The U.S. Fish & Wildlife Service (USFWS) will seek public comment on its proposal to designate “Critical Habitat” for the jaguar in Southern Arizona and New Mexico. USFWS had previously determined that Critical Habitat “for the jaguar in the United States would not be prudent.” However, an Arizona District Court found that the previous decision was “not legally sufficient.”

The proposal is not scientifically sufficient either. Two years ago I wrote:

A Freedom of Information Act inquiry has revealed that the U.S. Fish & Wildlife Service decision to declare portions of Arizona and New Mexico as “Critical Habitat” for the jaguar has no basis in fact. USFWS based its decision on unsubstantiated anecdotal stories that did not meet the Endangered Species Act definition of minimum scientific standards. The inquiry also found possible collusion between an employee of the Arizona Fish and Game Department and the Center for Biological Diversity. The report of the inquiry was written by Biologist/Attorney Dennis Parker.

Read the rest of that story in my article: Jaguar Listing and Habitat Designation Based on Junk Science. At the time that story was written the USFWS claimed that designation of “Critical Habitat” was “prudent”, i.e., it was prudent before it was not prudent and now it is prudent again.

FWS is now proposing “Critical Habitat” again. From a FWS press release:

The Service has identified 838,232 acres in six units in primarily mountainous portions of southeastern Arizona and southwestern New Mexico that will be considered for potential critical habitat. These include 547,000 acres of Federal land; 111,741 acres of State of Arizona land; 76,329 acres of Tribal land; and 103,143 acres of private lands. Critical habitat designations have no effect on actions taking place on non-federal lands unless proposed activities involve federal funding or permitting.

I wonder if collecting Social Security payments would be considered “federal funding” and trigger the bureaucratic implications on private land.

The proposed Rosemont copper mine would be directly impacted by “Critical Habitat” designation because the mine site occurs in the northern end of the designated lands (see map from the Arizona Daily Star below).

The Rosemont mine’s footprint is about 4,400 acres according to the Arizona Daily Star. That’s 0.5% of the whole area. Is that half percent really critical? The portion of habitat occupied by the mine is broken in four places by highways. The Arizona Daily Star notes that the proposed “Critical Habitat” “includes areas known to have been occupied by jaguars since 1962, or land considered essential for the animal even if jaguars haven’t been seen there in recent decades.”

So, if jaguars haven’t been seen for decades, how “critical” is the land? In the last twenty years, there have been about a half dozen jaguar sightings throughout Southern Arizona and all those sightings have been of male jaguars. It is obvious that Southern Arizona is not breeding ground for jaguars. Those few male jaguars have wandered north from their main breeding areas in Mexico. Southern Arizona is obviously not “critical” to jaguar breeding.

I find it curious that the proposed “Critical Habitat” includes the Rosemont site, the site of mineral exploration farther south near Patagonia, and the water source for the City of Tombstone, but does not include the Chiricahua Mountains farther to the east near the New Mexico portion of proposed habitat. According to the National Park Service, “The Chiricahua mountains were also historically the home of the jaguar.” Of course, there are no known economic mineral deposits in the Chiricahua Mountains.  That makes it look like the radical environmentalists and USFWS are targeting potentially productive land to make them off limits.

Another question: How will designation of “Critical Habitat” affect border security?

The jaguar’s range extends through Mexico, Central America, and much of South America.  A few thousand acres in Arizona will not make a difference to the species as a whole.  This whole jaguar issue shows how the Endangered Species Act can be abused.  ESA should be repealed.

This “Critical Habitat” proposal is scientifically unjustified. It is just another green utopian obstacle placed in the path of job creation and beneficial use of the land.

See also:

Tombstone versus the United States

Buenos Aires National Game Refuge, where Endangered Species and Illegal Immigration Collide

Rotenone, government fish poisoning my be poisoning us

Mega-fires in Southwest due to forest mismanagement

Repeal the Endangered Species Act

Pima County’s Sonoran Desert Conservation Plan (SDCP) has been touted as one of the best and most comprehensive habitat conservation plans in the country. Planning began in 1998 in response to the 1997 listing of the Cactus Ferruginous pygmy owl as an endangered species. The owl was removed from the endangered species list in 2006 because the listing was found to be based on flawed science.

