Supplemental Notice of Violations of the Endangered Species Act
In Connection With the Failure to List the Contiguous U.S.
Population of the Canada Lynx as Endangered or Threatened.
By Fax and Certified Mail
June 6, 1997
Bruce Babbitt
John Rogers
Re: Supplemental Notice of Violations of the Endangered
Secretary,
United States Department of the Interior
1849 C Street, N.W. Washington, D.C. 20240
Director,
United States Fish and Wildlife Service
1849 C Street, N.W. Washington, D.C. 20240
Species Act In Connection With the Failure to List
the Contiguous U.S. Population of the Canada Lynx as
Endangered or Threatened.
Dear Secretary Babbitt and Director Rogers:
On behalf of the following environmental organizations --Defenders of Wildlife,
Biodiversity Legal Foundation (BLF), Fund for Animals, Northwest Ecosystem Alliance,
Predator Project, Oregon Natural Resources Council, Restore: The Northwoods, Western
Ancient Forest Campaign, Superior Wilderness Action Network, and Minnesota Ecosystem
Recovery Project, Inc. -- and lynx conservation activist Mark Skatrud ("Conservation
Organizations"), we hereby provide notice, pursuant to section 11(g) of the
Endangered Species Act, 16 U.S.C. § 1540(g) ("ESA"), that the Fish and Wildlife
Service's ("FWS") failure to list the lynx as endangered or threatened because the
listing was deemed warranted but precluded by FWS is unlawful. The FWS's decision
to once again delay listing of this species, which is in imminent danger of being
extirpated from the contiguous United States, is in violation of the ESA, arbitrary
and capricious, and contrary to a federal District Court order. This notice supplements
the March 27, 1995, notice of intent to sue from the same Conservation Organizations.
Background
Once a "may be warranted" determination is made, the FWS is required, within 12
months after receiving the petition, to make a final determination of warranted,
not warranted, or warranted, but precluded. 16 U.S.C. § 1533(b)(3)(B). In October
of 1994, Region 6 transmitted to the FWS Director its final finding on the petition,
proposing to list one population (Northeast, Great Lakes, and Southern Rockies) as
endangered, and a second population (Northwest and Northern Rockies) as threatened.
The Region 6 listing proposal found that four of the five statutory listing criteria --
present and threatened habitat destruction, overutilization, inadequacy of regulatory
mechanisms, and other natural or manmade factors -- had been met.
Region 6 determined that "Canada lynx populations in the contiguous United States
have suffered significant declines due to trapping and hunting and habitat loss."
Proposed Rule to List One Population Segment of the Canada Lynx as Endangered and One
Population Segment as Threatened Within the Contiguous United States (Oct. 17, 1994)at
1. It noted that suitable habitat loss has "confine[d] lynx into smaller, more isolated
habitat units" and has "reduce[d] the potential for population growth or recolonization."
Id. at 19. For example, in the northeast, extensive logging has resulted in the
indigenous softwood forests being replaced with hardwoods that do not provide adequate
cover for the lynx's primary prey, the snowshoe hare. Other identified serious threats
to the continued existence of the lynx in the contiguous United States include
suppression of forest fires, human intrusion into lynx habitat, recent overharvesting,
and incidental capture. Furthermore, because the lynx exists at low densities in the
United States, it is extremely vulnerable to extinction.
However, even though Regions 3 and 5 concurred in the proposal to list, the Director
overruled Region 6 and issued a not warranted finding on November 10, 1994. On
December 27, 1994 notice of the not warranted finding was published in the Federal
Register. 59 FED. REG. 66507. On March 27, 1995, the Conservation Organizations
submitted a detailed notice of the numerous violations of the ESA and administrative law principles committed by the FWS in failing to list the lynx. The Conservation
Organizations subsequently filed a lawsuit on January 30, 1996.
