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July 11, 2016 Via U.S. Certified Mail Hon. Sally Jewell Secretary of the Interior Department of the Interior 1849 C Street, N.W. Washington D.C., 20240 Dan Ashe Director, U.S. Fish & Wildlife Service Department of the Interior 1849 C Street, N.W. Room 3331 Washington D.C., 20240 RE: Notice of Intent to Sue for Violations of the Endangered Species Act Dear Secretary Jewell and Director Ashe: Western Watersheds Project, Buffalo Field Campaign and Friends of Animals (collectively, “Petitioners”) hereby provide notice of their intent to sue (collectively or individually) the Department of the Interior, the U.S. Fish & Wildlife Service, and their officers and directors (collectively, “FWS”) over violations of Section 4 of the Endangered Species Act (“ESA”)(16 U.S.C. § 1531 et seq.) in making a decision to issue a negative 90-day determination on two citizen petitions to list a distinct population segment of bison occurring in the Yellowstone National Park area as threatened or endangered.1 Federal Docket No. FWS-R6-ES-2015-0123; 81 Fed. Reg. 1368 (Jan. 12, 2016). In making this finding, FWS failed to rely upon the best available science, On November 14, 2014, FWS received a petition dated November 13, 2014, from the Western Watersheds Project and Buffalo Field Campaign, requesting that Yellowstone National Park bison be listed as an endangered or threatened distinct population segment of plains bison (Bison bison bison) under the ESA. On March 2, 2015, FWS received a second petition from Mr. James A. Horsely requesting similar action on the Yellowstone bison. The 90-day Finding covered both petitions. For purposes of this Notice Letter, we refer to the both petitions as “the Petitions.” 1 ☐NATIONAL HEADQUARTERS ● 777 POST ROAD SUITE 205 ● DARIEN, CT 06820 ●T 203 656 1522 ● F 203 656 0267 ☐NEW YORK OFFICE ● 1841 BROADWAY SUITE 350 ● NEW YORK, NY 10023 ● T 212 247 8120 ● F 212 582 4482 WILDLIFE LAW PROGRAM ● 7500 E. ARAPAHOE ROAD, SUITE 385 ● CENTENNIAL, CO 80112 ● T 720 949 7791 FRIENDSOFANIMALS.ORG Page 2 of 9 applied an incorrect legal standard to the petition, ignored the plain language of the ESA, which requires that any species threatened by one or more of five factors listed in 16 U.S.C. § 1533(a)(1) shall be designated as endangered or threatened, and failed to consider the fact that the present and historical curtailment of habitat and range has already resulted in placing the Yellowstone bison at risk of extinction. THE YELLOWSTONE BISON The Yellowstone bison occur in and around Yellowstone National Park and are the largest remnant population of the plains bison remaining in North America. Yellowstone bison are the only significant bison population that has not been harmed by introgression of domestic cattle genes. Ecological and genetic studies have also provided solid evidence of population substructure within Yellowstone bison. Yellowstone bison exhibit seasonal migrations along altitudinal-elevations during winter, and return to summer ranges during June and July. Yellowstone bison represent an ecological microcosm of historic bison populations and a genetic wellspring for restoration of the species. As FWS has recognized in previous administrative reviews, plains bison once numbered in the tens of millions, but have been reduced—primarily as a result of hunting—by 99 percent or more in its historic range. See 76 Fed. Reg. 10299, 10302 (Feb. 24, 2011). Yellowstone bison have suffered similar declines in range. FWS has acknowledged that historically, “habitat for the wild plains bison encompassed approximately 2.8 million square miles.” Id. at 10301. Total acreage currently available to all remaining conservation herds is not readily available, but the conservation herds occupying Yellowstone include only 3,472 square miles, or roughly one-tenth of one percent of the species’ historic range. 