The legal idea behind SDCP was to obtain dispensation from the U.S. Fish & Wildlife Service (FWS) in the form of an Incidental Take Permit under section 10 of the Endangered Species Act. The idea was to allow county public works to proceed even if they would incidentally harm some endangered species. To do that the County had to specify which species it was going to protect and how it would do so.

According to FWS, both federally listed and unlisted species can be covered in the incidental take permit acquired through a Habitat Conservation Plan (HCP) if issuance criteria are met. The three principal criteria are: 1) that impacts are mitigated to the maximum extend practicable; 2) sufficient funding (taxpayer dollars to pay for land acquisition and monitoring for the life of the permit) is assured up front; and 3) the issuance of the permit won’t jeopardize the species. Note that all species named in the HCP will be treated by FWS as if they were listed as endangered. The County’s purchase of local ranches is part of its mitigation scheme to satisfy FWS. In reality, the plan gives the County tighter control over use of private land.

The County’s plan has had a long gestation period, much longer than normal for habitat conservation plans in general. Finally, early this year the County submitted its plan to FWS who expect to put it out for public comment by the end of this month.

I was involved in the early stages of SDCP. For 5 years, beginning in 1998, I was a member of a Citizen Steering Committee that was formed to address concerns of various stakeholders (and satisfy a FWS requirement for public input). During that time, I attended many meetings and collected 35 CDs full of reports and other information. You can read most of the reports at the County’s dedicated website: http://www.pima.gov/cmo/sdcp/.

The plan could have been relatively simple and deal with only those endangered species likely to be affected by growth in the County. If it had done that, the plan could be in place now. However, Pima County has loftier ideas: “The biological goal of the Sonoran Desert Conservation Plan is to ensure the long-term survival of the full spectrum of plants and animals that are indigenous to Pima County through maintaining or improving the habitat conditions and ecosystem functions necessary for their survival.”

In my opinion, SDCP is based on flawed science. I am not alone in that opinion. The Town of Marana and City of Tucson both refused to become parties to SDCP because of their concern with the scientific justifications.

Besides the Citizen Steering Committee, the County recruited biologists, both private and university professors, to form a Science and Technical Advisory Team (STAT). In March 2001 STAT produced its major report entitled “Priority Vulnerable Species: Analysis & Review of Species Proposed for Coverage by the Multiple-Species Conservation Plan.” I will refer to that report as PVS.

At a public meeting on March 22, 2001, Dr. William Shaw, head of the county’s Science and Technical Advisory Team said of the team’s data, “biological knowledge is woefully inadequate,” a sentiment echoed by each speaker, and by a peer review committee which evaluated STAT’s work.

Nevertheless, PVS provided the basis for classifying county land into several conservation level categories which would greatly impact private land use:

The multispecies conservation plan and Permit will affect use of private land because it mandates that: 1) Within “Important Riparian Areas” 95% of the land shall be conserved in undisturbed natural condition; 2) Within the “Biological Core” at least 80% of the land shall be conserved in undisturbed natural condition; 3) Within “Multiple-use areas” at least 66% of the land shall be conserved in undisturbed natural condition; 4) Within “Special Species Management Areas” at least 80% of the land shall be conserved as undisturbed natural open space; 5) Within “Critical Landscape Connections” barriers to the movement of flora and fauna should be removed.

In addition to the above classifications, SDCP proposes to have “Recovery Areas,” “Recovery Contribution Areas,” and “Supplementary Population Management Areas.” For lands within the Conservation Lands System, the county will require “rigorous site analysis” prior to development. SDCP also proposes to restore riparian areas by planting hundreds of trees which the county estimates will use up to 2.6 billion gallons of water annually. In subsequent iterations of the plan, these restriction percentages may have changed or become obfuscated, but they have been largely incorporated into the County Comprehensive plan.

The land classification system was put together based on opinion and computer modeling. Here is how they did it.

