Details of FOIA Request on Proposed Burying Beetle Mitigation Site

In latter October and early November information was received from the U.S. Fish and Wildlife Service – via a Freedom of Information Act request - regarding the selection of a proposed mitigation site north of Brewster, Blaine County, for the endangered American Burying Beetle (Nicrophorus americanus; as initially designated July 13, 1989). This request was made in association with the r-project as proposed by the Nebraska Public Power District. This entity has requested an incidental take permit from the federal agency to allow it to construct an industrial powerline through the middle of the sandhills and which has been indicated as having an impact, i.e., taking of the beetle. Taking is a euphemism for beetles being killed due to actions of NPPD to construct and maintain the proposed industrial powerline.

Associated with the r-project environmental statement, addressing impacts was a requirement. The following is a consideration of one aspect, the so-called mitigation site.

Site Details

A NPPD email dated December, 2017, and from an environmental specialist for NPPD stated: "I have not sent maps due to the confidentiality of our negotiations with the landowner, however we also cannot move ahead with those negotiations without the concurrence of the FWS and NGPC that the parcel is desirable as ABB mitigation lands. We do have ABB data showing the area is high quality ABB habitat."

The proposed mitigation site chosen by NPPD is a “relatively flat lowland meadow” adjacent to Highway 7 in German Valley, eight miles north of Brewster, Blaine County. The acres are near St. John’s Church located at the corner of the highway and German Valley Road.

The west side of the mitigation site would be the highway and there it would be beneath the alignment proposed for the r-project transmission line. On the east side is cropland pivot land. The property tract extends for a longer distance south to north, than from east to west.

Details for the 594-acre proposal were given in an email from NPPD to the FWS and Nebraska Game and Parks Commission early in 2018. Along with a brief summary, a property parcel map, a table of beetle survey results, an overall beetle occurrence map for the region, it also included this particular topic:

“American Burying Beetle Data – The property has some of the highest ABB abundance numbers in the data set used by the USFWS to calculate the 99th percentile for purposes of the take estimate. This property was trapped as part of NPPD’s survey effort associated with calculating take. In 2016, there was a trap on this property that captured 46 ABB in five nights of survey, which would put it in the 98th percentile. There are 23 historic surveys within one mile of the property. Only two of those traps have zero captures, and neither was a five-night survey.


“NPPD’s surveys in 2016 and 2017 show that the area of the proposed mitigation property has the highest ABB numbers of any of the areas we surveyed.”


“NPPD believes that protection and enhancement of this property will fulfill the mitigation obligation of the R-Project.”

An email stated that the property would “meet the criteria of 500 acres of ABB habitat” required as mitigation for any incidental take associated with the transmission line.

The NPPD representative said in one email that a mitigation site management plan would be prepared in “concurrence with the USFWS and NGPC” … This plan would have a goal to further enhance the number of ABB. Habitat restoration would also be a possibility on the property, NPPD staff said.

NPPD initiated correspondence regarding the suitability of the mitigation site soon after a site visit, based on an email dated March 29 from the primary NPPD environmental specialist. It is quite indicative that the initial town locality as indicated by the power company email was Burwell, in January 2018. This text is indicative: “During our discussion about potential mitigation land near Burwell there were several question [questions; sic, i.e. a paradoxical mistake] which | indicated [sic. I] would try and get information on. What I could find is I [sic] the attached file.”

The site being discussed was actually north of Brewster, and many miles away in a completely different county. This email is seemingly written in haste due repetitive grammatical errors. Might the “|” be attributed to a computer glitch? Okay. The significant topic of this email was associated with hydrology and how it would be suitably monitored at the mitigation site locality.

“Based on the sight [sic; = site; misspelling in email document provided] visit to the potential mitigation land on March 26, 2018 it was determined that the parcel as depicted in the attached file ‘Mitigation Land Acquisition Layout A 594 acres’ would meet the needs for mitigation land outlined in the Draft Habitat Conservation Plan associated with NPPD’s application for an incidental Take Permit for American Burying Beetles, according to an email sent to FWS and NGPC from James Jenniges, senior environmental specialist for NPPD.

“NPPD will work with the current landowner on modifications to the boundary to see if existing fences can be used instead of the straight lines on the map. If that is possible it would add some additional acres of meadow habitat to the final total.”

