Sent Via Electronic Mail on Date Shown Below
February 4, 2015
United States Department of Interior
United States Fish and Wildlife Service
Public Comments Processing,
Attn: Docket No. FWS–R8–ES–2014–0041;
U.S. Fish &Wildlife Headquarters, MS: BPHC, 5275
Leesburg Pike, Falls Church, VA 22041–3803
RE: EPIC Comments Supporting U.S. Fish and Wildlife Service Proposed Rule to List
West Coast Distinct Population Segment of the Pacific Fisher as a “Threatened” Species
under the Federal Endangered Species Act
To whom it may concern:
The following comments are submitted on behalf of the Environmental Protection Information
Center (EPIC) in support of the U.S. Fish and Wildlife Service proposed Rule to list the West
Coast Distinct Population Segment of the Pacific Fisher (Pekania pennanti) as a “threatened”
species under the federal Endangered Species Act (ESA).
EPIC is a non-profit, community-based and membership-driven environmental advocacy group
with over 37 years of experience protecting forests, watersheds, and wildlife in northwestern
California. EPIC was party to the original listing petition for the fisher, which was submitted to
the Service in the year 2000. EPIC and its members have a vested interest in the protection and
conservation of the fisher on the west coast and in northwestern California in particular.
EPIC appreciates the opportunity to comment on the proposed Rule. Please do not hesitate to
contact us as necessary if there are any questions.
Sincerely,
Thomas Wheeler
Program and Legal Coordinator
Rob DiPerna
California Forest and Wildlife Advocate
Environmental Protection Information Center
145 G Street Suite A Arcata, CA 95521
(707) 822-7711
www.wildcalifornia.org
Table of Contents
I. Executive Summary................................................................................................................. 3
II. Listing of the Pacific Fisher is Warranted ............................................................................... 3
A.
West Coast Fisher Population Warrants Listing as a Single DPS.................................... 3
B.
Threats to Survival and Conservation of Fisher ............................................................... 3
1. Timber Harvest ................................................................................................................. 4
2. Wildfire, Fire Suppression, and “Salvage” Logging ........................................................ 5
3. Rodenticide and Toxic Exposure from Marijuana Grows ............................................... 6
4. Inadequate Regulatory Mechanisms ................................................................................ 8
5. Summary .......................................................................................................................... 9
III.
Designation of Critical Habitat Is Required....................................................................... 10
A.
The Service Must Designate Critical Habitat Concurrently with Final Listing Rule .... 10
B.
Critical Habitat Designation for the Pacific Fisher Is both Prudent and Determinable . 10
C.
Current Northern Spotted Owl Reserves Are Inadequate for Fisher Conservation ....... 11
D.
Critical Habitat Designation Should Consider Climate Change and the Need for Climate
Refugia ........................................................................................................................... 12
E.
Fisher Conservation Requires Inclusion of Non-Federal Lands in Critical Habitat
Designation..................................................................................................................... 13
IV. Section 4(d) Special Rules ................................................................................................. 13
A.
4(d) Rules not Exempt from NEPA ............................................................................... 14
B.
Any Special Rule Must Be “Necessary and Advisable for the Conservation” of the
Pacific Fisher .................................................................................................................. 15
C.
The Service Has Failed to Justify Deviation from Its Policy to Apply the Full Suite of
Protections to the West Coast Fisher.............................................................................. 16
V. Management Recommendations and Conclusion.................................................................. 17
A.
Management Recommendations .................................................................................... 17
B.
Conclusion...................................................................................................................... 18
2
I.
Executive Summary
EPIC supports the proposed Rule by the U.S. Fish and Wildlife Service (USFWS or Service) to
list the West Coast population of the Pacific fisher as a “threatened” species under the federal
Endangered Species Act (ESA or Act). EPIC joined with others in November 2000 to petition for
the fisher listing (2000 Listing Petition, or Petition). The listing of the fisher is long-overdue and
essential to the protection, survival, and conservation of the species on the west coast. The
USFWS should list the entire west coast fisher population as a single Distinct Population
Segment (DPS) to facilitate range wide recovery and conservation. EPIC believes that Critical
Habitat designation for the fisher is prudent and determinable, and should be designated at the
time of listing. Lastly, EPIC opposes the promulgation of any 4(d) rule that would weaken the
default protections afforded to “threatened” species under the ESA.
II.
Listing of the Pacific Fisher is Warranted
The 2000 Listing Petition articulates several anthropogenic factors are leading to the decline of
the west coast fisher populations. These factors include the impacts of logging, including salvage
logging, roads, small, isolated populations, stand-replacing wildfire, and the inadequacy of
existing regulatory mechanisms. Not only have these factors persisted in the time since the
original listing petition, but new factors have arisen that also present great challenges to fisher
conservation, most notably the explosion of marijuana agriculture, which can and does include
the introduction of highly toxic second generation anticoagulant rodenticides into the
environment. The combination of these threats presents a clear and present danger to the survival
and conservation of the fisher. Protection under the ESA and appropriate management activities
are necessary to curtail the decline of the fisher on the west coast and to facilitate species
recovery.
A.
West Coast Fisher Population Warrants Listing as a Single DPS
EPIC concurs with the proposed rule which found that the West Coast DPS constitute a valid
DPS. EPIC is concerned, however, about proposed alternative DPS configurations. EPIC
supports the original West Coast DPS configuration as outlined in our 2000 Listing Petition. A
single DPS is essential for the recovery of the fisher across its historic landscape. The creation of
a single DPS that includes the entire West Coast population (California, Southern Oregon and
Washington State) is essential for species genetic diversity, habitat connectivity, and for the
development of uniform and effective land management strategies across state and ownership
classification boundaries. Furthermore, EPIC believes that the Service’s alternative DPS
configurations would exclude extant fisher populations likely persisting in northern Oregon and
Washington State. Though allegedly extirpated in these regions, there have been recent
confirmed fisher identifications in northern Oregon. Like the Humboldt marten—once thought
extirpated but “rediscovered” years after the last confirmed sighting—EPIC believes that
additional fisher populations will likely be discovered. As noted by the Service, the fisher is hard
to detect and is easily misidentified. These residual extant populations are important to the
genetic diversity of the species as a whole and can be used to hasten recovery of the species
across its historic range.