On April 23, 1994, BLF and four individuals filed a petitionwith the Fish and Wildlife
Service ("FWS"), requesting that the FWS list the Canada lynx (Felis lynx canadensis)
as endangered or threatened throughout their entire range in the 48 contiguous United
States. Petitioners further requested an emergency listing of the Southern Rocky
Mountain population due to the imminent threat of extinction. In response to the
petition, as well as a settlement agreement with other organizations, the FWS undertook
a status review of the species. FWS Region 6 assumed lead responsibility for the review,
with the assistance of Regions 1, 3, and 5. On August 26, 1994, pursuant to ESA
section 4(b)(3)(A), 16 U.S.C. § 1533(b)(3)(A), the FWS found that "the petition
present[ed] substantial information indicating the requested action for the contiguous
population may be warranted, but there [was] not substantial information to indicate
that an emergency listing of a southern Rocky Mountain population may be warranted."
59 Fed. Reg. 44123.
On March 27, 1997, United States District Judge Gladys Kessler set aside the
FWS' decision to not protect the lynx under the ESA. Judge Kessler concluded that:
[in failing to list the lynx], the FWS has consistently ignored the analysis of its
expert biologists as to each of the five statutory factors, basing its decision on
unsupported conclusory statements as well as facts which are directly contradicted by
undisputed evidence in the Administrative Record. The FWS decision not to list the
Canada lynx and grant it protections of the ESA is arbitrary and capricious, applied
an incorrect legal standard, relied on glaringly faulty factual premises, and ignored
the views of its own experts.
Defenders of Wildlife, et al. v. Babbitt, Civ. No. 96-160 GK, Slip Opinion at 32
(D.C.D.C. March 27, 1997).
In her opinion, Judge Kessler noted that "[w]ildlife experts currently estimate that
the number of Lynx in the entire contiguous United States 'may not exceed several
hundred individuals -- far fewer than many other species now listed as endangered'
under the ESA." Slip Op. at 25. Judge Kessler sharply rejected FWS assertions of
improving conditions, finding that "[f]ar from noting an end to the ‘trend' of
declining Lynx populations, each of the scientific studies and analyses in the
Administrative Record predicts that such trends will continue absent legal protection
of the species, due to ongoing damage to the Lynx habitat by logging, fire suppression,
roadbuilding, and other development." Id. at 26 (emphasis added).
Judge Kessler directed the FWS to publish a new 12-month finding within 60 days.
Id. (Order dated March 27, 1997). On May 27, 1997, the FWS published a notice in the
Federal Register acknowledging that "Canada lynx in the contiguous United States
constitutes a distinct population segment under the Act. 62 Fed. Reg. 28653, 28654
(5/27/97); see Slip Op. at 32 ("Plaintiffs are correct that the FWS cannot be allowed
to dismiss the contiguous United States population of a species merely because it is
more plentiful elsewhere."). The FWS notice states that "lynx throughout much of their
contiguous United States range are rare to extirpated," 62 Fed. Reg. at 28654, and
that listing of the species "is warranted ...." Id. However, the FWS determined that
"development of a proposed rule at this time is precluded by work on higher priority
species." Id. at 28657.
a. The lynx is in imminent danger of extirpation in many areas
As Judge Kessler found, the lynx is "now scattered in small subpopulations in a
very few states," Slip op. at 3, and the "American Lynx population has dropped so
dramatically that the total number of lynx in the contiguous United States may now be
only several hundred individual animals, a population much smaller than those of many
other species now listed as endangered under the ESA." Id. at 4. Moreover, the
plight of the U.S. population is exacerbated by habitat fragmentation along the border
and the loss of connectivity with the Canadian population. The loss of periodic influx
of lynx from Canada "severely restricts the ability for lynx numbers in the contiguous
United States to improve." 62 Fed. Reg. at 28654. The Southern Rockies population is
likewise isolated from other populations, and therefore in imminent danger of
extirpation. Reflecting the dire status of the lynx, the FWS assigned a priority number
of 3 to the species. Id. at 28657. That is the highest candidate species priority number
that a distinct population segment candidate could receive, indicating a high magnitude
and imminent threat to the survival of the species. Id.
b. Further delay in listing the lynx is inexcusable
Now the FWS, after being told by a federal district judge that its actions in denying
ESA protections to the lynx for all these years were arbitrary and capricious, has
decided that the lynx must wait at least another year until it may be proposed for
listing. 62 Fed. Reg. at 28657. At the end of one year, the FWS states that it "will
reevaluate this warranted but precluded finding," and "[i]f sufficient new data or
information become available in the future regarding threats, status of the lynx, etc.,
the Service will reassess the status of the species." Id.
