Forest Watch's Notice of Intent Re: Indiana Bats

Submitted by Forest Watch on May 28, 1999

Request for Relief

To obviate the need to pursue further administrative and legal remedies, Forest Watch requests the following relief:

1. That the proposed warm-season (hereafter "summer") logging of the GMNF be postponed until appropriate measures are taken to ensure protection and recovery of the Indiana bat (Myotis sodalis).

2. That prior to going forward with logging on active timber sales and any future timber or roadbuilding projects that are likely to adversely affect the Indiana bat, the agency complete a programmatic biological evaluation of the Indiana bat, formal consultation with the US Fish and Wildlife Service, and amendment or revision of the GMNF Plan to ensure that habitat for the Indiana Bat, and other species requiring areas of undisturbed forest, old-growth and old trees, and intact forests along riparian areas will be adequately protected from roadbuilding and logging.

3. That prior to continued logging of its active timber sales and approving future timber sales and roadbuilding activities, appropriate Management Indicator Species (MIS) be selected for the Green Mountain National Forest, adequate data be collected regarding the MIS, and other relevant work be completed so that the agency will have a sound, rational scientific basis for estimating and monitoring the effects of its earth-disturbing management activities on the Indiana bat and other fish and wildlife populations and so that it may ensure that minimum viable populations of these fish and wildlife species will be maintained.

Summary of Relevant Findings

A. The Endangered Species Act Imposes a Clear Mandate and Procedural Framework That Are Not Being Satisfied by the USFS

1. The ESA mandates that the USFS place protection of endangered species and their habitats above any of the agency's competing goals. The Supreme Court found that
(t)he plain intent of Congress in enacting (the ESA) was to halt and reverse the trend toward species extinction, whatever the cost...(T)he legislative history undergirding Sec. 7 reveals an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species. The pointed omission of the type of qualifying language previously included in endangered species legislation reveals a conscious decision by Congress to give endangered species priority over the "primary missions" of federal agencies...(T)he plain language of the Act, buttressed by its legislative history, shows clearly that Congress viewed the value of endangered species as "incalculable."

2. To achieve the paramount goal of endangered species protection, the Endangered Species Act (ESA) of 1973 provides a procedural framework for the USFS and other federal agencies that tamper with the environment. The procedural framework is as follows:

a. The agency proposing an action must first determine whether the action "may affect" listed species. (16 USC § 1536; 50 CFR §§ 402.11 and 402.14). How this determination is made is left up to the agency.

b. If an agency determines that its actions "may affect" a protected species or its habitat, then that agency must enter into consultation with USFWS to ensure that the proposed actions are not likely to jeopardize the continued existence of any listed species. (50 CFR § 402.14). There are two forms of consultations: formal and informal.

c. The agency may either enter into formal consultation with the USFWS or engage in informal consultation to determine whether formal consultation is appropriate or necessary. (50 CFR §§ 402.13, 402.14(a), (b)).

d. If during informal consultation, the agency and USFWS concur in writing that the proposed action is "not likely to adversely affect" a protected species, then the consultation process is complete and formal consultation is not necessary. If it is agreed that the action will not adversely affect a protected species, then USFWS does not have to prepare a "biological opinion."

e. If during the informal consultation process the agency determines the action may have an adverse effect on a protected species, then the agency must request initiation of formal consultation with USFWS.

f. If formal consultation is required, then a biological opinion by USFWS is required to advise the agency whether "jeopardy" is likely to occur and, if so, whether reasonable and prudent alternatives exist to avoid the jeopardy situation.

g. The consultation obligation is on-going and continuing. (50 CFR § 402.16).

1. The USFS must answer one question when deciding if active or proposed timber sales should proceed: Would there be a violation of the ESA if the activities go forward? In this case, the answer is clearly "yes," because the USFS has not adequately complied with the procedural requirements of the ESA.
If a project is allowed to proceed without substantial compliance with those procedural requirements, there can be no assurance that a violation of the ESA's substantive provisions will not result. The latter, of course, is impermissible.

2. In the absence of a programmatic evaluation of the Indiana bat on the GMNF and completion of consultation with the USFWS, the USFS has no rational basis upon which to judge the impacts of active or proposed timber sales on the Indiana bat or to determine that its actions would have "no significant impacts." Given these deficiencies, proceeding with the active timber sales, especially during the summer season, or approving future timber sales would be arbitrary and capricious, and a clear error in judgement.

B. The Indiana Bat, a federally listed Endangered species, resides in and around the GMNF and could be harmed by USFS logging and roadbuilding activities.

1. A USFS map depicting the "Known and Suspected Indiana bat Range?" indicates that the entire GMNF occurs within the known range of the Indiana bat.