B.
Threats to Survival and Conservation of Fisher
3
EPIC believes that the Service has adequately described the myriad of threats to fisher survival,
and the resulting challenging to fisher conservation. Here we highlight some of these threats and
provide the Service with further information regarding these threats.
1.
Timber Harvest
Past and ongoing timber harvest activities on federal as well as non-federal lands are a
significant threat to the Pacific fisher and are a primary reason why we believe the listing of the
fisher is warranted.
While timber harvest in mature and old growth forests has sharply declined on federal lands
since the advent of the Northwest Forest Plan, harvest activities that adversely affect the fisher
on non-federal lands have largely continued unabated. The Draft Species Report for the
Fisher (Pekania pennanti) West Coast Population ) (USFWS 2014b) (Draft Species Report)
provides a summary of Timber Harvest Plan acres for counties that provide suitable habitat for
the Pacific fisher as a means of ascertaining the amount of habitat impacted by “vegetation
management” activities on on-Federal lands. We reproduce this table for the purposes of
discussion:
4
(USFWS 2014b, at p. 91).
We believe this information is sufficient evidence to demonstrate that private lands timber
harvest or “vegetation management” is occurring in fisher habitat on a broad scale in
Northwestern California and in the Sierra Nevada.
2.
Wildfire, Fire Suppression, and “Salvage” Logging
While the effects of wildfire on fishers are poorly understood, there is a considerable body of
evidence to suggest that post-fire salvage logging can have a significant adverse effect on the
fisher. Salvage logging is generally conducted to meet economic goals or remove hazard trees.
Intensive or poorly planned salvage logging can have a variety of negative effects on
ecosystems, such as soil compaction, increased erosion, and impacts on insectivorous and cavitynesting and denning animals. These are impacts to the Pacific fisher.
“Salvage” logging (harvest of fire-damaged trees, both living and dead) also occurs on the vast
majority of private timberlands in the analysis area. (USFWS 2014b at p. 54). According to the
Draft Species Report, the loss of and reduction in the availability and distribution of structural
elements and the processes that create them (for example, mistletoe, heart rot fungi, age-related
decadence, primarily cavity excavators) can negatively affect fisher reproduction and energy
budgets. Also, in many of the ecosystems in the analysis area, these structural elements are
important habitat components for fisher prey. (p. 54) Timber harvest and silvicultural techniques
such as regeneration harvest, selective harvest of insect damaged and diseased trees, and thinning
to promote vigorous stands of trees, often removes the largest trees or focuses on the removal of
older, diseased, or decadent trees resulting in the removal and limits future recruitment of rest
and den trees. (Ibid) Fuels reduction and fire suppression techniques that focus on the removal or
salvage of snags and fire damaged trees may diminish the distribution, abundance, and
recruitment of den and rest across the landscape. (Ibid).
The Draft Species Report further describes potential detrimental effects of post-fire salvage
logging. For example, in the context of outbreaks of the mountain pine beetle and other insects in
British Columbia, one study found that reduction in overhead cover may be detrimental to
fishers, and they state that wide-scale salvage operation may substantially reduce the availability
and suitability of remaining forests for fishers. (USFWS 2014b at p. 72).
On privately managed forestlands in California, salvage logging either post-fire or post-other
disturbances is considered exempt from the normal review and approval of timber harvesting
plans, and are thus not subject to the normal review required by the California Environmental
Quality Act. Salvage logging proposals are treated as “ministerial” actions in the California
Forest Practice Act and Rules, thus leaving the Department of Forestry (CAL FIRE) with little to
no wiggle room to regulate salvage logging or to ensure adequate mitigation to ensure that
essential landscape features necessary for the survival of the fisher and other species are
maintained.
On federal lands, post-fire salvage logging is still occurring within potentially suitable habitat for
the fisher. For example, the post-fire condition in the analysis area for the Salmon Salvage
project in Forest Service Region 5 estimates approximately 10,603 acres of fisher habitat. Other
recent salvage logging projects on non-federal lands in Forest Service Region 5 include the
Caribou project and the Panther Fire Salvage project. In addition, the 2012 Bagley fire burned
5
over 46,000 acres, 70 percent of which occurred on the Shasta-Trinity National Forest. (U.S.
Forest Service 2013; in response to Haines Freedom of Information Act Request (Haines 2013)).
Over 23,000 acres of the Bagley fire post-fire salvage project proposed by the U.S. Forest
Service was to occur in lands designated as LSRs (Ibid). Over 22,000 acres of the project were
proposed within areas designated as Critical Habitat for the northern spotted owl. (Ibid).
These are just a few examples of salvage logging operations on federal lands that can have
detrimental effects on the quality and quantity of fisher habitat. Salvage logging operations on
federal lands are not designed for fisher-specific conservation. (See also Inadequacy of
Regulatory Mechanisms, infra).
On non-federal lands, salvage logging most often occurs under an emergency timber harvest
exemption as provided in the California Forest Practice Rules. Logging operations proposed
pursuant to emergency exemption notifications are not subject to discretionary review by CAL
FIRE; rather, such project applications are merely ministerial permits. In the past, large private
industrial non-federal landowners have filed emergency exemptions that cover entire
ownerships. Salvage logging on non-federal lands in California is poorly regulated and
inadequately monitored. (See also Inadequacy of Regulatory Mechanisms, infra).
