Stop Extinction: Cottonwood Rider

Canada lynx have been making headlines after the U.S. Fish and Wildlife Service (FWS) announced that the species may no longer need Endangered Species Act (ESA) protections. Even after a 2016 assessment found that without ESA protections, lynx would die out in its northern range by the end of the century, the FWS may be moving to delist this charismatic cat.

In an additional threat to lynx, and to all threatened and endangered species, a rider on the Senate Interior Appropriations draft bill would bar the FWS from evaluating the effects of federal land management programs on ESA-listed species. The legislation would significantly undermine the conservation of current and yet-to-be ESA-listed species across millions of acres of public lands and waters.

Back in 2015, lynx were making noise in the courtroom due to a high profile legal case (Cottonwood Environmental Law Center v. U.S. Forest Service). The lawsuit hinged on whether the U.S. Forest Service (USFS) had an obligation under the ESA to evaluate the effect of their forest plans on lynx critical habitat — specific areas needed to conserve threatened or endangered species. Canada lynx were listed under the ESA in 2000, but critical habitat was not designated on any federal lands, even though lynx rely heavily on habitat provided on federal forests. In 2009 critical habitat was designated across Western national forests, but the USFS had previously amended their forest plans to account for lynx in 2007, and failed to consult with the FWS on the effect of those forest plans on the designated critical habitat, which is required under the ESA.

Plaintiffs in the “Cottonwood” case argued in court that the USFS violated section 7 of the ESA when it failed to reinitiate consultation with FWS on the effects of their forest plans on lynx critical habitat. Section 7 is arguably the strongest part of the ESA. It directs all federal agencies, not just the FWS, to use their authority to conserve threatened and endangered species. A key part of the section prohibits any federal agencies from funding, authorizing or carrying out actions that jeopardize a species’ existence or destroy critical habitat. While the USFS argued that it had no obligation to re-evaluate the effects of their plans on lynx, the court ruled otherwise; the initial consultation process did not evaluate the effects of those plans on the newly designated critical habitat.

The management plans that agencies like the Bureau of Land Management (BLM) and the USFS use to outline resource extraction and other activities can have substantial implications for wildlife and particularly for wide-ranging species like wolves and owls which are likely to suffer the most from multiple development impacts across a landscape. Under the proposed rider, agencies would be exempted from the obligation to account for the effects of these management plans on newly listed species, newly designated critical habitat, in cases where new information indicates new threats to those species, or even in cases where the plan is killing more animals than originally forecast. The agency would not have to consider the plan-level impacts on ESA-listed species until there was a major amendment or a rewrite of the plan, which could take over a decade, thus exposing imperiled species to potential long-term and repetitive harm . It’s essentially a blank check for the government to put their head in the sand and completely ignore risks to ESA-listed species and their habitat for years.

This rider is another attack on the science that supports ESA regulations and requirements for the purpose of protecting species from extinction and getting populations to recover. Barring re-consultation will result in land management plans that fail to address up-to-date science; new species’ status, and/or the cumulative effects of development on species. Each of these failings would further imperil threatened and endangered species and their habitat while also increasing the cost of conservation and decreasing the probability of successful recovery. Section 7 is a vital protection for threatened and endangered species that mandates consideration of activities across the landscape.

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