User:Cbarlow/sandbox

Experimental populations

CRS - "Experimental Populations Under the Endangered Species Act (Updated 27 July 2023) - 2023-CRS-ESA-exp-pop

The Services have established more than 60 experimental populations for many kinds of species. Examples include the gray wolf, grizzly bear, black-footed ferret, California condor, Chinook salmon, Anthony’s riversnail, and American burying beetle. Two experimental populations of gray wolf that were released in Idaho, Montana, and Wyoming in the mid-1990s eventually allowed the resultant distinct population segment to be delisted through administrative and legislative action.

CRS - "The Endangered Species Act: Overview and Implementation Updated March 4, 2021" 2021-CRS-ESA -

In 1982, Congress added experimental populations to the ESA to allow the Services to release or introduce individuals of a species listed as threatened or endangered outside of the species’ current range.96 An experimental population consists of the population introduced to an area, as well as any offspring arising solely from that population. As of October 2020, 147 experimental populations had been designated and released by the Services under the ESA since 1982. To qualify as an experimental population, a population must meet two criteria: 1. The Services must have authorized the release of the population. 2. The population must be wholly separate geographically from other populations of that species. ... For example, FWS used this interpretation when it authorized introducing experimental populations of the gray wolf into Montana, Wyoming, and Idaho ...

The Secretary determines whether each experimental population is essential or nonessential to the survival of the species; this determination in turn affects the way the experimental population is treated. An essential experimental population is one whose loss likely would result in appreciably reducing the likelihood of the survival of the species in the wild. All other populations are nonessential experimental populations. As of this report’s publication, no experimental populations have been designated as essential.... regardless of whether the species is listed as threatened or endangered, all essential experimental populations are regulated as threatened species. As with threatened species, acts with respect to an essential experimental population are prohibited only to the extent the Secretary orders in a species-specific 4(d) rule.

1. Outright translocation because of invasive non-native species in historical range:

"Another high-ranking factor in the demise of many species is the introduction of nonnative invasive species. Nonnative species can be disease vectors or parasites (e.g., avian malaria in Hawaii, chytrid fungus attacking amphibians in much of the world, or Asian long-horned beetles in North America), predators (e.g., brown tree snakes in Guam and Hawaii), or competitors (e.g., barred owls in the Pacific Northwest or snakeheads in the Potomac River). The gradual homogenization of the world’s flora and fauna has led to a demise of many species."

2. wolves beyond Yellowstone. Mexican Gray wolf. Aplomado Falcon.

EXTRA

The buckwheat example also displays the lack of nuanced considerations regarding species uniqueness and ecological importance, as these were not components of the 2022 listing decision nor of the environmental permitting decision required for lithium mining. Scientific expertise alone determines if an animal or plant is certified as a distinct species, rather than a mere variety of an existing species. An academic dissertation informing the listing decision for Tiehm's buckwheat concluded that, of all the species of genus Eriogonum in Nevada, "seven of the thirteen non-tiehmii taxa appear to be close relatives." The author included in his final paragraph the challenges of non-scalar approaches to environmental decision-making:

The battle of human need versus habitat conservation is constant. The situation Tiehm’s buckwheat finds itself, stuck between conservation of its ~25,000 individuals or eradication to allow access to needed resources, is certainly complicated. There are potential services it could provide that are yet to be discovered. If mining were to commence it is unlikely to survive and those services could be lost. If the mining operation is halted or modified to protect E. tiehmii, the global need of lithium may begin to outweigh the supply, and potentially cause delays in technological advances that are aimed at reducing CO2 emissions.

Yuknis God Squad Adler Tarnished Gold FR buckwheat listing

Species Status Assessment: Eriogonum tiehmii (Tiehm’s buckwheat) url= https://iris.fws.gov/APPS/ServCat/DownloadFile/220616

Ioneer company webpage "Tiehm's Buckwheat Conservation": https://www.ioneer.com/rhyolite-ridge-project/sustainability/environment-tiehms-buckwheat-conservation/

BEGIN WITH 1978 AMENDMENTS DID 2 THINGS: GOD SQUAD (snail darter) AND CRITICAL HABITAT. Besides the Snail Darter, 2 other God Squad early on: Condor and Spotted Owl. Critical habitat is examined here in the context of a 2024 critical habitat decision on Tiehm's buckwheat in Nevada.

Quote from the above Ioneer page: "Ioneer is committed to Tiehm’s buckwheat conservation while sustainably developing our Rhyolite Ridge Project, which will add a critical supply of lithium and boron to the U.S. electric vehicle supply chain and reduce greenhouse gas emissions. ... Ioneer actively supported the U.S. Fish and Wildlife Services’ endangered species classification in December 2022. But prior to the federal designation, Ioneer had already invested $1.5 million in Tiehm’s buckwheat conservation. We have taken significant voluntary measures to ensure the plant and its habitat are protected, including installing fencing and signage around sensitive areas, conducting a full survey of the existing buckwheat population prior to any field activities, and developing and implementing a Bureau of Land Management (BLM)-approved protection plan. We have also constructed a dedicated greenhouse to grow Tiehm’s buckwheat and hired a full-time botanist, who is working to propagate and transplant seeds, a process called translocation, to Rhyolite Ridge. Once this is complete, Ioneer will tend to the plant’s continued recovery.... Ioneer has developed and implemented a BLM approved comprehensive Tiehm’s Buckwheat Protection Plan that includes strict measures that have been in place since Ioneer commenced exploration at Rhyolite Ridge in 2016. The goal of these voluntary measures is to ensure that the plant and its habitat are protected, and that the potential impacts caused by development of the Project are minimized.... A central component of the Buckwheat Protection Plan involves complete avoidance of all populations of Tiehm’s buckwheat, with a buffer zone between all mining activities and the plants. In the meantime, Ioneer is committed to increasing the area of the buckwheat population.... In July 2022, the Company submitted to the U.S. Bureau of Land Management (BLM) a revised Plan of Operations that incorporated additional key commitments relating to buckwheat conservation:

Minimizing and mitigating indirect impacts utilizing standard operating measures; and Minimizing disturbance within designated critical habitat. Ioneer’s ongoing conservation efforts for Tiehm’s buckwheat are aimed at addressing current and future threats to the species, including climate-related threats.