As an example of this, nearly 25 emergency exemption notifications to conduct salvage logging
operations were submitted to CAL FIRE, mostly by Sierra Pacific Industries, in association with
the Bagley Fire. One of these emergency exemption notifications alone proposed over 400 acres
of salvage logging operations. (CAL FIRE response to Haines Public Record Act Request 2013).
Similarly, in response to the Chips fires, six emergency exemption notifications to conduct
salvage logging operations were received by CAL FIRE, once again, nearly all filed by Sierra
Pacific Industries. One of these emergency exemptions proposed ‘salvage’ logging operations
over 1,186 acres. (Ibid.).
In summary, while the effects of wildfire on fisher life history behaviors are not well understood,
there is ample evidence that salvage logging can adversely affect the fisher, both on federal and
non-federal lands. Post-fire salvage logging can in fact be more detrimental to the fisher than the
actual effects of the fires themselves. The lack of adequate safeguards to address the loss of
suitable fisher habitat due to post-fire ‘salvage’ logging on both federal and non-federal lands is
yet another reason why listing of the fisher is warranted.
3.
Rodenticide and Toxic Exposure from Marijuana Grows
EPIC concurs with the draft species report and the proposed listing that rodenticide, particularly
anti-coagulant rodenticide, is having a major detrimental effect on the west coast fisher.
On September 2, 2014, EPIC filed a Freedom of Information Act request with the U.S. Forest
Service for documents pertaining to trespass marijuana growing operations on the Klamath
National Forest, Six Rivers National Forest, Mendocino National Forest, and the Shasta Trinity
National Forest. In a partial response dated October 20, 2014, the Forest Service indicated that
trespass grows are still highly prevalent in the public forests of Northern California. See As
provided by the Forest Service:
Number of illegal marijuana growing operations from 1/1/2012 to [October 20, 2014]:
a. Klamath – 21
b. Six Rivers – 29
6
c. Mendocino – 22
d. Shasta-Trinity – 94
Number of plants discovered at each Forest from 1/1/2012 to [October 20, 2014]:
a. Klamath – 95,685
b. Six Rivers – 26,039
c. Mendocino – 36,702
d. Shasta-Trinity – 319,733.
(Letter from Scott Harris, U.S. Forest Service, to Rob DiPerna, EPIC (October 20, 2014)). Note,
these are only from raided grow sites. Only a portion of all trespass sites are raided.
Furthermore, the letter does not indicate the level of cleanup.
Although marijuana is perhaps the largest cash crop in California, little is known about
environmental effects associated with its cultivation. Recent research has indicated that outdoor
marijuana cultivation is currently having widespread and profound environmental impacts in
California (Gabriel et al. 2012, 2013, Thompson et al. 2014). Negative impacts of outdoor
marijuana cultivation include wildlife deaths caused by pesticide exposure and poaching; habitat
degradation caused by logging, road construction, pollution, and water diversion; and heightened
safety concerns for research and resource personnel (Gabriel et al. 2012, 2013, Thompson et al.
2014). Recent findings of widespread pesticide exposure among fishers and barred owls (Strix
varia) in northwestern California suggest that outdoor marijuana cultivation is a significant threat
to the survival of the Pacific fisher. Additionally, safety concerns associated with illegal
marijuana cultivation may also be impacting fishers and other wildlife through reduced research
and survey efficiency and effort (Gabriel et al. 2013).
Pesticide application is usually intended to suppress populations of rodents, insects, mollusks,
and other agricultural and urban pests, but can have inadvertent negative impacts on humans,
pets, and other non-target animals (Erickson and Urban 2004, Albert et al. 2010, Mnif et al.
2011, Gabriel et al. 2012). Widespread secondary exposure to pesticides has been reported for
raptors, carnivores, and other wildlife that consume poisoned rodents around farms and human
dwellings (Albert et al. 2010, Murray 2013).
A recent publication reported that 79% of fishers tested in two study areas on federal and tribal
forest lands in California had been exposed to anticoagulant rodenticides (ARs), including four
that died from lethal toxicosis (Gabriel et al. 2012; note: at least two more fishers in California
died from AR poisoning following publication of this study: Gabriel et al. 2013). Most fishers in
the study had been exposed to multiple AR compounds (range = 1-4, mean = 1.6). ARs detected
in fishers in northwestern California include brodifacoum, bromadiolone, chlorophacinone,
diphacinone, and warfarin (Gabriel et al. 2012).
Large quantities of ARs, particularly second generation anti-coagulant rodenticides (SGARs), are
often spread across large areas in and around illegal outdoor marijuana grow sites (Gabriel et al.
2012, Thompson et al. 2014). Gabriel et al. (2012) noted that thousands of pounds of pesticides
were found at illegal outdoor marijuana grow sites in California in 2008 and that 150 pounds of
pesticide were found during a single three-week eradication operation on the Mendocino
National Forest in 2011. Three sites raided in Humboldt County in 2013 contained a total of at
least 17 pounds of SGAR bait, which researchers estimated was sufficient to kill 2,753 woodrats,
14 fishers, or five northern spotted owls (Humboldt County Sheriff’s Office press release).
7
Safety of individuals engaged in survey and monitoring activities is similarly a concern. Gabriel
et al. (2013; M. Gabriel unpubl. data) estimated that safety concerns due to trespass outdoor
marijuana cultivation resulted in exclusion of researchers from 15-25% of one fisher study area
in California and a projected additional cost of $500,000-750,000 for the life of the combined
budgets of two of California’s fisher research projects.
The magnitude and immediacy of threat posed by outdoor marijuana cultivation to the survival
and recovery of the Pacific fisher in the wild is significant. ESA listing and associated
management techniques are necessary to curtail these threats to the fisher.
4.
