September 30, 1998

Mr. Kemper McMaster, Field Supervisor

U.S. Fish and Wildlife Service (Lynx)

100 North Park, Suite 320

Helena, MT 59601

Dear Mr. McMaster:

Please accept these comments in response to the proposed rule to list the Canada lynx (Lynx canadensis) for protection under the Endangered Species Act on behalf of the Biodiversity Legal Foundation, Northwest Ecosystem Alliance, and Predator Project: non-profit conservation groups based in Boulder, Colorado; Bellingham, Washington; and Bozeman, Montana respectively. These comments supplement those already submitted by Predator Project at the public hearing in Helena on July 21, 1998.

Biodiversity Legal Foundation, Northwest Ecosystem Alliance, and Predator Project have worked for years alongside other groups in an effort to attain on-the-ground protections for lynx and their habitat. We applaud this proposed listing as a long-overdue step in the right direction toward this end. We also commend The U.S. Fish and Wildlife Service (hereinafter, "FWS") for its thorough review of the many threats facing lynx in the coterminus United States, published in its proposed rule this summer (USFWS 1998). That said, there are aspects of the proposal that should be strengthened to maximize the likelihood of lynx recovery in the northern Rockies, and throughout its range in the lower-48 states.

We have organized these comments into two major sections. The first responds to the need for listing, and addresses issues raised by the U.S. Fish and Wildlife Service in its proposed rule to list the lynx. The second looks ahead toward designing and implementing standards to protect lynx and lynx habitat, which we urge the FWS to exercise its authority to initiate as soon as possible. Our comments use FWS' own analysis to demonstrate the need to immediately implement on-the-ground conservation measures to protect lynx and their habitat in order to maximize the likelihood that recovery efforts will succeed.

Thank you in advance for your careful consideration of these comments, and please keep us advised of any developments, including additional opportunities to provide comment on this proposal.

In its earlier comments, Predator Project presented irrefutable evidence that lynx merit protection as "Endangered" under the Endangered Species Act across their range in the coterminus United States. We include those comments in this letter, but first we wish to emphasize three major components of our position on this matter.

The scientific evidence is clear that lynx in the coterminus United States are divided among four or perhaps five distinct population segments, each of which meets the FWS critieria to be listed for protection separately under the Endangered Species Act. We would support listing the populations together, so long as the lynx populations in the Northeast, Lake States, and southern Rockies receive maximum protection as "Endangered."

Yet, we would support a unified "blanket" listing for all U.S. lynx populations (rather than listing them separately as distinct populations), so long as lynx populations in the Northeast, Lake States, and southern Rockies are afforded full protection as "Endangered" species under the Endangered Species Act, to reflect their critically imperiled status. A blanket listing will ensure that recovery efforts are coordinated and consistent across populations, and reinforce the notion that the long-term fate of each of the U.S. lynx populations may ultimately depend on the others, despite their geographic isolation. Precedence for this approach is the listing of the grizzly bear, where recovery efforts are coordinated between ecosystems despite their current geographic isolation, and the separate populations are treated as a metapopulation whether or not they currently function as one.

Our only concern about a blanket listing is the fear that protections for the three smallest lynx populations – the Northeast, Lake States, and southern Rockies – may not receive the priority they deserve. We believe that the language and intent of the Endangered Species Act is clear that the U.S. Fish and Wildlife is required to pursue recovery throughout all areas of suitable habitat historically occupied by lynx. Even the most endangered lynx population – the southern Rockies – has had credible sightings within the past few decades (in both Colorado and Utah), such that these lynx have not yet been deemed officially extirpated from this area. Further, we urge FWS to ensure that if/when progress is made toward recovering the species in one area, a blanket listing should not be used as a means to lessen protections in other areas where they remain imperiled.

Of the five regions of suitable lynx habitat in the U.S., the two healthiest are those in the northern Rockies and the Northwest (Washington State), but even those lynx warrant Endangered status under the Endangered Species Act, according to FWS’ own analysis.