Under the supervision of a full-time botanist, the Company is conducting scientific research to further increase knowledge of the species and is now operating a dedicated greenhouse in Nevada where plants are being successfully grown from seed collected from the known populations.... Ioneer first instituted strict protective measures when we began exploration in 2016, prior to any field activities. We have conducted all work in consultation with regulatory authorities and guidelines and have taken great care to avoid the buckwheat subpopulations.... oneer has retained the services of academic and commercial experts to enhance our science-driven approach and develop protection measures that will ensure the plant thrives in its natural habitat. Our specialists are members of the Eriogonum Society, a professional association whose members have expertise in evaluating, propagating, and protecting various types of buckwheat.

2024 LIST OF DOCUMENTS ON BLM PERMITTING: https://eplanning.blm.gov/eplanning-ui/project/2012309/570

4/15/2024 was Draft EIS

5/6/2024 list of public meeting materials

8/12/2024 Rhyolite Ridge Final Biological Assessment (274 MB)

10/22/2024 Final EIS (152 MB)

10/23/2024 Record of Decision and Plan of Operations Approval (31 MB) https://eplanning.blm.gov/public_projects/2012309/200540745/20121441/251021421/Record%20of%20Decision%20and%20Plan%20Approval%20-%20Rhyolite%20Ridge%20Lithium-Boron%20Project%20(2024-10-23)-SIGNED.pdf

THE IONEER CONSERVATION PLAN GIVEN TO BLM revised on July 2024: "Buckwheat Protection Plan: Applicant Proposed Conservation Measures for Tiehm’s Buckwheat and its Critical Habitat Rhyolite Ridge Lithium Boron Project Esmeralda County, Nevada" https://www.ioneer.com/wp-content/uploads/2024/10/tbProtectionPlanSep2024.pdf

"Rhyolite Ridge Lithium-Boron Mine Project (2024)" ON BLM PAGE UPDATED TO 24 September 2024: https://eplanning.blm.gov/eplanning-ui/project/2012309/510 publisher: BLM National NEPA Register:

Ioneer Rhyolite Ridge LLC (Ioneer) proposes to develop a new lithium and boron mine, the Rhyolite Ridge Lithium-Boron Mine Project (Project), in Esmeralda County, Nevada. Lithium is one of the key components for systems used to store energy, foremost of which is for batteries in electric vehicles, utilities, computers, and cellular phones. Boron has a variety of uses, particularly as a critical additive to glass and ceramics to strengthen and prevent cracking, as well as for fiberglass insulation, permanent magnetics used in electric motors, and as a fertilizer to increase crop yields.... the facility layout has been modified to reduce the footprint within the Tiehm’s buckwheat (Eriogonum tiehmii) designated critical habitat. (FINAL EIS published 9/20/2024 and "Record of Decision" Sept 23.) MUST LINK TO THE RECORD OF DECISION PDF HERE: https://eplanning.blm.gov/public_projects/2012309/200540745/20121441/251021421/Record%20of%20Decision%20and%20Plan%20Approval%20-%20Rhyolite%20Ridge%20Lithium-Boron%20Project%20(2024-10-23)-SIGNED.pdf

CENTER FOR BIOLOGICAL DIVERSITY april 2024 press release buckwheat: https://biologicaldiversity.org/w/news/press-releases/new-mine-plan-would-condemn-rare-nevada-wildflower-to-extinction-2024-04-16/ "New Mine Plan Would Condemn Rare Nevada Wildflower to Extinction"

The U.S. Bureau of Land Management released a draft environmental impact statement today for a proposed Nevada lithium mine that would push the endangered wildflower Tiehm’s buckwheat to extinction despite its protection under the Endangered Species Act.

Under the plan, the 7,000 acre open-pit Rhyolite Ridge Lithium Mine would directly destroy 22% of the buckwheat’s 910 acres of protected critical habitat, while severely degrading the rest because it’s so close to mining operations, with the open pit coming within 44 feet of the rare plants.

A previous version of the mine plan would have destroyed 38% of the plant’s critical habitat. The agency and mining company have said the reduction in the amount of direct destruction would save the plant.... “Reducing the destruction of this rare plant's habitat from 38% to 22% is like cutting off one leg instead of both. They’re still dealing a fatal blow to this precious, rare wildflower. This mine plan makes a mockery of the Endangered Species Act, and we’ll fight it with everything we've got."

Accommodating other national priorities

BEGIN WITH 1978 AMENDMENTS = GOD SQUAD (Snail darter) and CRITICAL HABITAT (buckwheat continues)

To a large degree, compromises between the imperative to prevent species extinctions and the nation's other priorities were not recognized in the 1973 Act itself. This partly changed in 1978 when Congress passed and the president signed into law a bill that amended the statute in several ways. One amendment created a new requirement. This was the requirement to designate "critical habitat" (where "prudent") for each listed species. Criteria for making such habitat designations satisfied opponents of strong biodiversity protection by widening decisions beyond "the best scientific data available." For critical habitat, therefore, measures of national importance beyond biodiversity protection could influence decisions that are not allowed to be considered during the listing decisions. This expansion of priorities was accomplished by amending Section 4 of the 1973 Act to determine the geographic boundaries of critical habitat:

... on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned."