Inadequate Regulatory Mechanisms
The inadequacy of existing regulatory mechanisms was a primary driver for the original 2000
Listing Petition for the Pacific fisher. Here we present the inadequacy of existing regulatory
mechanisms as it pertains to Northwest California federal and non-federal land management.
Federal lands in Northwestern California are primarily administered by Region 5 of the U.S.
Forest Service, and are subject to the provisions of the Northwest Forest Plan. As noted
elsewhere in these comments, reliance on the federal lands LSR system to provide for
conservation of the northern spotted owl and other late-seral-dependent species has not been
sufficient to curtail the decline of the owl, and will not be sufficient to ensure conservation and
recovery of the fisher. It is interesting to note that recent estimates have shown that only about
36% of LSRs actually include late-successional forests, with the majority of the designated
reserves expected to acquire such conditions over decades (Strittholt et al. 2006). Thus, as noted
elsewhere, reliance on the existing LSR system for late-seral associated species on federal lands
has proven inadequate.
On non-federal lands in Northwest California, timber harvest and other wood-producing
activities are governed by the Z’berg Nejdely Forest Practice Act of 1973 (California Public
Resource Code section 4511 et seq.) and the associated California Forest Practice Rules
(California Code of Regulations Title 14, section 895 et seq., hereafter “Rules”). As described in
the Center for Biological Diversity’s petition to list the fisher under the California Endangered
Species Act (CESA) (CBD 2008) the Rules allow significant alteration of fisher habitat and do
not provide protection of elements essential to fisher habitat, such as large trees, snags and
downed wood, and high canopy closure. The lack of direction to protect these habitat elements
has resulted and continues to result in degradation and destruction of late successional habitat
utilized by the fisher. Beardsley et al. (1999), for example, conclude:
Any increase in old-growth area in the Sierra Nevada ecosystem, would have to
come mostly from the unreserved areas of the national forests, because these
forests contain most of the forests having a mean diameter greater than 21 inches
(59,000 acres of that was already old-growth). Most of the area in private
ownership is expected to be managed for non-old-growth values. (Discussed in
CBD 2008).
Lack of forests with late-successional characteristics on private lands is not surprising given that
the applicable Rules require maximizing timber production utilizing intensive logging methods,
and fail to provide any effective protection for fishers.
8
A review of 2013 non-federal Timber Harvest Plan (THP) statistics for the state of California
shows the use of intensive forest management techniques within the range of the Pacific fisher.
According to information provided by the THP tracking center (Haines 2014), nearly 20 percent
of total proposed timber harvest acreage in the state consists of clearcutting or similar alternative
method most closely resembling clearcutting. (Haines 2014). In addition, another nine percent of
total state-wide timber harvest proposal acreage is planned as sanitation-salvage logging
operations. (Haines 2014). Finally, and additional 28 percent of the total proposed THP acreage
in the state consists of group selection silviculture. (Haines 2014).
County-specific information is also provided in Haines (2014). For Del Norte County, 77 percent
of total proposed timber harvest acreage is projected as clearcutting or a similar alternative
method. For Humboldt County, 28 percent of the total proposed timber harvest acreage is
projected to be accomplished via clearcut silviculture. (Haines 2014). For Trinity County, 59
percent of the total proposed timber harvest acreage is proposed to be accomplished via the
application of clearcut silviculture or similar alternative method. (Haines 2014).
Clearcut silviculture leaves large swaths of patchwork openings throughout the forested
landscape within the range of the fisher in Northwestern California. Clearcut units can be as
small as 10-15 acres, but can also be as large as 40 acres or even larger, if explained and justified
in the THP. The Rules do not provide for retention of a minimum number of snags or other
wildlife tree elements within evenaged (clearcut) units.
Few or none of the logging prescriptions described in the Rules would result in retention of
habitat features critical to the maintenance of Pacific fisher populations on non-federal land.
Logging practices within the range of the Pacific fisher appear to be intensive, sometimes
affecting each acre an average of six times over an eight year period. Further, the Rules do not
provide any measures that offer explicit protection for the fisher, provide no effective measures
to protect fisher habitat in any meaningful quantity, and fail to provide a mechanism for
identifying individual or cumulative impacts to the fisher or its habitat on private lands. Finally,
there is no evidence to support claims that protections for the northern spotted owl, marbled
murrelet, or anadromous fish are sufficient to protect the fisher. The net result is that the Rules
do not regulate logging on private lands in a manner that is adequate to maintain fisher habitat or
populations on private land within California.
In addition to the lack of adequate mechanisms to regulate timber harvest for the benefit of the
Pacific fisher on federal and non-federal forestlands, it must be reiterated that existing
mechanisms to regulate illegal and egregious trespass marijuana agriculture and the potential
associated use of anticoagulant rodenticides are similarly inadequate. State wildlife officials and
law enforcement officials currently have few legal or regulatory mechanisms to ensure best
management practices on either trespass or cottage industry marijuana growing operations.
Unless illegal trespass marijuana growing on federal lands is curtailed, the potential negative
effects on fisher populations are likely to continue.
5.
Summary
The myriad and immediacy of threats to the conservation of the Pacific fisher demonstrates the
need for immediate action. EPIC believes that the Service has provided sufficient information in
its proposed listing Rule and Draft Species Report to demonstrate that the fisher is faced with
imminent threats to its survival that clearly show the need for listing under the ESA.
9
III.
Designation of Critical Habitat Is Required
Critical Habitat for the West Coast population of the Pacific fisher must be designated
concurrently with the final listing Rule, because it is both prudent and determinable. Any
potential reliance on the existing Late Successional Reserve System (LSR) on federal lands
designed to conserve the northern spotted owl as the sole means of fisher conservation will not
be adequate to conserve and recover the fisher. Any Critical Habitat designation for the fisher
should take into account the potential impacts of climate change and the need for climate refugia.
