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Under court order, comment period is reopened
for Caribou Critical Habitat in Boundary County,
Idaho and
Pend Oreille County, Washington |
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April 21, 2016 |
 Under
orders of the U.S. District Court in Idaho, the
U.S. Fish and Wildlife Service is reopening the
opportunity for public comment on its November
2012 Final Rule, and its subsequent May 8, 2014
proposed rule regarding the Southern Selkirk
Mountains population of woodland caribou.
How to go about submitting a public comment, and
the sort of comments the Fish and Wildlife
Service is seeking from the public is all
detailed toward the end of this article, and the
reader may skip directly there if desired.
As far as why the public comment period is being
reopened, that story involves some Boundary
County caribou history, also the involvement of
various groups with differing opinions on how
those caribou should be managed, a lawsuit,
petitions being filed, and the U.S. Fish and
Wildlife Service studying, analyzing, and
issuing its various determinations and rulings
on the caribou.
That part of the story goes like this . . .
Short history of Selkirk Caribou and
recent legal issues
One small group of the Selkirk Mountains
population of woodland caribou has long wandered
through the Selkirk Mountains of Boundary
County, and is considered to be the only
remaining herd of mountain caribou in the lower
48 states, and the southernmost caribou group in
North America.. This particular group is called
a "transboundary population" of the caribou,
since the area it roams includes Boundary County
in Idaho and Pend Oreille County in Washington,
along with crossing the border into parts of
southern British Columbia, Canada.
The population of Boundary County's transient
caribou herd was estimated in 2012 to be less
than 30 animals. Boundary County's caribou group is one of a
collection of groups (all the 14 other groups
being located in Canada) that Fish and Wildlife
proposed in 2014 to be defined as the Southern
Mountain Caribou Distinct Population Segment.
The various groups of caribou comprising this
designation, with which the Boundary County
group is affiliated, was estimated to have a
total 1,657 animals in 2013.
The small group that ranges through Boundary
County and Pend Oreille County in Washington is
no stranger to controversy, or to the U.S. court
system. The group was emergency listed in 1983
as "Endangered" under the Endangered Species Act
of 1973, with a formal ruling designating the
group as "Endangered" in 1984.
U.S. Fish and Wildlife, environmental
groups, and the courts
Back in 2011, acting on a petition that had been
filed by environmental groups asking that
critical habitat be established for the southern
Selkirk Mountains woodland caribou, the U.S.
Fish and Wildlife service initially considered
establishing an area of 375,552 acres for that
critical habitat, an area that included a huge
swath through Boundary and Bonner Counties in
Idaho, which included virtually all of the
Selkirks between Priest Lake and the Kootenai
Valley, along with a large area in Pend Oreille
County, Washington. However, in November 2012,
after much controversy, discussion, public
meetings, and deliberation, the Fish and
Wildlife Service issued its final determination
that the caribou critical habitat would be a
significantly smaller 30,010 acres, with only a
small remote corner in northwest Boundary County
being part of that designation. Most of the
30,010 acre habitat area as currently designated
is in Pend Oreille County, Washington, with only
approximately 1/4 of the habitat lying within
Boundary County.
In January 2013, two months after Fish and
Wildlife decided to cut the caribou's critical
habitat area to the much smalller acreage, a coalition
of six environmental groups filed a notice of
intent to sue the Fish and Wildlife Service
regarding the decision to reduce the
critical habitat. That suit was
formally filed in September 2013.
In the meantime, earlier in 2012, Fish and
Wildlife had also received a petition from the
Pacific Legal Foundation, representing Bonner
County, Idaho and the Idaho State Snowmobile
Association, asking that Fish and Wildlife
delist the southern Selkirk Mountain population
of woodland caribou from its "endangered"
designation. In response to that petition, in
May 2014 Fish and Wildlife stated, "After review
of the best available scientific and commercial
information, we find that delisting the species
is not warranted."
In that same finding, Fish and Wildlife went on
to address three other issues:
1. They announced in this finding their
determination that the southern population of
the Selkirk Mountains Caribou would be
considered a part of the larger, newly-defined
Southern Mountain Caribou Distinct Population
Segment, and that
2. The status of this newly-defined Southern
Mountain Caribou Distinct Population Segment
would be "Threatened" under the Endangered
Species Act.
3. Fish and Wildlife reaffirmed that the 30,010
acres designated as critical habitat for caribou
back in their November 2012 Final Rule would
continue to be applicable for the newly-defined
Southern Mountain Caribou Distinct Population
Segment.
(Story continues below this graphic)
Environmental group lawsuit begins
The lawsuit the six environmental groups had
filed in September 2013 moved ahead, ultimately
being heard in United States District Court
before Judge Edward J. Lodge, U.S. District
Judge for the District of Idaho. (The six groups
who brought the suit: Center for Biological
Diversity, Defenders of Wildlife, Conservation
Northwest, Idaho Conservation League, Selkirk
Conservation Alliance, and The Lands Council).
As the lawsuit got underway, other groups
intervened in the action on behalf of the Fish
and Wildlife Service, including the Kootenai
Tribe of Idaho, Boundary County, Idaho Governor
C.L. "Butch" Otter, Bonner County, and the Idaho
State Snowmobile Association, Inc.
