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`CASE 0:22-cv-00181-PJS-LIB Doc. 1 Filed 01/25/22 Page 1 of 42
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`Marc D. Fink (MN Bar No. 343407)
`Center for Biological Diversity
`209 East 7th Street
`Duluth, Minnesota 55805
`Phone: 218-464-0539
`Email: mfink@biologicaldiversity.org
`
`Allison N. Melton (CO Bar No. 45088)
`Center for Biological Diversity
`P.O. Box 3024
`Crested Butte, Colorado 81224
`Phone: 970-309-2008
`Email: amelton@biologicaldiversity.org
`Applicant Pro Hac Vice
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`Attorneys for Plaintiffs
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MINNESOTA
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` Plaintiffs,
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`CENTER FOR BIOLOGICAL DIVERSITY;
`SAVE LAKE SUPERIOR ASSOCIATION;
`SAVE OUR SKY BLUE WATERS;
`FRIENDS OF THE CLOQUET VALLEY
`STATE FOREST; and DULUTH FOR
`CLEAN WATER;
`
`
`
` v.
`
`DEB HAALAND, SECRETARY OF THE
`INTERIOR; UNITED STATES FISH AND
`WILDLIFE SERVICE; UNITED STATES
`FOREST SERVICE; and UNITED STATES
`ARMY CORPS OF ENGINEERS,
`
` Defendants.
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`_____________________________________
`
`Case No.
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
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`CASE 0:22-cv-00181-PJS-LIB Doc. 1 Filed 01/25/22 Page 2 of 42
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`INTRODUCTION
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`1.
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`Plaintiffs Center for Biological Diversity, Save Lake Superior Association, Save
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`Our Sky Blue Waters, Friends of the Cloquet Valley State Forest, and Duluth for Clean Water
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`challenge the failure of Defendants Deb Haaland, the United States Secretary of the Interior; the
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`United States Fish and Wildlife Service (“FWS”); the United States Forest Service (“Forest
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`Service”); and the United States Army Corps of Engineers (“Corps”) to comply with the
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`Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq., and the Administrative Procedure
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`Act (“APA”), 5 U.S.C. §§ 551 et seq., for the proposed NorthMet Mine Project and Land
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`Exchange in northeastern Minnesota.
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`2.
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`Plaintiffs challenge (1) FWS’s February 5, 2016 Biological Opinion for the
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`NorthMet Mine Project and Land Exchange; (2) the Forest Service’s reliance on the 2016
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`Biological Opinion when it approved the January 9, 2017 Record of Decision for the NorthMet
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`Land Exchange; (3) the Corps’ reliance on the 2016 Biological Opinion when it approved the
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`March 21, 2019 Record of Decision for the Clean Water Act Section 404 Permit for the
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`NorthMet Mine Project; and (4) the ongoing failure of FWS and the Corps to reinitiate and
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`complete ESA consultation for the NorthMet Mine Project despite significant new information
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`and substantial changes to the Project revealing that the Project may affect threatened species
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`and critical habitat in a manner and to an extent not previously considered.
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`3.
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`Plaintiffs seek (1) declaratory relief that FWS violated Section 7 of the ESA in
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`preparing and approving the 2016 Biological Opinion for the NorthMet Mine Project and Land
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`Exchange; (2) declaratory relief that the Forest Service and the Corps each violated Section 7 of
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`the ESA in relying on the unlawful 2016 Biological Opinion in issuing their Record of Decisions
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`and related decisions; (3) declaratory relief that the June 28, 2018 land exchange between the
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`Forest Service and PolyMet is void; (4) declaratory relief that FWS and the Corps are in ongoing
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`violation of the ESA by failing to reinitiate and complete ESA consultation for the NorthMet
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`Mine Project; (5) an order vacating the 2016 Biological Opinion, the Forest Service’s 2017
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`Record of Decision for the Land Exchange, and the Corps’ 2019 Record of Decision and Clean
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`Water Act Section 404 Permit; (6) an order requiring FWS and the Corps to reinitiate and
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`complete ESA consultation for the NorthMet Mine Project; and (7) injunctive relief to enjoin any
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`implementation of the NorthMet Mine Project pending full compliance with the ESA.