2. Scientific records confirm that several hundred Indiana bats occupied Vermont caves and abandoned mines in the 1930s and 1940s. Some of these Indiana bat hibernacula are in and near the GMNF.

3. Although the current winter population levels are much lower than earlier this century, recent censuses of Vermont hibernacula reveal that Indiana bats continue to over-winter in Vermont.

4. The presence of the Indiana bat in Vermont in the summer is highly probable given our knowledge of the bat's habitats, however levels of the summer Indiana bat populations in Vermont are not known. There is no historical data on past summer population levels and no recent studies have been done to determine current summer population levels.

5. Several large hibernacula with Indiana bat populations exist nearby in New York state. Because migratory Indiana bats are known to travel hundreds of miles between their winter and summer habitats, it is likely that some of these bats fly to the Green Mountain National Forest to roost, forage and raise their young in the summer.

6. Active and planned timber sales and roadbuilding activities could adversely affect the Indiana bat by removing actual or potential roost trees, affecting microclimate around roost trees, and affecting the ability of riparian and upland forest areas to produce favored food supplies. Direct killing ("taking") of bats could occur if a tree with roosting bats is cut down

7. Activities, such as summer logging, that could kill Indiana bats constitute a "take" pursuant to Section 9 of the ESA. Because the USFWS has not authorized the GMNF to take any Indiana bats or issued an Incidental Take Statement, any GMNF actions which could do so would violate the ESA and should be halted until such authorization is received.

C. A Programmatic Biological Evaluation and Formal Consultation Regarding the Indiana Bat Must be Performed Prior to Allowing Active and Proposed Timber Sales to Go Forward.

1. The USFS has not performed a programmatic biological assessment for the continued implementation of forestwide management activities on the GMNF or engaged with the US Fish and Wildlife Service in a formal consultation process under Section 7 of the Endangered Species Act regarding protection of the Indiana Bat.

2. Given the situation on the GMNF, USFS biologists conclude that the agency should do two things: (1) a Programmatic Biological Evaluation and (2) Formal Consultation with the USFWS. Forest Watch concurs and would add a third step to the list?amendment or revision of the GMNF Plan to reflect the outcomes of the Programmatic Biological Evaluation and Formal Consultation.
All biologists agreed to state the obvious and make the statement that this species is likely to occur in New Hampshire in addition to Vermont and New York. USF&WS will be coming out with a revised standing on this species for New Hampshire. This being the case, the biologists on the WMNF, and GM & FL NFs would like to ask for FORMAL CONSULTATION from USF&WS in May. The GMNF plans to move ahead rapidly by having a Programmatic Biological Evaluation done in January 1998 and formal consultation completed by USF&WS in May. The WMNF biologists believe it is in the best interest of the forest to proceed in a similar manner and timeline as the GMNF. This will prioritize action by USF&WS, eliminate either forest of being "left behind," provide legal documentation of the issue and management actions which should keep us out of court, and allow for continued implementation of the Forest Plans. (Emphasis added)

3. Three points are particularly noteworthy in the findings and recommendations of the WMNF biologists: (1) the presence of the Indiana bat in Vermont creates certain legal responsibilities for the USFS; and (2) performance of a programmatic, not sale-by-sale, Biological Evaluation (BE) is one of those legal responsibilities.

4. A USFS biologist in the Region Nine office commented on the honest, professional opinion of the NF biologists and enthusiastically proclaimed his hope that a Programmatic, not sale-by-sale Biological Evaluation of the Indiana bat be initiated:
No matter how much you caution folks about what to say or how to say it you get letters like this being written. These folks are just being honest as professional biologists. However, it sure does expose our backside. I sure hope the leadership teams for the Green Mtn, White Mtn and Fingerlakes NFs agree with the biologists conclusions and move ahead with the programmatic BE!

5. In part, a Programmatic Biological Evaluation is needed in order for the USFS to assemble and consider the best scientific and commercial data available on the Indiana bat, the bat's probable occurrences on and uses of the GMNF, and the measures that should be taken by the USFS to ensure that logging and other actions will not destroy or adversely modify the Indiana bat's habitat. This cannot be done on a sale-by-sale basis.
Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary?to be critical, unless such agency has been granted an exemption for such action?In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available. (Emphasis added).

6. In a memorandum prepared by Susi von Oettingen, USFWS biologist, documenting the minutes of a 12/18/97 meeting of agency biologists on the Indiana bat, three things were acknowledged: (1) the probable presence of the Indiana bat on the GMNF; (2) the need to conduct formal consultation under the ESA, and (3) the need to amend the Forest Plan.

