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July 10, 2019 July 10, 2019 VIA EMAIL & CERTIFIED MAIL, RETURN RECEIPT REQUESTED Kevin B. Elliott Forest Supervisor Los Padres National Forest Ms. Margaret Everson 6750 Navigator Way, Ste 150 Principal Deputy Director Exercising the Goleta, CA 93117 Authority of the Director [email protected] U.S. Fish and Wildlife Service [email protected] 849 C Street, NW Washington, DC 20240 U.S. Fish and Wildlife Service [email protected] Ventura Fish and Wildlife Office 2493 Portola Road, Suite B Ventura, California 93003 [email protected] David Bernhardt Secretary of the Interior U.S. Department of the Interior 1849 C Street, N.W. Washington, DC 20240 [email protected] RE: Sixty-Day Notice of Intent to Sue for Violations of the Endangered Species Act; Tecuya Project, Los Padres National Forest Dear Madam and Sirs, The United States Forest Service (“USFS”) and U.S. Fish and Wildlife Service (“USFWS”) are hereby notified that Los Padres ForestWatch, John Muir Project of Earth Island Institute, and the Center for Biological Diversity 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”), to challenge the agencies’ violations of the ESA in connection with the Tecuya Project in the Los Padres National Forest. The Project entails commercial removal of trees, including large trees and snags, at and around roosting sites that are critical for the survival of endangered California condors. The agencies failed to use the best available science in considering the impacts to condors, failed to rationally conclude that the Project was not likely to adversely affect the condor, failed to ensure against jeopardizing the continued existence of the condor, and NOI Tecuya Project, Los Padres National Forest failed to reinitiate consultation in light of new information. California condors rely on roost sites throughout their range for overnight resting after long- distance flights across the landscape, and for protection during inclement weather. Roosting sites are often located near important foraging grounds and breeding areas, and condors often return to the same roost sites year after year. California condors often spend the majority of their time perched at a roost, preening and conducting other maintenance activities. Roosts may also serve an important social function, as condors usually roost in groups. A condor seen from Tecuya Ridge. A condor roosting in the Los Padres National Forest. I. Identity of the Organizations Giving Notice: The name, address, and phone number of the organizations giving notice of intent to sue under the ESA are: Los Padres ForestWatch PO Box 831 Santa Barbara, CA 93102 John Muir Project of Earth Island Institute PO Box 897 Big Bear City, CA 92314 Center for Biological Diversity 1212 Broadway St., #800 Oakland, CA 94612 II. Requirements of the ESA Section 7 of the ESA requires each federal agency, in consultation with USFWS, to insure that any action authorized, funded, or carried out by the agency is not likely to (1) jeopardize the continued existence of any threatened or endangered species or (2) result in the destruction or NOI Tecuya Project, Los Padres National Forest 2 adverse modification of the critical habitat of such species. 16 U.S.C. § 1536(a)(2). “Action” is broadly defined to include actions that may directly or indirectly cause modifications to the land, water, or air; and actions that are intended to conserve listed species or their habitat. 50 C.F.R. § 402.02. For each federal action, the federal agency must request from USFWS whether any listed or proposed species may be present in the area of the agency action. 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12. If listed or proposed species may be present, the federal agency must prepare a “biological assessment” to determine whether the listed species may be affected by the proposed action. Id. If the agency determines that its proposed action may affect any listed species or critical habitat, the agency must engage in “formal consultation” with USFWS. 50 C.F.R. § 402.14. To complete formal consultation, USFWS 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. If USFWS concludes that the proposed action “will jeopardize the continued existence” of a listed species, the biological opinion must outline “reasonable and prudent alternatives.” 