Sent via U.S. Mail (Certified Mail Return Receipt Requested) and electronically May 1, 2013 Public Comments Processing Attn: FWS-R6-ES-2012-0107 Division of Policy and Directives Management U.S. Fish and Wildlife Service 4401 N. Fairfax Drive, MS 2042-PDM Arlington, VA 22203 Re: U.S. Fish and Wildlife Service’s proposed rule to list a distinct population segment of the North American wolverine in the contiguous United States as a threatened species under the Endangered Species Act. Thank you for providing this opportunity to comment on the U.S. Fish and Wildlife Service’s (Service’s) proposed rule to list a distinct population segment (DPS) of wolverine occurring in the contiguous United States as a threatened species under the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq. These comments are submitted by the Western Environmental Law Center (WELC) on behalf of the Lands Council, Montana Ecosystem Defense Council, Klamath-Siskiyou Wildlands Center, George Wuerthner, Hunters for Predators, WildEarth Guardians, Native Ecosystems Council, Western Wildlife Conservancy, Selkirk Conservation Alliance, Alliance for the Wild Rockies, Kootenai Environmental Alliance, Wildlands CPR, WildWest Institute, Friends of the Wild Swan, Footloose Montana, the National Parks Conservation Association (NPCA), Hells Canyon Preservation Council, Swan View Coalition, Cascadia Wildlands, Gifford Pinchot Task Force, Oregon Wild, Helena Hunters and Anglers Association, Friends of the Bitterroot, Cabinet Resource Group,Wildlands Network, and Conservation Northwest. Each of these organizations is committed to ensuring the long-term survival and recovery of wolverine in the contiguous United States. These comments, which supplement individual comments that may be submitted by each organization, are submitted in furtherance of that commitment and to ensure the Service bases its final decision on the best available science. A complete copy of all scientific papers cited in these comments is provided on compact disc (submitted herein). 1 Contents 1. The DPS Qualifies For Endangered Status. ............................................................. 3 a. The best science. ............................................................................................. 3 b. The effects of climate change are occurring now. .......................................... 8 c. There are no plans to address or reduce the effects of climate change. .......... 9 2. The Service Must Adequately Address All Threats Facing Wolverines. .............. 10 a. The Service should take steps to combat the causes of climate change. ...... 10 b. The Service should take steps to conserve all remaining habitat, return wolverines to areas that were historically occupied by the species, and reduce all non-climate stressors. ................................................................... 12 c. The Service must prohibit intentional trapping of wolverines in Montana. 14 d. The Service must prohibit the incidental take of wolverines. 18_Toc355162235 e. It is incorrect and premature for the Service to conclude that dispersed recreational activities—including winter recreational activities near wolverine denning areas—do not result in take and have no negative effects on wolverine. ................................................................................................. 21 f. The Service must take into account and study the direct, indirect, and cumulative effects of forest management on wolverine. .................................. 25 g. The Service must take steps to maintain and restore connectivity among subpopulations in the contiguous United States. .............................................. 27 h. The Service must study and take all necessary steps to maintain and restore connectivity between wolverines in the contiguous United States and Canada. .. ....................................................................................................................... 29 i. The Service must consider the overall, cumulative effects to the DPS. ........... 30 j. The Service should direct the U.S. Forest Service to develop and implement forest plan standards for wolverine. ................................................................. 32 3. The Special 4(d) Rule. ............................................................................................ 32 4. The Service Should Designate Critical Habitat For Wolverine. ............................ 35 5. The Service Should Ensure Recovery Planning Occurs Within A Reasonable Amount Of Time. ................................................................................................... 39 2 1. The DPS Qualifies For Endangered Status. The best scientific and commercial data available reveals the wolverine DPS in the contiguous United States (hereinafter “the DPS”) qualifies for endangered status under the ESA. The term endangered species means any species which is “in danger of extinction throughout all or a significant portion of its range . ” 16 U.S.C. § 1532(6); 50 C.F.R. § 424.02(e). Because the ESA does not define the word significant, courts have utilized the dictionary definition which was found to be consistent with the statute’s purpose: “a noticeably or measurably large amount.” DOW v. Kempthorne, 2006 WL 2844232, *5 (D.D.C. 2006). In DOW v. Norton, 258 F.3d 1136 (9th Cir. 2001), the Ninth Circuit interpreted the phrase to mean that a “species could be extinct throughout a significant portion of its range if there are major geographical areas in which it is no longer viable but once was.” Norton, 258 F.3d at 1145 (emphasis added). “Those areas need not coincide with national or state political boundaries, although they can.” Id. In the proposed rule, the Service concludes that the DPS only qualifies for threatened, not endangered status. According to the Service, wolverine in the contiguous United States will likely become endangered in the foreseeable future due to loss of habitat and increased habitat fragmentation from climate change: “In the future, wolverine habitat is likely to be reduced to the point that the wolverine in the contiguous United States is in danger of extinction.” 78 Fed. Reg. at 7865. But until then, wolverines do not qualify for endangered status due to the lack of “immediacy, severity, and scope of the threats” facing wolverine. This is incorrect. Specifically, the Service’s determination that the DPS does not qualify for endangered status: (1) is inconsistent with the best available science which reveals that the DPS is presently in danger of extinction throughout all or a significant portion of its range; (2) assumes the major threat facing the DPS (climate change) is not presently occurring or imminent; and (3) fails to take into account that there are no meaningful plans to address or reduce the effects of climate change or change its course over the next twenty years. a. The best science. First, the best available science reveals the DPS is presently in danger of extinction throughout all or a significant portion of its range, as that term is defined in the ESA and interpreted by the courts. According to the Service’s estimates, the total population of wolverine inhabiting the contiguous United States is no more than approximately 250 to 300 individuals. The Service’s estimate (by state) is as follows: 175 in Montana; 75 in Idaho; 15 in Wyoming; 3 1 in Colorado; 10 in Washington; 5 in Oregon; and 1 in California. This population estimate is based solely on a personal communication. See 78 Fed. Reg. at 7868. There are no peer-reviewed papers or studies estimating the total population of the DPS. And, the 250-300 number is derived primarily from the amount of modeled wolverine habitat that exists in the contiguous United States (in the absence of field surveys) which, according to the best science, is not the most reliable or appropriate method for predicting wolverine numbers. Squires et al. (2007), for instance, expressly warns against estimating wolverine abundance based on available habitat assumed densities, without actual field surveys. This means the total population of the DPS – which is the listable entity – could be much smaller, perhaps less than 200 individuals. Or, there could be more. The point is the Service is unsure how many wolverines inhabit the contiguous United States. And, as the Service concedes, this DPS is divided into various partially or completely isolated small subpopulations (e.g., Cascades, Crazy Mountains, mountain ranges in southwestern Montana) and apparently isolated from the Canadian populations. See 78 Fed. Reg. at 7876 (discussing isolation of various subpopulations); at 7885 (discussing lack of connectivity between Canadian and contiguous United States population). This wolverine population also has rates of successful reproduction that are “among the lowest known for mammals.” Id. at 7866; see also Anderson and Aune (2008) (rate of female wolverine reproduction among lowest reported in the literature). Using the Service’s best-guess estimate of 250 - 300 total individuals in the entire contiguous United States and taking into account the uncertainties in the population estimate, the on-going declines in numbers resulting from climate change, the isolated subpopulations and disconnect with wolverines in Canada, and extremely low reproduction rates, the DPS qualifies as “endangered.” Under the International Union for Conservation of Nature’s (IUCN’s) definitions, for instance, the DPS qualifies as “endangered” and even “critically endangered”