It is hard to imagine what "new information" could come to light within the next
year other than discoveries that the southern Rockies, Great Lakes, and New England
populations have been extirpated during that time. In 1993, the FWS committed to
doing an "in-depth rangewide status review for the lynx," and in February 1994, began
soliciting information from the scientific community. Slip op. at 7. Biologists in
Region 6 reviewed this information and "conducted their own thorough review of the
available scientific and commercial information." Id. at 9. In October 1994, the
Region 6 biologists prepared an "exhaustive, 50 page study" of the status of the lynx
"analyz[ing] each of the[ listing] factors in detail ...." Id. at 9,27. This study
concluded that the northern Rockies population should be listed as threatened and that
the southern Rockies, Great Plains, and northeast populations were endangered. Id. at 9.
Biologists in Regions 1, 3, and 5 reviewed this study and concurred in its findings.
Id. at 10. And now in 1997, the FWS has once again "reexamined the information in the
1994 administrative record and new information made available since the 1994 finding,
and has consulted experts knowledgeable about Canada lynx." 62 Fed. Reg. at 28654.
Throughout this drawn out process the biological imperilment of the species has
been unabated. The only thing that changes is the FWS' reason for not doing anything
about it. No valid reason exists for not listing the species now. A voluminous,
comprehensive Administrative Record detailing the threats to the species has been
compiled, a proposed rule listing the species was drafted in 1994, and the FWS
acknowledges that listing is warranted. Indeed, there is no discernible reason why
the FWS could not simply take its May 27 Federal Register notice, which applies each
of the statutory listing factors -- while there is a current status review which is
still timely -- and merely solicit public comment on a proposed listing decision.
Moreover, the congressional moratorium on listing was not in effect when the FWS
should have made the decision to list in 1994 and has no longer been in effect for
over a year. There are only a small number of species in Region 6 with a higher
priority number, and these are no more imperilled than the lynx but merely have a
different taxonomic classification. One of those, the mountain plover has also
languished unprotected for three years while FWS regional staff have sought to list
the species. For others, we are concerned that the FWS is working on conservation
agreements in lieu of listing for species ahead of the lynx, but still placing those
species ahead of the lynx in listing priority. The FWS has a separate budget for such
prelisting conservation agreements. The FWS has a number of biologists working on
forest carnivores who presumably are not the same biologists which would be working on
listing packages for the plant species which comprise the majority of higher priority
candidates for listing in Region 6 than the lynx. The above listed Conservation
Organizations will not accept further significant delay in the listing of the lynx,
and will pursue additional litigation if the FWS does not agree to a schedule for
making a final decision on the listing of the species.
Where, as here, the overwhelming weight of the biological evidence points to the
conclusion that a species needs the protections of the ESA, the FWS has no alternative
but to propose to list the species. In this regard, we would also point out once again
that nearly every independent scientist whose views are reflected in the Administrative
Record, agrees that the status of the lynx in the United States, as well as along much
of the United States/Canada border, is precarious and that the contiguous U.S.
population merits listing. See, e.g. Hornocker, Hornocker Wildlife Research Institute,
comments (1994) ("I recommend lynx be declared a federally threatened species throughout
its range in the 48 contiguous United States."); Lee, comments (undated) ("I believe
that the lynx should be listed as federally threatened due to significant and cumulative
impacts from habitat loss/destruction and habitat fragmentation."); Beier, Northern
Arizona University, comments (1994) ("Because lynx play in [sic] important role in
ecosystem function during the hare cycle, in my opinion they would warrant
consideration."); Bailey, comments (1994) ("Small, isolated lynx populations (in the
southern Rockies, others?) should be given the highest level of protection ...
Fragmented lynx populations that have occasionally been bolstered by periodic influxes
of lynx from Canada during cyclic highs also deserve more-than-current protection ...");
see also Slip op. at 10 ("it is significant that not a single biologist or lynx expert
employed by the FWS disagreed with the recommendation of the Region 6 biologists that
the lynx be listed").
