Briefing paper: Sonoran Population of Desert TortoisePage 1

May 8, 2009

Briefing Paper

Sonoran Population of Desert Tortoise (Gopherus agassizii)

Review of Listing Petition under Endangered Species Act by FWS

Outcomes, Organization, and Mojave Population Comparisons

Proposed, by petition, for listing as threatened or endangeredunder the federal Endangered Species Act (ESA), October 9, 2008.

Petitioners: WildEarth Guardians and Western Watersheds Project

The status of the Arizona Population of desert tortoise was last reviewed by US Fish and Wildlife Service (FWS) in 1991, and listing rejected.

Current status (July 2009): The Fish and Wildlife Service, Phoenix, commenced the 90-day review (without notice) to determine if there is sufficient evidence to initiate a full year-long review. The outcome was expected to be announced by June 30, but that has slipped to at least the end of August. The petitioners filed suit in Federal Court to press FWS for speedier action on the petition. FWS is now responding to the litigation rather than completing the first step in the process.

The outcome of the first step will be a “yes,” “no,” or “maybe.” FWS staff indicated that the threshold is low and that it is likely that the analysis will move into step two. (“Yes” would indicate there is sufficient evidence to list now; “maybe” would indicate that there is evidence to look more closely at the population before making a final determination.)

The one-year status review will commence immediately (with formal Federal Register notice) if the outcome is “maybe.” In conducting this review, the FWS cannot gather new information, but will use the data submitted in the petition, plus any data in its files, and input that may be provided by outside sources.

The listing petition presents a considerable statistical base of changes that have occurred in Arizona and tortoise habitat since 1990. Most has occurred in the more populated counties, Maricopa and Pima, but much is made in the petition of development and development proposals in Mohave, Pinal, and GilaCounties.

The petition draws heavily upon a paper (Status of Sonoran Desert Tortoise Populations in Arizona: 1987-2006, October 1, 2008) by Drs. Boarman and Kristan. It was commissioned by Forest Guardians (now WildEarth Guardians), but received editorial review from Arizona Game and Fish Department and others. It reviewed the data from 17 long term study plots in the State in the Sonoran Population habitat. Many have existed since 1987, though some have had a briefer life, and reading has been sporadic over time. The totality of plots, which are not randomly distributed and omit some populated areas, is as follows:

  • MohaveCounty: 5 plots (4 used by Boarman/Kristan)
  • La PazCounty: 1 plot
  • YavapaiCounty: 4 plots
  • MaricopaCounty: 5 plots (4 used by Boarman/Kristan)
  • PinalCounty: 4 plots (3 used by Boarman/Kristan)
  • PimaCounty: 6 plots (1 used by Boarman/Kristan)

(There are 25 plots. The Boarman-Kristan paper summarizes 17. Eight were omitted because of questionable integrity or an inadequate number of return visits (often none).

The Boarman-Kristan paper alleges measured decline of 3.5 percent per year between 1987 and 2006. There is, however, wide variation among the plots, with a disparate decline specifically in the MaricopaMountains in the early 1990s, which has now stabilized, but at a lower level. With the Maricopa plot data removed, the combined reduction was 0.92%, which the authors still believed statistically significant.

There are issues that can be raised regarding the data and its interpretations that go beyond this briefing paper, but can be cause for analysis and input into the listing decision during the ensuing one-year consideration.

The listing proposal package lists a number of threats to the Sonoran Population, most of which are identical to those nominally listed for the Mojave Population, even though the habitat preferences for the two distinct population segments are quite different. The listed threats specified include:

  • Emergence of diseases, both Upper Respiratory Tract Disease (URTD) (associated with bacteria, Mycoplasma agassizii and M. testudinum), and a shell disease, cutaneous dyskeratosis, of unknown origin/cause.
  • Cattle grazing
  • Roads
  • Garbage
  • Mining
  • Urbanization
  • Habitat fragmentation

The petition presents data that alleges that all five (5) listing criteria are met.

The five factors in the Act are:

  • Present or threatened destruction, modification or curtailment of habitat or range;
  • Overutilization for commercial, recreational, scientific, or educational purposes;
  • Disease or predation’
  • Inadequacy of existing regulatory mechanisms; and
  • Other natural or manmade factors affecting its continued existence.

In the listing package, grazing (pp. 49-56) and mining (pp. 65-67) impacts are specifically mentioned in great detail. Off highway vehicle recreation is singled out for special treatment (pp. 94-96). Fire and invasive species are also listed, with specific attention in Arizona to the spread of buffelgrass.

Evidence of disease and predation placed in the listing package reliesheavily on data developed for the Mojave Population, but cite Arizona examples. Clearly, the Mycoplasma spp. present in the Mojave Population (and also in other populations of related tortoises in the southern US), is in the Sonoran Population. To what extent is unknown.

Additional information has been developed on presence and distribution from the Arizona Heritage Data Management System. Mapping by USGS 7.5 minute quadrangles shows that desert tortoise exists in eleven (11) counties in the State: Cochise, Gila, Graham,La Paz, Maricopa, Mohave, Pima, Pinal, Santa Cruz, Yavapai, and Yuma.