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`4.
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`The following map shows the location of the Plant Site, Mine Site, and
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`Transportation/Utility Corridor for the proposed NorthMet Mine Project:
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`5.
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`The following is an aerial view of the Partridge River in northeastern Minnesota,
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`near the proposed NorthMet Mine Site (photo by Rob Levine).
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`JURISDICTION
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`6.
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`Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331; 28 U.S.C. §
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`1346; 5 U.S.C. §§ 551 et seq.; and 16 U.S.C. § 1540(g) because this action involves the United
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`States as a defendant and arises under the laws of the United States, including the ESA, 16
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`U.S.C. §§ 1531 et seq., and the APA, 5 U.S.C. §§ 551 et seq. On November 10, 2021, Plaintiffs
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`provided Defendants with notice of Plaintiffs’ intent to file suit pursuant to the ESA citizen suit
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`provision. 16 U.S.C. § 1540(g)(2). An actual justiciable controversy exists between Plaintiffs
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`and Defendants. The requested relief is proper under 28 U.S.C. §§ 2201 & 2202; 5 U.S.C. §§
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`705 & 706; and 16 U.S.C. § 1540(g). The challenged agency actions are final and subject to this
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`Court’s review under 5 U.S.C. §§ 702, 704, and 706.
`4
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`CASE 0:22-cv-00181-PJS-LIB Doc. 1 Filed 01/25/22 Page 5 of 42
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`VENUE
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`7.
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`Venue is proper pursuant to 28 U.S.C. § 1391(e) and 16 U.S.C. § 1540(g)(3)(A),
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`because a substantial part of the events giving rise to Plaintiffs’ claims occurred in the District,
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`Defendants have offices in the District, Plaintiff Center for Biological Diversity has an office in
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`the District, and Plaintiffs Save Lake Superior Association, Save Our Sky Blue Waters, Friends
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`of the Cloquet Valley State Forest, and Duluth for Clean Water reside in the District.
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`PARTIES
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`8.
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`Plaintiff Center for Biological Diversity (“the Center”) is a nonprofit corporation
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`headquartered in Tucson, Arizona, with offices in a number of states and Mexico. The Center
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`has an office in Duluth, Minnesota. The Center works through science, law, and policy to secure
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`a future for all species, great or small, hovering on the brink of extinction. The Center is actively
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`involved in protecting threatened and endangered species, and their habitat, nationwide and in
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`Mexico. The Center has over 89,000 members throughout the United States and the world.
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`9.
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`Plaintiff Save Lake Superior Association is a nonprofit organization based in Two
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`Harbors, Minnesota. The Association, which originated in 1969, is the oldest citizen group
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`working exclusively to preserve and protect Lake Superior. It was organized to help stop the
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`dumping of taconite tailings into Lake Superior by Reserve Mining, whose tailings were
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`threatening human health and contaminating the water and aquatic life.
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`10.
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`Plaintiff Save Our Sky Blue Waters is a nonprofit public interest corporation
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`based in Duluth, Minnesota. Save Our Sky Blue Waters is a grassroots organization that seeks to
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`protect the ecological integrity of Minnesota’s Arrowhead Region. From Lake Superior to the
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`Boundary Waters, the Arrowhead Region is one of the most magnificent areas of the country, for
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`its boreal forests, wildlife, wetlands, and waters. The protection of these valuable resources is
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`Save Our Sky Blue Water’s core mission.
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`11.
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`Plaintiff Friends of the Cloquet Valley State Forest is dedicated to the protection
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`and preservation of the natural and cultural resources of the Cloquet Valley State Forest in
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`northeastern Minnesota. The lands, lakes, rivers, and streams of northern Minnesota, which lay
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`north of Duluth in the Cloquet Valley State Forest and in the Arrowhead, are home to many
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`people, plants, and animals, and serve the world in many ways. Friends of the Cloquet Valley
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`State Forest works to promote the responsible enjoyment of this unique treasure.