Overall consensus of group was that there is a need to consider that Indiana bats may be present in both Forests and that Section 7 consultation on amendments to the Forest Management Plans will be necessary in order to comply with the ESA, NEPA and Forest Management Act. GMNF is located close to an extant hibernacula in New York and it is not unreasonable to believe that the bats might summer in Vermont and even in New Hampshire.

7. As noted earlier in this appeal, the ESA provides that consultation with the USFWS is an on-going and continuing obligation. However, consultation has not been initiated or completed on the GMNF with respect to the Indiana bat. Formal consultation should be initiated immediately due to the effects that logging and other activities may have on the Indiana bat.

8. Approval of projects that represent irreversible or irretrievable commitments of resources, such as the active timber sales, should wait until formal consultation with the USFWS is completed.
(I)mplementation of action prior to completion of consultation constitutes a violation of the ESA if the action constitutes irreversible or irretrievable commitment of resources.

9. On National Forests where programmatic biological evaluations have been performed and formal consultation with the USFWS has been done, the agencies have concluded that extraordinary measures are needed to protect summer habitat of the Indiana bat from land disturbing activities such as logging and road building. Those measures include, but are not limited to: providing large undisturbed wild forest areas and high percentages of older trees on timberland around known or potential hibernacula; not cutting or otherwise disturbing areas for up to a quarter mile around all roost trees; maintaining a high percentage of the NF in older trees; shifting away from clearcutting and its variants to individual tree selection and leaving a high percentage of old trees on every acre under timber production; and systematically inventorying, monitoring and evaluating known and potential habitats.

10. Protective measures also include providing large trees with loose, exfoliating bark--characteristic of some species and common on old northern hardwoods--as summer roost sites. No provisions are made for maintaining an adequate amount or distribution of such trees across the GMNF or in the active or proposed timber sale areas.

D. The USFS has not made adequate provisions in the GMNF Land and Resource Management Plan (LRMP or Plan) for protecting the Indiana Bat and other species requiring wild forests, old growth, old trees and forested riparian corridors from the impacts of logging and road building.

1. The NFMA directs the USFS to use a systematic, interdisciplinary approach to forest planning so as to achieve integrated consideration of physical, biological, economic, and other sciences.

2. The NFMA requires the USFS to prepare
one integrated plan for each unit of the National Forest System, incorporating into one document or one set of documents, available to the public at convenient locations, all of the features required by this section.

3. The current GMNF Plan lacks consideration of the Indiana bat and is, therefore, unable to integrate protection of the Indiana bat into the agency's overall program of work on the GMNF. For something of such paramount importance to the agency as an endangered species, this marks a fundamental failure of the Forest Plan?one that should be corrected immediately.

4. The GMNF LRMP identifies several federally listed Threatened and Endangered Species, and includes the Indiana Bat among them.

5. No habitat requirements of the Indiana Bat are described in the GMNF LRMP and no specific provisions are made in the LRMP to protect the Indiana Bat in spite of its very specific habitat requirements.

6. Measures specifically designed to protect, maintain, or enhance summer habitat or prevent impacts to Indiana bats roosting in trees were not identified in the GMNF LRMP or its EIS because of the lack of documented evidence for summer occurrences of the bat at that time and limited knowledge about the bat's summer habitat requirements.

7. The GMNF staff acknowledge weaknesses in the LRMP's direction regarding protection of imperiled species, such as the Indiana bat, "Clarification of S&Gs for sensitive species and species of concern is needed to enable managers to make the proper decisions during project planning."

8. Since the GMNF LRMP was adopted in 1987, much has been learned about the occurrence, distribution and habitat requirements of the Indiana Bat. Among other things, scientists better understand the need to: protect hibernacula; identify, protect, and promote roost sites; identify and promote foraging areas; identify, protect and promote maternity sites; and identify, protect and promote fall swarming and foraging areas.

9. The LRMP provides insufficient policies, standards and guidelines to ensure that the Indiana Bat is adequately protected on the GMNF and, given that, the USFS has not done sufficient analysis to determine that road building or logging projects will not harm this Endangered species or other species requiring areas of undisturbed forests, old-growth, and an abundance of old or exfoliating trees, and will not cause "significant" impacts as defined by NEPA.

10. Some courts have held that National Forest Plans should be considered "actions" with respect to the ESA. In Pacific Rivers Council v. Thomas the Ninth Circuit looked upon the ?allowable sale quantity of timber as well as production targets and schedules for forage, road construction, and other economic commodities? in determining that the existence of the LRMP is action (action authorized, funded or carried out) for purposes of ESA Section 7 consultation.

11. Because of the GMNF Plan's lack of adequate consideration of the Indiana bat, the USFS cannot say that the action of the GMNF Plan will not adversely affect the Indiana bat. Given this, the GMNF Plan needs to be amended or revised accordingly.

