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March 28, 2012
FORESTWATCH ISSUES WARNING TO
FOREST SERVICE TO STOP DESTROYING NESTS FOR MIGRATORY SONGBIRDS
Officials
Continue to Allow Vegetation Clearing During the Nesting Season
of Birds Protected Under Federal Law
Last week, ForestWatch warned
the U.S. Forest Service that a vegetation clearing project in
the Los Padres National Forest runs afoul of state and federal
laws designed to protect bird nests and young birds during the
nesting season.
The warning – hand-delivered to forest headquarters on March 15
– came after the Forest Service repeatedly ignored ForestWatch
requests to avoid clearing native chaparral during the bird
nesting season for several species of birds that receive “high
priority” for protection under the federal Migratory Bird Treaty
Act (“MBTA”).
A masticator sits idle
along West Camino Cielo.
Under the MBTA, it is unlawful
to destroy nests or eggs of any migratory bird species without a
permit. Several provisions of the California Fish & Game Code
also prohibit the destruction of bird nests. Because of these
laws, agencies and landowners typically avoid clearing native
vegetation from February through August when most migratory bird
species are building their nests and raising their young. For
example, the County of Santa Barbara and several local fire
agencies routinely avoid clearing vegetation between February 1
and August 30. The California Department of Fish & Game
generally recommends a February through August avoidance period.
And the recently-completed Community Wildfire Protection Plan
for Mission Canyon cites a “February through August” avoidance
period as well.
But the Forest Service has steadfastly refused to adopt this
February through August timeframe. Instead, forest officials
contend that birds only nest in the project area from May 1 to
July 10 – just three months instead of the usual seven months
that local bird experts overwhelmingly recommend.
A recently cleared area along
West Camino Cielo in the Los Padres National Forest.
“It remains unclear why the
Forest Service thinks it can ignore a law that every other state
and federal agency firmly embraces,” said Jeff Kuyper, executive
director of Los Padres ForestWatch. “We find it unnecessary and
unacceptable to mow down bird nests and young songbirds during
the nesting season. The Forest Service has a responsibility to
protect our nation’s migratory birds and we are giving them one
last opportunity to do the right thing.”
The vegetation clearing is part of a massive fuelbreak project
approved by the Forest Service in 2002. Using a giant
lawnmower-like machine called a “masticator,” the project calls
for a 40-mile long, 300 foot-wide fuelbreak along the crest of
the Santa Ynez Mountain from Refugio Pass to Romero Saddle. The
project was approved without any environmental assessment, with
the Forest Service claiming that the project was “wildlife
habitat improvement” and thus exempt from environmental review.
Work under this project began in 2006 along East Camino Cielo,
and after a year-long break, work resumed along the more remote
portions of West Camino Cielo. The work is funded with economic
stimulus dollars, but the contract was awarded to an
out-of-state corporation based in Idaho.
At least eight “high priority” bird species build nests in the
project area, including common poorwill, blue-gray gnatcatcher,
California thrasher, rufous-crowned sparrow, black-chinned
sparrow, sage sparrow, Lazuli bunting, and Lawrence’s goldfinch.
And at least fourteen additional types of birds in the project
area receive protection under the MBTA.
Migratory birds are perhaps the
most highly valued component of North America’s biological
diversity, with approximately 1,200 species representing nearly
15% of the world’s known bird species. The seasonal movement of
migratory birds is one of the most complex and compelling dramas
in the natural world. Migratory birds embark twice each year on
long-distance journeys between their breeding areas and their
wintering grounds, which are sometimes separated by thousands of
miles. State, federal, and international law all recognize the
importance of protecting migratory bird species from harm.
Requests Repeatedly Denied
The Forest Service has been on notice about the proper bird
nesting season since at least 2009, when ForestWatch and several
other local environmental organizations wrote a letter to Forest
Supervisor Peggy Hernandez. ForestWatch repeated this warning in
a February 2011 letter urging the Forest Service to prohibit any
vegetation clearing from February through August. Face-to-face
meetings with forest officials in January and March 2012 proved
equally fruitless, with the Forest Service continuing to
steadfastly deny our requests.
On March 15, instead of going directly to court, ForestWatch
delivered a
Notice of Intent to Sue the Forest Service, outlining in
detail the requirements of the MBTA and demanding that the
Forest Service comply with state and federal bird protection
laws. Clearing has not occurred since then and it is unclear
when it will resume. In the meantime, ForestWatch continues to
monitor the project site, visiting the area several times per
week.
