September 16, 2019

Laughable: Judge Molloy, “Reluctant to Second Guess” USFWS

“BILLINGS — A federal judge on Wednesday set a 2018 deadline for the government to complete a long-delayed recovery plan for imperiled Canada lynx in the Lower 48 states.

Wildlife advocates had asked U.S. District Judge Donald Molloy to push the government into faster action on the snow-loving big cats, which were added to the list of threatened species in 2000.

But after federal officials said budget issues and competing priorities were slowing their work, Molloy indicated Wednesday in an order that he was reluctant to second-guess them. He said the January 2018 deadline proposed by the U.S. Fish and Wildlife Service was reasonable.”<<<Read More>>>

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Sportsman’s Alliance of Maine Lays Out Demands to USFWS on Canada Lynx

Perhaps the tone of the comments made by the Sportsman’s Alliance of Maine (SAM) is just as important as the information contained in them. It is refreshing to read from any hunting, fishing, trapping and outdoor organization with an attitude that exudes the confidence needed to place the demands of the outdoor sportsmen above those of the environmentalists. SAM lays out five issues that they see as what needs to be done in order to move forward as it pertains to the application process for an Incidental Take Permit for trapping in Maine.

The comment period has closed in which the U.S. Fish and Wildlife Service (USFWS), by law, accepted comments from all interested parties concerning the State of Maine’s application for an Incidental Take Permit(ITP) for trapping. The Canada lynx is listed under federal law as a “threatened” species and certain critical habitat has been designated as needing further protections in order to assist in the growth of the lynx population. As a result of this process Maine should apply for and obtain this ITP to protect the state and trappers should some lynx be accidentally caught in traps intended for other species.

Here’s a look at SAM’s five demands and my comments on them.

1.) SAM asks that the ITP be approved as quickly as possible without delay and without any further restrictions added to the already harsh rules that govern trapping (by a court Consent Decree). All the data available indicate that the rules and programs in place are more than adequate to not only protect the lynx but to assist in a continuation of growing the population.

2.) The USFWS is requiring MDIFW to set aside certain public lands to be used as “lynx conservation areas”. SAM demands that if this is done the land remain open to, “all legal trapping, hunting, snowmobiling, and other traditional activities”. While I agree that all public land should remain open for all public use, I have serious concerns about portions of this “conservation plan” that calls for large areas of forests on these public lands to be “clear cut” in order to grow desirable lynx habitat. We would hope that no public lands be clear cut only for the purpose of creating habitat for one species with disregard for all others and the overall use of the land by the people.

3.) SAM demands that the USFWS set recovery goals. In other words, provide the people with the scientific criteria in terms of population numbers, etc. that must be reached and for how long, before delisting can occur.

For those who don’t know, the Endangered Species Act (ESA) lists, although extremely non specific, any condition that must be in existence BEFORE a species can be listed on the ESA. Please review the ESA for those criteria. The ESA also clearly states that the same criteria must NOT exist in order to remove a species for federal protection.

Because the criteria in the ESA is so non specific and much flexibility and deference is given to the Secretary of Interior, what SAM is demanding is reasonable and well within the scope and historic activities of the USFWS.

However, that same history shows us that setting population goals, genetic connectivity, etc. acts more as a catalyst for inflaming arguments over species management theories than providing reachable goals for delisting. In some areas, such as those battling over gray wolves, those goals keep changing making it impossible to ever delist a species.

4.) SAM demands that the USFWS, “modify its distinct population segment”. This is where the waters get really muddy; where science takes a back seat and politics take over and decisions that should be based on science get decided in the Courts.

Historic evidence shows us that animal rights groups and environmentalists have learned to use the very non specific Endangered Species Act to create great wealth. One aspect of abuse of the ESA comes over the debate about Distinct Population Segments (DPS). I would attempt to explain to readers what a DPS is supposed to be but the court rulings nationwide are so varied I’m not sure anyone knows any longer what the laws are regulating the use of DPSs.

The intent of a DPS was to designate a certain species of animal within a region that subsequently became federally listed through the ESA as a “threatened” or an “endangered” species. Of course in designating such a DPS, boundaries have to be used somewhere and decided upon somehow. However, the designation and use of such boundaries has led to some ridiculous court rulings making little sense, based on arbitrary decisions and mostly from activist-type judges.

