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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
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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
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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.
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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.
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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
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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
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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.
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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.
///
///
///
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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]
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