90-DAY FINDINGS UNDER THE ENDANGERED SPECIES ACT Pursuant to the ESA, a species is “endangered” if it “is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). A species is considered “threatened” if it is “likely to become an endangered species within the foreseeable future.” Id. § 1532(20). In considering whether a species is either threatened or endangered, the FWS must consider the following criteria: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence (collectively, “listing factors”). 16 U.S.C. § 1533(a)(1). Any interested person can begin the listing process by filing a petition to list a species. 16 U.S.C. § 1533(b)(3)(A); 50 C.F.R. § 424.14(a). Upon receipt of a petition to list a species, FWS is required to make an initial finding known as a “ninety-day finding” on whether the petition presents “substantial scientific or commercial ☐NATIONAL HEADQUARTERS ● 777 POST ROAD SUITE 205 ● DARIEN, CT 06820 ●T 203 656 1522 ● F 203 656 0267 ☐NEW YORK OFFICE ● 1841 BROADWAY SUITE 350 ● NEW YORK, NY 10023 ● T 212 247 8120 ● F 212 582 4482 WILDLIFE LAW PROGRAM ● 7500 E. ARAPAHOE ROAD, SUITE 385 ● CENTENNIAL, CO 80112 ● T 720 949 7791 FRIENDSOFANIMALS.ORG Page 3 of 9 information indicating that the petitioned action may be warranted.” 16 U.S.C. § 1533(b)(3)(A). “Substantial information” is “the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted.” 50 C.F.R § 424.14(b). This is a “non-stringent” standard. Ctr. For Biological Diversity v. Morgenweck, 351 F. Supp. 2d 1137, 1141 (D. Colo. 2004) (the ESA “does not contemplate that a petition contain conclusive evidence of high probability of species extinction to warrant further consideration of listing that species” but “sets forth a lesser standard by which a petitioner must simply show that the substantial information in the petition demonstrates that listing of the species may be warranted”); see also Moden v. U.S. Fish and Wildlife Service, 281 F. Supp. 2d 1193, 1203 (D. Or. 2003) (“the standard for evaluating whether substantial information has been presented by an ‘interested person’ is not overly-burdensome, does not require conclusive information, and uses ‘the reasonable person’ to determine whether the substantial information has been presented to indicate that the action may be warranted”). If FWS initially finds that a petition presents substantial information, then the agency must undertake a status review to evaluate whether the species warrants listing. A status review, if undertaken, must be completed within 12 months of FWS’s receipt of the petition. If at the 12-month stage FWS concludes that listing is warranted, it must publish a proposed rule in the Federal Register. Within 12 months of such publication, the agency must make a final listing decision. 16 U.S.C. § 1533(b)(3); 50 C.F.R. § 424.14 (b)(3). ENDANGERED SPECIES ACT VIOLATIONS A. In the 90-day Finding, FWS Failed to Adequately Consider Whether The Yellowstone Bison are Endangered by the Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range. FWS’ near singular focus on the current condition of the Yellowstone bison population, which is undeniably a remnant of the historical population and range of bison in the Greater Yellowstone Area, violates the ESA. ESA section 4 provides that FWS shall list a species as threatened or endangered if it is facing “the present or threatened destruction, modification, or curtailment of its habitat or range.” 16 U.S.C. § 1533(a)(1)(A); 50 C.F.R. § 424.11(c)(1). In this case, the present curtailment of the range of Yellowstone bison—the last remaining, free-roaming plains bison free of evidence of hybridization—justifies their listing as a threatened or endangered distinct population segment (DPS). Today, only a fraction of habitat once used by plains bison in the United States is still available to these animals. The same is true for the Yellowstone bison, which have seen their range curtailed by nearly 85 percent. ☐NATIONAL HEADQUARTERS ● 777 POST ROAD SUITE 205 ● DARIEN, CT 06820 ●T 203 656 1522 ● F 203 656 0267 ☐NEW YORK OFFICE ● 1841 BROADWAY SUITE 350 ● NEW YORK, NY 10023 ● T 212 247 8120 ● F 212 582 4482 WILDLIFE LAW PROGRAM ● 7500 E. ARAPAHOE ROAD, SUITE 385 ● CENTENNIAL, CO 80112 ● T 720 949 7791 FRIENDSOFANIMALS.ORG Page 4 of 9 In enacting the ESA, Congress specifically recognized that past