FLA has submitted comments to the USFWS on Louisiana Pine Snake (LPS) proposed 4(d) rule, commending the Service’s movement away from regulating specific species of pine in the management of open canopy conditions in private forests, as was the case with the Black Pine Snake 4(d) rule. However, FLA called on the USFWS to provide greater specificity and clarity in four key areas of the proposed rule.
EXCERPT OF FLA COMMENTS SUBMITTED TO THE FEDERAL REGISTER
Re: Endangered and Threatened Species: Louisiana Pinesnake; Section 4(d) Rule
FLA also commends the Service’s movement away from regulating specific species of pine in the management of open canopy conditions in private forests. Current research indicates that forest structure is more influential than any specific pine species when it comes to providing quality habitat. Today’s forest management practices have proven to enhance habitat by supporting a variety of stand conditions, ages, and types over time and across space. Through this approach, private forests of varying species of pine provide high quality habitat across the mosaic of the landscape through management rather than by eliminating management.
Nevertheless, FLA believes the 4(d) rule could be improved through greater specificity and clarity in four key areas.
First, FLA requests that Section (3)(i) of the proposed rule be amended to include forestry activities beyond those specifically listed.
Section (3)(i) states that incidental takes will not be considered a violation of Section 9 for:
“[f]orestry activities, including tree thinning, harvest (including clearcutting), planting and replanting pines, as well as other silviculture practices, that maintain lands in forest land use and that result in the establishment and maintenance of open canopy conditions through time across the landscape.”
This language reflects USFWS’s acknowledgement of the benefits private forests provide for species requiring open canopy conditions supporting herbaceous vegetation. FLA requests that the language be edited to state “[f]orestry activities, including but not limited to tree thinning, harvest…” This language would aptly capture many forestry practices that are beneficial to the Louisiana pinesnake but that cause minimal disturbance to its habitat; it accomplishes this goal in a concise manner, without the need to create an exhaustive list of all acceptable forestry practices. Similar language is used in Section (3)(ii) listing practices not exempted within EOHAs. FLA believes that this inclusive language should also apply in the context of Section (3)(i).
Second, FLA requests that reforestation activities – including both hand planting and mechanical planting – be specifically acknowledged as acceptable practices that will not result in a prohibited take of the Louisiana pinesnake inside estimated occupied habitat areas (EOHAs).
The blanket 4-inch subsurface disturbance limit in the proposed rule introduces uncertainty in the area of key forest regeneration practices. While it is reasonable that mechanical planting may have been intended as an acceptable activity under the language of the rule as written, explicitly listing this practice as an acceptable forestry activity will provide greater clarity and certainty for forest managers and landowners interpreting the 4(d) rule and incorporating it into their management plans. Without the ability to utilize mechanical planting, many landowners may be economically prevented from sustainably harvesting timber from their land by replanting pines to maintain forest land use. These practices cause minimal disturbance across a small part of the overall landscape, ultimately providing conservation benefits to the ecosystem as a whole. A 4(d) rule that makes it economically feasible for private landowners to maintain land in forest land use will ultimately benefit the Louisiana pinesnake as well as other species.
Third, FLA requests language to be added to Sections 3(i) and 3(ii) clarifying that incidental takes resulting from forestry activities will be exempted from Section 9 violations if such takes occur on sites that do not exhibit “preferred or suitable soils,” as defined in the proposed rule.
Preferred or suitable soils are defined in the proposed rule in Section (1)(ii) as “[t]hose soils in Louisiana and Texas that generally have high sand content and a low water table and that have been shown to be selected by Louisiana pinesnakes (Natural Resources Conservation Service soil survey hydrologic group, Categories A and B).” The presence or absence of preferred or suitable soils seems to be an appropriate science-based criterion for whether an incidental take may be exempted from Section 9 violations. Habitat for the Louisiana pinesnake is unlikely to occur on sites without these soils, and regulation of activities occurring outside these sites may place an unnecessary burden on the regulated community as well as regulatory agencies.
Finally, FLA requests that Section 3(ii)(B) be clarified to provide more certainty for private landowners.
Section 3(ii)(B) states incidental takes will not be considered a violation of Section 9 for activities within EOHAs on lands with suitable or preferable soils provided when those “activities do not inhibit the persistence of suitable Louisiana pinesnake and Baird’s pocket gopher [(Geomys breviceps)] habitat.“ This provision appears to have been included as a catch-all for unnamed activities that may impact habitat for these species. However, the inclusion of this language introduces unnecessary uncertainty into the rule, leaving landowners and forest managers questioning what activities may constitute a take under this provision.
In addition to these four clarifications, FLA also joins in the comments submitted by the National Alliance of Forest Owners (NAFO) regarding the legal standard applied to 4(d) rules. Section 4(d) of the ESA states:
Whenever any species is listed as a threatened species pursuant to subsection (c) of this section, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1) of this Act, in the case of fish or wildlife, or section 9(a)(2), in the case of plants, with respect to endangered species[.] 16 U.S.C. 1533(d).
In the express terms of the statute, the “necessary and advisable” standard applies to the first sentence of this section, not the second. As described in greater detail by NAFO’s comments to the proposed rule, the majority of courts addressing the issue has concurred that a 4(d) rule allowing incidental takes need not meet the “necessary and advisable” standard. Under the clear and unambiguous language of the statute, the Service has the discretion to allow incidental take of a threatened species, even when that incidental take is not necessary and advisable to provide for the conservation of that species.
Therefore, FLA encourages the Service not to restrict its broad discretion in designing a 4(d) rule by employing the current limiting language in the preamble to the rule. Specifically, the Service writes in its explanation of the proposed rule:
This [rule] therefore meets the standard for applying endangered-species prohibitions to threatened species under the second sentence of section 4(d) of the Act (16 U.S.C. 1533(d) (“The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title . . . with respect to endangered species.”)). Moreover, even if the “necessary and advisable” standard in the first sentence of section 4(d) applied to regulations adopting endangered-species prohibitions for a threatened species, we would find that adopting these prohibitions meets that standard. 16 U.S.C. § 1533(d).
The Service’s decision to allow incidental take of a threatened species should be based not on what is necessary and advisable to the conservation of the species but rather should be crafted flexibly to maximize the agency’s discretion, taking into account not only the conservation of the threatened species but also the overall public interest in the rulemaking process, including the importance of maintaining land in forest use within the broader context of the benefits those forests provide. FLA agrees with NAFO’s recommendation that this language should be changed to reflect that incidental take may be permitted where it does not materially detract from the conservation of the species as a whole with specific reference to the overall public interest in ESA rulemaking.
In closing, FLA commends the Service for its growing recognition of the important role private forests play in sustaining listed and at-risk species. Through the Service’s continuing commitment to working proactively and collaboratively with private forest landowners, we can achieve our common goals of supporting the long-term persistence of both listed species and private forests.