed to under that Agreement, including, inter alia:

 Wildlife TREE scorecard: The HCP adopts the TREE wildlife tree retention scorecard to retain preexisting trees with high habitat value. Incorporation of the TREE retention is not an additional mitigation measure, as Green Diamond has already committed to apply its TREE retention scorecard as part of the Agreement. Therefore, all potential benefits of the TREE scorecard should be considered as part of the baseline operations. Furthermore, the TREE scorecard agreed to as part of the marten Agreement is actually more protective than the TREE scorecard adopted in this HCP, so the HCP does not minimize and mitigate to the maximum extent practicable, as Green Diamond’s other actions have shown that the company is willing and able to retain additional trees.

 Prevention of entrapment/drowning: The HCP requires that Green Diamond will “ensure all water tanks and pipes…are “fisher-proofed to prevent entrapment and/or drowning.” HCP at 5-43. Again, Green Diamond has already agreed to cover tanks as part of the marten Agreement. This Agreement, which was made final before the draft HCP was released, already charges that “Green Diamond shall ensure all water tanks and pipes used for timber management in the Enrolled Lands are marten-proofed to prevent entrapment and/or drowning.” Agreement at 13. There is no functional difference between marten-proofing and fisher-proofing a water tank. The previously agreed change to marten-proof water tanks will benefit fishers in the same way. As Green Diamond has previously agreed to “marten-proof[]” their water tanks, this should have been included in the no action alternative. Further, this shows that fisher-proofing is not an additional minimization/mitigation measure and calls into question the Service’s finding that take of fishers has been mitigated/minimized to the maximum extent practicable.

These are just a few examples of how Green Diamond appears to be taking credit for management “changes” that are already ongoing. EPIC believes that there are likely more cases, although we note that it is not our job to ensure this but USFWS. We hope that the agency takes this responsibility seriously. While Green Diamond is free to incorporate these activities into their HCP, the DEIS should in no way rely on these to find an improvement in baseline

Environmental Protection Information Center 145 G Street, Suite A, Arcata, CA 95521 ∣ (707) 822-7711 www.wildcalifornia.org Page 9 of 17 management practices and cannot take credit that these measures are additional mitigation/minimization measures.

Failure to Consider a Reasonable Range of Alternatives

Alternatives B and C, as examined in the HCP and DEIS, fail to consider lethal barred owl removal as a minimization/mitigation measure. As such, the DEIS’s analysis of a reasonable range of alternatives is flawed.

In an EIS, USFWS has an obligation to prepare a “detailed statement ... on ... alternatives to the proposed action....” 42 U.S.C. § 4332(2)(C). USFWS is also under a mandate to “[s]tudy, develop, and describe appropriate alternatives to recommend courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” Id. at § 4332(2)(E). Judicial review of the range of alternatives considered by an agency is governed by a “rule of reason” that requires an agency to set forth only those alternatives necessary to permit a “reasoned choice.” Save Lake Washington v. Frank, 641 F.2d 1330, 1334 (9th Cir. 1981). When determining whether an alternative is reasonable, USFWS may consult with the landowner but ultimately “determining which alternatives to analyze in the NEPA document is ultimately up to the [USFWS].” 2016 HCP Handbook at 5-7.

An HCP also requires the preparation alternatives, although between NEPA and HCP alternatives is often “subtle and often confused.” Id. at 5-6. While NEPA alternatives do not need to be the same alternatives examined in the HCP, but the alternatives analyzed need to include alternatives that are legally acceptable according to the Endangered Species Act. See Id. The ESA requires that any habitat conservation plan must meet criteria set forth at 16 U.S.C. § 1539(a). Among the requirements is an alternative must “to the maximum extent practicable, minimize and mitigate the impacts of such taking” and that “adequate funding for the plan will be provided” Id. at . § 1539(a)(2)(B)(ii)-(iii).

The inclusion of barred owl removal within the preferred alternative suggests that barred owl removal is itself “practicable.” Were it not practicable, the preferred alternative would not have included this measure. Furthermore, discussion of lethal barred owl removal HCP demonstrates that it is practicable. In a subsection titled “Cost and Feasibility,” the HCP provides:

Lethal removal of vertebrates is often controversial for social and ethical reasons, but it is also criticized for reasons related to cost and feasibility. Lethal removal of barred owls had never been done so the first objective of this experiment was to document whether removals could be conducted efficiently and effectively using practical, humane techniques and at a reasonable cost and staffing levels.