There are no baseline population estimates for the Sonoran Population. (19 years after listing, there is still no baseline population determination for the Mojave Population!) Without pressure, it is likely that listing and critical habitat decisions could be made without such a number. The Mojave Population was listed on the basis or plot data with extrapolations. All should be concerned lest the same kind of extrapolation be used for the Sonoran Population.

There is an organization and concerted interagency coordination occurring in Arizona. The State and Federal agencies entered into a Memorandum of Understanding (MOU) in 1995 covering inventory, research and management. The signatories include:

Arizona Game and Fish Department

State Land Department

U.S.Forest Service

Dept. of Defense, Luke AFB

Dept. of Defense, Yuma Proving Ground

Dept. of Defense, Marine Corps Air Station

Dept. of the Interior, Bureau of Indian Affairs, Phoenix Area Office

Dept. of the Interior, Bureau of Land Management, ArizonaState Office

Dept. of the Interior, Bureau of Reclamation, Lower Colorado Region

Dept. of the Interior, Fish and Wildlife Service, Southwestern Region

Dept. of the Interior, National Park Service, Intermountain Region

The group that meets at least annually and coordinates information is called the Arizona Interagency Desert Tortoise Team (AIDTT).

Local governments have not been invited to participate nor have they been consulted in any aspect of the program.

(AIDTT is a functional equivalent of the Management Oversight Group (MOG) organized and functioning in the 4-state region of the Mojave Population. The MOG, however, contains agency leadership and managers, and most are represented by either the local managers or staff leader. While the AIDTT MOU is signed by agency leadership, the functioning levels are essentially working field biologists.)

AIDTT has developed Recommended Standard Mitigation measures for projects in SonoranDesert Tortoise Habitat. The document was adopted June 2008. While lacking regulatory weight and enforcement, it must be presumed that has been, or will be, distributed to counties for inclusion with building and development permitting actions. It is certainly a policy statement of note. At this point, while there is no legal requirement (Federal listing or a state counterpart), the document does suggest a number of items including moving the proposed projects. Buried in the list is specific reference to a MOG-adopted policy document (for the Mojave Population) that “authorizing agencies should require compensation for residual impacts to desert tortoise habitat.” Whether this can be applied to the Sonoran Population is unknown. The document makes no distinction between the Mojave and Sonoran Populations as to application.

AIDTT is developing a Conservation Strategy. AGF hopes to adopt it by the end of 2009. The intent of the strategy will be to provide a framework for conservation and protection of the species. It will essentially be a Recovery Plan without the regulatory framework of listing the distinct population segment under the Federal Endangered Species Act. One of the intents behind developing such a strategy is so that the FWS can be shown that formal listing is not required because programs under the State and land management agencies are in place to assure conservation. The extents to which the public and local governments will be able to contribute to this document are unknown.

The Mojave Population Experience

The Mojave Population was listed in 1980 (Beaver Dam Slope area in Arizona/Utah), followed by emergency listing in 1989 of the entire Mojave Population, with full formal listing as threatened in 1990. Critical habitat was designated in 1994, and the Recovery Plan was adopted in 1994. The Mojave and Sonoran Populations are considered Distinct Population Segments (DPS) of the species, and are considered separately for the purposes of management and recovery. (There is a third DPS, the Sinaloan, which occurs exclusively in Mexico.)

In the course of the Mojave Population consideration, local government was never involved until impacts to building, grazing, mining and recreation began to occur after Recovery Plan adoption in 1994. By the time QuadState sought review of the science, and organized to seek input and review of the Recovery Plan, 1997-1999, the statute of limitations and run out to bring suit and the Administration avoided any input by local governments. Collectively counties have played catch-up the entire time, seeking to influence BLM land use plans, and getting FWS to finally implement range-wide monitoring and secured a GAO audit in 2002, and initiation of Recovery Plan review and revision by FWS beginning in 2003, and still not completed.

Organizing in Arizona

Counties in Arizona need to secure influence in decision-making and assure that their views are reflected in regulations that may be imposed, with or without listing of the Sonoran Population under the Federal Endangered Species Act.

Counties need to included on the AIDTT, either individually or collectively, or represented by an umbrella organization.

Counties need to participate directly in development of the Conservation Strategy, particularly if they are going to be expected to carry a portion of the implementation in their permitting activity

Organizing now in Arizonawill permit counties to weigh in on the basic listing decision, likely to be made in 2009 or 2010.

QuadState representatives began attending MOG meetings in 1999, after its organization; and by pressing over the past decade, finally secured formal membership in 2008. Counties need to become engaged in the Arizona process; QuadState can provide the leadership needed to gain entry and representation. And QuadState can provide the staff expertise needed to assure that counties can fully participate.

QuadState provides access to the agencies that many, if not most local governments lack, or would have to do on an individual basis. It reviews the science, and can provide input to the land management and wildlife agencies. QuadState representatives attend all science meetings, and have established liaison and communication with scientists external to the regular meetings of tortoise biologists. The organization provides efficient collective representation rather than counties each participating independently, and it provides access to professional information that counties lack staff to undertake.