Finally, any strategy for conservation of the fisher necessitates designation of Critical Habitat on
both public and private lands, and that exclusion of private lands would be a major error on the
part of the Service.
A.
The Service Must Designate Critical Habitat Concurrently with Final Listing
Rule
“This legislative history leaves little room for doubt regarding the intent of Congress: The
designation of critical habitat is to coincide with the final listing decision absent extraordinary
circumstances.” (Northern Spotted Owl v. Lujan, 758 F.Supp. 621, 626 (W.D.Wash.1991)
(Emphasis added) see also Natural Res. Def. Council v. U.S. Dep't of the Interior, 113 F.3d
1121, 1126 (9th Cir. 1997)). No extraordinary circumstances exists which would permit delaying
Critical Habitat designation.
B.
Critical Habitat Designation for the Pacific Fisher Is both Prudent and
Determinable
There is a general presumption that designating Critical Habitat is prudent. See Enos v. Marsh,
769 F.2d 1363, 1371 (9th Cir.1985) (holding that the Secretary “may only fail to designate a
critical habitat under rare circumstances”) (emphasis added); There is no known risk that
identification of Critical Habitat will increase the degree of threat to the species. Because the
fisher is impacted by land management, the identification of Critical Habitat is essential to wise
land management.
There is sufficient information to understand the impact of a Critical Habitat designation. The
fisher, like the northern spotted owl and the marbled murrelet, depends largely on forests with
late-seral/late-successional characteristics. Both the northern spotted owl and the marbled
murrelet have designated critical habitat designations.
Likewise, the biological needs of the fisher are sufficiently well known to permit identification
of Critical Habitat. Numerous studies have focused on landscape-level modeling to identify
fisher habitat. In determining critical habitat on federal land, information from the Forest
Inventory and Analysis (FIA), a nationwide survey and analysis of natural resources, can be used
to determine high suitability resting habitat for the Pacific fisher.
Determining the abundance and distribution of microhabitat features—such as snags, large live
trees, logs, etc.—over large areas can be time-consuming and expensive. Thus, William Zielinski
and others recommend “[t]he use of standardized, institutionally supported forest inventory plots
to quantify habitat for various species, in particular the [FIA] program.” (Zielinski et al. 2012).,
J.R. Dunk, and A.N. Gray. 2012. Estimating habitat value using forest inventory data: The fisher
10
(Martes pennanti) in northwestern California. Forest Ecology and Management 275: 35–42).
(Internal citations omitted).
Habitat suitability models, using FIA-generated data, have been created for both the NCSO and
SSN populations. (See Zielinski, W.J., J.R. Dunk, and A.N. Gray. 2012. Estimating habitat value
using forest inventory data: The fisher (Martes pennanti) in northwestern California. Forest
Ecology and Management. 275, 35–42) (using FIA data to evaluate Pacific fisher habitat in
northwestern California); Zielinski, W.J., Truex, R.L., Dunk, J.R., Gaman, T., 2006. Using forest
inventory data to assess fisher resting habitat suitability in California. Ecol. Appl. 16, 1010–1025
(using FIA to evaluate Pacific fisher habitat in the Sierra Nevadas)).
EPIC believes that sufficient information and resources exist for the Service to determine Critical
Habitat for the west coast fisher. Use of state-of-the-art modeling technology should be more
than sufficient to allow the Service to determine Critical Habitat.
C.
Current Northern Spotted Owl Reserves Are Inadequate for Fisher
Conservation
The Northwest Forest Plan created a system of forest reserves, called Late Successional
Reserves, with the goal, among other things, of northern spotted owl conservation. These areas
were chosen either because they contained old-forest attributes, such as large standing live and
dead trees, dense cover, and general structural complexity, or because it was predicted that these
areas would develop late-seral characteristics in the future. Late successional Reserves (LSRs)
were spread across the landscape.
However, the best available science shows us that the LSR model has not been sufficient to
facilitate the conservation and recovery of the Northern Spotted Owl itself. The NWFP was
based on overly optimistic assessments of spotted owl demographic performance (Franklin et al.
1999, Anthony et al. 2006). Demographic studies (Franklin et al. 1999, Anthony et al. 2006,
Forsman et al. 2011, Davis et al. 2011) have demonstrated that the population declines are much
greater rate than was anticipated across their range and particularly in Washington. In light of
this decline, the Forsman et al. (2011) stressed the importance of retaining high quality owl
habitat: “[i]n view of the continued decline of Spotted Owls in most study areas, it would be wise
to preserve as much high quality habitat (i.e., late-successional forests) for spotted owls as
possible, distributed over as large an area as possible.”
Reliance on the failed LSR model strategy in order to achieve fisher protection and conservation
will simply not be enough; the Service must seek to designate critical habitat for the fisher that is
consistent with the best available science and not simply on the basis of arbitrary management
and political boundaries.
Similarly, Zielinski et al, (2006) used “empirically derived landscape suitability models
for the spotted owl and the fisher to evaluate the overlap in habitat suitability for these
two old-forest associated predators in an area of northern California affected by the
Northwest Forest Plan,” including Six Rivers, Klamath, Shasta-Trinity, and Mendocino
National Forests. Pacific fishers and northern spotted owls share many similarities. Both
are area-limited species—they require a large area to maintain a viable species. Both
require complex structural forest elements like snags, broken tops, brooms, and cavities
at both the microhabitat and landscape level. However, despite their similarities, Zielinski
11
et al. show that the system of Late-Successional Reserves would not be adequate for
fisher conservation.
