Groups ask Court to Reconsider Lynx in New Mexico

Request Seeks Protection of Rare Wildcat from Harmful Activities

Santa Fe, NM – The fight for lynx (Lynx canadensis), a high-elevation wildcat, in New Mexico is not over. Forest Guardians, Sinapu, and a coalition of conservation groups have requested that the 10th Circuit Court of Appeals re-examine a February decision that the U.S. Forest Service does not need to review the impact of Forest Management Plans on lynx in the Carson and Santa Fe National Forests. Western Environmental Law Center (WELC) Attorney Matthew Bishop, representing the groups, filed the request today.

“The U.S. Fish & Wildlife Service and U.S. Forest Service both determined that the number one threat to lynx in the Southern Rockies is the implementation of Forest Plans that fail to include conservation measures for lynx,” said Matthew Bishop. “It’s hard to reconcile this determination with the Court’s decision,” said Bishop.

In the February Court decision, a 10th Circuit panel of three judges found that the Forest Service did not need to consult with the U.S. Fish and Wildlife Service over environmental impacts of the two New Mexico Forest Plans on this elusive cat. The panel held that ongoing implementation of the Carson and Santa Fe National Forest plans does not trigger a Forest Service obligation to consult with the Fish and Wildlife Service over effects to the lynx – a previously extirpated species that has been actively reintroduced to the southern Rocky Mountains.

“We’re not done fighting for the magnificent lynx in New Mexico,” said Bryan Bird and ecologist and Forest Program Director for Forest Guardians. “We believe the northern forests of the state are not complete without this cat and the Forest Service has an obligation to assure their decisions consider its safety.”

The groups charge that this decision conflicts with the only other U.S. Court of Appeals opinion that addresses the issue, Pacific Rivers Council v. Thomas, in the 9th Circuit, and subsequent court decisions. These cases recognize that Forest Plans “have an ongoing and long-lasting effect even after adoption,” and thus qualify as “ongoing agency action” within the requirements for consultation under the Endangered Species Act.

The petition for re-hearing also charges that the February decision counters the landmark Supreme Court opinion on Endangered Species Act consultation, Tennessee Valley Authority v. Hill. In that decision, the Supreme Court found that consultation was required for activities that are ongoing or underway.

Another argument raised by the groups is that the February decision mis-applied a 2004 Supreme Court decision – Norton v. Southern Utah Wilderness Alliance – as it analyzed a different law, the National Environmental Policy Act, not the Endangered Species Act. While the former applies to proposed actions, the Endangered Species Act’s consultation focus includes projects that are already underway.

The groups also pointed out that the Fish and Wildlife Service (2000 Listing Rule) for the lynx recognized that a leading threat to this rare cat is forest plans, particularly in the Southern Rockies, that fail to provide adequate protections from logging and other activities authorized by the Forest Service. While every other national forest in the region has since consulted with the Fish and Wildlife Service, the Carson and Santa Fe staunchly refuse to do so.

“If we don’t protect important lynx habitat, we will not recover the lynx despite everyone’s hard work,” said Josh Pollock, Conservation Director at Center for Native Ecosystems. “It’s time for the Forest Service to stop making excuses in New Mexico and start supporting this effort.”

Groups requesting the re-hearing were Forest Guardians, Animal Protection Institute, Animal Protection of New Mexico, Carson Forest Watch, Center for Native Ecosystems, and Sinapu.

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For more information about efforts to protect the lynx please visit http://www.fguardians.org/es/issue_canada-lynx.asp.

Background
While National Forests in both Colorado and Wyoming have consulted with the Fish and Wildlife Service in assessing the impact of their land management operations on lynx in the Southern Rockies, New Mexico’s National Forests had refused to do the same. It is especially important that New Mexico National Forests do so because of their proximity to the Core Lynx Release Area in Colorado and because lynx have been documented in recent years in Taos, Rio Arriba, and San Juan Counties. The Colorado Division of Wildlife has documented lynx use of travel linkages extending into northern New Mexico. Twenty of the reintroduced lynx are considered missing, some of which may inhabit New Mexico. At least four lynx have been killed in New Mexico since the reintroduction began.

Despite the well-documented presence of lynx in the state, the regional Forest Service erroneously claimed that lynx in New Mexico have no legal protections under the Endangered Species Act. The Forest Service claims that lynx should not be considered a species native to New Mexico. Yet, federal and independent biologists recognize that lynx inhabit New Mexico.

A 1999 assessment by the Forest Service found that Forest Plans in the Southern Rockies may harm lynx and lynx habitat. To address the impacts from activities such as excessive logging, overgrazing, fire suppression, carnivore control, and motorized recreation, the assessment recommended amending or revising all Forest Plans to incorporate conservation measures that would reduce or eliminate the adverse effects to lynx. The Carson and Santa Fe National Forests did not participate in the assessment of impacts to lynx or in a subsequent conservation agreement.

The same coalition of groups filed a complaint in October 2003 against the U.S. Department of Agriculture’s Wildlife Services over that agency’s refusal to review the impacts of its lethal predator control programs on the lynx in northern New Mexico and southwestern Colorado.
FOR IMMEDIATE RELEASE: March 29, 2007
CONTACT: Bryan Bird, Ecologist, Forest Guardians, (505) 501-4488;
Matthew Bishop, Esq., Western Environmental Law Center, 505-751-0351;
Josh Pollock, Conservation Director, Center for Native Ecosystems, (303) 546-0214

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