QuadState would not conflict with the County Supervisors Association or any other County organization. To the contrary, it would operate in whatever partnership the counties wished. It, in essence is a staff arm that embraces only those counties affected by the Sonoran Population of desert tortoise.

Items of Concern and Direct Expense to local governments: a look at the Mojave Experience

Specific items of concern to local government regarding desert tortoise listing and planning decisions have been:

  • loss of tax base (direct purchase or other acquisition of private land by project proponents for mitigation that involves “compensation,” with ultimate donation of acquired land to the state or federal government,
  • loss of economic activity: mining, grazing, or the imposition of high-cost mitigation on investors and constituents,
  • added costs of development, restrictive mitigation requirements
  • changes in maintenance requirements on county roads,
  • requirements to fence county roads and highways with high-cost tortoise-proof fencing
  • loss of materials sites, or the implementation of high-cost mitigation,
  • restrictions on solid waste management and waste disposal to control predator birds that might otherwise eat tortoise hatchlings.

Based on the Mojave experience, and the alleged threats contained in the listing petition, it is well to consider:

  • 90% of the livestock grazing in critical habitat for tortoise has been eliminated by BLM and NPS. Most was eliminated by decision with no compensation. This included: all the sheep grazing in the West Mojave, grazing in the Mojave Preserve, US Army buyout of permits in Barstow area for expansion mitigation, elimination of spring use in Beaver Dam Slope, and cancellation of Pakoon and Tasi Allotments in Arizona. In Nevada, development compensation funds bought out most ranches in their entirety, though most had been rendered unusable after spring use had been cancelled.
  • In Nevada, development cost is $575/acre disturbed for any activity in tortoise habitat. Funds go to Clark County HCP Project. Urban development in the valley has been allowed to continue, though most use has been removed from BLM land in the balance of the county.
  • In California, in West Mojave, development “compensation” is at 5:1 in tortoise conservation areas, set at base of $770/acre, or $3,850.00/acre inside critical habitat. This applies whether public or private land. This payment is made to BLM in lieu of “donating” an equivalent acreage of habitat. In CA, in addition, State Fish and Game requires payment of endowment and enhancement funds on “donated” compensation land (currently well in excess of $1,000/acre provided for mitigation). Similar strategies are being considered in other states, and might be expected to be applied in Arizona as a means of discouraging development in tortoise habitat.

In other words, to develop a 10 acre mine site in a tortoise area, the applicant (who has a valid existing right to the ore body) must pay, in addition to costs associated with plan of operations writing and submission and NEPA compliance:

  • $38,500 to BLM for “compensation”, or find 50 acres of private land in suitable habitat, acquire it, and donate it to BLM,
  • $50,000, or more, to State for the enhancement and endowment fees based on the 50 acres “donated,”
  • On-site mitigation costs as requied by BLM and the State, e.g. tortoise fencing, etc.

This pattern is being followed in all the tortoise states, and could be expected in Arizona if listing occurs and critical habitat is designated.

  • Road fencing, when required, currently costs $15/running foot. Usually both sides of the road are required to be fenced. This results in fencing costs of $158,400 per mile, when required. Examples can be seen along Highway 58 west of Barstow in CA, and on Interstate 15 on Mormon Mesa in Nevada. Since habitat fragmentation is listed as a concern in the Sonoran listing petition, it is logical to assume similar projects would be required in Arizona, together with tortoise underpasses at additional cost.
  • Through 2002, the Federal GAO found $100,000,000 had been spent for tortoise work by Federal agencies. Between 1995 and 2006 FWS currently estimates Federal expenditures of $100,000,000. It is safe to assume that through the end of FY 2008 at least $200,000,000 has been spent by Federal and State agencies on just the Mojave Population. There is no evidence of any “recovery” despite implementation of many aspects of the 1994, particularly the removal of livestock grazing, and the FWS admits they do not monitor effectiveness. (QuadState has consistently pressed FWS on this point, and made a major statement on the subject in its comment on the Draft Revised Recovery Plan (DRRP), submitted 10/31/2008.)

While there is no accounting for the Sonoran Population, much less has been spent to date, but with listing will come additional studies, a recovery plan probably pattered after the Mojave, and other restrictive land use planning and implementation.

The goal of activity now is to assure local governments are fully engaged in the conservation strategy, for themselves as well as their constituents. Local governments can press for real data, not supposition, effectiveness assessment rather than “feel-good” mitigation and recovery strategies, and assure that recovery strategies are directed at the real causes of tortoise decline rather than the agenda-driven programs proposed by many biologists.

Based on current direction, if the Sonoran Population is listed, mitigation and recovery actions parallel to those adopted in the Mojave can be expected in Arizona.

Prepared by:Gerald Hillier

Executive Director

QuadState Local Governments Authority

January 31, 2009; expanded and revised May 8, 2009

Revised July 11, 2009