Lynx numbers in Washington State are reduced to an estimated 100 to 200 individuals, scattered between five largely isolated areas along the Canada border. As far as immigration from Canada, which has sustained these populations in the past, the Service found:

Due to both the small, isolated nature of lynx populations surviving in Washington, and the increasingly tenuous links to more robust lynx populations in Canada to the north and in the northern Rockies to the east, lynx in Washington are justifiably endangered and deserve full protection under the Endangered Species Act accordingly.

Regarding the lynx’s last remaining "stronghold" in the northern Rockies, lynx range has shrunk to a scattering of small and increasingly isolated populations, and the best available information indicates that their numbers are not as robust as the State of Montana would like us to believe. In its proposed rule, FWS reports that MDFWP believes that lynx are already recovered in Montana, but points out:

More reliable evidence indicates that lynx remain imperiled in Montana and neighboring states in the northern Rockies:

Nothing has changed since 1985 to indicate any significant improvement in lynx numbers in Montana. On the contrary, the number of factors listed by FWS contributing to lynx decline throughout its former range – "clearing of forests for urbanization, recreational developments such as ski areas, and agriculture has fragmented, degraded, or reduced the available suitable lynx habitat, reduced the prey base, and increased human disturbance and the likelihood of accidental trapping, shooting, or highway mortality" (USFWS, 1998, p. 37003) – have most likely led to further declines in the Montana population since their historically low levels a decade ago.

As we mentioned in our testimony in Helena, one of our primary concerns with the Threatened proposal is that it opens the door to decreased protections for lynx by the drafting of "special rules" under Sec. 4(d) of the Endangered Species Act. We would be particularly opposed to a proposed special rule that would allow states and tribes to maintain primary authority over lynx recovery efforts. The reasons for our opposition are simple: (1) states are vulnerable to local and regional politics, and typically do not adequately represent the wishes of the vast majority of the American public that supports the preservation of imperiled wildlife species, including the lynx; (2) even if states want to implement strong protections to protect lynx and lynx habitat, they lack the authority to impose standards for how federal agencies manage lynx habitat; and (3) lynx are wide-ranging species, and recovery efforts must be closely coordinated across state lines, and even across the international border with Canada, which states lack the authority and incentives to do effectively. Thus, whether the FWS proceeds with the Endangered or the Threatened listing, we strongly object to the ratification of a Sec. 4(d) rule which transfers primary authority of lynx recovery to states and tribes.

The portion of our testimony in Helena arguing for the Endangered versus Threatened listing follows, formatted in italics.

The FWS does a commendable job of compiling much of the best available information and concluding that loss and fragmentation of lynx habitat has been a major factor responsible for declining lynx numbers. We call upon FWS to designate Critical Habitat for lynx, because it is simply the best means we have to ensure that areas important to lynx are protected. We acknowledge that the logistics of this designation over the large area of suitable lynx habitat in the lower-48 states may present a challenge, but it provides the best means to implement and monitor the habitat protections needed to protect lynx. Using the wide-ranging grizzly bear as an example, the designation of recovery zones and subsequent Bear Management Units was an important precursor to cumulative effects analysis that has proved to be a necessary precursor to any consideration of monitoring and improving bear habitat quality. Although much remains to be desired regarding protection of grizzly bear habitat, the small gains to date – road density standards, designating security areas, initial attempts at cumulative effects analysis – have depended upon a designation of those lands most important to grizzly bear recovery. We submit that much the same can be done for lynx, and in most or all cases the standards adopted for protecting lynx habitat will yield cascading benefits for grizzlies and numerous other wildlife species.

Please refer to Part II of these comments for a discussion of some appropriate standards needed to protect lynx habitat. Here again, we include the portion of our testimony at Helena regarding the need for immediate and strong habitat protections to protect lynx.