The STAT team didn’t do any actual field work or checking of ground truth, they instead resorted to data mining. One problem with data mining, i.e., using large data sets from other studies, is that the data are rarely, if ever, verified for accuracy. Another problem is that data mining lends itself to selective extraction of data that might not be representative of the original study.

The methodology, as described in PVS:

Habitat distributions for many of the vulnerable species are poorly known and published accounts of known populations are few; therefore, habitat modeling based on environmental characteristics was conducted in order to provide the most complete, scientifically based depiction of species habitat. Recognizing the critical knowledge of many Pima County biologists, these ‘expert reviewers’ were asked to be part of the modeling process. Reviewers identified key environmental variables describing habitat and helped Geographic Information Systems (GIS) analysts score environmental characteristics for each species. Analysts then built GIS models based on these environmental parameters resulting in maps of high, medium, and low potential habitat. Biologists were then asked to review habitat maps and revise model parameters if necessary. This iterative process of GIS analysis and biological review resulted in refined models that more closely represented vulnerable species habitat.

Variables used in the models are vegetation/land cover, streams, shallow groundwater, springs, elevation, slope, aspect, land form, cave/mine potential, geology, and soils. A total of 115 characteristics for these 15 variables were scored as potential habitat for each species. Characteristics of these variables are well-understood for some species (such as a fish requiring a perennial stream), but many are not. In some cases, a ‘best guess’ was recorded in the table cells of the species-environment matrix. All scores have been reviewed and revised by species experts.”

County biologists based their map overlays, their GIS data layers, on the opinions of 13 biologists and upon a fourth data set, the federal government’s GAP program which uses satellite imagery to, among other things, map vegetation cover. The assumption is that vegetation type can be accurately associated with species requirements and therefore species habitat.

GAP, run by the U.S. Geological Survey, is an ambitious program. But, it is instructive to note some of the comments from those involved. According to GAP Analysis Bulletin No. 8 (a U.S.G.S. publication), “what was lacking [in GAP], and continues to be, is the information on species associations with those land characteristics.”

The GAP program ran into problems when it attempted to validate the model by gathering factual field data such as finding the critters and then mapping land characteristics where the critters actually occur.

From the Bulletin:”GAP researchers have generally believed that sampling for species occurrence has been biased and grossly incomplete; therefore, the points used in the quantitative approach may give incomplete or biased distributions.”

In other words, the limited real data collected do not support the model very well. There often was a big difference between modeled potential habitat and actual habitat.

The PVS report was the result of the biologists’ best guesses, “woefully inadequate” real data, and computer manipulations. And the results showed it. The report had many conflicting statements and some very strange recommendations.

For instance, their findings for the Lesser long-nosed bat:

“The lesser long-nosed bat requires 5,320 acres for a home range. The minimum patch size for 250 pairs is approximately 1,330,000 acres. The minimum number of patches for this species in the reserve system is 10; therefore, the population viability goal is to conserve at least 13,300,000 acres in order to maintain a viable population.”

So, county scientists, after applying “the best available science,” recommended preservation of 13,300,000 acres in Pima County for this one species. Trouble is, the total area of the County is 5.9 million acres. There is another problem with this recommendation. According to the report, “estimates of populations in maternity roosts range from 200 to 130,000 (USFWS 1995).” If we multiply just one large roost worth of bats, say 130,000, by the 5,320 acres which county scientists claim each bat needs for a home range, we get a total home range requirement of 692 million acres, or nearly 10 times the total area of Arizona. These errors derive, of course, from rote calculation of the subjective habitat scoring system in a computer model which has, apparently, not been checked for ground truth, or even common sense.

I did point out these errors to county officials. As far as I can tell, the county did not significantly modify the land classification system. However, I noticed that in subsequent reports, they did not publish numbers anymore, only general, ambiguous statements.

The habitat conservation plan and Section 10 Incidental Take Permit will apply only to unincorporated County land. It cannot be legally applied to land within incorporated areas, nor to federal land, nor State Trust land, nor to Indian Reservations. That leaves a highly fragmented area which in reality cannot form an integrated habitat.