Range of Tiehm's buckwheat: 910 acres of critical habitat (gray) surround black patches where the species is found.

It was this ability to accommodate competing priorities while shaping the boundaries of critical habitat that enabled the agency in October 2024 (date??) to fulfill the imperative for protecting the newly listed (in 2022) Tiehm's buckwheat, while granting the necessary permits for a lithium mine to intensify and expand its existing operations. This was done by publishing a recovery plan that designated as critical habitat a particular 910 acres of the lithium-rich Nevada landscape that the mining company had otherwise planned for extraction. Only because the dispersed population of this newly designated endangered species was so restricted in size (summing to about 10 acres) was it possible for this kind of compromise to be approved by the agency. Nonetheless, the Center for Biodiversity immediately announced it would challenge the compromise in court.

FROM THE 2022 LISTING DECISION IN FED REGISTER:

Tiehm’s buckwheat is a narrow- ranging endemic known from only one population, comprising eight subpopulations, in the Rhyolite Ridge area of Silver Peak Range in Esmeralda County, Nevada. The single population of Tiehm’s buckwheat is restricted to approximately 10 ac (4 ha) across a 3- square-mile area, located entirely on public lands administered by BLM.

the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.

. At that time did authorize economic considerations when , or they fail when contested in court. Notably, this happened in 1978. The U.S. Supreme Court upheld a _____________. A majority in Congress therefore voted in favor of amendments that included what has come to be called "the God Squad". This was ______. President Jimmy Carter signed the bill into law.

The God Squad, however, has rarely been called into play. Instead, the executive branch has granted listings or engaged in out-of-court settlements that have riled those seeking access to or development of federal lands.

An historic example is the 1978 judicial decision in favor of a tiny fish (the snail darter) — even though that decision halted construction of a dam that was already underway on the Little Tennessee River.

More difficult may be when agencies managing federal lands (notably, the Bureau of Land Management and the U.S. Forest Service have the responsibility to determine whether and how those lands can be accessed by private entities for development or extraction purposes, as in oil and gas leasing and timber harvesting. the or the Section 7 consultation requirements when other agencies are making their own regulatory decisions.When the conflict between the wellbeing of a species and another priority of regional or national significance arises, constraints on the project that would mitigate extinction risk are explored and then sometimes mandated in the agency's listing decision. Another challenge to priorities is occurs when another federal agency holds responsibility to issue permits for development projects _____.

Section 4 Buckwheat assoc press Yuknis God Squad Adler Tarnished Gold FR buckwheat listing

ADD TO CRITICAL HABITAT

USE THIS QUOTE FROM CRS REPORT LATER TO INTRODUCE CRITICAL HABITAT:

In summary, under the ESA, whether a species is endangered or threatened is a scientific decision that the Services make based on the best available scientific and commercial data. Once a species is listed as threatened or endangered, the Services must consider economics for critical habitat designations and may consider economic factors when suggesting reasonable and prudent alternatives.

TEXT FROM THE 1978 AMENDMENT WIKIPEDIA PAGE:

The first amendment to the ESA was passed by the 95th United States Congress in 1978 to "introduce some flexibility into the Endangered Species Act".[1]

TO DO re GOD SQUAD PAPERS

1. Add "God Squad" ref to "Citizens can petition" section, Yuknis-2011

Any “interested person” —including individual citi- zens, environmental groups, and federal, state, or local agencies—may file a petition with FWS to add a species to the lists of endangered or threatened species.34 If the Secretary determines that evidence submit- ted with the petition “presents substantial scientific or commercial in- formation indicating that [inclusion on the threatened or endangered species lists] may be warranted” 35 FWS will initiate a review of the status of the species in question, by assessing the potential threats to the candidate species.

Congress amended the ESA in 1978 to allow for an exemption from section 7’s requirements.71 The God Squad itself is made up of seven members, chaired by the Secretary of the Interior.72 Other members include the Secretaries of Agriculture and the Army, the Administrators of the Environmental Protection Agency (EPA) and the National Oceanic and Atmospheric Administration, as well as the Chairman of the Council of Economic Advisors.73 The seventh member is a presidential appointee from the state affected by the agency action.74 A vote of five members is suffi- cient to grant an exemption from section 7’s no-jeopardy require- ment.75 An exemption to the no-jeopardy requirement granted under section 7 also exempts the agency action from the ESA’s prohibition on the illegal “taking” of endangered species, making the extinction of the species a genuine possibility.76

The Secretary must make a listing determination “solely on the ba- sis of the best scientific and commercial data available” at the time of the review.37 Although the effect of commercial activity on a wildlife population is a factor in determining whether a species is at risk of ex- tinction, the ESA does not allow the Secretary to consider the effects of listing a species on economic interests.38 Simply put, the ESA prohibits Interior from engaging in a cost-benefit analysis to determine if a par- ticular species is economically worth preserving.39 If the relevant scien- tific and commercial information indicates that a species is at risk of extinction, then it must be listed.40 The United States Supreme Court reinforced the supremacy of the ESA’s conservation objective over eco- nomic considerations in Tennessee Valley Authority v. Hill.41 Chief Justice Burger, writing for the majority, stated that “[t]he plain intent of Con- gress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.”

2. Add "God Squad" ref to "Critical Habitat" what's new:

Interior must designate a reasonable amount of critical habitat that will allow the species to survive, but has discretion to locate those areas in economically friendly places, if avail- able.50 If a threatened or endangered species, like the delta smelt, ex- ists only in a small geographical area, Interior may have little discretion concerning what habitat to list as critical.