As Predator Project testifed in Helena, we are mystified and concerned about the FWS claim that it does not consider lynx to be "residents" of Idaho or Wyoming, and we fear that this may be used to lessen the protections of these lynx in the northern Rockies who deserve and require it most. FWS defines "resident" as "a group or subgroup in an area, or portion of a larger area, that is capable of long-term persistence... without immigration from Canada." FWS cites confirmed evidence of lynx in both states within the past decade, and provides no basis to claim that somehow these lynx are not "capable of long-term persistence:"

To this we add the five "confirmed" and 26 "probable" lynx sightings recorded during the past decade in Idaho (Appendices A and B), and a memo reporting confirmed presence of lynx in several areas of Wyoming that we referred to in our Helena testimony (Appendix C). The historical record is clear that both Idaho and Wyoming supported self-sustaining lynx populations in the past, and the only factors that may have changed are those that the FWS is now obligated to address in order to promote the survival and recovery of lynx.

Here again are our comments submitted in Helena on this issue.

Although these comments are primarily directed at the need to protect lynx in the northern Rocky Mountains and the Northwest, we wish to make a final plea for FWS to work to recover lynx in areas where they are reduced to very low numbers or may have been recently extirpated. For the same reasons that Americans want and the Endangered Species Act requires lynx to be recovered in the lower-48 states and not just in Canada, we have an obligation to pursue lynx recovery in areas at the margins of currently occupied habitat in the northern Rockies and Northwest, and in the three other proposed recovery areas, for the very reasons articulated well by FWS in its proposed rule:

All boreal ecosystems in the lower-48 deserve our best efforts to recover their rare and elusive native cat, the lynx, because they simply are not complete without it.

We close Part I of our comments with Predator Project's concluding testimony in Helena.

This section of our comments presents our preliminary findings of what standards should be implemented by the U.S. Fish and Wildlife Service as soon as possible to protect lynx and lynx habitat. The standards were designed with the northern Rockies and Northwest in mind primarily, but many of them should apply to the southern Rockies and perhaps lynx in the Lake States and Northeast as well. We commend the U.S. Fish and Wildlife Service for compiling and distilling much of the best available scientific information in writing its proposed rule to list the lynx as a Threatened species this summer. This proposal and the literature and expert opinion it draws upon make a convincing case that not only is the listing of lynx for protection under the Endangered Species Act warranted, but the FWS should move immediately toward prescribing specific on-the-ground protections to aid in lynx survival and recovery. We acknowledge that there is a great deal of uncertainty regarding specific lynx needs, but we contend that a core foundation of knowledge has already been established that we can take tangible steps to act upon, and indeed that if we do not, the lynx is likely to be extirpated from many areas where it is now just barely survives. Further, we contend that many of the steps to be taken to protect lynx are consistent with the sound conservation and management of a whole host of other wildlife species whose ranges overlap with lynx, like grizzly bears, wolves, moose, elk, and deer.

In this section of our comments we highlight FWS' own findings that on-the-ground protections are needed and supplement them with additional information from scientific literature and expert opinion to further make the case that FWS should implement of standards to protect lynx and their habitat as expeditiously as possible. This compilation may also serve as criteria for which to assess the effects of lynx from timbers sales and other developments in their habitat during the FWS consultations required under Section 7 of the Endangered Species Act. We have organized this section into four parts:

1) The rationale to implement strong standards to protect lynx in general;

2) The rationale to implement strong standards to protect lynx from forest management practices in particular;

3) Four prerequisites to claiming that logging in lynx habitat is beneficial to lynx; and

4) A list of proposed standards to protect lynx habitat, accompanied by the scientific rationale behind them.

The FWS proposed rule demonstrates the need to proceed immediately with implementing standards to protect lynx habitat:

FWS also explains the failure of current regulatory mechanisms to protect against these threats to lynx survival and recovery:

This is the case even on public lands where conservation measures are most important for lynx, where obligations to protect lynx are strongest:

FWS further reports:

While these comments are preliminary and by no means comprehensive, they are our initial attempt to address the major factors limiting lynx survival and recovery by compiling the best available science toward defining and implementing appropriate regulatory mechanisms to protect lynx and lynx habitat. Efforts to do so to date are piecemeal and inconsistent, as FWS found itself:

We call upon the FWS to answer this need stated in its own analysis, to analyze plans currently underway and cull the best aspects of each into a plan suitable for consistent application across all areas of suitable lynx habitat. We urge that FWS consider these comments as an important first step in that process.