HCP at 5-45.

Green Diamond’s initial lethal removal experiment proved that lethal barred owl removal is practicable:

Environmental Protection Information Center 145 G Street, Suite A, Arcata, CA 95521 ∣ (707) 822-7711 www.wildcalifornia.org Page 10 of 17

We collected 73 of 81 territorial barred owls detected from 2009 to 2012 during 122 field visits. The eight owls not collected were not detected after two or three visits to the site indicating they had abandoned the site or were no longer exhibiting territorial behavior. It took an average of 2 hours and 23 minutes to collect each barred owl from the time of arrival at a site to the time a collected bird was completely processed for field data, which typically involved drawing a blood sample and doing buccal and cloacal swabs. The results were not published, but in subsequent years when we were no longer doing intensive field data collection, the time was reduced. Most barred owls were collected within one-half hour of arrival at a site with the average inflated by a few individuals that were particularly difficult to collect. We concluded that lethal removal of barred owls was rapid, technically feasible, and cost-effective (Diller et al., 2014).

Id. (emphasis added).

Elsewhere, the HCP states:

[R]emoving barred owls can be both efficient and cost effective, from which we concluded that removal experiments should not be technically challenging, but costs will vary depending on the context of the removal experiment (i.e., travel costs and need to do additional NSO and barred owl surveys). Removal experiments will require maintenance control as previously suggested, but the cost of maintenance removal should be less than the cost of original removal….In summary, the results of this study indicated that barred owl removal was both technically feasible and cost-effective, and that conducting removal experiments on existing NSO demographic study areas would be most cost-effective because demographic histories and locations of most NSOs are known (Diller et al., 2014).

HCP at 4-26.

Failure to include barred owl appears designed to favor one alternative over another. While USFWS and the project proponent are allowed to have, and indeed are encouraged to name, a preferred alternative, the development of alternatives.

The HCP and DEIS rely on inappropriate habitat definitions

It is not the age of a forest that renders, but the structural characteristics of a forest. The following descript of NRF habitat from Thomas et al. (1990) remains an accurate description of owl habitat.

Throughout their range and across all seasons, spotted owls consistently concentrated their foraging and roosting in old-growth or mixed-age stands of mature and old-growth trees. Exceptions were found, but even they tended to support the usual observations that spotted owls nested in stands with structures characteristic of older forests …. Structural components that distinguish superior Environmental Protection Information Center 145 G Street, Suite A, Arcata, CA 95521 ∣ (707) 822-7711 www.wildcalifornia.org Page 11 of 17

spotted owl habitat in Washington, Oregon, and northwestern California include: a multilayered, multispecies canopy dominated by large (>30 inches dbh) conifer overstory trees, and an understory of shade-tolerant conifers or hardwoods; a moderate to high (60-80 percent) canopy closure; substantial decadence in the form of large, live coniferous trees with deformities- such as cavities, broken tops, and dwarf mistletoe infections; numerous large snags; ground cover characterized by large accumulations of logs and other woody debris; and a canopy that is open enough to allow owls to fly within and beneath it.

While structural characteristics are often associated with older forests, age alone cannot predict habitat values. For example, a regenerating forest after a stand-removing disturbance, such as a clearcut, in a fertile alluvial plain with high rainfall will grow significantly larger in the same amount of time than a forest growing in poorer soils. California’s Forest Practice Act and Rules recognize that timberland productivity will vary significantly, and divides timberlands into five classes, from Site I (highest productivity potential) to Site V (lowest productivity potential). Insofar as owls are associated with large overstory trees (>30 inchs in d.b.h.), age alone is an insufficient metric to judge a forest.

EPIC was unable to find another study that relied on age class alone to determine habitat. Rather, age is typically one predictor of potential owl habitat, but not even one that is typically utilized to evaluate habitat.

It is likely for these reasons that in a review of 14 studies broadly from our region produced by the CDFW for their owl status review, only one study used age to describe selected or suitable habitat. Their table is reproduced as Attachment 2 to these comments.

While we are fundamentally opposed to the use of age class data to describe NRF habitat, assuming for the sake of argument that age class could be used for NRF if done correctly, we provide these comments to show that here age class, as presented in the HCP and DEIS is drastically wrong.