Pima County has gone through the motions to obtain a permit, but the flawed scientific basis and reality of land fragmentation make the Sonoran Desert Conservation plan an empty showpiece, one that is costing, and will cost, taxpayers money and restrict use of private land.

I will recommend to FWS that they reject the application for permit.

 UPDATE:  The map below shows the “permit area” in green,  the land to which SDCP applies. Notice how fragmented it is.  The fragmentation makes a conservation plan very difficult to effect actual benefits.  And since this is such a small part of the County, will it make much difference to species?

Land ownership in Pima County:

The Mount Graham red squirrel is in the news again because environmental groups are suing the feds, again, alleging the telescope complex atop Mount Graham is endangering the squirrels. The Arizona Daily Star has two stories on this subject today (here and here). Fellow blogger Hugh Holub also discusses this issue and points out that the squirrel’s range might not be as restricted as alleged. 

Rather than argue about squirrels and their habitat, today I will point out a practice the environmental groups use to enrich themselves with taxpayer money. 

“Essentially, these environmental groups are being paid to sue the federal government,” said Wyoming attorney Karen Budd-Falen. “They file hundreds of lawsuits, and rather than fight the suits, the government often settles the case, agreeing to pay attorneys fees in the settlement.” 

By law, the feds must respond to the lawsuits within 90 days, but the often overworked Fish & Wildlife Service just can’t get to them in time. Hence the payout. And even if the suits go to court, the environmentalist’s lawyers get paid whether they win or lose. 

In an opinion piece in a Wyoming newspaper, Budd-Falen explains how environmental groups have scammed taxpayers our of nearly $5 billion. 

Environmental litigation gravy train 

Opinion piece by Karen Budd-Falen, Budd-Falen Law Offices 

September 16, 2009 

Consider these facts: 

• Between 2000 and 2009, Western Watersheds Project (“WWP”) filed at least 91 lawsuits in the federal district courts and at least 31 appeals in the federal appellate courts; 

• Between 2000 and 2009, Forest Guardians (now known as WildEarth Guardians) filed at least 180 lawsuits in the federal district courts and at least 61 appeals in the federal appellate courts; 

• Between 2000 and 2009, Center for Biological Diversity (“CBD”) filed at least 409 lawsuits in the federal district courts and at least 165 appeals in the federal appellate courts. 

• In addition, over the last 15 years, the Wilderness Society has filed 149 federal court lawsuits, the Idaho Conservation League has filed 69 federal court lawsuits, the Oregon Natural Desert Association has filed 58 lawsuits, the Southern Utah Wilderness Association has filed 88 lawsuits and the National Wildlife Federation has filed 427 lawsuits. 

• In total, the eight environmental groups listed above have filed at least 1596 federal court cases against the federal government. 

• Every one of the groups listed above are tax exempt, non-profit organizations. Every one of those groups listed above receives attorney fees for suing the federal government from the federal government. 

• These statistics do not include cases filed in the administrative courts, such as BLM administrative permit appeals before the Office of Hearings and Appeals or Forest Service administrative appeals. These statistics only include federal district court cases. 

On the other end, these same environmental groups are receiving billions of federal tax payer dollars in attorney fees for settling or “winning” cases against the federal government. Accurate statistics have not been kept by the Justice Department or the federal agencies, thus there is no accounting for the total amount of tax dollars paid, however, we were able to uncover these facts: 

There are two major sources for attorney fees that can be paid to plaintiffs that “prevail” in litigation either by winning a case on the merits or by the Justice Department agreeing that the group “prevailed” in a settlement by achieving the purpose of the litigation. One source of funding is called the “Judgment Fund.” The Judgment Fund is a Congressional line-item appropriation and is used for Endangered Species Act cases, Clean Water Act cases, and with other statutes that directly allow a plaintiff to recover attorney fees. There is no central data base for tracking the payment of these fees, thus neither the taxpayers, members of Congress nor the federal government knows the total amount of taxpayer dollars spent from the Judgment Fund on individual cases. The only information regarding these fees that is available is: 

• In fiscal year 2003, the federal government made 10,595 individual payments from the Judgment Fund to federal court plaintiffs for a price tag of $1,081,328,420. 