Again, we commend the FWS for its research into the effects of forest practices on lynx, particularly managing forests for timber production:

Yet the FWS makes a claim that demands some added scrutiny:

Unfortunately, there is a great deal of misinformation about the "beneficial" aspects of logging on lynx. A careful review of the literature and expert opinion reveals that: (1) cases where logging may be a net benefit to lynx are rare indeed, and (2) even in those rare cases, strict adherence to a number of protocols is necessary to ensure that any benefits outweigh its negative effects.

First, it would be useful for FWS to explicitly define those conditions under which logging may be beneficial to lynx compared to those where it is not. We offer the following analysis, followed by preliminary list of four "prerequisites" to determining that any proposed timber sale in lynx habitat may be deemed beneficial to lynx.

Our analysis reveals that lynx survival and recovery is hindered by the conversion of its habitat into even-aged, structurally homogenous early to mid-successional classes due to industrial logging and fire suppression. This has led to low levels of late-successional habitat for denning (mature and old growth forests with complex forest structures and coarse woody debris on the forest floor), and low levels of early successional habitat that have adequate browse, cover and structure on the forest floor to support high densities of snowshoe hares. Logging is not inconsistent with maintaining these habitat components in the boreal forest ecosystems where lynx reside. Yet before it can be automatically assumed that "clearcuts are good for lynx" several major criteria must be considered. Then, even if it is determined that logging may be consistent with lynx conservation in an area, the FWS must ensure that strict practices must be followed in order that any potential gains are offset by habitat deterioration, fragmentation and/or mortality risk during and following logging operations.

Unless a timber sale proposed in lynx habitat meets the following criteria, it cannot be deemed "beneficial" to lynx.

The only rationale for logging in lynx habitat is its potential to create foraging habitat for lynx by creating early successional stands for snowshoe hares. Yet, there are many areas of lynx habitat where there is no shortage of early successional forests, due to extensive timber harvesting over the past several decades. These areas typically do not suffer from too many large trees and a closed canopy, but rather from a lack of cover and structure in its early successional stands to provide forage and security to support snowshoe hares in high densities. Aggressive thinning operations, application of herbicides, roaded access for loggers, and motorized recreation are examples of activities that preclude use of these areas by both snowshoe hares and lynx. Rather than clearcutting more areas and adding to these problems, management should be directed at regenerating cover and browse within the managed stands, restricting human access, and maintaining the mature and older stands toward providing denning habitat.

FWS' analysis supports this position:

The FWS even cites the Swan Valley of Montana as a specific example of this problem:

Wildfire was the disturbance mechanism that created and maintained lynx foraging areas historically, so it is likely to be our best tool to restore these areas today. Only where fire is not an option due to other management constraints may logging be appropriate as the next-best alternative to create similar conditions, provided it is carefully designed to do so (Brittel et al. 1989). Research has shown that there are significant differences between fires and clearcuts that imitate logging, mostly concerning the time required before the areas are productive foraging habitat:

These differences may be driven by discrepancies in vegetative production between areas cleared by logging and those cleared by burning:

Thus, fire appears to be significantly preferable to logging in creating foraging habitat for lynx.

It is often overlooked that there is a substantial time lag – perhaps 15-25 years – between when an area is logged to when it may provide high-densities of snowshoe hares (Koehler and Brittell 1990, Brittel et al. 1989). Further, the literature indicates that the time of optimal lynx foraging may be short-lived, and that the productivity of the habitat to support snowshoe hares may decline after 30-50 years, once saplings are sufficently high that small-diameter twigs are out of reach (Koehler and Brittel 1990). During the initial 15-25 years required for snowshoe hares to reoccupy the area, it provides neither forage nor cover for lynx. If it is large enough or continually receives use by people, it may even consitute a barrier for lynx movement, closing off other areas of important habitat to them. Thus, the temporary benefits of foraging habitat should be carefully weighed before ever assuming that logging will be beneficial to lynx.

