In March 2019, The National Wildlife Refuge Association joined Earth Justice, Defenders of Wildlife and the Sierra Club in a lawsuit against the United States Fish and Wildlife Service (USFWS) in order to prevent wildlife diseases, especially chronic wasting disease, from spreading to National Elk Refuge due to the outdated and unnecessary practice of supplemental feeding.
““Chronic wasting disease is a greater threat now than ever before to wildlife at the National Elk Refuge. We can no longer wait to phase out supplemental feeding.””
The USFWS has recently opened up a public comment period for its National Elk Refuge (“NER”) Draft Bison and Elk Management Step-down Plan (“SDP”) and associated Draft Environmental Assessment (“EA”). Yesterday, NWRA submitted our concerns with the SDP along with Defenders of Wildlife, and the Sierra Club which can be read below.
October 30, 2019
National Elk Refuge
675 E. Broadway
P.O. Box 510
Jackson, WY 83001
Submitted electronically to: nationalelkrefuge@fws.gov
Re: Draft Bison and Elk Management Step-down Plan and Draft Environmental Assessment
Dear Refuge Manager:
Thank you for the opportunity to provide comments on the National Elk Refuge (“NER”) Draft Bison and Elk Management Step-down Plan (“SDP”) and associated Draft Environmental Assessment (“EA”). These comments and attachments are submitted on behalf of Defenders of Wildlife, Sierra Club, and the National Wildlife Refuge Association.
Our organizations have a longstanding interest in the proper management of the NER, consistent with the National Wildlife Refuge Administration Act as amended by the National Wildlife Refuge System Improvement Act (16 U.S.C. 668dd et seq.) (“Improvement Act”), the mission of the National Wildlife Refuge System (NWRS), the purposes of the NER, and the 2007 Bison and Elk Management Plan (“BEMP”).
In December of 2018, Earthjustice submitted a letter to NER on our behalf concerning the severe risks to the integrity of the refuge associated with supplemental feeding of elk on the refuge (Attachment 1 to these comments in entirety). In that letter, we noted that the refuge must promptly develop and implement an ambitious management plan to phase out supplemental feeding on the refuge to address the existential threat that disease poses to the refuge, risks that have substantially increased with the detection of chronic wasting disease (“CWD”) on the doorstep of NER within Grand Teton National Park in November 2018.
As the map indicates clearly, since 2008, the CWD endemic area in Wyoming has increased ~19.6 million acres and now abuts the Elk Refuge to the north and south. (Sierra Club and Wyoming Wildlife Advocates map October 2019 Attachment 2)
Unfortunately, the SDP falls far short of prescribing the steps needed to responsibly and effectively address the supplemental feeding issue, respond to the severe threat of wildlife disease, and bring the Service into compliance with the Improvement Act. Indeed, a January 2018 email from Elk Refuge Manager, Brian Glaspell, to USFWS Assistant Regional Director, Will Meeks, says of the draft SDP being circulated within the agency at that time “It is my understanding that we have, through successive iterations of the plan, made numerous changes at the State’s request so that it is now (by some opinions) virtually toothless. I’m not sure there are any teeth left to pull . . . . “ Manager Glaspell goes on to say, “I do think we should continue to emphasize at every opportunity that plan implementation will be a very slow, incremental process with numerous triggers that could slow it even more (private lands conflicts, unacceptably high mortality, etc.)”
The version of the SDP that Glaspell was commenting on is virtually identical to the draft released for public comment in September 2019.
Attached to this letter are comments from Dr. Thomas Roffe, former Chief of Wildlife Health for the U.S. Fish and Wildlife Service. Our organizations fully endorse and include herein the comments of Dr. Roffe. Dr. Roffe clearly articulates the significant flaws of the SDP, supporting a conclusion that the SDP is insufficient to meet NWRS legal and policy requirements.
Dr. Roffe demonstrates that the SDP is insufficient to support adaptive management. The SDP has only one clearly defined quantitative trigger to initiate the sole measurable management action (later onset of feeding), only one quantitative assessment criterion (elk and bison feeding days), and only two acceptance criteria for success. The SDP offers numerous subjective parameters that fail to support effective adaptive management, “making it essentially useless and nearly impossible to apply in the field” (Roffe statement, p. 2).