...“As soon as the appropriate individuals from your agencies respond that this parcel will meet the mitigation needs in the Draft Habitat Conservation Plan NPPD will proceed with acquiring the land in fee title.”

When NPPD had not received a reply on the proposal sent to FWS or NGPC within about a dozen days, another email was sent requesting a response. The staff of the FWS and NGPC were thus urged to respond. Both agencies acquiesced, so by mid-April 2018, two emails had been sent indicating an acceptance of the proposed mitigation site.

“The property you mention in your email below will meet the needs of the HCP in terms of being suitable mitigation for the federally endangered American burying beetle. We look forward to working with NPPD on preparation of a restoration plan for the area for the benefit of the benefit of the beetle,” as expressed by an email dated April 10 from Robert Harms to NPPD.

“Staff of the Nebraska Game and Parks Commission have determined the property NPPD proposes to acquire is suitable for mitigating impacts, related to the R-Project, on the state and federally listed endangered American burying beetle,” as expressed by an email dated April 11, 2018 from Michelle Koch, of the agency.

Later in the month, NPPD indicated that they would “work on getting” the site bought from the willing seller.

In early November 2018, the site was still owned by a private landowner with an address outside the county, according to what was indicated by details presented by the Blaine county gis website.

Site Visit Communications

Several emails associated with staff from the FWS, NPPD and Nebraska Game and Parks Commission, basically dealt with have a meeting to evaluate map and site visit details to the proposed mitigation site. None of the subsequent emails received indicated whether a site visit even occurred, and if so, a date of such an occurrence.

An email as sent by FWS, Denver, and dated April, 2017, indicated: "NPPD also prepared a draft land restoration plan detailing measures to restore beetle habitat, as well as measures NPPD is volunteering to implement to restore fragile sandy soils and other habitats disturbed by R-Project construction and potential emergency repairs."

Details associated with general goal would have been indicated in the draft environmental impact statement as subsequently issued for public review and commentary.

FOIA Request Details

The FOIA request was received July 30, 2018 by the FWS. An initial email response dated October 17, 2018 came from an agency office in Colorado, when 21 pertinent documents were identified. To summarize:

"Our review of these documents is complete and the following is our determination on thirteen (13) of the documents:"

"1. We are releasing to you in their entirety two (2) documents (6 pages); and

"2. Eleven (11) documents (17 pages) are not responsive to your request.

"The remaining eight (8) documents (21 pages) contain potential confidential business information or financial information of the NPPD."

A dvd with an additional 24 pages of email communications was received November 1st. It had the most useful and pertinent details.

Commentary

Though the proposed mitigation might be considered a commendable effort because of a legal requirement it is substandard. There are some obvious topics worth considering that can readily be considered as concerns with the chosen site.

Especially notable is the chosen mitigation site. It does not seem reasonable to enhance meadow features at a locality that already is amidst a region with largest populations of the American Burying Beetle. Obviously the population is already, apparently, healthy and thriving.

It should be noted that the method used to determine the number of ABB present somewhere relies upon using an artificial attractant. Survey results in no way actually represent the actual, natural presence of these beetles upon the acres of some parcel. With the ability of these strong-flying beetles to travel many miles during the night, they may have arrived from somewhere distant because of an apparent and readily available food source. Because of this, the number of beetles denoted is not a representative indicator of the extent of any naturally occurring population present at the proposed mitigation site.

Any extent of beetles present was certainly the result of a valid survey. It is, however, a faux claim by NPPD to convey that the site where the bugs were found is actually their home place. A meadow over one hill or another hill might actually be a best place of residence where the adults breed and create burrows for larvae of the next generation.

It is certain that NPPD will not be providing any supplementary food source to achieve the mitigation goals that are legally required to meet requirements for any expected taking of ABB. So the question is, how can more beetles suitably survive on the same few acres?

Certainly there could be other potential mitigation sites where focused management efforts might establish habitat that could provide a suitably new safe haven for the species. Mitigation is meant to moderate for any “take instances” across the corridor of the r-project industrial powerline. With such a wide-spread potentiality, the mitigation effort should reflect this and broaden the range of the species, and not just get more of the beetles in a concentrated area. To put it bluntly, get more beetles at a place so that when maintenance trucks travel along the powerline, they might be able to kill more ABBs.