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`12.
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`Duluth for Clean Water is an all-volunteer nonprofit organization based in Duluth,
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`Minnesota that seeks a healthy future for the St. Louis River and Lake Superior watershed.
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`Duluth for Clean Water works through advocacy, education, and the political process to protect
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`the health and safety of downstream communities from proposed upstream metal sulfide-ore
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`mining, and to preserve northern Minnesota’s greatest assets, its boreal forests, bogs and
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`peatlands, and its fresh water.
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`13.
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`Plaintiffs bring this action on their own behalf, and on behalf of their members
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`who derive recreational, inspirational, religious, spiritual, scientific, educational, and aesthetic
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`benefits from Canada lynx, northern long-eared bats, and these wildlife species’ habitats,
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`including within northeastern Minnesota, on the Superior National Forest, and near the proposed
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`NorthMet mine site.
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`14.
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`Plaintiffs’ members regularly use and enjoy the Superior National Forest, and
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`other lands near the proposed NorthMet Mine Project, for a variety of purposes, including
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`hiking, canoeing, fishing, gathering wild rice, camping, photographing scenery and wildlife, and
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`engaging in other vocational, scientific, and recreational activities. Plaintiffs’ members derive
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`health, recreational, inspirational, religious, spiritual, scientific, educational, and aesthetic
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`benefits from these activities.
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`15.
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`The areas of the Superior National Forest, and the other lands near the proposed
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`NorthMet Mine Project, which Plaintiffs’ members regularly use and enjoy, include the
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`headwaters of the Lake Superior watershed, including the Partridge River watershed. Plaintiffs’
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`members use and enjoyment of these areas is significantly enhanced by the knowledge that
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`imperiled wildlife species including the Canada lynx and northern long-eared bat have been
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`identified in these areas, and that these areas are within the designated critical habitat for the
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`Canada lynx.
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`16.
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`The NorthMet land exchange between the Forest Service and PolyMet has been
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`executed, and therefore the proposed NorthMet mine site is now private land and Plaintiffs’
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`members are now prohibited from accessing, using, and enjoying the exact mine site. While the
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`mining company and the Forest Service previously made it difficult for the public to access the
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`proposed mine site, it is now no longer possible for Plaintiffs’ members or the public to access,
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`use, and enjoy the mine site as some members of the Plaintiffs were able to do prior to the land
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`exchange. Because this land is now private, and no longer part of the Superior National Forest,
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`prior public notice and public involvement requirements no longer apply for proposed activities
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`on this land, and a number of substantive environmental protections have been eliminated.
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`17.
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`During the ESA consultation for the proposed NorthMet Mine Project, FWS, the
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`Forest Service, and the Corps recognized that the negative impacts to Canada lynx, gray wolves,
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`and the northern long-eared bat and their habitat resulting from the Project would not be limited
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`to only the proposed plant site and proposed mine site, but rather that surrounding areas and
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`wildlife corridors would also be affected. The agencies determined that the area that may be
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`adversely affected by the NorthMet Mine Project includes those areas within six miles of the
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`Project, or approximately 250 mi2 plus the area that extends to wildlife corridor number 18.1 The
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`map below identifies this six-mile buffer.
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`18.
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`The areas of the Superior National Forest and other areas nearby the proposed
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`NorthMet Mine Project that Plaintiffs’ members regularly use and enjoy include specific areas
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`within the six-mile radius that was determined by FWS, the Forest Service, and the Corps to be
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`the area within which wildlife may be directly and indirectly affected by the proposed project.
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`19.
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`Plaintiffs’ members’ use and enjoyment of specific areas within this six-mile
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`radius is significantly enhanced by the knowledge that imperiled wildlife species, including the
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`Canada lynx and northern long-eared bat, have been identified in these areas, and that these areas
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`are within the designated critical habitat for the Canada lynx.
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`1 See 2016 Biological Opinion, p. 43; 2015 Biological Assessment, p. 6-1, 6-2.