In the Great Lakes region a few years ago, when the USFWS attempted to remove grey wolves from the ESA, a lawsuit ensued and Judge Paul Friedman, in his ruling, stated that the USFWS did not have the authority to create a Distinct Population Segment in order to delist a species. No explanation has ever been given as to why, then, it is acceptable to create a DPS to list a species but not to delist.

Judge Friedman remanded the case back the USFWS until such time as they could provide proof to the courts that they had the authority to create DPSs. Last year, the USFWS tried once again to delist grey wolves in the Western Great Lakes. The Final Rule in the Federal Register, goes into quite a bit of depth in explaining existing laws and past court rulings in an attempt to bolster their argument that they have all the necessary authority the judge deemed they didn’t.

Currently grey wolves in the Western Great Lakes Distinct Population Segment have been removed from federal protection under the ESA. Environmental groups are threatening lawsuits and until such time as that happens we may not know whether the USFWS has sufficiently satisfied the Court.

While I concur with the SAM on this to some degree, that a better job needs to be done, especially when the initial creation of a DPS is considered, making the demand to “modify its distinct population segment” for Maine’s population of lynx is a very complicated act. Which leads us into SAM’s fifth demand.

5.) SAM insists that, “individual states within each of the newly-created DPS’s need to be separable when lynx populations reach recovery goals in one or more states, but not in the others.”

Again, this is a very complex issue because of the involvement of the courts. When a species is brought under federal protection, it is the U.S. Government, i.e. the U.S. Fish and Wildlife Service, that overseas and calls all the shots as they pertain to species protection and recovery. That management authority is taken away from the states and if and when the day comes that a species is declared recovered, wildlife management authority returns to the states. And yet, when it comes time to delist a species, even if one state has worked harder than another to recover a species, delisting cannot occur along state boundaries because of court rulings.

Example: The USFWS has designated large portions of Maine and smaller areas in New Hampshire, Vermont and New York as areas where the Canada lynx has known populations. Essentially, the USFWS includes Maine, New Hampshire, Vermont and New York as a Distinct Population Segment for Canada lynx.

SAM is asking the USFWS to be prepared to delist Maine’s population of lynx when it has recovered even if New Hampshire, Vermont and New York have not recovered their populations.

Court rulings have further confused this issue. As I stated earlier, Judge Friedman claims the USFWS does not have that authority under the ESA. In Maine’s case, according to Friedman’s ruling, the USFWS could not create a DPS along the boundary lines of the states for the purpose of declaring the Canada lynx a recovered species.

Out in the Northern Rockies, when the USFWS attempted to delist grey wolves, Judge Donald Molloy ruled that the USFWS could not exclude Wyoming from the delisting process because the Feds didn’t have authority through the ESA to do that. In other words, the Northern Rocky Mountains Distinct Population Segment included all of Montana, Idaho and Wyoming and small portions of Washington, Oregon and Utah. Cutting Wyoming out of the process was not something Judge Molloy was willing to do. For him, it was all in or all out while the issue of scientific recovery, within the borders of a state, of a species was never considered.

Even though it literally took an act of Congress to delist wolves in all of the NRM DPS except Wyoming, the laws are still very unclear about what the feds can do.

SAM says that the feds need to do a better job with their DPS designation processes and I would certainly concur with that statement. However, the first thing needed is a clear and definite set of rules and guidelines that should be utilized before any DPS is created and the specific guidelines for delisting, even if it included breaking off segments within a DPS. Science should be the driving force not politics or private agendas.

There is one thing that I can guarantee. Maine’s attempt at acquiring an Incidental Take Permit will not be simple. Depending upon the content of that ITP, will depend on the number of lawsuits that will be filed in an attempt to stop all trapping to protect the lynx. It is almost as certain that we will never see the Canada lynx removed from the ESA because the ESA, politics and the entire process that got the species listed is not designed to remove a species from federal protection. This is partially what is wrong with the ESA that needs fixing.

And, good luck with that.

Tom Remington

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