In the suit, the environmental groups claimed
that, in its November 2012 Rule designating the
much smaller caribou critical habitat area, the
Fish and Wildlife Service violated the
Endangered Species Act in two ways. The alleged
violations were : 1) the Final Rule's critical
habitat designation was arbitrary and
capricious, because the Fish and Wildlife
Service failed to explain how the limited amount
of critical habitat designated would be
sufficient to recover the affected population of
caribou, and 2) Fish and Wildlife failed to
provide public notice and comment on the
substantially revised critical habitat
designation before issuing its Final Rule.
The Fish and Wildlife Service and the
above-listed intervening groups countered that
the Fish and Wildlife Service satisfied the
requirements of the Endangered Species Act, that
the critical habitat designation was rationally
based on the best available scientific data, and
that the court should uphold the Final Rule's
smaller critical habitat designation. The
defendants further submitted that Fish and
Wildlife was not required to provide an
additional notice and comment period prior to
issuing the Final Rule because they had already
provided for extensive public commenting before
the final rule was announced.
The Judge's decision and order
On March 23, 2015 Judge Lodge issued his written
decision and order on the case. While not ruling
directly regarding the environmental groups'
contention that the critical habitat designation
was "arbitrary and capricious," he agreed with
them that there were shortcomings in the public
comment process. Judge Lodge ruled that the
final rule determined by Fish and Wildlife
involved a "fundamental shift" in reasoning that
occurred after closure of the public comment
period, a shift that could not have been
anticipated before the public comments were
closed, and that the final rule was based partly
on an unanticipated line of logic which the
public did not have opportunity to review and
comment on. Further, he ruled that Fish and
Wildlife based its final decision to reduce the
designated critical habitat in part on materials
not mentioned in the initially proposed rule.
Judge Lodge made it a point to say in his ruling
that "The Court does not fault the ultimate
conclusion reached in the Final Rule on this
issue. In fact, the Court agrees with the
Defendants that the FWS can and should undertake
such reassessments of its positions when
presented with better scientific evidence," and
that "The Court makes clear that it is not
finding here that the FWS’s reasoning is unsound
or arbitrary and capricious." Rather, he
indicated that the Fish and Wildlife error was a
procedural error, as the agency failed to
"provide a period of public review and comment
on the Final Rule’s critical change in
reasoning, however logical that reasoning may
ultimately turn out to be."
He ordered that Fish and Wildlife correct this
by providing a period for public comment, now
with all information used in their determination
being publicly available, and that the agency
consider anew the critical habitat
determination, taking into consideration public
comments provided in this new comment period.
In response to court ruling, comment
period is reopened
In responding to that order, the U.S. Fish and
Wildlife Service has now reopened the public
comment period on the November 2012 Final Rule
cutting the caribou's critical habitat area, and
on the May 2014 proposed rule which defined the
Southern Mountain Caribou distinct population
segment, designated that group as "Threatened"
under the Endangered Species Act, and reaffirmed
the designation of the smaller size 30,010 acres
of critical habitat. Public comment in this new,
court-ordered comment period will be accepted
until the closing date of May 19.
How to submit a comment
Comments can be made in a couple of ways:
1. Electronically: To submit a comment
electronically, go to
https://www.regulations.gov/#!submitComment;D=FWS-R1-ES-2012-0097-0546
and enter your comment.
2. Hard copy: Submit via U.S. Mail or hand
deliver your comment to:
Public Comments Processing
Attn: FWS-R1-ES-2012-0097
Division of Policy, Performance, and Management
Programs
U.S. Fish and Wildlife Service, MS: BPHC
5275 Leesburg Pike
Falls Church, Virginia 22041-3803
Fish and Wildlife plans to post all comments
received at
http://www.regulations.gov
You can read comments already submitted in past
comment periods and from the newly reopened
comment period at
https://www.regulations.gov/#!docketDetail;D=FWS-R1-ES-2012-0097
What kind of comments are they looking
for?
"We are seeking written comments and information
from appropriate Federal and State agencies, the
scientific community, and any other interested
party during this reopened comment period on our
proposed rule that was published in the May 8,
2014, Federal Register(79 FR 26504)," Fish and
Wildlife said in their information on the new
comment period.
Fish and Wildlife indicates that they are
seeking in particular comments on the November
2012 designation of the critical habitat. "This
information will be used to finalize the
critical habitat designation for the Southern
Mountain caribou distinct population segment."
They further indicate that there is no need to
resubmit comments that were already submitted
for any of the previous comment periods. "We
have incorporated them into the public record as
part of this comment period, and we will fully
consider them in our final determination."
They want more than simply if you're for
it or against it
Finally, they note that they are looking at the
submitted public comments for more than just
support or opposition to proposed caribou
policies. They are encouraging comments that
present scientific, factual, and specific
information that would be helpful in making an
objective determination on the caribou issues
detailed above. Fish and Wildlife information on
the new comment period states: "Please note that
submissions merely stating support for or
opposition to the action under consideration
without providing supporting information,
although noted, will not be considered in making
a determination, as section 4(b)(2) of the Act
directs that critical habitat determinations
must be made 'on the basis of the best
scientific data available.' "
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