Mature and old growth forest has declined significantly in the northern Rockies and Northwest, to the extent that this may be a primary factor limiting lynx survival and recovery. Any logging proposed in the name of improving habitat for lynx must avoid these areas.

Several key aspects that define denning habitat and that must be protected are noted by FWS:

Our preliminary review of the literature provides some additional guidance:

Thus concludes some major criteria that should be evaluated before claiming that logging may be beneficial for lynx. The proposed standards that follow specify additional stipulations that must be enforced to ensure that the net effect of any such project stays positive, and/or that that the negative effects from logging and other developments known to be detrimental to lynx are minimized.

We call upon the U.S. Fish and Wildlife Service to move swiftly and decisively to implement these standards to protect lynx and lynx habitat.

FWS explains the major reasons for limiting opening sizes in lynx habitat:

Additional literature concurs that lynx avoid open areas (Halfpenny and Biesiot 1986, cited in WDNR 1996a) for thermoregulatory reasons, to avoid predation, and to increase contact with prey (Poole 1994, Murray et al. 1984, Parker et al. 1983, Koehler et al. 1979; as cited in WDNR 1996a). The "40 acres" limit appears in the literature cited above (Koehler and Brittell 1990, Brittell et al. 1989). Incidentally, maximium opening sizes of 40 acres is also recommended for protecting grizzly bear habitat (IGBC 1986).

Research has shown that lynx typically do not cross openings greater than 300 feet across (Koehler and Brittell 1990), and therefore clearcuts larger than this may detriment lynx not only by the loss of that area to lynx, but also by serving as an obstacle to lynx movements. Washington Department of Natural Resources recommends against creating openings in lynx travel corridors greater than 330 feet across (WDNR 1996a).

FWS explains the importance of spatial considerations when managing habitat for lynx:

Brittel et al. (1989) and the USFS (1997, 1994) provide evidence to justify the 300-foot standard and some more specific recommendations for mitigating the effects of cutting units described above:

FWS explains the important traits to promote snowshoe hares:

The literature provides some additional direction:

Thinning generally adversely impacts hares and therefore lynx. Though these impacts can be somewhat lessened if the thinning is done early before hare recolonize the site, it is best delayed until after its productivity has declined. Quite simply, thinning reduces the density of young trees and shrubs that provide essential cover and browse for snowshoe hares. FWS explains:

Koehler and Brittel (1990) provide additional guidance:

Brittel et al. (1989) concurs:

Thinning guidelines are already in place on the Kootenai National Forest. Though any monitoring of the effectiveness of these standards are not yet conclusive, they represent an important start and should be immediately initiated elsewhere. The guidelines include the following stipulations regarding thinning in potential lynx foraging habitat (USFS 1997, Appendix IX):

FWS explains the importance of fire for lynx:

Again, FWS has done a commendable job of describing the problems of increased human access into lynx habitat, primarily due to roads:

Although roads in and of themselves may not harm lynx – in fact, lynx may use them as for easy travel routes, and even benefit from foraging habitat along the roadsides – the associated human access typically overrides any positive or neutral aspects of roads into lynx habitat. FWS explains:

FWS also relates the significant negative effects of roads that receive higher traffic, primarily due to direct mortalities and fragmenting lynx habitat:

Finally, FWS demonstrates the negative indirect effects of roads on legal and illegal hunting and trapping of lynx in both the U.S. and Canada:

Our review of other literature further supports these findings and argues for implementing standards to reduce roaded access into lynx habitat.

The impacts of roads include:

Washington Department of Natural Resources is already implementing the following directions regarding road management (WDNR 1996a):

Additional recommended standards include the following:

Though lynx research has not yet defined a specific "threshold" road density for lynx habitat, it is clear that the fewer roads into lynx habitat the better. Where lynx habitat overlaps with grizzly bear habitat or important habitat for elk, FWS should urge hasty progress toward ensuring that road density standards to protect those species is made.