3. Add to CHALLENGES a new subsection: "Agency consultations and the 'God Squad'"

A third regulatory tool designed to protect threatened or endan- gered wildlife can be found in the ESA’s section 7 “no-jeopardy” provision. This section prohibits federal agencies from engaging in any action that is “likely to jeopardize the continued existence of any en- dangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species . . . unless such agency has been granted an exemption” by the Endangered Species Committee.59 This committee is known as the “God Squad” due to its ability to exempt federal actions, thereby enabling the possible extinc- tion of a species.

... A section 7 “agency action” includes “any action authorized, funded, or carried out by” a federal agency.61 Because the federal gov- ernment authorizes a great deal of activity, section 7 of the ESA has wide implications, and has been the source of great conflict between environmental and economic interests. If any agency action is likely to jeopardize a threatened or endan- gered species or its critical habitat, then the ESA requires that the agency proposing the action formally consult with FWS regarding the potential harm to listed species.63 The purpose of the consultation is “to assist the Federal agency and any applicant [in] identifying and re- solving potential conflicts” as early as possible.64 During the consulta- tion process, FWS develops a biological opinion based on the best available scientific data.65 The biological opinion must include a “de- tailed discussion of the effects of the action on listed species or critical habitat,” as well as a “summary of the information on which the opin- ion is based.”66 If FWS determines that the proposed action would jeopardize a listed species, the biological opinion must advise the acting agency of any “reasonable and prudent alternatives” that would bring the action into compliance with the ESA.67 If FWS determines that no such alternatives exist, then the agency action is barred.

The ESA provides that the God Squad may grant the exemption if five of its members de- termine, based on the record, that: (i) there are no reasonable and prudent alternatives to the agency action; (ii) the benefits of such action clearly outweigh the benefits of alternative courses of action consistent with conserving the species or its critical habitat, and such action is in the public interest; (iii) the action is of regional or national significance; and (iv) neither the Federal agency concerned nor the exemption applicant made any irreversible or irretrievable commitment of resources [in furtherance of the barred agency action].82 The God Squad’s decision to grant an exemption is judicially review- able under the Administrative Procedures Act.

the ESA requires that if the God Squad grants an exemption, it must establish “such reasonable mitiga- tion and enhancement measures, including, but not limited to, live propagation, transplantation, and habitat acquisition and improvement, as are necessary and appropriate to minimize the adverse effects of the agency action upon the endangered species, threatened species, or critical habitat concerned.

The ESA’s exemption process has been infrequently used.87 Since Congress authorized God Squad exemptions, only six applications have ever been formally filed.88 Of those applications, three were withdrawn, while the God Squad convened to reach a decision on the other three.89 The first two applications—concerning the snail darter and the whooping crane—were decided on the same day in January 1979.90 In more than thirty years since these first hearings, the God Squad has made only one additional exemption decision—a 1992 decision con- cerning the northern spotted owl’s habitat.

agencies have on six occasions requested God Squad exemptions, three of which made it before the Committee.98 The Committee has voted once to deny an agency’s request, and twice in favor of exemption.99 The three God Squad exemption decisions NO QUOTE are: Snail darter, whooping crane, spotted owl. SO ADD THIS AS REF TO SNAIL DARTER AND SPOTTED OWL.

SNAIL DARTER The political fallout from the decision led industry groups, fearful of the strength of the section 7 mandate, to pressure Congress to enact the 1978 amendments, creating the God Squad.112 The God Squad convened to decide the fate of the snail darter immediately after the amendment’s passage.113 The God Squad’s first decision was a unanimous denial of the Tellico dam exemption.114 The Committee found that the economic benefits of completing the dam did not significantly outweigh the associated costs.115 The evidence prompted the sitting chairman of the God Squad, Secretary of the Interior, Cecil Andrus, to describe the Tellico dam project as “‘ill-conceived and uneconomic in the first place.’”116

WHOOPING CRANE: At the same time that the God Squad convened to hear the snail darter case, it also convened to hear the case of the whooping crane.117 While the TVA tried to complete the Tellico dam, another develop- ment agency, the Rural Electrification Administration, sought to com- plete the Grayrocks dam in Wyoming’s Laramie River.118 The dam’s closure threatened the downriver habitat in Nebraska supporting the endangered whooping crane.119 At one time, the whooping crane was a national symbol of the growing problem of endangered species.120 In the late 1930s and early 1940s, the total population of surviving whooping cranes hovered near twenty birds.121 Therefore, it is ironic that the God Squad unanimously granted its first and only full exemption in a case involving this ex- tremely imperiled species.122 However, as Shannon Petersen notes in Acting for Endangered Spe- cies, this exemption was not much of an exemption at all.123 The parties involved in the dispute, including the agency and several environ- mental groups, had agreed to a settlement prior to the God Squad’s decision.124 Under a federal court agreement, the Administration could complete the dam “if its builders guaranteed that enough water would be released from the dam to maintain adequate stream levels on the Platte River where it passed the Nebraska feeding grounds.”125 The God Squad granted the exemption, but required the implementation of the preexisting settlement as mitigation.

SPOTTED OWL: In 1990, FWS listed the northern spotted owl as threatened, bring- ing conservationists into conflict with the logging industry.129 FWS found that, in order to survive, the spotted owl required old-growth for- est with a high canopy to nest in, and room under the branches to fly and hunt.130 Furthermore, the practice of clearing and selling discrete plots of land fragmented patches of owl habitat, reducing the chances that mating pairs would find each other and reproduce.131 Thus, the logging practices of the Federal Bureau of Land Management (BLM) had adverse effects on the owl’s critical habitat, and violated section 7.132 Industry representatives expressed concern that the entire lumber industry in the Pacific Northwest would be affected, with some predict- ing the loss of more than 25,000 jobs.133 Tensions increased after FWS approved only one-third of the BLM’s proposed timber sales, rejecting sales on fifty-two plots of forest land because those sales would jeopard- ize the survival of the spotted owl.134 The BLM petitioned George H.W. Bush’s Secretary of the Interior for a God Squad exemption on forty- four of the plots.135 After hearings, during which timber industry pro- ponents challenged the validity of FWS’s scientific conclusions, the God Squad voted five to two in favor of exempting thirteen of the forty-four timber sales, believing that the reduced number of sales would leave enough contiguous forest to avoid harming the spotted owl population.136 In addition, it ordered the implementation of FWS’s owl recov- ery plan.