12. The consistency requirement of NFMA acts as a control on all contracts, permits, and other activities that arise on the GMNF. Like a zoning ordinance, the GMNF Plan allows or prohibits some uses and establishes standards and guidelines that regulate future uses. The consistency requirement of NFMA requires the USFS to measure proposed activities against forestwide and management area-specific standards and guidelines prior to approval.

13. When the forestwide analysis or Forest Plan standards and guidelines are known to be inadequate regarding consistency with protection of specific resources (e.g., Indiana bat) from certain activities (e.g., logging, road building) then those activities should not be approved until the forestwide analysis can be completed and the Forest Plan standards and guidelines can be amended or revised. The analysis that went into developing the current GMNF Plan and the standards and guidelines contained in the current Plan do not adequately provide for protection of the Indiana bat.

14. An example of a failure in the standards and guidelines in the current GMNF LRMP and the mitigation measures for protection of the bat in active timber sale Environmental Assessments and contracts is the allowance of summertime logging and road building. Felling of mature trees during the period when Indiana bats are roosting in trees increases the risk of killing the roosting bats and increases the risk of stressing pregnant bats or nursing female bats and juveniles at times when their energy reserves are low. Inadequate provisions have been made in the LRMP and timber sale contracts to address these risks.

E. USFS Has a NFMA Duty to Provide for a Diversity of Species, Maintain Minimum Viable Populations of Species and Systematically Monitor and Evaluate Management Indicator Species on the GMNF

1. The National Forest Management Act (NFMA) requires the Secretary of Agriculture to promulgate regulations
specifying guidelines for land management plans developed to achieve the goals of the Program which?(B) provide for a diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple use objectives?

2. The Forest Service uses the planning process and ongoing monitoring, evaluation and adjustment of fish and wildlife standards to prevent listing of species under the Endangered Species Act and avoid extirpation of species from its actions.

3. The NFMA diversity provision and the fish and wildlife resource regulation establish a goal to provide habitat for the continued persistence of vertebrate species in the planning area. The goal is met by following the provisions of 36 CFR 219.19(a)(1) through (a)(7). The bottom line is that the Forest Service may not adopt or implement a plan that it knows or believes could through its actions extirpate a vertebrate species such as the Indiana bat.

4. Until a Programmatic Biological Evaluation is done, Formal Consultation with the USFWS is completed, and the GMNF Plan is amended or revised then the USFS cannot say that the implementation of the GMNF Plan will not adversely affect or contribute to the extirpation of the Indiana bat.

5. The USFS is required to monitor the population of MIS:
Fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area?(1) In order to estimate the effects of each alternative on fish and wildlife populations, certain vertebrate and/or invertebrate species present in the area shall be identified and selected as management indicator species?(6) Population trends of the management indicator species will be monitored and relationships to habitat changes determined.? (36 C.F.R. § 219.19).

6. The Management Indicator Species (MIS) selected by the Forest Service for the GMNF, do not reasonably or reliably predict the impact of logging and road building on the Indiana Bat or other native and desired non-native vertebrate species in Vermont.

7. A 1991 report commissioned by the USFS from University of Vermont researcher David Capen identified serious shortcomings with many of the MIS and the survey methods adopted by the GMNF and incorporated into its LRMP (Attachment 2). "Three Years of Assessing Five Management Indicator Species on the GMNF: A Summary Report" recommends eliminating three of the five MIS assessed in the report because those MIS do not exist on the GMNF or are not good indicators of the habitats they were selected to represent; it suggests other MIS should be selected for these habitats instead. The report recommends selecting a different MIS for high-elevation spruce-fir communities, and expanding surveys and changing the sampling techniques for the Chestnut-sided Warbler MIS.

8. A June 1994 report, "Beaver (Castor canadensis) Management Indicator Species--Monitoring Results, Discussion and Assessment" was written by Clayton Grove, GMNF Biologist. The author concludes, "The goal of our MIS program is to identify impacts to native and desirable non-native vertebrate species associated with GMNF activities. The current program direction seemingly does not meet this goal for our vegetative management activities."

9. In September and October of 1997, Forest Watch filed Freedom of Information Act requests with the GMNF to obtain all relevant data and information regarding the results of monitoring habitats and populations of 'GMNF MIS. The agency's responses to these requests indicate that it has not adequately performed the MIS monitoring or estimates of population viability, as required by law.

10. Even if the MIS for the GMNF were deemed appropriate indicators for the Indiana bat and other species, the USFS has not adequately gathered or evaluated population or inventory data or current population trends data about the GMNF MIS. Thus, it is arbitrary and capricious for the agency to claim that the active or proposed logging and road building projects would have "no significant impacts" on the Indiana bat or the viability of this or other species on the GMNF, or on the diversity of fish and wildlife on the GMNF.