One of Dr. Roffe’s principal points is that the scope of the SDP is insufficient to mitigate the risk of catastrophic disease outbreaks, the stated primary goal of the plan (SDP, page vi). For example, Dr. Roffe notes that the plan fails to include a single disease prevalence or transmission risk criterion for assessing the effectiveness of the plan, because of the failure to address disease management as part of this planning process. Similarly, the SDP fails to address critical management alternatives that could significantly help reduce reliance on supplemental feeding, again citing constraints imposed by the BEMP and NEPA.
Ultimately this leads to a fatal flaw in the SDP, which is acknowledged by the Refuge: the phase 1 goal of reducing the population of elk in the NER to 5000 is “no longer possible” given the prerogative to “maintain 11,000 elk in the overall Jackson herd” (SDP, pages 10 and 47).
According to the Refuge, the SDP and EA “tiers” to the BEMP and FEIS (EA, page 1). It is not clear that the Refuge is appropriately applying this concept for NEPA purposes. Tiering refers to a situation where the analysis of a narrower action is not necessary because the impacts have been identified and analyzed in the broader NEPA document. To do this it is necessary to make a supporting determination that the conditions and effects described in the broader NEPA documentation remain valid. The concept of tiering does not mean that the agency is constrained by previous decisions. In fact, the concept is used to apply prior analyses to contemporary decisions, including the analysis of other alternatives.
According to the SDP, “(t)he BEMP supported the State herd objectives of 500 bison and 11,000 elk due to NEPA requirements, any further consideration of reduced herd sizes by the NER or GRTE are beyond the scope of this plan” (SDP, page 31). The fact of the matter is that the BEMP FEIS did evaluate alternatives that considered fewer elk wintering on the NER and altogether ending winter feeding, without the constraint of the Jackson Elk Herd Objectives. Specifically, Alternatives 2 and 6 considered such alternatives:
Alternative 2: “The numbers of elk and bison on the refuge would fluctuate over time as the feeding program was eliminated within 15 years, but no specific numeric population targets would be set for elk or bison.” (FEIS, page 44)
Alternative 6: “In the short term about 2,400-2,700 elk would winter on the refuge, but over time could increase to 2,800-3,200. . . . (W)inter feeding would be phased out within five years…Strategies to achieve population objectives would be developed in cooperation with the WGFD.” (FEIS, page 52)
In fact, the FEIS ranked Alternatives 2 and 6 higher than the selected alternative (4), with regard to the goals of Sustainable Populations, Disease Management and the conservation of healthy fish and wildlife populations (FEIS, Table 2-7, page 84). Furthermore, the public overwhelmingly preferred the shorter term feeding phase out alternative, and far fewer elk wintering on the NER: “About 65% of the commenters expressed a preference for Alternative 6, while about 12% preferred Alternative 5 (fewer than 1% expressed support for alternative 4).” (BEMP FEIS: xxiii parentheses in original) Despite the more effective nature of feeding phase out Alternative 6, and the lack of public support for the chosen Alternative 4, the ROD simply determined that the phase out alternative would “not be acceptable for some stakeholder groups” (ROD, page 10).
As Dr. Roffe makes abundantly clear, the proposed SDP is highly unlikely to reduce the risks posed by supplemental feeding to the integrity of the NER. Yet, using the concept of tiering, the Refuge, rather than being constrained, had the opportunity to explore other alternatives to effectively meet the stated goals of the plan. Unfortunately, it failed to do so in the SDP. Nevertheless, the Refuge has the decision-making latitude now to consider options that would deviate from WGFD’s herd objective. Indeed, recent action by WGFD concerning its Jackson elk herd objective – action that was overlooked by FWS in the SDP -- only confirms this latitude. In this regard, the FWS in the SDP appears unaware of or ignores the fact that the WGFD transitioned to a “Trend Based Objective (+- 20%)” in 2016 for the Jackson Elk Herd and determined that +-20% of elk above or below the objective number would suffice to “manage at objective”. (WGFD 2017 in the JCR_BGJACKSON_ELK_2017) “The Wyoming Game and Fish Commission approved the proposed mid-winter trend count objective 11,000 elk +- 20% in June 2016.” (Id: 13) Additionally, rather than manage this elk herd for specific numbers of elk on different winter ranges, the WGFD recognized that, “In recent years, elk winter distribution has changed significantly . . . and there are few management tools available to achieve these targets. . . . In recognition of the lack of management tools available to achieve these winter distribution goals, these winter range goals were removed during the herd unit objective review process in 2016.” (Id: 14) In sum, WGFD has recognized that the 11,000-elk objective for the Jackson herd is not a hard target. Accordingly, even accepting that FWS faced some requirement to adhere its SDP to WGFD’s herd objective – which we dispute – the fact remains that FWS has substantial decision-making latitude that is ignored in the SDP.