4. Create a DELTA SMELT para for chronological and start at the 2007 court decision.

Extra stuff

2016 USFWS=201,400 Other Fed = 131,955 States 351,451

2017 USFWS=177,000 Other Fed = 99,446 States = 300 Army Corp Eng = 8,311 + BLM=100 + USGS 100 + EPA=235 + FERC=1,000 + Smithsonian = 14,000 + USD AN Plant=51,800

2018 "general" = 228,100 all USFS + DOD = 14,246 + USGS 26,000 + USDA Animal and Plant Health Inspection Service = 33,000 + FWS = 130,600 TOTAL FED = 431,946 + States total=56,366

2019 no FWS + 30,935 "Other Fed" + 0 state (of that USGS=14,000 + ARmy Corp Engineers =16,935)

2020 no FWS + 27,525 Other Fed 0 state 4,200 Army Corp 3,000 USGS 100 USDA Health + 20,225 USFS

To improve or maintain early successional stages of open woodlands required by the birds for nesting, fire and timber harvesting to maintain large acreages of near monocultures of young to medium-aged jack pine trees, primarily on state and national forest land in Michigan. The latter employed state wildlife staff and some Audubon Society volunteers to trap and then kill the so-called "brood parasite" bird species: the brown-headed cowbird.

By 2001, the recovery goal of 1,000 breeding pairs had been reached. But not until 2018, when the population had held steady at some 2,000 birds did conservation stakeholders and state and federal scientists agree that delisting would be prudent. This was because "conservation-reliant species" had become a recognized category, dependent upon the creation of legally binding and funded continuing conservation practices via species-specific "recovery management agreements."

lawhe federal recovery plan had long placed the population threshold at 1,000 birds, but state and federal agency scientists engaged in recovery actions, as well as the conservation groups observing and sometimes assisting in actions, waited for a full five years of the population maintaining at around 2,000 birds before the necessary binding agreements were developed and signed. 

Cannot responsibly delist a species if there is no track record

Scott 2005:

Was first brought to the fore in a pro-conservation focus was 2005 Scott et al. Statistics at that time were: of 1260 listed species, 13 delisted by "recovery", and 22 downlisted from endangered to threatened.

Noting "the complexity of threats" faced by many species, and that it took many species "decades or centuries to reach a point of acute vulnerability," the authors regarded the low numbers of recovery progress to be ....

["Given the complexity of threats faced by species (Wilcove et al. 1998), the limited funding of recovery efforts (Miller et al. 2002), and the fact that it took many species decades or centuries to reach a point of acute vulnerability (Wilcove et al. 1993),] "It is unrealistic to expect that many more species would have recovered during the 30 years the Act has been in effect. The magnitude of the threats, and the likelihood that most will increase in intensity and pervasiveness, suggest that few additional species are likely to be delisted without some form of continuing management to keep them from slipping back into a threatened or endangered condition." They proposed a "reconceptualization of 'recovery' that recognizes it as a continuum.

Five years later, the lead author and others had surveyed the types of threats, coupled with proposed types of actions to mitigate those threats. They determined for the 1,361 species evaluated that "951 (84%) are conservation reliant by our measures." Scott 2010

Their conclusion:

The challenge created by the conservation reliance of threatened and endangered species is formidable. Based on our analysis, 84% of the species listed under the U.S. Endangered Species Act will need continuing management actions, even after these species have met the population and distribution goals of their recovery plans.

Kirtland's Warbler became a prime example. While the recovery plan offered 1,000 individuals as the numerical guidepost for recovery, that figure was achieved in 2001? But not until 2019, when population held fairly steady at some 2,000 birds did conservation stakeholders and state and federal scientists agree that delisting would be prudent. This was because "conservation-reliant species" had become a recognized category, dependent upon the creation of legally binding and funded continuing conservation practices via species-specific "recovery management agreements."

FIRST PROPOSED IN SCOTT ET AL 2005: "We propose the development of "recovery management agreements" with legally and biologically defensible contracts that would provide for continuing conservation management following delisting. The use of such formalized agreements will facilitate shared management responsibilities between federal wildlife agencies and other federal agencies, and with state, local, and tribal governments, as well as with private entities that have demonstrated the capability to meet the needs of conservation-reliant species."

Scott 2010:"Incorporation of such a mechanism into the framework of the Endangered Species Act would require changes in policies and regulations, but not the law." "A creative mix of regulations and incentives and a greatly expanded group of individuals involved in post recovery management will be needed to ensure that conservation-reliant species receive adequate conservation efforts if and when they are delisted

Scott 2010: "The eradication of exotic foxes (Vulpes spp.) from the breeding islands used by the Aleutian cackling goose was instru- mental to their recovery and delisting (USFWS 1990), but removal of introduced mongooses (Herpestes spp.), rats (Rattus spp.), and feral cats (Felis catus) from the much larger islands inhabited by the endangered Hawaiian stilt (Himantopus mexicanus knudseni) has proved impossible."

Boscetti 2012 - The species has been delisted because ongoing take monitoring and management was provided through international and federal regulatory mechanisms (Goble 2009)

Scott 2005

"the conservation-reliant species concept can assist in recovery by allowing a species whose population has stabilized at or above its recovery goals to be delisted, even though the threats to its existence can only be successfully mitigated rather than eliminated by ongoing conservation management."