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`CASE 0:22-cv-00181-PJS-LIB Doc. 1 Filed 01/25/22 Page 9 of 42
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`20.
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`One example of Plaintiffs’ members who use and enjoy areas near the proposed
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`NorthMet Mine Project, and within the six-mile buffer, is Lori Andresen, who is a long-time
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`member of several Plaintiff organizations. Ms. Andresen is a resident of Duluth, and her family
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`owns a cabin that is located on an in-holding in the heart of the Superior National Forest, near
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`the town of Isabella, Minnesota. Ms. Andresen enjoys canoeing, wild ricing, and fishing on the
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`Embarrass and Partridge Rivers within the six-mile buffer of the project area, as well as hiking,
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`photography, and other recreational activities within this area. Ms. Andresen has made a number
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`of trips to this area within the past few years, including multiple trips to the headwaters of the
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`Lake Superior watershed in 2017, near the Partridge River and Stubble Creek, to hike, fish, take
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`photographs, and look for wildlife and signs of wildlife; multiple trips to the Partridge River and
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`Stubble Creek in 2018 to hike, take photographs, observe wildlife, and pick berries; multiple
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`trips to the Partridge River and Embarrass River in 2019 to hike and fish; and another trip to the
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`St. Louis and Partridge Rivers in 2021.
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`21.
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`Another example of Plaintiffs’ members who use and enjoy areas near the
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`proposed NorthMet Mine Project is Jacqueline Christenson, who is a member of Duluth for
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`Clean Water and Center for Biological Diversity. Ms. Christenson has been visiting the Superior
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`National Forest all her life, and more specifically, recreated near the proposed NorthMet Mine
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`Project in 2018 and 2019. Ms. Christenson paddled the Partridge River in 2018, and paddled
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`Colvin Creek to the Partridge River in 2019, just downstream from the proposed mine site.
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`22.
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`Plaintiffs’ members intend to continue to regularly use and enjoy the Superior
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`National Forest and other areas nearby the proposed NorthMet Mine Project, including areas
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`within the six-mile radius of the mine site. This includes specific and concrete plans to use and
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`enjoy areas nearby the proposed NorthMet Mine Project, including areas within the six-mile
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`buffer, this coming spring and summer, 2022.
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`23.
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`One example of Plaintiffs’ members who has plans to return and again enjoy
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`specific areas near the proposed NorthMet Mine Project is Lori Andresen. In June 2022, Ms.
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`Andresen has plans to visit the Partridge River just south of the proposed mine site, as well as
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`Colvin Creek and the South Branch of the Partridge River, to hike, fish, and take photographs.
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`24.
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`Another example of Plaintiffs’ members who has plans to return and again enjoy
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`specific areas near the proposed NorthMet Mine Project is Jacqueline Christenson, who has
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`planned a multi-day canoe trip for July 2022, for the Partridge River and Colvin Creek.
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`25.
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`The health, recreational, inspirational, religious, spiritual, scientific, educational,
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`and aesthetic interests of Plaintiffs and their members have been and will continue to be
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`adversely affected and irreparably injured if Defendants’ ongoing violations of the ESA and
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`APA identified herein continue. These are actual, concrete injuries caused by the Defendants’
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`violations of the ESA and APA. If the proposed NorthMet Mine Project is allowed to proceed
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`without full compliance with the ESA, including updated and legally sufficient Section 7
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`consultation, Plaintiffs and their members will be harmed by the adverse, long-term, and
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`permanent impacts to Canada lynx, northern long-eared bats, and critical habitat for the lynx.
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`26.
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`Plaintiffs’ and their members’ injuries will be redressed by the relief sought. If
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`the 2016 Biological Opinion and other related decisions are vacated, as requested, and/or the
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`agencies are ordered to reinitiate consultation based on new information and changes to the
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`proposal, the agencies will be required to undertake additional ESA consultation and analysis
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`prior to determining whether or not the proposed action can proceed as proposed without
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`jeopardizing the Canada lynx or northern long-eared bat, or adversely modifying or destroying
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`designated critical habitat for the Canada lynx. As a result of the additional ESA consultation
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`and analysis, the agencies may choose to make changes to the proposed project in a way that
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`would benefit the Canada lynx or northern long-eared bat, or their habitat, or the agencies may
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`choose to not authorize the mine to move forward as proposed.
