In mid-March, Colorado’s Division of Wildlife (CDOW) announced plans to import from Canada up to 180 lynx to release in Colorado’s national forests. Releases began on April 3.
Earlier such efforts, begun in 1999, have failed. Of the 96 Canadian lynx introduced, 62 (64 percent) are dead or missing and thought dead.
Feds Refuse Responsibility
Some of the CDOW’s authority for its lynx plan comes from a cooperative agreement, under the Endangered Species Act (ESA), entered into in 1976 with the U.S. Fish and Wildlife Service (FWS). The lynx plan itself is of more recent vintage. In 1995, then Interior Secretary Bruce Babbitt and then Colorado Governor Roy Romer announced their agencies would cooperate in protecting ESA-listed species. Subsequently, the CDOW, FWS, National Park Service, and U.S. Forest Service inked an agreement to import lynx to Colorado, which led to the 1999 release.
Although almost all of the authority for the CDOW’s lynx plan–including putting wildlife imported from another country onto federal land–came from federal agencies, and although several federal agencies participated in the lynx project, contributing hundreds of man-hours and thousands of dollars, federal agencies said they had not been involved and were not required to prepare an environmental analysis of the lynx plan.
The National Environmental Policy Act (NEPA) mandates a study if proposed federal action “significantly affects the quality of the human environment,” positively or negatively. A demand by rural Coloradoans that federal agencies prepare the study was dismissed on procedural grounds, a decision that was reversed too late to prevent the lynx release.
In March 2000, after the FWS listed lynx as “threatened” under the ESA, it authorized the CDOW to “take” lynx, defined broadly to include everything from harassing to killing, for the “enhancement of propagation or survival for approved recovery activities.” Without that authorization, the CDOW could not implement its lynx plan.
Nonetheless, federal agencies asserted once again that there was no federal agency action, even though federal regulations define NEPA-triggering action to include issuing permits. Thus, there would be no NEPA study disclosing to the public the impact of the lynx on, for example, the ability of the Forest Service to manage forests to prevent fires.
Lynx and Forest Management
Prior to the devastating 2002 wildfire season, the U.S. Forest Service had closed portions of Colorado’s White National Forest to forest health management due to the lynx. A federal judge had stopped forest health management in Oregon’s Wallowa-Whitman National Forest because of the lynx.
Nevertheless, the Colorado Division of Wildlife’s current lynx proposal comes without any information as to the impact new lynx introductions will have on the state’s ability to manage its forests.
Rural Colorado residents, some nearly burned out in last summer’s fires, sued demanding that federal agencies disclose whether more lynx means less forest health management and greater risk of fires. After remarking, “lynx don’t carry matches,” a federal judge dismissed the suit.
William Perry Pendley is president and chief legal officer of the Mountain States Legal Foundation.