"For many species, the factors that led to their at-risk status stem from irreversible human alterations of the environment, such as destruction of habitat or increasing num- bers of non-native species. Under these conditions, active, continuing management must be part of the recovery strategy. If there is a reasonable certainty that such management will be provided, there is little value in continuing to list these species as endangered or threatened. Regarding them as conservation-reliant species may be a more realistic alternative."

"the RMA should be operational well before the species is downlisted or delisted"

Scott 2005 - Prohibit human hunting or malicious killing: gray whale. Some laws target specific taxonomic groups (eg Bald and Golden Eagle Protection Act, Marine Mammal Protection Act). Gray whale, wide-ranging.

Habitat destruction and invasive species top two for which sometimes simple, sometimes not.

Invasive species: Simple: Remove rather simple forms of human causes: Aleutian goose: removed introduced foxes from their small island nesting. Delisted in _____. But others, cheatgrass shifts the whole ecosystem away from native grasses and sagebrush, and thus widespread habitat destruction. Greater Sage Grouse. For a cinquefoil species of shrubby plant, the invasive species was human hikers. Simply fence a heavily used section of the Appalachian Trail and monitor into the future. Delisted in ____.

Complex habitat destruction: _______

Kirtland's warblers both problems: Habitat - loss of wildfires. Invasive: cowbirds.

IF CONSERVATION-RELIANT, then the question is: maintain ESA forever, or subsidiarity. Advantage of latter is flexible, widespread, collaborative, includes NGOs — and substantially reduces bureaucracy (no petitioning of the collboratives) or legal entanglemnts. Pragmatic, goodwill, fosters the principle of subsidiarity, as in systems science.

Scott 2010:

"Efforts may be focused on managing other species that negatively affect the conser- vation target (e.g., control of predators, nest parasites, competitors, disease vectors), actively managing habitat and ecological processes (e.g., prescribed cuts, prescribed burns, controlled releases of water from dams), supplementing resources (e.g., providing contaminant-free food for California condors, Gymnogyps californianus), controlling direct human impacts (e.g., excluding people from a least tern colony), or artificial recruitment (e.g., supplementing populations through release of captive-reared individuals or translocation from another site to maintain genetic diversity or augment population numbers)."

BEGIN:

Use 2012 Boscetti for the intro and to list these species: Plants: Robbin's cinquefoil, Eggert's sunflower

Animals: Columbian white-tailed deer

For criticism, use "Connectivity conservation and endangered species recovery: a study in the challenges of defining conservation-reliant species" Carlos Carroll1, Daniel J. Rohlf2, Ya-Wei Li3, Brett Hartl4, Michael K. Phillips5, & Reed F. Noss6 Basically, wants deeper measures that do not require intense human intervention. Usually habitat restoration, but how could that solve the basic cowbird problem for the warbler?

"Kirtland's Warbler Case Study" - recent and ongoing human activities had improved wintering grounds and greatly disrupted breeding grounds: fire control plus invasion of a brood parasite formerly restricted to the prairie states. Funding dependent on ability to hold off clearcutting until attractive for timber sale. Overcoming public opposition owing to 1980 prescribed fire and the aesthetic of large-scale property management. Outright purchase of lands because unattractive to avocational forest owners. "Public education contributes to the recovery of Kirtland’s warblers by minimizing the public opposition to other recovery strategies such as cowbird control and habitat management." 2012 Boscetti

"Even though the species has exceeded the recovery goal for over 10 years, the recovery team has not recom- mended delisting, because this would lead to a decrease in funding and priority within the managing agencies, which would cause a reduction in or the loss of the implementation of the recovery strategies. The most recent threats analysis (completed by the USFWS as part of a 5-year status review) concludes that the loss of cowbird control and the loss of habitat management are the greatest threats to the species."

"The team believes that all five recovery strategies are still essential, which makes the species completely conserva- tion reliant. If the species is to be delisted, a legally binding mechanism to replace the ESA must be put in place that will assure the continuation of these strategies at the scale needed to maintain or increase the species’ numbers and distribution."

Audubon Society provided volunteers to help with cowbird control. 2012 Boscetti

OVERALL:

USE MORGAN-2021 FOR THE BEGINNING OF WIKI PAGE: <blockquote "Whether you believe the Endangered Species Act (ESA) is a success depends on which end of the binary you focus: extinction or recovery. On the one hand, the ESA is very good at keeping species from going extinct. In the decades since the ESA’s passage in 1973, only four species have been confirmed extinct with another twenty-twopossiblyextinctfollowingprotectionfromtheESA.1 Ontheotherhand, the ESA has not been all that successful in fully recovering species. To date, only

thirty-nine species have been fully recovered under the Act.2"

"Conservation-Reliant Species: Toward a Biology-Based Definition." 2014 By: Rohlf, Daniel J.; Carroll, Carlos; Hartl, Brett. BioScience. Jul2014, Vol. 64 Issue 7, p601-611. 11p. DOI: 10.1093/biosci/biu078.

"Conservation-Reliant Species." 2012 By: GOBLE, DALE D.; WIENS, JOHN A.; SCOTT, J. MICHAEL; MALE, TIMOTHY D.; HALL, JOHN A. BioScience. Oct2012, Vol. 62 Issue 10, p869-873. 5p. DOI: 10.1525/bio.2012.62.10.6.

"Long-term persistence of conservation-reliant species: Challenges and opportunities." 2020 By: Gameiro, João; Franco, Aldina M.A.; Catry, Teresa; Palmeirim, Jorge M.; Catry, Inês. Biological Conservation. Mar2020, Vol. 243, pN.PAG-N.PAG. 1p. DOI: 10.1016/j.biocon.2020.108452.