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`27.
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`Defendant Deb Haaland, U.S. Secretary of the Interior, is the highest-ranking
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`official within the U.S. Department of the Interior, and in that capacity, has ultimate
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`responsibility for the administration and implementation of the ESA regarding terrestrial
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`endangered and threatened species, including the northern long-eared bat and Canada lynx.
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`Secretary Haaland is sued in her official capacity.
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`28.
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`Defendant U.S. Fish and Wildlife Service (“FWS”) is an agency within the U.S.
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`Department of the Interior. It and its officers are responsible for administering the ESA,
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`particularly regarding potential impacts to terrestrial wildlife species that have been listed as
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`threatened or endangered with extinction pursuant to the ESA, including the northern long-eared
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`bat and Canada lynx.
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`29.
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`Defendant U.S. Forest Service (“Forest Service”) is an agency within the U.S.
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`Department of Agriculture. It and its officers are responsible for the lawful management of the
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`National Forest System, including the Superior National Forest.
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`30.
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`Defendant U.S. Army Corps of Engineers (“Corps”) is an agency of the U.S.
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`Department of Defense. The Corps is responsible for reviewing and issuing Section 404 permits
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`under the Clean Water Act, as it did here.
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`STATUTORY AND REGULATORY BACKGROUND
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`I.
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`The Endangered Species Act
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`31.
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`Congress enacted the ESA in 1973 to provide “a program for the conservation of .
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`. . endangered species and threatened species.” 16 U.S.C. § 1531(b). Section 2(c) of the ESA
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`establishes that it is the policy of Congress that all federal agencies shall seek to conserve
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`threatened and endangered species, and shall utilize their authorities in furtherance of the
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`purposes of this Act. 16 U.S.C. § 1531(c)(1).
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`32.
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`The ESA defines “conservation” to mean “the use of all methods and procedures
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`which are necessary to bring any endangered species or threatened species to the point at which
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`the measures provided pursuant to this Act are no longer necessary.” 16 U.S.C. § 1532(3).
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`33.
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`Section 4 of the ESA directs the Secretary of the Interior to list species that are
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`threatened or endangered with extinction, and to designate “critical habitat” for such species. 16
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`U.S.C. § 1533(a). “Critical habitat” is the area that contains the physical or biological features
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`essential to the “conservation” of the species and which may require special protection or
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`management considerations. 16 U.S.C. § 1532(5)(A).
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`34.
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`Section 4 of the ESA also requires the Secretary to develop and implement
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`recovery plans for threatened and endangered species, unless the Secretary finds that such a plan
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`will not promote the conservation of the species. 16 U.S.C. § 1533(f).
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`35.
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`The ESA defines “endangered species” as “any species which is in danger of
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`extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). The ESA
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`defines “threatened species” as “any species which is likely to become an endangered species
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`within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. §
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`1532(20).
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`36.
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`The ESA requires the action agency, in consultation with FWS, to “insure that
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`any action authorized, funded, or carried out by” the agency “is not likely to jeopardize the
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`continued existence of any endangered species or threatened species or result in the destruction
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`or adverse modification” of the critical habitat of such species. 16 U.S.C. § 1536(a)(2). FWS
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`and the action agency must use the best scientific data available during consultation. Id.
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`37.
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`“Action” is broadly defined under the ESA to include all activities or programs of
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`any kind authorized, funded, or carried out by federal agencies, including actions directly or
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`indirectly causing modifications to the land, water, or air; actions intended to conserve listed
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`species or their habitat; and the promulgation of regulations. 50 C.F.R. § 402.02.2
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`38.