losses of habitat and range are the most serious threats to species’ survival. For example, the House Report for H.R. 37 concluded: Man can threaten the existence of species of plants and animals in any of a number of ways, by excessive use, by unrestricted trade, by pollution or by other destruction of their habitat or range. The most significant of those has proven also to be the most difficult to control: the destruction of critical habitat. H.R. REP. NO. 93-412, at 144 (1973). Indeed, it is because “species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction” that the ESA was enacted “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” 16 U.S.C. §§ 1531(a)(2); 1531(b). FWS must consider the present destruction and curtailment of a species’ habitat or range. Id. § 1533(a)(1)(A). “Destruction” is defined as “[t]he act of destroying” and “[t]he condition of having been destroyed.” THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 493 (4th ed. 2000)(emphasis added). “Curtailment” is defined as “the state of being curtailed.” Merriam-Webster Dictionary Online, http://www.merriamwebster.com/dictionary/curtailment (last visited June 10, 2014). Thus, when the Secretary receives a petition to list a species, FWS must determine whether a species’ range is presently curtailed or destroyed, i.e., whether a significant portion of its range no longer exists. The ESA mandates that FWS consider the past and present, not just the threatened, destruction, modification, and curtailment of current habitat or range. Here, the 90-day Finding acknowledges that bison historically occupied approximately 20,000 km2, including areas within the northern Greater Yellowstone Area. Likewise, the Finding acknowledges that presently, 3,175 km2 within the boundaries of Yellowstone National Park serve as principal Yellowstone bison habitat and that movement beyond the park boundaries is prevented during spring and summer to prevent contact with cattle. BFC and WWP Petition citing Plumb at 10–11, 32–33. Instead of considering whether this past and current curtailment of habitat constitutes a probable basis for listing the Yellowstone bison DPS as threatened or endangered, FWS completely ignored this specific listing factor. Instead, FWS improperly focused on what it believed to be the current condition of the population status of the Yellowstone bison herd, which it deems to be “stable.” Failure to consider whether listing factor 1 provides a basis for listing the Yellowstone bison as a threatened or endangered DPS makes the 90-day Finding legally deficient. ☐NATIONAL HEADQUARTERS ● 777 POST ROAD SUITE 205 ● DARIEN, CT 06820 ●T 203 656 1522 ● F 203 656 0267 ☐NEW YORK OFFICE ● 1841 BROADWAY SUITE 350 ● NEW YORK, NY 10023 ● T 212 247 8120 ● F 212 582 4482 WILDLIFE LAW PROGRAM ● 7500 E. ARAPAHOE ROAD, SUITE 385 ● CENTENNIAL, CO 80112 ● T 720 949 7791 FRIENDSOFANIMALS.ORG Page 5 of 9 B. FWS’s Analysis of the Threat Culling/Hunting May Pose to the Continued Viability of the Yellowstone Bison DPS Applies the Wrong Legal Standard, Fails to Consider the Best Available Information, and Arbitrarily Relies Upon the Interagency Bison Management Plan (“IBMP”). Intentional killing of plains bison by humans is, of course, the primary reason for the dramatic historic decline in the size of the species’ population in North America. In the 90-day Finding, FWS does not deny (nor can it deny) that intentional killing— whether called culling or hunting—of Yellowstone bison continues today. In fact, given the relatively small size of the Yellowstone bison population, the amount of loss of bison associated with human activity is significant. For example, it is estimated that in 1996-97, culling of Yellowstone bison removed 57 percent of the entire Northern subpopulation and 20 percent of the Central subpopulation. Halbert et al., 2012, at 9. The threat to the continued existence of the Yellowstone bison from hunting/culling must be considered by FWS during its consideration as to whether to list the DPS as threatened or endangered (whether under factor B or E). The agency did not adequately do