Road density analysis is an important component of determining habitat security with Lynx Management Units on the Kootenai National Forest (see below). The Kootenai Forest uses a Risk Index whereby open road densities of less than 1 mile per square mile rate a "low" risk, 1-2 miles per square mile rate "medium," and greater than 2 miles per square mile rate "high" risk of mortality (USFS at 6-3). These proposed thresholds are preliminary, but represent an important first step toward quantifying the adverse effects of roads on lynx habitat, toward highlighting problem areas. Again, such analysis is very much consistent and should be coordinated with efforts to maintain and enhance habitat security for grizzly bears, elk, and other species.

Another preliminary attempt toward establishing road density standards recommends a standard of 1 mile per square mile in "primary" lynx conservation areas, and not to exceed 2 miles per square mile in "secondary" lynx conservation areas (USFS 1994). Though it is not clear if these standards are adequate to promote the survival and recovery of lynx, they should be instituted on an experimental basis and lynx effects should be monitored to see if they are adequate or need to be strengthened.

The adverse effects of recreation is a subset of the adverse effects of roads in general, but snowmobiles present a unique concern: packed snowmobile trails may enable coyotes and bobcats to access lynx habitat in winter.

FWS explains:

FWS further explains the unique threat to lynx posed by snowmobiling:

In its proposed rule, FWS acknowledges the threat to lynx posed by trapping: "Human induced mortality is the most important mortality factor for Canada lynx populations" (USFWS 1998, p. 37003).

Trapping mortalities have declined significantly since seasons have been closed in all states except Montana, where it is reduced to just 2 animals/year. Yet, trapping for animals other than lynx may result in incidental taking of lynx and thereby jeopardize recovery efforts in some areas. This would include both trapping of furbearers for commercial and recreational purposes, and trapping as a means to control livestock depredations by government trappers and private individuals.

The importance of this to recovery in the U.S. is appropriately highlighted by FWS:

FWS notes that lynx populations in Washington are particularly vulnerable:

Efforts to persuade Canada to conserve lynx habitat should include trapping restrictions as well as forest practices. FWS notes some problems with current management in Canada:

FWS does a nice job of summarizing the threats to lynx due to its fragmented status in the lower-48 states:

The FWS' own research demonstrates the especially vulnerable status of lynx populations in the Northeast, Lake states, and the southern Rockies due to their isolation from other lynx populations. Thus, these populations merit the highest level of protection:

Within populations as well, barriers to lynx movement must be considered because they may represent a major obstacle to lynx survival and recovery. FWS offers Maine as an example:

The USFS has already responded to this problem on the Kootenai National Forest, where lynx locations were mapped, and then identified ten "areas of concern for lynx movement across the forest." Management activities within these areas are reviewed for their effects on maintaining connectivity for lynx across the Kootenai Forest (USFS 1997 at 6).

To initiate this process, FWS must first "take stock" of all areas that provide suitable habitat for lynx by designating Critical Habitat where lynx needs should be considered in management decisions. Then, within these areas Lynx Management Units (LMU's) should be designated, perhaps organized at a sub-drainage level.

We applaud the Kootenai National Forest for its precedence-setting work on this, and urge that FWS work to ensure that it is applied throughout all areas of lynx habitat. The Kootenai Forest's LMU areas correspond to the estimated home range sizes of female lynx in the area. Other considerations in delineating their LMU's are described in a USFS memo on the subject (1997):

"Blocks" of suitable habitat within each LMU were evaluated based on their area and proximity to other blocks of habitat, such that small blocks that were at the limits of daily movements of lynx (2-5 miles away) were not considered suitable. The LMU process is still in its preliminary stages on the Kootenai, but forest officials claim that the system will ensure that they fulfill their viability objectives for lynx as directed in the National Forest Management Act: "With this strategy, it is the Kootenai National Forest biologists consensus opinion that lynx persistence on the Kootenai National Forest is assured" (USFS 1997, p. 6-1).

This concludes Part II of our comments: a preliminary list of important and immediate steps that can and should be taken to protect lynx and their habitat. We will continue in our efforts to add and update this proposal as new information comes to light, and urge that FWS do so as well. Thank you for your consideration of these comments.

Sincerely,

Jasper Carlton Evan Frost David Gaillard

Biodiversity Legal Foundation Northwest Ecosystem Alliance Predator Project