CONSERVATION RELIANT IDAHO LAW REVIEW ARTICLE is in my downloads folder.

"These 3 animals are no longer endangered in the U.S." National Geo 2019 https://www.nationalgeographic.com/animals/article/species-delisted-from-endangered-species-act-in-2019

SPOTTED OWL 2012 - https://jimproctor.us/archive/envs/wp-content/uploads/sites/24/2014/11/Conservation-Reliant-Species-The-Northern-Spotted-Owl-The-Future-of-Conservation.pdf

CONDORS 2024 "Practical models to guide the transition of California condors from a conservation-reliant to a self-sustaining species." By: Bakker, Victoria J.; Finkelstein, Myra E.; Doak, Daniel F.; Kirkland, Steve; Brandt, Joseph; Welch, Alacia; Wolstenholme, Rachel; Burnett, Joe; Punzalan, Arianna; Sanzenbacher, Peter. Biological Conservation. Mar2024, Vol. 291, pN.PAG-N.PAG. 1p. DOI: 10.1016/j.biocon.2024.110447.

KIRTLAND'S WARBLER 2012 "Using Conservation Management Agreements to Secure Postrecovery Perpetuation of Conservation- Reliant Species: The Kirtland's Warbler as a Case Study". By: BOCETTI, CAROL I.; GOBLE, DALE D.; SCOTT, J. MICHAEL. BioScience. Oct2012, Vol. 62 Issue 10, p874-879. 6p. 1 Map. DOI: 10.1525/bio.2012.62.10.7.

"Using a full annual cycle model to evaluate long-term population viability of the conservation-reliant Kirtland's warbler after successful recovery." 2017 By: Brown, Donald J.; Ribic, Christine A.; Donner, Deahn M.; Nelson, Mark D.; Bocetti, Carol I.; Deloria‐Sheffield, Christie M.; Thompson, Des. Journal of Applied Ecology. Apr2017, Vol. 54 Issue 2, p439-449. 11p. 1 Diagram, 6 Graphs, 2 Maps. DOI: 10.1111/1365-2664.12776.

"The Dilemma Of Conservation Reliance: When A Species Needs Help Indefinitely" 2016 in By Amanda D. Rodewald From the Spring 2016 issue of Living Bird magazine. April 12, 2016 Cornell Lab All About Birds

https://www.allaboutbirds.org/news/the-dilemma-of-conservation-reliance-when-a-species-needs-help-indefinitely/

Maintaining entire populations of conservation-reliant species is an expensive and possibly perpetual endeavor. Critics argue that, given the limited resources for conservation, we should engage in triage and focus on conservation for the greatest benefit of multiple species and ecosystems. On what ethical, ecological, scientific, or legal grounds can we defend picking the winners and losers? Others caution that we could create disincentives to proactive conservation if we give up when management becomes too expensive.

Each perspective has merit and highlights the unpalatable trade-offs we create when we wait too long to safeguard ecosystems and the species that rely on them. The best approach is to avoid reaching the critical point where a species is conservation reliant. Do all that we can—now—to conserve our lands and waters in ways that will ensure viable populations of all species.

... The California Condor is a prime example of a conservation reliant species. The birds can ingest lead shot from carcasses they feed on, and each wild bird must be screened for lead poisoning each year. Biologists also visit most nests to check on egg viability, replacing infertile eggs with fertile, captive-bred eggs to keep the wild pairs nesting successfully—as in this example from our 2016 Bird Cams condor nest.

Nagle 2017 "The Original Role of States in the ESA"

According to the conference committee report, section 6 gave states “the fundamental roles with regard to resident species” for a limited period of time during which the state legislature could enact any programs that were necessary to achieve the goals of the law, a device that the committee hoped “will impel the states to develop strong programs to avoid the alternative of federal preemption.”99 After that period, the role of the states would de- pend on whether they had developed approved cooperative agree- ments. “Where cooperative agreements are in force, these will of course direct and control the enforcement of endangered and threatened species programs. Where none are then in effect, it will be the responsibility of the states to develop workable programs to secure cooperative agreements with the Secretary [of the Interior.]”

... Moreover, states remained free to enact more restrictive rules governing the taking of a listed species.

... State environmental regulation has become quite attractive to many environmentalists at the onset of the Trump Administration.120 The Western Governors Association (WGA) has prioritized reforming the ESA in order to better achieve the statute’s goals while better respecting state authorities and interests. The theoretical justification has been there all along. The doctrine of subsidiarity, which emerged from Catholic social thought and now plays a key role in the governance of the European Union, seeks to empower local and state authorities but is willing to rely on federal power if the states prove to be inadequate.

This Article thus proposes to return to the original understanding of the state role in the ESA by: (1) fur ther empowering state conservation efforts to avoid ESA listings, (2) resurrecting the cooperative agreements that Congress ex- pected to play a major role in the implementation of the act, and (3) promoting additional funding and assistance to state wildlife managers who are seeking to achieve the goals of the ESA.

... states can engage in conservation efforts to prevent the need for listing a species under the ESA. Second, the role of cooperative ageements authorized by section 6 of the ESA can be revitalized

... States are eager to avoid ESA listings because the ESA im- poses significant federal land use regulations to protect listed spe- cies. According to the WGA, ESA listings dramatically alter the ability of states and fed- eral agencies to seek incentive-based, collaborative solu- tions to difficult conservation questions by causing citizens to avoid cooperative agreements.