so here. For example, the Petitions provide information that continued culling may degrade genetic viability through the loss of genetic heterogeneity and loss of ability to migrate. FWS does not seem to deny this, but instead concludes that culling must not be a threat now because bison continue to migrate from the park. More importantly, FWS seems to suggest that even if this was true, loss of migratory behavior won’t necessarily lead to the possible extinction of the DPS. At first blush, this is an odd conclusion. The migratory behavior of the Yellowstone bison is one of the major reasons this population is so unique. Moreover, the Petitions do present scientific information that continued culling may lead to loss of migratory behavior, which in turn may reduce the overall health and resilience of the Yellowstone bison. Anything that may result in changes in habitat needs, breeding behavior, and ability to handle disease and predation is clearly a threat to the continued existence of a species or DPS, particularly one consisting of so few animals. FWS does not address the significance of this information. Instead, FWS has required that the Petitioners conclusively demonstrate that Yellowstone bison are being threatened with extinction as a result of loss of migratory behavior. The Petitions do document that culling can “have a differential effect on the Yellowstone bison subpopulations.” See First Petition at 22. Available information, as set forth in the Petitions indicate that the size of the Northern range herd is marginal and that the Central range herd is below an effective population size of 1,000. First Petition at 22-23. Specifically, individual herds or clusters should have an effective population size of 1,000 (census number of 2,000 – 3,000) to avoid inbreeding depression and maintain genetic variation. Id. “Effective population size” differs from ☐NATIONAL HEADQUARTERS ● 777 POST ROAD SUITE 205 ● DARIEN, CT 06820 ●T 203 656 1522 ● F 203 656 0267 ☐NEW YORK OFFICE ● 1841 BROADWAY SUITE 350 ● NEW YORK, NY 10023 ● T 212 247 8120 ● F 212 582 4482 WILDLIFE LAW PROGRAM ● 7500 E. ARAPAHOE ROAD, SUITE 385 ● CENTENNIAL, CO 80112 ● T 720 949 7791 FRIENDSOFANIMALS.ORG Page 6 of 9 actual census counts because factors such as unequal sex ratios, differential reproductive success, and non-random mating result in the “effective” population size always being less. Id. Failure to maintain an effective population size can affect the long-term sustainability of a subpopulation. The Petitions further state that indiscriminant hunting and culling are impacting the ability to maintain effective subpopulation sizes in at least two ways. First, IBMP culling is known to differentially, adversely affect herds (Halbert et al., 2012). This has occurred in Yellowstone as a result of disproportionally high culling of animals from the Central Interior herd compared to the Northern herd due to implementation of IBMP practices.2 Second, management practices have brought about adverse demographic changes including differential impacts on cows and bulls and loss of family groups. In the 90-day Finding, FWS has ignored this information. FWS instead concludes that “there is no evidence that culling has impacted the long-term genetic viability or persistence of the [Yellowstone National Park] bison population.” There are several problems with this conclusion. First, it does not account for available information regarding the effect culling and hunting has already had on the ability to maintain effective population sizes at the subpopulation level. The Yellowstone bison are not just a physically isolated “population” but are an isolated metapopulation of two to three genetically distinct herds (Halbert et al., 2012). Halbert and her colleagues proposed that the presence of these subpopulations contributes to the high levels of genetic variation observed among Yellowstone bison compared to other populations (Halbert et al., 2012 p. 9). Yet, although Halbert et al., 2012 confirmed that culling occurring near the Park boundary is still having differential impacts on the individual herds