As Zielinski et al. note, “[T]he Late-Successional Reserves, with their emphasis on
geographic distribution may lack the connectivity necessary for wide-ranging and nonvolant mammals, such as the fisher, compared with the spotted owl.” Additionally,
“[d]espite the apparent similarity of their habitat, the spotted owl and fisher differ in their
ability to move through fragmented landscapes. Owls are able to move relatively easily
between habitat patches and can move more rapidly through or around unsuitable habitat
than fishers.”
Lastly, spotted owl reserves are insufficient to protect fishers because it is heavily reliant
on federal lands and, as Zielinski notes, “[m]uch of the best fisher habitat in northwestern
California appears to be on non-federal lands, probably because of regional gradients in
geoclimatic factors and vegetation type rather than seral stage, because private lands have
much less old forest compared to federal lands.” Thus, Zielinski concludes, “Although
owl and fisher habitat are moderately correlated on federal lands, we cannot assume that
federal lands can play the same relative role (i.e., contribution to overall population
viability) for the fisher as they have been expected to do for the owl.” (Zielinski et al
2006) (Internal citation omitted).
D.
Critical Habitat Designation Must Consider Climate Change and the Need
for Climate Refugia
Climate change is already impacting the forests of the Pacific Northwest and the Sierra Nevadas.
To adapt to changing climates and changing ecosystems, Pacific fishers will require a wellconnected landscape which will enable them to migrate to adjust to the changing landscape. Any
designation of Critical Habitat for the fisher must take into account potential environmental
changes, including drought, increased frequency and intensity of stand-replacing wildfire,
warmer temperatures, and overall changes in microclimates over time.
Indeed, the Service’s proposed Rule acknowledges that the effects of climate change are already
being felt by the fisher:
Climate change is ongoing, and its effects on fisher habitat are already occurring in some
areas and are likely to increase and become more readily perceptible in the future.
Overall, fisher habitat is likely to be affected by climate change, but the severity will
vary, potentially greatly, among different regions, with effects to fishers ranging from
negative, neutral, or potentially beneficial. Climate change is likely to affect fisher habitat
by altering the structure and tree species composition of fisher habitat, and also through
the changes to habitat of prey communities and ultimately on prey availability. These
effects may cause mortality, decrease reproductive rates, alter behavioral patterns, or lead
to range shifts. (USFWS 2014a at p. 11).
Furthermore, the 2014 Draft Species Report acknowledges that “climate change is underway, but
its effects are likely to be long-lasting, and moreover are likely to accelerate into the future.”
(USFWS 2014b at p. 50). The Draft Species Report identifies several possible effects of climate
change, including changes in fire regimes, changes in temperature and changes in precipitation.
All of these factors can profoundly affect efforts to protect and conserve the fisher on the west
coast.
12
In addition to effects on habitat, climate change may affect fisher directly by affecting
thermoregulation, Climate change may also affect infection rates and susceptibility to diseases.
(USFWS 2014b at p. 77). As noted by the Service, Loarie et al. 2008 found that both the
southern Sierra Nevada and the Klamath region (along with the California Coast Range, in
simulations showing larger climate changes), will act as climate refugia over the next 75 years
for a variety of endemic plant species. (USFWS 2014b at p. 78).
Thus any modeling and subsequent designation of fisher Critical Habitat must not only take into
account the effects of climate change, but must also consider the importance of preserving as
much habitat in areas of climate refugia as possible.
E.
Fisher Conservation Requires Inclusion of Non-Federal Lands in Critical
Habitat Designation
Because private lands comprise a significant portion of the west coast fisher’s range in the Sierra
Nevada and northern California, their management is critical to ensuring the presence of habitat
for dispersal of individuals and that supports successful denning and foraging. Fisher, like any
other wildlife species, do not recognize ownership boundaries or classifications. Fisher
conservation can only be accomplished when considered in a landscape context. Much of the
fisher’s habitat in the Sierra Nevada and northern California is situated in the so-called ‘matrix’
lands, i.e. areas of mixed federal and non-federal ownership. It is therefore essential that nonfederal entities bare some burden for conservation and recovery.
As part of the 15-year monitoring effort for the Northwest Forest Plan, changes to latesuccessional and old-growth (LSOG) habitat were also tracked on Federal and non-Federal lands
in the northwest forest plan area (Moeur et al. 2011, entire). The report accounted for loss and
recruitment of LSOG from 1994 to 2007 in California and 1996 to 2006 in Washington and
Oregon, finding an overall net loss of LSOG of 1.9 percent. Amounts varied by province, but net
changes were small relative to the sources of error and uncertainty in the estimates, limiting
precise estimates of LSOG change (Moeur et al. 2011, p. i). Approximately two-thirds of the
total LSOG in the NWFP area is found on federal lands. The vast majority of LSOG loss on
Federal lands was from fire, with only 0.5 percent (approximately 32,000 acres) of LSOG on
federal lands being harvested. In contrast, 13 percent (approximately 491,000 acres) of LSOG on
non-Federal lands was harvested during the same time frame (Moeur et al. 2011, p. 31).
Although the definition of LSOG in this report likely does not encapsulate all forest conditions
that comprise Pacific fisher habitat, the vast majority (94 percent) of its harvest in the NWFP
area occurred on non-federal lands. (USFWS 2014b at p. 86).
Fisher conservation and recovery can only be achieved via inclusion of non-Federal lands as part
of any Critical Habitat designation. Anything less will be inadequate to achieve landscape
connectivity for the fisher.
IV.
Section 4(d) Special Rules
EPIC is firmly opposed to a special rule pursuant to 16 U.S.C. § 1533(d) which would seek to
weaken the take prohibitions otherwise afforded to a threatened species through 50 C.F.R.
§ 17.31(a). EPIC has numerous procedural and substantive concerns, including: (A) Any special
rule, pursuant to Section 4(d), must comply with NEPA; (B) All 4(d) rules must actively benefit
13
the fisher; (C) Deviation from the default protections afforded to threatened species pursuant to
50 C.F.R. § 17.31(a) must be explained. Because these concerns cannot be adequately resolved,
use of a Section 4(d) rule should not be allowed.