The use of 46+ forest age class as a stand in for NRF habitat dates to the 1992 HCP. Based on a 1990 study that examined the stand characteristics of 30 nest trees, “[s]tand ages were grouped in terms of their potential use by owls as suggested by preliminary data.” 1992 HCP at 106. The 1992 HCP notes that “46+ category represented prime nesting, roosting, and also foraging habitat.” Id. at 107.

EPIC questions whether a 46+ year old stand in 1990 is substantially similar to a 46+ year old stand in 2018. In 1990, the previous harvest would have occurred in 1944 or before. Today, a previous harvest would have occurred in 1972 or before. Given that Green Diamond attempts to clear cut on an approximately 45 year rotation age, it is likely that most of the 46+ forests in the matrix are close to 46.

46 years is well below the age typically associated with NRF habitat elsewhere within the owl’s range. Thomas et al. (1990) states that forests 50 to 60 years after harvest “can” attain old- Environmental Protection Information Center 145 G Street, Suite A, Arcata, CA 95521 ∣ (707) 822-7711 www.wildcalifornia.org Page 12 of 17 growth structural attributes, finding, “This ability is attributable to a unique set of conditions in that region: a rapidly growing tree species with stump-sprouting capability, [and] early intrusion of other conifer species and several hardwood species into the understory ….” Further, as the HCP recognizes “inefficient” logging practices of the past could help contribute structural complexities to forests. HCP at 5-22. Thomas et al. (1990) also found that “structural compoents typical of old growth are sometimes found in young forests, especially those that have regenerated from early disturbance (fire, wind, inefficient logging and so on) that left behind large trees, snags, and logs from the earlier stands. Based on EPIC’s review of hundreds of THPs in our 41 year history, we have seen that logging from this era was indeed “inefficient” and left behind residual “old growth” trees, either as individuals or clumps, particularly old “cull trees,” such as trees with structural deformities.

An examination of changing forestry practices illustrates why a 46+ forest in 1990 is radically different than a 46+ forest in 2018.

The 1992 HCP suggests that logging from this time period, 1944 and before, left greater structural complexity and landscape homogeneity than a ~1972 era clearcut. From the 1992 HCP:

Stands 26 to 50 years old are the result of logging that occurred between the early 1940s and mid 1960s and are largely areas where various intensities of selective logging were used …. Selective logging typically removed all old-growth timber from a particular site in two to hour harvests over 10 to 20 years and was not always successful in establishing a replacement crop of conifers.

1992 HCP at 60. While these treatments produced a “roughly” even-aged replacement stands, these stands likely contained greater structural complexity than clearcut stands around 1972. Prior to the widespread adoption of tractor-truck logging after World War II, the difficulties in extracting large redwood trees meant that a greater proportion of the forest was left as “cull trees.” See Noss (2000).

These 46+ were often true second-growth stands and may have contained structural elements, such as large woody debris, that were already down in 1946. Furthermore, stump sprouting of redwoods and hardwoods would have helped to create greater forest diversity in a time where artificial regeneration largely focused on planting of a few confider species. The use of herbicides in forestry was minimal at this time. To quote from a scientific article on the use of herbicides in industrial forestry:

Inorganic salts such as sodium arsenate and ammonium sulfate were used as herbicides for vegetation management as early as 1915 (Sutton 1958), but the use of herbicides did not gain momentum until after 1945. Although work began on phenoxy acetic acids in 1938, it was not until 1944 that the use of 2,4,5-T on woody vegetation was announced, and within a few years after the war, its use was widely accepted.

Environmental Protection Information Center 145 G Street, Suite A, Arcata, CA 95521 ∣ (707) 822-7711 www.wildcalifornia.org Page 13 of 17

Malik and Vanden Born (1986).

Clearcuts have been “a standard silvicultral practice since the mid-1960s. 1992 HCP at 59. Some younger stands may be “third growth,” particularly those lower in drainages. See id. at 59-60. In contrast to logging in the 1940s and earlier, herbicide use was particularly widespread in the early 1970s and use of 2,4,5-T was widespread until its prohibition by the EPA in 1978. See Malid and Vanden Born (1986). Use of aerial spraying of herbicide would have discouraged growth of herbs and shrubs as well as re-sprouting redwoods, hardwoods, and other competing tree species. See Noss (2000). In their place, to artificially regenerate, timber companies frequently aerially reseeded these denuded lands with a single tree species—often Douglas fir with seed taken from Oregon forests—or manually replanted with nursery-grown redwood or Douglas-fir seedlings at high densities, further increasing stand homogeneity. Id. Given their dense, even-aged and uniform canopy, these plantation forests discourage understory growth. Id.