It is essential to have the broadest range of occurrence possible to allow for potential impacts due to weather events, landscape changes due to climate variation (i.e., drought) and other factors. The NPPD proposal is just the opposite.

The FWS and NGPC approval of the mitigation site proposal was done without any input from the public. Interested people should have been allowed to review the plan and provide comments. The result could have perhaps been improved. But for NPPD to get the “green light” from two public agencies, as done without public knowledge at the time, is a disservice to concerned citizens.

Having a mitigation site and increasing a beetle population adjacent to a state highway, albeit one with a relatively low extent of traffic is senseless. Such a situation could readily result in an increase in the number of beetles struck by passing vehicles. Scientific findings indicate a beetle might fly up to about 18 miles in one night (FWS report). If they fly west will they get smashed by a semi? Will light-beams from vehicles have a greater influence since the mitigation goal is for more numbers of the nocturnally-active beetles at the same location? Will there need to be signs put in place warning drivers to slow down to watch for flying endangered beetles? Any death of a beetle is considered a “taking” and punishable, according to federal laws, so would vehicles going along the highway during the primary activity season of the beetles need to wait until daylight, or for regular travelers, would they need an incidental take permit? Ludicrous for certain, but why have a mitigation site that increases threats for survival of beetles officials are trying to conserve!

It is nonsensical to select a mitigation site along the r-project corridor. There is no known information on how such a high-voltage powerline might influence survival of the species. Could “power leakage” from the lines have a negative impact on survival of the species, perhaps especially on their vulnerable larvae? Could the powerline influence behavior that might also reduce survivability?

Selecting site with a known high-density of ABB would also constrict genetic diversity. Variability and adaptation occurs in response to weather conditions, survivability, prey base, habitat conditions and many other factors. More beetles at the same place does not provide the variety in influences that would promote the genetic variety and most essentially adaptability changes essential for vitality and species survival.

With the cost to purchase the property being proposed, could there possibly be more cost effective sites available, to reduce the overall expense to electricity rate payers. In the information received through the FOIA request, there were no details indicated on whether there was any comparison of the suitability of multiple sites.

There was no indication how a qualified, non-participant individual with ABB expertise provided some sort of outside review. This should be an essential to indicate the validity of any project proposal.

Will there be food source limitations if a local population is increased? Competition for carrion prey is a known limiter for any population, according to a FWS report on the biology of the species. The extent of available carrion would be greater across a wide-spread area in comparison to a limited site.

The FWS document stated: “historically large expanses of natural habitat that once supported high densities of indigenous species are now artificially fragmented, supporting fewer or lower densities of indigenous species that once supported ABB populations, and also facilitating increased competition for limited carrion resources among the ‘new’ predator/scavenger community.”

This could be interpreted as indicating there are already stressors on populations of the ABB. NPPD may tout the populations of beetles they have found during surveys, but these results are only short-term results. There is no historic information available in order to make any authoritative comparison for the long-term and to truly know the requirements essential to ensure survival of this large carrion beetle.

There is no indication whether grazing would be used as a site management practice. This would have to certainly be addressed in any cooperative management plan. There is also no known indication on how any acceptable management plan would get proper scrutiny.

For NPPD to indicate the purchase of a mitigation site, as was indicated in an April, 2018 email shows a continued arrogance as has been regularly conveyed during the development process for the r-project. How can the district purchase a tract when they do not even have any federal agency approval for the r-project. Though there is an indication that no purchase has occurred, there is no information indicating whether any legal “right-of-purchase” agreement has been signed with the property owner.

A final comment: this mitigation proposal for the American Burying Beetle appears to be another example of NPPD “forcing” through its proposal and forcing the public to have no alternative but acceptance. The proposal is filled with a lack of consideration for details essential when considering a little endangered species.

Federal Agency Acts Without Public Consideration on Permits to Take Burying Beetles

A email received on August 7th indicates that the Nebraska Public Power District continues to impose their demands on the U.S. Fish and Wildlife Service. Details presented by an agency biologist, indicate the federal agency has allowed further harassment of the American Burying Beetle along the corridor of the proposed r-project. Trapping of the little beetles was permitted even as FWS is reviewing a supposed final version of a document allowing incidental take of the species.