16 U.S.C. § 1536(b)(3)(A). If the biological opinion concludes that the action is not likely to jeopardize the continued existence of a listed species, and will not result in the destruction or adverse modification of critical habitat, USFWS must provide an “incidental take statement,” specifying the amount or extent of such incidental taking on the species, any “reasonable and prudent measures” that USFWS 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). Agencies must also reinitiate consultation on agency actions over which the federal agency retains, or is authorized to exercise, discretionary involvement or control . “(b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered . .” 50 C.F.R. § 402.16. After the initiation or reinitiation of consultation, the federal agency is prohibited from making any irreversible or irretrievable commitment of resources with respect to the agency action. 16 U.S.C. § 1536(d). In fulfilling its obligation to ensure that its actions do not jeopardize the continued existence of any endangered species or destroy or adversely modify its critical habitat, the federal agency is required to use the best scientific and commercial data available. 16 U.S.C. § 1536(a)(2). In addition, Section 9 of the ESA and its implementing regulations prohibit the unauthorized “take” of any endangered species of fish or wildlife. 16 U.S.C. § 1538(a)(1); 16 U.S.C. § 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. See 16 U.S.C. § 1532(19). NOI Tecuya Project, Los Padres National Forest 3 III. Description of Forest Service and USFWS Action The Forest Service approved the Tecuya Project (“the Project”) on April 9, 2019, to authorize the logging and removal of trees and other vegetation across 1,626 acres of mixed-conifer and pinyon-juniper forest. Decision Memo (“DM”) at 1, attached as Exhibit A. Tree and vegetation removal would be accomplished using a variety of techniques, including commercial logging. Id. at 6. The Project area extends deep into the forest, and two-thirds of it will occur in the rugged Antimony Inventoried Roadless Area far from human communities. Id. at 13. The U.S. Forest Service produced a Biological Assessment for the Project, concluding that the Project may affect, but is not likely to adversely affect, California condors. Tecuya Biological Assessment (“BA”) at 12, attached as Exhibit B. With respect to condor roosting habitat in the Project area, the BA states: “In general condors are active in the action area flying over it fairly often and roosting nearby occasionally” (BA at 11); “individual condors might roost relatively infrequently in the action area” (BA at 11); and “there are currently no known condor roosting sites within the action area.” (BA at 12). With this information, the Forest Service initiated consultation with USFWS and that ESA consultation process concluded on January 28, 2019, with the USFWS issuing a letter of concurrence finding that the Tecuya Project is “not likely to adversely affect California condors” but only stating, with regard to roosting habitat: “California condor activity along the Tecuya Mountain ridgeline includes frequent fly-overs with the occasional stopover for temporary roosting.” USFWS Tecuya Concurrence Letter at 2, 1, attached as Exhibit C. In the Decision Memo, issued in April 2019, the USFS concludes that “[i]ndividual condors might roost relatively infrequently in the action area,” that condor roosting in the project area is an “unlikely event,” that “there are currently no known condor roosting sites within the action area,” and that “all known roosting/nesting sites are approximately 20 miles away.” DM at 9. IV. The Forest Service And USFWS Did Not Address The Available Information Demonstrating The Importance Of Tecuya Ridge For Condor Roosting The USFS and USFWS documents discussed above contrast starkly with the best available science which shows the presence of numerous condor roosting sites in the Project area.1 As discussed in the April 19, 2018; September 10, 2018; and April 16, 2019, comment letters2 from the undersigned organizations, as well as here, the groups signing this letter used the 2012 Cogan et al. study,3 and USFWS data, to identify scores of roosting sites in the Project area, information that neither agency acknowledged, analyzed, or responded to. The USFWS is aware of this data—multiple USFWS staff are co-authors of the Cogan et al. study and the GPS data is in a 1 A map of the roosting sites is attached as Exhibit D, and a Table of the roosting sites is attached as Exhibit E. 2 Attached as Exhibits F, G, and H respectively 3 Attached as Exhibit I NOI Tecuya Project, Los Padres National Forest 4 USFWS repository.4 Moreover, “Joseph [Brandt, USFWS] provided the science base link to proofed gps data to the F[orest] S[ervice] biologist [for the Tecuya Project] in February [2018].” See USFWS email dated April 23, 2018, attached as Exhibit K.
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