... The ESA allows states to avoid the federal regulation that the law imposes.123 Of the five statutory factors to be considered in de- ciding whether a species is endangered, four require consideration of the actual threats to the species.124 The fifth factor—"the inade- quacy of existing regulatory mechanisms"—examines the protec- tion that the species already enjoys under federal, state, local, or foreign law.125 The premise of that factor is that a species is not endangered if other laws already protect it.

EXAMPLES OF SPECIES NOT LISTED BECAUSE OF STATE ACTIONS:

Most recently, the FWS has cited state conservation efforts to decline to list: • The Washington ground squirrel, which suffered as the result of agricultural development in eastern Washington and north-central Oregon. • The relict leopard frog, endemic to three rivers and associ- ated springs in Nevada, Arizona, and Utah. • The Coral Pink Sands Dunes tiger beetle, which lives only in the Coral Pink Sand Dunes of southern Utah • dunes sage- brush lizard is illustrative

By contrast, the FWS listed the little prairie chicken notwithstanding an extensive effort by multiple states to develop conservation programs to save the chicken without federal intervention... The lesser prairie-chicken list- ing provoked multiple lawsuits contending that the FWS failed to affordsufficientcredittothestateconservationefforts.145 Afederal district court agreed with the states and the FWS responded by vacating the listing.146

Section 6 - subsection (f) says that state law may be more restrictive than the ESA itself or FWS regulations, but state law may not be less restrictive

Section 6 also authorizes federal funding for state conserva- tion programs.186 The FWS provided $32 million in such funding in 2013, including, money “... the endangered Salt Creek tiger beetle,” a “highly-imperiled species” that lives in eastern saline wetlands, which are the “most limited and endangered wetland type and veg-

etation community in all of Nebraska.

... A review of the species that have recently recovered to the point that they were delisted shows that states are often more in- volved than usually believed. States were involved in conserving eachofthespeciesthatweredelistedin2015and2016.202 TheFWS delisted the Louisiana black bear in part because they “are cur- rently, and will continue to be, protected from taking, possession, and trade by State laws throughout their historical range.”

... The ESA has done a poor job of enabling spe- cies to recover so that that are no longer in danger of extinction.

cooperative federalism" subsidiarity

Cost

2012 Science

'In 2011 the Fish and Wildlife Service itself requested Congress to impose a cap on the amount of budgeted money that could be used to respond to citizen petitions. ADD 2 MORE REFS.

FAILURE TO AMEND

• • 2022 Too few, too late: U.S. Endangered Species Act undermined by inaction and inadequate funding

https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0275322

Eberhard-2022 is ref name.

"We find that small population sizes at time of listing, coupled with delayed protection and insufficient funding, continue to undermine one of the world’s strongest laws for protecting biodiversity."

"Multiple explanations have been given for this low rate of recovery including: (a) a pattern of not protecting species until their populations have reached very low levels, which increases both the time to recovery and the likelihood that species will vanish entirely due to environmental, genetic, and demographic stochasticity [5]; (b) a lack of incentives to landowners to participate actively in efforts to increase populations of endangered species [6]; and (c) inadequate funding for recovery actions [7]. Here, we have used data from the Federal Register to examine trends in the population sizes of species at time of listing and the levels of funding available to list and recover them."

USE THIS TO SUPPORT THE COST ITEM ABOUT FWS REQUESTING BUDGET LIMITATION: "in recent years, most of the species added to the ESA have been the result of petitions from non-governmental entities to FWS requesting protection of a given species. Frequently, listing follows litigation brought by environmental organizations when petition decisions are overdue or petitions are denied"

"Our analysis revealed longer wait times for species petitioned for listing during the 2000–2009 period (median = 9.1 years), compared to those petitioned for listing during the 1992–1999 period (median = 5.9 years), followed by shorter wait times for species petitioned for listing during the 2010–2020 period (median 3.0 years)."

"a painfully slow process of clearing a backlog of rare but unprotected species"

"The wait-times between when a species is first petitioned for protection under the ESA and when it finally receives that protection have waxed and waned since 1992. The period with the longest median wait time (2000–2009, with a median wait-time of 9.1 years), was also the period when the greatest number of petitions were received by FWS (n = 203). The period with the shortest median wait time (2010–2020 with a median wait-time of 3.0 years) was the period when the fewest number of petitions were received (n = 26). This suggests that wait times may be exacerbated when limited resources for listing are strained by a large influx of petitions."

I ADDED TO "RECOVERY AND DELISTINGS ARE RARE" THIS PARA WITH THIS 3-AUTHOR REF: In 2022 a research paper pointed to a set of three factors that contribute to the low number of delistings: "The combination of delays in listing rare species, the typically small population sizes of species at time of listing, and inadequate funding for recovery actions, are the key factors that can explain the relatively small number of listed species that have fully recovered."[103]

______

"Finding Common Ground: Conservationists and Regulated Interests Pursue ESA Reform Together" 1996 ESA U Mich. by Christopher E. Williams https://deepblue.lib.umich.edu/bitstream/handle/2027.42/39329/als9527.0013.006.pdf?sequence=1

"The ESA proscribes behavior that is destructive to species and habitat, but provides few incentives to engage in management activities that are important to successful species con- servation." ADD THIS TO "RECOVERY AND DELISTINGS ARE RARE."

"A primary concern of the regulated community is certainty that conserva- tion agreements they enter into today will remain unaltered tomorrow." ADD THIS TO CRITICAL HABITAT???

"Lacking a vote to reauthorize its funding and, in effect, provide congressional reaffirmation of its provisions, the ESA is vulnerable to amendments and budget riders calculated to cripple its key provisions."

A 1996 article (Williams) attributed the inability of the 104th Congress to reauthorize the Act to ongoing polarization that had prevented the 103rd Congress (January 1993 through December 1994) from reauthorizing the Act — even though the Democrat Party controlled the presidency and both legislative houses.