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`For each proposed action, the action agency must request from FWS whether any
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`listed or proposed species may be present in the area of the proposed agency action. 16 U.S.C. §
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`1536(c)(1); 50 C.F.R. § 402.12. If listed or proposed species may be present, the action agency
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`must prepare a “biological assessment” to determine whether the listed species is likely to be
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`adversely affected by the proposed action. Id.
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`39.
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`If the action agency determines that a proposed action may affect any listed
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`species or critical habitat, the agency must engage in formal consultation with FWS, unless the
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`biological assessment concludes that the action is not likely to adversely affect any listed species
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`or critical habitat, and FWS concurs with that finding. 50 C.F.R. § 402.14.
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`2 FWS issued amended ESA regulations in 2019 and has proposed additional revisions. The
`citations to the ESA regulations herein are to the version of the regulations that were in effect at
`the time of the challenged 2016 Biological Opinion, except for the regulation governing the
`reinitiation of consultation, for which we cite to the regulation currently in effect.
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`40.
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`To complete formal consultation, FWS must provide the action agency with a
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`“biological opinion,” explaining how the proposed action will affect the listed species or habitat.
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`16 U.S.C. § 1536(b); 50 C.F.R. § 402.14.
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`41.
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`If FWS concludes that the proposed action “will jeopardize the continued
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`existence” of a listed species or result in the destruction or adverse modification of critical
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`habitat, the biological opinion must outline “reasonable and prudent alternatives.” 16 U.S.C. §
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`1536(b)(3)(A).
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`42.
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`If the biological opinion concludes that the action is not likely to jeopardize the
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`continued existence of a listed species, and is not likely to result in the destruction or adverse
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`modification of critical habitat, FWS must provide an “incidental take statement,” specifying the
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`amount or extent of incidental taking on such listed species and any “reasonable and prudent
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`measures” that FWS considers necessary or appropriate to minimize such impact, and setting
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`forth the “terms and conditions” that must be complied with by the action agency to implement
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`those measures. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i).
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`43.
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`In order to monitor the impacts of incidental take, the action agency must monitor
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`and report the impact of its action on the listed species to FWS as specified in the incidental take
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`statement. 16 U.S.C. § 1536(b)(4); 50 C.F.R. §§ 402.14(i)(1)(iv), 402.14(i)(3). If during the
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`course of the action, the amount or extent of incidental taking is exceeded, the action agency
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`must reinitiate consultation with FWS immediately. 50 C.F.R. § 402.14(i)(4).
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`44.
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`The reinitiation of formal consultation is required and must be requested by the
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`action agency or FWS where discretionary federal involvement or control over the action has
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`been retained or is authorized by law, and if (1) the amount or extent of taking specified in the
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`incidental take statement is exceeded; (2) new information reveals effects of the action that may
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`affect listed species or critical habitat in a manner or to an extent not previously considered; (3)
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`the action is modified in a manner that causes an effect to the listed species or critical habitat that
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`was not considered in the biological opinion; or (4) a new species is listed or critical habitat
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`designated that may be affected by the identified action. 50 C.F.R. § 402.16(a).
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`45.
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`After the initiation or reinitiation of consultation, the action agency is prohibited
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`from making any irreversible or irretrievable commitment of resources with respect to the
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`agency action which may foreclose the formulation or implementation of any reasonable and
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`prudent alternative measures. 16 U.S.C. § 1536(d).
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`46.
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`Section 9 of the ESA and its implementing regulations prohibit the unauthorized
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`“take” of listed species. 16 U.S.C. § 1538(a)(1); 16 U.S.C. § 1533(d); 50 C.F.R. § 17.31. “Take”
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`is defined broadly to include harming, harassing, trapping, capturing, wounding, or killing a
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`protected species either directly or by degrading its habitat. 16 U.S.C. § 1532(19); 50 C.F.R. §
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`17.3 (defining harm to include “significant habitat modification or degradation where it actually
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`kills or injures wildlife by significantly impairing essential behavioral patterns, including
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`breeding, feeding, or sheltering”).
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`47.