It may be the case that a management strategy no longer constrained by outdated prescriptions may involve an amendment to the BEMP ROD, but it is highly disingenuous of the Refuge to argue that such alternative management approaches are outside the scope of this decisionmaking process. We, therefore, recommend that the Refuge address management alternatives that would better support the purpose of the action.
The EA is similarly flawed in that it fails to consider a sufficient range of alternatives to address the problem and fulfill the purpose of the SDP. The purpose and need to support WGFD’s objective is also flawed and imposes an unnecessary constraint on the decisionmaking process (EA, page 4). In fact, the adherence to this outdated and no longer relevant purpose completely undermines the decisionmaking process in that it is likely not feasible to “provide a path for progressively transitioning from winter feeding …while maintaining population and herd ratio objectives” (EA, page 5). Again, see the above citations of the WGFD’s own determination not to rigidly adhere to a static herd population nor to prescribed apportionment of subherds to specific winter ranges.
The weaknesses of the proposed action are evident in the effects analysis. On page 6 of the EA the Refuge states that it “believes” that delayed and early termination of feeding “will decrease the probability that elk…will discover feeding grounds” (EA, page 6, emphasis added). Elsewhere the EA states that “(o)ver time, reduced reliance on supplemental feeding should result in a greater percentage of elk using native winter range… and that “Reduced supplemental feeding “could reduce CWD transmission…” (EA, page 15, emphasis added). For native habitat, the EA concludes that the proposed action “could result in increased height and cover of woody plant communities on the refuge” (EA, page 27). For water resources, the EA concludes that the SDP “may result in less fecal matter getting into the Marsh and eventually Flat Creek (EA, page 28). Clearly the SDP may also not lead to these effects. As Dr. Roffe makes abundantly clear, there is little justification to put forward these conclusions within the EA based on the weaknesses of the SDP. The NEPA effects analysis must examine the effects of these things not happening, in terms of risks to refuge resources as mandated by the Improvement Act.
The EA also cites, apparently as effects, “potential actions” that “may be implemented by others” (EA, page 7). It is not defensible to rely on hypothetical actions as part of the effects analysis for this decision.
In sum, we remind the FWS that,
“(T)he court left “no doubt that unmitigated continuation of supplemental feeding would undermine the conservation purpose of the National Wildlife Refuge System.” (Defenders of Wildlife 651 F.3d at 117) And, the court said, “[i]t is highly significant and indeed dispositive to us . . . . that the agencies are committed to ending supplemental feeding.” (id.) Indeed the court cautioned, “the plan might well have been unreasonable had the agencies categorically refused to phase out the winter feeding program in spite of all the evidence in the record about the dangers of supplemental feeding.” (Id.) Further, the court directed that the Service “must proceed on a manner that is consistent with the science and accounts for the risks posed by supplemental feeding.”
For the reasons set forth above and in the attached report from Dr. Roffe, FWS has failed to respond to these mandates in the SDP. We urge FWS to modify its proposed action to meet its statutory mandates and to conserve the Refuge and its elk as the law requires.
Sincerely,
Lloyd Dorsey
Conservation Program Manager
Sierra Club Wyoming Chapter
Peter Nelson
Director, Federal Lands
Defenders of Wildlife
Geoffrey L. Haskett
President
National Wildlife Refuge Association