A.
4(d) Rules Are Not Exempt from NEPA
The Service has indicated that it believes that NEPA is not applicable to any Section 4(d) special
rule if the special rule is promulgated concurrently with a final listing rule but NEPA would be
applicable if the special rule were to be promulgated after a final threatened listing. EPIC
disagrees. NEPA is applicable to all 4(d) special rules, including those concurrent with a final
threatened listing.
Any future special rule, pursuant to 16 U.S.C. 1533(d), must be promulgated in compliance with
NEPA. (See In re Polar Bear Endangered Species Act Listing & 4(d) Rule Litig., 818 F. Supp. 2d
214, 234-37 (D.D.C. 2011)).
Notably, not every court has accepted that 4(d) special rules must comply with NEPA. In an
unpublished opinion, the Northern District Court of California found that 4(d) rules are exempt
from NEPA as a matter of law. (See Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv.,
No. C04-04324 WHA, 2005 WL 2000928, at *12 (N.D. Cal. Aug. 19, 2005)). The Northern
District Court reasoned that a threatened listing, pursuant to section to 16 U.S.C. 1533(a),
“triggers” a 4(d) special rule. Thus, the court reasoned, 4(d) rules are part of a “listing action”
and subject to the generally accepted conclusion that “listing actions” were exempt as a matter of
law.
EPIC disagrees with Ctr. for Biological Diversity for the reasons articulated in In re Polar Bear:
This Court declines to recognize a broad exemption from NEPA for rules
promulgated pursuant to Section 4(d) on the grounds put forward by the agency.
In particular, the Court rejects the. . . invitation to follow Center for Biological
Diversity. Although Center for Biological Diversity appears to be the only case
addressing the applicability of NEPA to rules promulgated under Section 4(d),the
Court does not find its reasoning persuasive.
It is undisputed that an exemption from NEPA is necessary and appropriate for
listing decisions under Section 4(a) of the ESA. However, the Court disagrees
with the federal defendants that rules promulgated pursuant to Section 4(d) of the
ESA are necessarily exempt from NEPA because they are “triggered” by a listing
decision, as the federal defendants contend. Listing decisions under Section 4(a)
trigger all of the protective measures of the ESA, including consultation
requirements under Section 7, critical habitat designations, recovery plans, take
prohibitions under Section 9, and special rules for threatened species under
Section 4(d). The Court is not persuaded that all of these measures are therefore
exempt from NEPA review. Indeed, this Court and others have recognized that
many of these actions require NEPA analysis.
(In re Polar Bear Endangered Species Act Listing & 4(d) Rule Litig., 818 F. Supp. 2d 214, 23537 (D.D.C. 2011) (internal citations omitted)).
14
B.
Any Special Rule Must Be “Necessary and Advisable for the Conservation”
of the Pacific Fisher
The plain language of section 4(d) makes clear that any special rule must be “necessary and
advisable for the conservation” of the Pacific fisher. As provided in the Act:
Whenever any species is listed as a threatened species. . . the Secretary shall issue
such regulations as he deems necessary and advisable to provide for the
conservation of such species. The Secretary may by regulation prohibit with
respect to any threatened species any act prohibited under [S]ection 9(a)(1), in the
case of fish or wildlife.
(16 U.S.C. § 1533(d)). The first sentence—set off by “shall”—proscribes the Service’s
mandatory duty to “issue such regulations as he deems necessary and advisable to provide for
the conservation of such species.” The following sentence gives an example of permissible
regulations, such as the “take” prohibitions of 16 U.S.C. § 1538(a)(1). The use of “may” does not
give an independent authority to apply any or all of the prohibitions of § 1538(a)(1) without
consideration of their necessity or advisability.
“Conservation” is defined by the Act as “to use or 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 . . . are no longer necessary.” (16 U.S.C. §1532(3)). The Act further provides
a list of exemplative “methods and procedures”; these are helpful for understanding what type of
4(d) protective regulations the Service may provide. Conservation methods and procedures may
include, but are not limited to, “all activities associated with scientific resources management
such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where population pressures within a
given ecosystem cannot be otherwise relieved, may include regulated taking.” (Ibid (emphasis
added)). The foregoing list, while not exhaustive, does provide helpful illustration of permissible
takes. These methods and procedures all have a clear nexus with species benefit.
Section 4(d) rules may apply any and all of the prohibitions of 16 U.S.C. § 1538(a)(1) so long as
they are necessary and advisable. Indeed, it is the longstanding position and policy of the Service
to automatically apply the full suite of ESA protections to threatened species. (See 50 C.F.R.
§ 17.31(a)). The Service may also impose more stringent regulations than those contained in
§ 1538(a)(1) so long as the regulations are necessary and advisable to provide for the
conservation of the species.
The application of the full suite of ESA protections is necessary and advisable to provide for the
conservation of the Pacific fisher. Based on the representations made by Service staff at the
November 17, 2014 meeting in Arcata, CA, EPIC is concerned about the potential use of 4(d)
rules to weaken the take prohibition and authorize incidental take without clear species benefit.
For example, EPIC is strongly opposed to allowing incidental take of fisher if a landowner
followed some supposed “fisher-friendly” forestry practices. Authorizing incidental take in this
situation has no clear conservation value; rather, such a rule only serves to benefit landowners
and not fishers.
Other deviations from the take prohibitions, including, inter alia, human-assisted dispersal,
scientific study, management of fisher habitat to improve habitat value, and establishment of
15
experimental populations, may be necessary and advisable. However, EPIC is uncertain whether
Section 4(d) protective regulations are the best route to authorize these potentially beneficial
activities. Other sections of the ESA are preferable to Section 4(d) and they provide site and
project-specific authorization of incidental take.