Forest Service Response: Fear-Mongering & Scare Tactics
 Instead
of working with ForestWatch to address our concerns, this week
the Forest Service placed backdoor calls to media outlets and
local residents, fanning the flames of our community's fears
about wildfire. In an article in the
Santa Barbara Independent, the forest’s PIO Andrew Madsen is
quoted as saying, “This is part of our ongoing relationship with
ForestWatch. Does this make you feel more safe? I know if I
owned a home up in Mission Canyon, I might want to have some
input on this. This potentially has a great impact on a number
of folks who live and work in these areas.”
Fear-mongering and poor form aside, Mr. Madsen’s reference to
Mission Canyon is an interesting one. Residents of Mission
Canyon produced a
Community Wildfire Protection Plan last year, in conjunction
with County Fire and CalFire. Even that plan cites a “February
through August” avoidance period for vegetation clearing to
protect nesting birds, leaving many to wonder why the Forest
Service can’t just get with the program that everyone else tuned
into years ago.
Rare Plants Destroyed
The project area contains four plant species that the Forest
Service has classified as “Sensitive” due to their limited
range. In fact, two of the plants – Refugio manzanita and Santa
Ynez false-lupine – are only found along this ridge and nowhere
else in the world. To protect these plants, the Forest Service
in 2010 agreed to survey the areas to be cleared, to flag any
rare plants for avoidance, and to leave a ten-foot buffer around
each plant.
On recent visits to the project site, we found rare plants that
had been flagged for avoidance, but vegetation was mowed right
up to the base of the rare plants without the required ten-foot
buffer. In some cases, all we found were chewed-up flags on the
ground, tied to chopped-up fragments of rare plants that
appeared to have been completely mowed down. It is unknown how
many rare plants were destroyed, but ForestWatch continues to
visit the project site and gather evidence of this wrongdoing.
Chaparral was cleared up to two
feet from this rare plant. The Forest Service's own botanist
recommended a minimum ten-foot buffer around all rare plants to
protect them from invasive weeds that grow in cleared areas.
During an inspection of a
recently-cleared area, ForestWatch discovered this remnant of a
Santa Ynez false-lupine bush. The flag indicates that this bush
was supposed to be protected from clearing. We never found the
bush, just this fragment of a flower stalk with a flag tied to
it, suggesting that the plant was destroyed.
Toxic Chemicals Spilled
 Also
on recent visits, ForestWatch discovered a plastic five-gallon
bucket placed under the masticator to catch drops of a black,
oily fluid dripping from the underside of the machine. A recent
storm with strong winds had tipped the bucket on its side,
spilling the toxic brew onto the forest floor. With the bucket
on its side, the masticator continued to drip additional fluid
onto the forest floor.
The contract issued by the
Forest Service requires the contractor to prevent oil leaks, to
properly dispose of hazardous waste, and to remove trash daily.
ForestWatch has notified the Forest Service about this toxic
spill and is awaiting a response from the agency.
Oily towels and residue are all
that remain of potentially toxic material that was spilled on
national forest land. ForestWatch returned the bucket to its
upright position to capture fluid that continued to leak from
the masticator, and notified the Forest Service.
Off-Road Vehicles Run Rampant
West Camino Cielo has an extensive network of illegal off-road
vehicle trails, carved over time through the landscape when
dirtbikes, ATVs, and four-wheel drive vehicles repeatedly drive
through an undisturbed area. These renegade off-roaders
particularly like areas that have been cleared of vegetation,
and the Forest Service has spent hundreds of thousand of dollars
along West Camino Cielo to place barriers along these cleared
areas to keep vehicles on the roads.
When the Forest Service approved this project in 2002, the
agency pledged to maintain or expand existing roadside barriers,
and to evaluate and create new barriers. However, on a recent
visit to the area, ForestWatch found newly-placed boulders
removed, and new vehicle tracks cutting through a
recently-masticated area. ForestWatch has submitted this
information to the Forest Service and is awaiting an official
response.
March 2012 photo showing
the remnants of efforts to prevent illegal motorized trespass in
a recently-mowed area. Several boulders blocking access to this
area were pulled into the roadway, allowing dirtbikes, ATVs and
four-wheel vehicles to illegally access this area, promoting the
spread of invasive weeds and increases the fire danger to
surrounding communities.
Next Steps
ForestWatch will continue to frequently monitor the area to
ensure that work does not commence during the bird nesting
season. In a recent letter to the Forest Service, ForestWatch
also offered to begin discussions with the agency about how to
better plan for bird nesting seasons in vegetation clearing
projects. Our hope is that the Forest Service will better
acknowledge the important role that migratory songbirds play in
ensuring healthy, intact ecosystems, and will take steps in the
future to better protect their habitat, their nests, and young
birds. Given the Forest Service's recent behavior and comments
to the media, however, it is unknown how seriously the agency
takes its responsibility to comply with the law and protect bird
nests and young songbirds.
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