In short, the proceeding information should make clear that a 46+ year old stand in 1990/1992 is not the same as a 46+ year old stand in 2018. Use of 46+ as a stand-in for a site-specific evaluation of NRF habitat is inappropriate and will likely result in unexamined impacts to owls.

Failure to account for impacts to dispersal habitat and potential dispersal-related “take”

The HCP and accompanying DEIS fail to appreciate the risks that clearcuts and other forms of evenage forest management poses to dispersing juvenile NSO. Briefly, dispersing juvenile spotted owls demand the same habitat as do nesting owls, i.e., large trees with high canopy cover. Removal of these habitat features increases the likelihood of mortality, thereby “taking” dispersing juvenile owls by significantly impairing essential behavioral patterns.

In their status review of the northern spotted owl, the California Department of Fish and Wildlife found:

Juvenile Northern Spotted Owls experience high mortality rates (>70% in some areas) during dispersal due to a variety of factors including starvation, predation, and vehicle strikes (Miller 1989, Franklin et al. 1999, USFWS 1990, Forsman et al. 2002). Habitat type used during dispersal may also have an effect on mortality. Miller et al. (1997) found that the probability of mortality decreased when dispersing juveniles utilized open sapling forests, but increased when clear cuts were utilized. Successful juvenile dispersal likely depends on locating suitable nesting, roosting and foraging habitat in proximity to other occupied sites or among occupied sites (LaHaye et al. 2001), as well as the presence of suitable habitat to disperse through (Miller et al. 1997, Buchanan 2004, Sovern et al. 2015). See CDFW (2016).

Similarly, the U.S. Forest Service found, as part of their Science Synthesis to Inform Plan Revisions Within the Northwest Forest Plan (NWFP) Area found:

Environmental Protection Information Center 145 G Street, Suite A, Arcata, CA 95521 ∣ (707) 822-7711 www.wildcalifornia.org Page 14 of 17

Dispersal behavior for both juveniles and adults may increase survival and reproductive success, but also increase risks to establishing a home range in an unfamiliar landscape. Juvenile spotted owls disperse within their first year and the condition of matrix forest types between natal and breeding sites can facilitate or hamper survival and movement processes (Forsman et al. 2002). Available information for spotted owls suggests that stands used for roosting during natal dispersal movements have very similar structure as those stands used for nesting and roosting activities of adults (>70 percent canopy cover and large trees >50 cm d.b.h.), but this finding is based on only two studies with no data throughout most of the geographic range (Miller et al. 1997, Sovern et al. 2015).

Lesmeister et al. (2018).

Turning to the two major studies cited by both the state and USFWS, Miller et al. (1997) and Sovern et al. (2015), we find clear indication that dispersing juvenile owls are not only negatively impacted by clearcuts but that existing habitat defintions do not adequately protect their habitat.

Millet et al. (1997) found:

Use of open sapling stands during transient dispersal decreased the probability of mortality (Wald test = 2.21, P = 0.03), whereas use of clearcuts during colonization dispersal increased the probability of mortality (Wald test = 1.95, P = 0.03). Net dispersal distance did not affect the probability of mortality (P = 0.67), yet a negative relation existed between dispersal distance and the amount of clearcut used during transient dispersal (P < 0.005). These results provide additional evidence of the selection of older forests by spotted owls and how their natal dispersal may be affected by harvesting such forests; particularly, that use of clearcuts may decrease the probability of successful natal dispersal.