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`Taking that is in compliance with the terms and conditions specified in the
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`incidental take statement of a biological opinion is not considered a prohibited taking under
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`Section 9 of the ESA. 16 U.S.C. § 1536(o)(2).
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`II.
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`The Administrative Procedure Act
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`48.
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`Pursuant to the Administrative Procedure Act (“APA”), a person suffering legal
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`wrong because of agency action, or adversely affected or aggrieved by agency action within the
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`meaning of a relevant statute, is entitled to judicial review thereof. 5 U.S.C. § 702. Agency
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`action made reviewable by statute and final agency actions for which there is no adequate
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`remedy in court are subject to judicial review. 5 U.S.C. § 704.
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`49.
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`The APA directs a court to compel agency action unlawfully withheld or
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`unreasonably delayed; and to hold unlawful and set aside agency action found to be arbitrary,
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`capricious, an abuse of discretion, or otherwise not in accordance with the law, or agency action
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`that is undertaken without observance of procedure required by law. 5 U.S.C. § 706.
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`FACTUAL ALLEGATIONS
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`The Wildlife Species on the Superior National Forest Threatened with Extinction
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`A. The Canada Lynx
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`I.
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`50.
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`The Canada lynx is a medium-sized cat with long legs and unusually large paws
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`that make it highly adapted for hunting in deep snow. A mid-size carnivore, the Canada lynx
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`plays an important ecological role in targeting smaller prey species that reproduce relatively
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`quickly. In 2000, FWS designated the Canada lynx as a threatened species under the ESA.
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`51.
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`The majority of recorded lynx occurrences in Minnesota are from the northeastern
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`portion of the state, where the Superior National Forest is located.
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`52.
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`A number of land management activities on the Superior National Forest may
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`affect Canada lynx and lynx habitat, including mining exploration and other mining activities.
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`Land exchanges concerning proposed mining sites on the Superior National Forest may also
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`result in a loss of lynx habitat, lynx prey habitat, and connectivity.
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`53. Minerals management and mine development have the potential to adversely
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`affect lynx and lynx critical habitat by reducing habitat quality for denning, foraging, and
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`dispersal; disrupting travel, resting, and foraging patterns; and disturbing denning females and
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`reducing habitat quality for lynx prey species.
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`54.
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`Direct lynx mortality on the Superior National Forest may result from trapping,
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`shooting, predator control, and vehicle collisions. Other large-scale risk factors to lynx and lynx
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`critical habitat include the fragmentation and degradation of lynx habitat.
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`55.
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`Common causes of mortality for lynx include starvation of kittens and human
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`caused mortality, including trapping. Lynx in Minnesota have been killed by vehicle and train
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`collisions.
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`56.
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`At the time of the 2016 Biological Opinion, there had been 63 lynx mortalities
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`recorded in Minnesota since 2000. Of these 63 mortalities, 29 died after being trapped, 16 died
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`from unknown causes, 9 died from vehicle collisions, 7 died from being shot, and 2 died after
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`collusions with trains.
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`57.
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`In 2005, FWS completed a “Recovery Outline” for Canada lynx. The Canada
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`lynx Recovery Outline serves as an interim strategy to guide recovery efforts and inform the
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`critical habitat designation process for lynx until a draft recovery plan has been completed.
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`Under the Recovery Outline, the lynx habitat on the Superior National Forest is identified as one
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`of six “core areas” within the contiguous United States.
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`58.
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`The goal of the Recovery Outline is to address the threats to lynx so that its
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`protection under the ESA is no longer required, and delisting is warranted. Objectives include
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`ensuring that sufficient habitat is available to accommodate the long-term persistence of
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`immigration and emigration between each core area and adjacent populations in Canada or
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`secondary areas in the United States.
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`59.
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`On February 25, 2009, FWS issued a final rule revising the critical habitat
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`designation for Canada lynx. 74 Fed. Reg. 8616 (Feb. 25, 2009). By definition, the critical
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`habitat designation includes the specific areas within the geographic area that is occupied by lynx
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`and on which are fo