Under Section 10 of the Act, 16 U.S.C. § 1539, the Service may authorize incidental take for
specific activities or projects which may result in the incidental take of a protected species. For
example, the Service may permit, “under such terms and conditions” as advisable, “any act
otherwise prohibited. . . for scientific purposes or to enhance the propagation or survival of the
affected species.” (16 U.S.C. § 1539(a)(1)(A)). This power would include the ability to live trap,
relocate, and authorize scientific research with the potential to result in incidental take such as
fisher tracking collars. Additionally, the Service may establish experimental populations of an
endangered or threatened species pursuant to the procedures codified at 16 U.S.C. §1539(j).
For other federal actions which might impact a protected species, Section 7 of the Act, codified
at 16 U.S.C. § 1536, provides the mechanism for the authorization of incidental take of species
caused by federal agency action. Whenever a federal agency action may “jeopardize the
continued existence of any endangered or threatened species or result in the destruction or
adverse modification of habitat of such species,” the acting agency must consult with the FWS or
NMFS, a process known as “formal consultation.” At the conclusion of consultation, the Service
may either find that: (1) there will be no take and the agency may proceed; (2) there may be
incidental take but that the take will not jeopardize the continued existence of the species; or (3)
that the proposed agency action may jeopardize the continued existence of the species. If the
Service finds take may occur but that it will not have species-level impacts, the Service may
authorize the incidental take of the species. If the action may jeopardize the existence of the
species, the Service may require “reasonable and prudent” site-specific mitigation measures
which would reduce the threat so as not to jeopardize the species before authorizing any
incidental take.
Use of these sections of the Act are preferable for two reasons: First, the Service retains greater
discretion to tailor the terms and conditions of any activity to account for, among other things,
site-specific conditions, population health, cumulative impacts, and other project-specific
impacts. This fine-scaled approach is preferable to a species-wide blanket regulation as under
Section 4(d). Second, project-specific authorization of incidental take helps to promote and
protect environmental democracy—the ability of citizens to engage in decision-making and the
promotion of transparency and accountability. Project-specific authorizations would be vetted
through the procedures required by the Administrative Procedure Act, the National
Environmental Policy Act, and the intra-agency consultation requirements of the ESA.
C.
The Service Has Failed to Justify Deviation from Its Policy to Apply the Full
Suite of Protections to the West Coast Fisher
The Service must explain any deviation from its longstanding position and policy to apply the
full suite of ESA protections to threatened species. (50 C.F.R. § 17.) Failure to do so would
violate the Administrative Procedure Act (APA).
Federal agency action, like a decision to issue a special rule under Section 4(d) of the ESA, is
subject to the APA. Such action is held unlawful and set aside where it is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.” (5 U.S.C. § 706(2)(A)). The
16
standard of review, while narrow, is nevertheless “thorough, probing, [and] in-depth” (Citizens to
Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971)). At the heart of this review is an
examination of “whether the decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment.” Id. at 416. Agency action will be invalidated
as “arbitrary and capricious” if “the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view or the product of agency
expertise.” (Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43, 103 S. Ct. 2856, 2867, 77 L. Ed. 2d 443 (1983)). Deviation from a traditional course of
conduct requires more substantial and reasoned analysis than if the agency were to act in the first
instance. (Cf. Ibid at 41–42 (In the context of a rule rescission, “an agency changing its
course . . . is obligated to supply a reasoned analysis for the change beyond that which may be
required when an agency does not act in the first instance.”)).
If a species is listed as threatened, the Act itself does not provide any protective regulations;
rather, the choice of which measures would be “necessary and advisable to provide for the
protection of the species” is left to the Service. In the original set of implementing regulations,
adopted in 1973, the Fish and Wildlife Service determined that, as a general rule, all the
prohibitions applying to endangered species would likewise apply to threatened species. Thus,
since 1973, the Service’s default position is that the conservation of threatened species is best
accomplished through affording threatened species maximum protection under the law. The
Service may depart from this default position through a “special rule.” As it is the longstanding
and default position of the Service that the full suite of ESA protections are “necessary and
advisable” for the protection of threatened species, the Service is held to a higher standard of
review than if it were to craft protective regulations for each individual species. That is, in
promulgating a special rule, the Service must do more than demonstrate that the protections it
does afford are necessary and advisable; because it is deviating from the standard course of
action, the Service must articulate a conservation basis for why additional protections were not
granted to the threatened species. The proposed listing rule fails to meet these standards to the
extent it is contemplating adoption of a Section 4(d) rule.
V.
Management Recommendations and Conclusion
A.
Management Recommendations
EPIC recommends the Service consider the following management recommendations for the
fisher as part of the west coast fisher listing and designation of Critical Habitat:
 Designate entire west coast DPS of fisher as one entity;
 Designate Critical Habitat concurrently with promulgation of listing Rule;
 Use research to identify known extant and possible fisher populations;
 Establish experimental populations to facilitate contiguity of fisher populations;
 Avoid implementation of so-called ‘fisher-friendly forestry’ until such time as research
and monitoring definitively establish the value of such forest management measures—
such forest management measures should be restorative in nature only; and
 Do not promulgate 4(d) rule which does not serve to protect, conserve, and restore the
fisher.
17
B.
Conclusion
EPIC supports the Service’s proposed Rule to list the West Coast DPS of the Pacific fisher as a
“threatened” species under the ESA. The entire west coast DPS should be considered as one
listable entity. Critical Habitat for the fisher should be designated concurrently with any final
listing Rule. A 4(d) rule should not be promulgated as there are not clear and immediate benefits
to the fisher and the habitat on which it depends.
EPIC appreciates the opportunity to comment and the Service’s consideration of these
comments. EPIC requests written response to these comments.
18
IV.
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20