Sovern et al. (2015) found that conditions typically associated with nesting/roosting were preferred by dispersing owls. From the abstract:

We studied habitat selection by northern spotted owls (Strix occidentalis caurina) during natal dispersal in Washington State, USA, at both the roost site and landscape scales. We used logistic regression to obtain parameters for an exponential resource selection function based on vegetation attributes in roost and random plots in 76 forest stands that were used for roosting. We used a similar analysis to evaluate selection of landscape habitat attributes based on 301 radio- telemetry relocations and random points within our study area. We found no evidence of within-stand selection for any of the variables examined, but 78% of roosts were in stands with at least some large (>50 cm dbh) trees. At the landscape scale, owls selected for stands with high canopy cover (>70%). Dispersing owls selected vegetation types that were more similar to habitat selected by adult owls than habitat that would result from following guidelines previously proposed to Environmental Protection Information Center 145 G Street, Suite A, Arcata, CA 95521 ∣ (707) 822-7711 www.wildcalifornia.org Page 15 of 17

maintain dispersal habitat. Our analysis indicates that juvenile owls select stands for roosting that have greater canopy cover than is recommended in current agency guidelines.

Based on their work, Sovern et al. recommended that land managers exceed previously published guidelines, such as Thomas et al. (1990), when managing for disposal habitat, with a target canopy closure of 80%. (Compare to the 50% canopy cover recommendations in Thomas et al. (1990)).

Failure to Cultivate Public Involvement

As the DEIS makes no, no person or organization submitted comments on the scoping notice for this project. Although the Service surely followed guidelines for submittal to the Federal Register, that EPIC, a known stakeholder, was not personally notified of the scoping notice, was regrettable. Luckily, EPIC saw the Federal Register notice for the DEIS, or else again no one may have commented, as again EPIC was not personally notified of the DEIS by the Service despite submitting a FOIA request concerning the HCP to the Service prior to the release of the DEIS. The Service did host a public open house for this DEIS, but again, the Service failed to notify stakeholders or advertise its existence. EPIC staff had prior conflicts, because again we were not given sufficient notice of the meeting, and were unable to attend. Through the grapevine, EPIC has heard that the event was very poorly attended.

By the proceeding discussion, EPIC does not mean to pick on the Service. We recognize that the Service is working under difficult conditions, both as the agency is understaffed and as it has to deal with a Congress and Executive Branch hostile to their work. That said, a lack of public outreach almost appears deliberate, as if the Service is attempting to sneak this project through without critical comment. We hope that for future projects of this sort, the Service makes a more concerted effort to reach out to interested stakeholders. Failure to do so only breeds suspicion and undercuts the purpose of a DEIS: to gain valuable perspective on potential impacts to enable the Service to take a “hard look” at potential impacts of their action.

Literature Cited

California Department of Fish and Wildlife, A Status Review of the Northern Spotted Owl (Strix occidentalis caurina) in California, Jan. 27, 2016.

LaHaye, William S.; Gutierrez, R. J. 1999. Nest sites and nesting habitat of the northern spotted owl in northwestern California. The Condor. 101(2): 324-330. [36109]

Lesmeister, DM; Davis, RJ; Singleton, PH; Wiens, JD. Chapter 4: Northern Spotted Owl Habitat and Populations: Status and Threats in Spies, T.A.; Stine, P.A.; Gravenmier, R.; Long, J.W.; Reilly, M.J., tech. coords. 2018. Synthesis of science to inform land management within the

Environmental Protection Information Center 145 G Street, Suite A, Arcata, CA 95521 ∣ (707) 822-7711 www.wildcalifornia.org Page 16 of 17

Northwest Forest Plan area. Gen. Tech. Rep. PNW-GTR-966. Portland, OR: U.S. Department of Agriculture, Forest Service, Pacific Northwest Research Station. 1020 p. 3 vol.

Malik, Nazar Hussain, and WH Vanden Born. Use of herbicides in forest management. Vol. 282. Northern Forestry Centre, 1986.

Miller, G.S.; Small, R.J.; Meslow, E.C. 1997. Habitat selection by spotted owls during natal dispersal in western Oregon. Journal of Wildlife Management. 61(1): 140–150.*

Noss, R. F. (2000). The redwood forest: history, ecology, and conservation of the coast redwoods. Washington, D.C., Island Press.

Sovern, S.G.; Forsman, E.D.; Dugger, K.M.; Taylor, M. 2015. Roosting habitat use and selection by northern spotted owls during natal dispersal. Journal of Wildlife Management. 79(2): 254– 262. doi:10.1002/jwmg.834.

Thomas, J.W., 1990. A conservation strategy for the northern spotted owl.

Environmental Protection Information Center 145 G Street, Suite A, Arcata, CA 95521 ∣ (707) 822-7711 www.wildcalifornia.org Page 17 of 17