in their Finding (page 7) the FWS avers, “To date, there is no evidence that culling has impacted the long-term genetic viability or persistence of the YNP bison population (White et al. 2011, p. 1328, both petitions).” Although the paper by It is highly likely that in managing for a single metapopulation under the IBMP, that the two subpopulations have been disproportionately culled and as a consequence are experiencing different losses of genetic diversity. For example, approximately 735 bison were culled near Gardiner at the park’s northern boundary during the 1996– 1997 winter. Applying our estimate that around 68% of the bison culled near Gardiner that year originated from the Northern subpopulation (Figure 3A ), we calculate that approximately 500 of the bison culled during the 1996–1997 winter were from the Northern subpopulation. Given the prewinter estimate for the Northern subpopulation of 877 bison (US Department of Interior and US Department of Agriculture 2000 ; Gates et al. 2005 ), the 500 culled bison represent approximately 57% of the entire subpopulation. (Halbert et al., 2012 at 9)]. Furthermore, under IBMP management, the Central Interior bison have lost nearly two-thirds of their population from 3,531 in 2005 to 1,284 in 2015. (Wallen, Abundance and Distribution of Yellowstone Bison, July 28, 2015). 2 ☐NATIONAL HEADQUARTERS ● 777 POST ROAD SUITE 205 ● DARIEN, CT 06820 ●T 203 656 1522 ● F 203 656 0267 ☐NEW YORK OFFICE ● 1841 BROADWAY SUITE 350 ● NEW YORK, NY 10023 ● T 212 247 8120 ● F 212 582 4482 WILDLIFE LAW PROGRAM ● 7500 E. ARAPAHOE ROAD, SUITE 385 ● CENTENNIAL, CO 80112 ● T 720 949 7791 FRIENDSOFANIMALS.ORG Page 7 of 9 Halbert et al., 2012 was cited 35 times in the primary petition the FWS chose to ignore the data-based conclusions of Halbert et al., 2012 in favor of an earlier published review paper. Moreover, the paper relied upon for this conclusion, White et al. (2011), is not fully addressed. White’s and FWS’s conclusion is based on the accuracy of a computer simulation model that assumes random culling and hunting strategies when such is not a fact. (Pé rez-Figueroa 2012 at 161–162). The simulation model also assumes Yellowstone bison is one deme (Id. at 160) without the subpopulation structure evidenced by Halbert et al. (2012). Thus, FWS’s conclusion does not rely upon the best available science warning managers that “the continued practice of culling bison without regard to possible subpopulation structure has the potentially negative longterm consequences of reducing genetic diversity a and permanently changing the genetic constitution within subpopulations and across the Yellowstone metapopulation.” (Id. at 9). Indeed, White et al. (2011) also conclude that: Thus, sporadic, nonrandom, large-scale culls of bison have the potential to maintain population instability (i.e., large fluctuations) by altering age structure and increasing the variability of associated vital rates. Longterm bison conservation would likely benefit from management practices that maintain more population stability and productivity. In short, FWS has again placed the burden on the Petitioners to prove that culling/hunting is threatening the continued existence of the Yellowstone bison to an extent that listing is mandatory. But this is not the appropriate standard to apply at this stage of the process. It is sufficient that the Petitions contained information that culling/hunting may threaten the DPS. Finally, the conclusion that future culling will not pose a threat to the Yellowstone bison is based in whole on FWS’s misunderstanding of the role of the IBMP. The Finding, citing Geremia (2014) states that in implementing the IBMP, an approximate equal number of bulls and cows are culled, and that sex composition surveys are conducted to optimize culling goals for the current population structure. This is factually incorrect. The Geremia paper expresses only the Yellowstone National Park manager’s “wants” and not actual provisions in the IBMP. The IBMP manages for a single population without regard to either breeding groups or the subpopulations. The only substantive conservation provisions in the IBMP are to “increase” non-lethal measures and to “cease” slaughtering bison if the overall population falls to 2,300 and 2,100 respectively. 