ESA section 4(a)(1) establishes five factors to be considered in species listings and
delistings. 16 U.S.C. § 1533(a)(1). These factors are present or threatened habitat
destruction, commercial overutilization, disease or predation, inadequacy of existing
regulatory mechanisms, or other natural or manmade factors. Id. Upon receiving a
petition to list a species, the FWS must, based on these criteria, determine within
90 days whether listing "may be warranted." 16 U.S.C. § 1533(b)(3)(A). If, as is the
case with the lynx, a positive 90 day finding is made, FWS must within 12 months of
receiving the petition publish a finding that listing is not warranted, a finding that
listing is warranted along with the text of a proposed regulation to list the species,
or a finding that listing is warranted, but that "the immediate proposal and timely
promulgation of a final regulation [listing the species] is precluded by pending
proposals [to list]." Id. at 1533(b)(3)(B) (emphasis added).
of the contiguous United States
Historically the lynx has been observed in 22 of the contiguous United States with
viable populations recognized by the FWS to have existed in New England, the northern
Great Plains states of Michigan, Wisconsin and Minnesota, and the Rockies. 62 Fed.
Reg. at 28655. Today the FWS "is able to confirm the presence of Canada lynx in only
the States of Montana, Washington, Wyoming, and Maine. Id. In New England and the
mid-Atlantic, lynx have been completely extirpated from New York, Pennsylvania,
Massachusetts, New Hampshire and Vermont. Id. In the northern Great Plains states of
Michigan, Minnesota, and Wisconsin lynx are "extremely rare." Id. The Southern Rockies
population in Utah and Colorado is also in imminent danger of extirpation. See Id.
and a violation of the ESA.
Judge Kessler's opinion details the long and dubious history of the FWS's trials and
tribulations in managing to avoid listing the species over the past twenty years.
Slip Op. at 4 ("Over the past two decades, the FWS has repeatedly recognized that the
Lynx might warrant protection under the ESA even though the agency has taken no action
to provide such protection."). The species was first designated as a candidate for
listing in 1982. 47 Fed. Reg. 58454 (Dec. 30, 1982). Two separate petitions to list
the U.S. population, or a segment of it, have been filed in 1991 and 1994. Two lawsuits
have been filed. Through it all the FWS has utilized various machinations of what
constitutes a listable population of lynx and how to judge its status to evade making
a final decision on the need to protect the species. See Slip op. at 5-12.
Judge Kessler ordered the FWS to make a 12-month finding on the status of the lynx
within 60 days based on the existing administrative record. Order at 1 n.1. The
Judge's opinion reflects her grave concerns over the delay in protecting the species
after the compilation of exhaustive data on its imperilment. See Slip op. at 4, 9-11,
27. The plaintiffs in that suit, after reading the decision, find it difficult to
believe that Judge Kessler would find another year's delay in which to reevaluate
potential new information on the status of the species to be in compliance with her
order. Indeed, the warranted but precluded finding expressly violates Judge Kessler's
order because it extends far beyond the existing administrative record to incorporate
information regarding the status of other species in Region 6.
Conclusion
_____________________________
_____________________________
cc: Kelly Mofield
To continue to have lynx roaming our northern forests well into the next century,
the species must be listed now. It is already critically late for lynx populations
in New England, the Great Lakes region, and the southern Rocky Mountains. To avoid
further litigation over this matter, we request that you reconsider your latest
decision not to extend the protections of the ESA to the lynx. We would also be happy
to meet with you in the near future to discuss whether there is a mutually acceptable
solution to this problem which avoids additional involvement by Judge Kessler. If you
have any questions or wish to discuss the matter further please contact Eric
Glitzenstein.
Sincerely,
John Fritschie
Defenders of Wildlife
1101 14th St., N.W.
Suite 1400
Washington, DC 20005
(202)682-9400
Eric Glitzenstein
Meyer & Glitzenstein
1601 Connecticut Ave, N.W.
Washington, DC 20009
(202)588-5206
Jean Williams