• In 2004, the federal government made 8,161 payments from the Judgment Fund for $800,450,029. 

• In 2005, 7,794 payments were made from the Judgment Fund for a total of $1,074,131,007. 

• In 2006, the federal government made 8,736 payments from the Judgment Fund for $697,968,132. 

• In only the first half of fiscal year 2007, the federal government made 6,595 payments from the Judgment Fund for $1,062,387,142. 

• In total, $4,716,264,730.00 (that is billion with a “b”) in total payments were paid in taxpayer dollars from the Judgment Fund from 2003 through July 2007 for attorney fees and costs in cases against the federal government. 

The second major source of payments to “winning” litigants against the federal government is the Equal Access to Justice Act (“EAJA”). EAJA funds are taken from the “losing” federal agencies’ budget. Thus, for example, the attorneys fees paid under EAJA come from the “losing” BLM office’s budget. That is money that could be used for range monitoring, NEPA compliance, timber projects, archeology and cultural clearances and other agency programs. Within the federal government, there is no central data system or tracking of these payments from the agency’s budgets. The only statistics we were able to compile are as follows: 

• Between 2003 to 2005, Region 1 of the Forest Service (Montana, North Dakota, northern Idaho) paid $383,094 in EAJA fees. 

• Between 2003 to 2005, Region 2 of the Forest Service (Wyoming, South Dakota, Colorado, Nebraska, Oklahoma) paid $97,750 in EAJA fees. 

• Between 2003 to 2005, Region 3 of the Forest Service (Arizona, New Mexico) paid $261,289.85 in EAJA fees. 

• Between 2003 to 2005, Region 4 of the Forest Service (southern Idaho, Utah, Nevada) paid $297,705 in EAJA fees. 

• Between 2003 to 2005, Region 5 (California) of the Forest Service paid $357, 023 in EAJA fees. 

• Between 2003 to 2005, Region 6 (Washington state, Oregon) of the Forest Service paid $282,302 in EAJA fees. 

• Out of the 44 total cases in which the Forest Service paid EAJA fees between 2003 and 2005, nine plaintiffs were NOT environmental groups and 35 payments went to environmental group plaintiffs. 

We also tried to track the fees paid to environmental groups in certain federal courts. For example, in the Federal District Court for the District of Idaho, over the last 10 years, WWP received a total of $999,190 in tax dollars for “reimbursement” for attorney fees and costs. Of the total cases filed by WWP in the Federal Court in Idaho, 19 were before Judge Winmill; eight of those cases resulted in a decision on the merits with WWP prevailing and with the total attorney fees being awarded of $746,184; six of the cases were settled by the federal government with a total attorney fees still being awarded of $118,000. WWP won one case but attorney fees were not paid. WWP lost six cases. There were two cases in which the documents indicated that the federal government agreed to pay attorney fees, but the payment amount was kept confidential from the public. 

In my opinion, there are a lot of things wrong with this picture. The federal government is spending billions in tax payer dollars without any accounting of where the money is going or to whom it is going. There is no oversight in spending this money, especially the money that is coming out of agency budgets that should be funding on the ground programs to protect public lands, national forests, ranchers, recreationists, wildlife and other land uses. 

Nonprofit, tax exempt groups are making billions of dollars in funding; the majority of that funding is not going into programs to protect people, wildlife, plants, and animals, but to fund more law suits. Ranchers and other citizens are being forced to expend millions of their own money to intervene or participate in these lawsuits to protect their way of life when they have no chance of the same attorney fee recovery if they prevail. In fact, they are paying for both sides of the case–for their defense of their ranch and for the attorney fees environmental groups receive to sue the federal government to get them off their land. There are also numerous cases where the federal government agrees to pay attorney fees, but the amount paid is hidden from public view. This has to stop and the government has to be held accountable for the money it’s spending. (Source )