2011 Adaptive Adjustments to the IBMP at 6. Accordingly, FWS’s reliance on Geremia as the sole basis to ignore substantial information in the petition regarding the threat hunting/culling poses to the Yellowstone bison was in error. ☐NATIONAL HEADQUARTERS ● 777 POST ROAD SUITE 205 ● DARIEN, CT 06820 ●T 203 656 1522 ● F 203 656 0267 ☐NEW YORK OFFICE ● 1841 BROADWAY SUITE 350 ● NEW YORK, NY 10023 ● T 212 247 8120 ● F 212 582 4482 WILDLIFE LAW PROGRAM ● 7500 E. ARAPAHOE ROAD, SUITE 385 ● CENTENNIAL, CO 80112 ● T 720 949 7791 FRIENDSOFANIMALS.ORG Page 8 of 9 C. FWS’s Determination That the Yellowstone Bison is Not Threatened Due to the Inadequacy of Existing Regulatory Mechanisms is in Error. It is clear that in making the negative 90-day Finding on the Petitions, FWS placed substantial weight on the IBMP, which it believes was drafted to protect Yellowstone bison. In doing so, FWS acted arbitrarily and inconsistently with the ESA. Contrary to FWS’s understanding, the IBMP was not designed to protect bison and their habitat. It was designed solely to keep bison out of their habitat outside of the Park. The IBMP restrictions on culling relate only to when management agencies should halt lethal practices. Nothing in the IBMP is intended to ensure genetic diversity and viability of the bison. Similarly, the IBMP does not seek to protect bison from other threats, such as weather, diseases, or other influences. Nowhere does FWS critically analyze the reasons behind the IBMP, the potential deficiencies/flawed assumptions of the IBMP, or the negative consequences the plan has on effective population size and genetic diversity. FWS also ignores that the IBMP is completely voluntary and unenforceable. Courts have long held that FWS cannot base a decision to not list a species under the ESA on such measures. Ctr. For Biological Diversity v. Morgenweck, 351 F. Supp. 2d 1137, 1141 (D. Colo. 2004). At best the IBMP is a voluntary agreement between agencies to try to manage the number of animals killed in an already remnant population limited to a minute fraction of its historic range. CONCLUSION FWS’s 90-day Finding that the Petitions to list the Yellowstone bison as a threatened or endangered DPS violate the specific mandates of the ESA and is arbitrary and capricious because it: (1) applies the wrong methodologies; (2) is not based on the best available scientific and commercial data; and (3) is contrary to the evidence. /// /// /// ☐NATIONAL HEADQUARTERS ● 777 POST ROAD SUITE 205 ● DARIEN, CT 06820 ●T 203 656 1522 ● F 203 656 0267 ☐NEW YORK OFFICE ● 1841 BROADWAY SUITE 350 ● NEW YORK, NY 10023 ● T 212 247 8120 ● F 212 582 4482 WILDLIFE LAW PROGRAM ● 7500 E. ARAPAHOE ROAD, SUITE 385 ● CENTENNIAL, CO 80112 ● T 720 949 7791 FRIENDSOFANIMALS.ORG Page 9 of 9 If FWS does not act within sixty days to correct this violation, Petitioners intend to pursue litigation in federal court against FWS. However, this is not our preference. The purpose of the sixty-day notice provision in the ESA is for violators of the law to come into compliance, therefore avoiding the need for litigation. Accordingly, if you have any plans to issue a finding that listing the Yellowstone bison under the ESA is warranted in the near future, please contact me to discuss the matter. Thank you for your concern. Sincerely, Michael Harris Director, Wildlife Law Program Friends of Animals Western Region Office 7500 E. Arapahoe Rd., Suite 385 Centennial, CO 80112 [email protected] 720-949-7791 Paul Ruprecht Staff Attorney, Western Watersheds Project 126 NE Alberta St. Suite #208 Portland, OR 97211 [email protected] ☐NATIONAL HEADQUARTERS ● 777 POST ROAD SUITE 205 ● DARIEN, CT 06820 ●T 203 656 1522 ● F 203 656 0267 ☐NEW YORK OFFICE ● 1841 BROADWAY SUITE 350 ● NEW YORK, NY 10023 ● T 212 247 8120 ● F 212 582 4482 WILDLIFE LAW PROGRAM ● 7500 E. ARAPAHOE ROAD, SUITE 385 ● CENTENNIAL, CO 80112 ● T 720 949 7791 FRIENDSOFANIMALS.ORG