The Lynx Between the Waters: Watersheds, Habitat and Uncertain Restorative Plans

A new challenge to USFS's work (and logging) plans in the Pike and San Isabel National Forests promises to put lynx habitat needs (and uncertainties) front and center.

WildEarth Guardians and the Western Environmental Law Center filed suit last week in federal court in Denver. They allege that the Forest Service’s plans for extensive fire protection and restoration work—with some logging and, in particular, clearcutting involved—were hatched improvidently/illegally.  The case involves several distinct claims, one of which is that the EA/FONSI done in connection with the planning was defective, especially in its consideration of possible consequences for the resident lynx population in the region.

The logging is planned for an area that doubles as headwaters watershed ground for Colorado Springs, Pueblo and Aurora—something WildEarth Guardians argued should concern those communities.  And the Forest Service has been a little short on details about its Tennessee Creek Project (something the plaintiffs say is part of the problem).

Tennessee Creek: Time for Restorative Action?

The cutting in this part of the world won’t be the first.  But with invasive pests, changing precipitation patterns, a century of excluding fire, and an agency commitment to “restoring” such places to a more stable equilibrium, this project has “inevitable” written all over it.  The question, really, comes down to details, precautions, and extent (of cutting).  The project is an authorization of work on about 16,000 acres over a ten year period.  The goals are several: clear cut about 2400 acres to help lodgepole pine “regeneration;” thin about 6800 acres of “mature” lodgepole pine; set and manage about 6000 acres of prescribed burns; improve fire mitigation breaks, etc., at the “Ski Cooper” ski area; stabilize stream banks and other at-risk slopes with mulch and other enhancements.

It will also entail the building of about 20 miles of “temporary” roads and the enhancement of about 15 miles of existing roads.  Roads, however, are bad for lynx.  They tend to help competitors (like coyotes) penetrate into parts of the forest that heavy snow would otherwise exclude them from.  Another problem with the project is its sketchy details.  Speaking to a local paper, the plaintiffs had this to say:

The project also represents what could be a disturbing trend in Forest Service practice, where logging projects are approved without specific details about areas that will be logged, said John Mellgren, an attorney with the Western Environmental Law Center that represents WildEarth Guardians.

“The real problem with the project is the Forest Service just drew a big circle on the map,” Mellgren said. “(They) are going to log some part of this circle, but won’t tell you where they are going to log. If they stayed out of those areas, we might not have a problem with the project right now.”

{See The Gazette.com story here.}

What Relevance of the Lynx’ Listing as “Threatened”?

The truly interesting legal question, whatever the implications for the local watershed (and they are uncertain), is how the district court will weigh the fact that the “Canada lynx” is a listed species

The U.S. Circuit & District Boundaries

The U.S. Circuit & District Boundaries

under the Endangered Species Act.  The CEQ guidelines list this as a “consideration”—among ten others—to be weighed in judging a project’s “significant impact” on the environment, i.e., whether that project merits a full impact statement or not.  In the neighboring Ninth Circuit, this particular factor has usually been given a lot of weight.  In the Tenth Circuit, things tilt a bit more in the agency’s favor.  Several Tenth Circuit precedents characterize this threshold inquiry as one of fact—implicating the agency’s expertise.  See, e.g., Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257 (10th Cir. 2004); Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002).

The lynx population in southern Colorado is probably unaware that it is in the Tenth Circuit and not the Ninth.  Of course, even in the Tenth Circuit the CEQ regulations are still binding on the Forest Service.  And they say that (1) “the degree to which the action may adversely affect an endangered or threatened species,” and (2) “the degree to which the possible effects . . . are highly uncertain or involve unique or unknown risks” “should be considered” in deciding whether to prepare a full impact statement. 40 C.F.R. § 1508.27(b)(9), (5).

 

{Image: lynx by Michael Zahra}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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