How can there be any sort of valid review of a permit request while the requesting agency is still gathering information?

The federal agency has acted without public consideration as they issued permits to allow the taking of the endangered American Burying Beetle along Highway 83, notably in Thomas county. The activity is related to "research" associated with the r-project.

The permits allows the beetles to be trapped, then actively handled, based upon decisions by the controlling federal agency.

In regards to this activity, the federal agency should instead be known as the Federal Whatever Service (FWS).

The FWS once again agreed to permit requests with a seeming disregard to the beetles or the area landowners. Who gave the FWS the authority to make decisions without public comment on a natural lands species?

Consider these pertinent points:

Did the FWS notify landowners of the real-time activities associated with the allowed permit activities? Did NPPD? Nope.

Did the Nebraska Department of Roads give permission for anyone to place beetle traps along the Highway 83 right-of-way? Are any traps being placed along the highway? Is there any public information readily available on these essential detail? Nope.

Did the FWS provide details on the areas where survey activity will occur? Nope.

Did the FWS provide any details on the period of time during which the surveys will occur? Nope.

Did the FWS provide any details on the purpose of the surveys? Nope.

Has the FWS provided any details on the survey methods, notably the number of plastic buckets that will be used, and the frequency of them being checked? Nope.

Has the FWS provided any information on how the results of the surveys will be made available to the public? Nope.

Has the FWS provided details of the permit and how there will be a limit on mortality of the beetles and what is being done to ensure that there are very few or no beetle deaths? Nope.

Do the issued FWS permits include a clause indicating how the permitted activity does not allow access to private property except with landowner permission? Were any details about this provided to the public? Nope.

Did the FWS explain why permits were issued not only to a consultant hired by NPPD and an Oklahoma university as well? Nope. Why do two entities need permits for "so-called" scientific research associated with a single purpose? Has an explanation been provided by anyone? Nope.

Has the FWS indicated the expertise of the permittees and how they have the qualifications to handle an beetle listed as an species? Nope. If non-resident people are going to intrude into the sand hills, they certainly need to know what they are doing and be doing it in an efficient and nonintrusive manner!

Did the FWS indicate a date of application for these permits, and an issuance date? Nope. Why was there no public notice, and not even a known press release?

Why does the FWS give a permit to NPPD minions to "harass" every single captured beetle? The permit apparently allows this harassment, i.e., a taking instance to occur every time a beetle is handled! This is direct intrusion and the actual effect on species once released is not known.

NPPD has already applied for an incidental take permit for the American Burying Beetle, so why are they collecting data now? They should not be applying for a permit until after thorough research has been completed!

The Fish and Wildlife Service has given permits to allow NPPD to get further details to buttress why they should be able to construct the r-project industrial powerline. If they can indicate a broader range or greater numbers, then the projected impact can be lessened to improve the rationale for getting an incidental take permit.

The Fish and Wildlife Service is using the endangered species classification of the beetle as a means of control. Through this classification they can tell everyone how they have to deal with the species. It is as if they are "owners" of the beetles so their permission is need to deal with them!

The federal agency – being a bureaucracy that represents the "heavy fist" of government – needs to understand in complete clarity that they do not own a single American Burying Beetle. They do not control the lives and times of this unique species. Yet they provide permits to kill and harass thousands of beetles without any public notice or review. And this has occurred most recently even with agency staff in the Nebraska Field Office are very aware of the concern of numerous sandhill residents concerning this little beetle and other local and essential resources. Staff could not even provide a courtesy notification to any of the many people whose emails they have readily available through current and ongoing communications. This failure is indicative.

Has the FWS actually done anything to conserve the American Burying Beetle other than making regulatory edicts? Has the agency provided any indication how their rules are benefitting the species? Nope.

Each and every American Burying Beetle in Nebraska is an asset of the citizens of Nebraska. Certainly ownership applies but that is only a legal argument. They are just one example of the great diversity of flora and fauna owned in "public trust." It is the citizens of Nebraska that should be making each and every decision associated with this species, since federal and state agencies are not representative.

Many residents of the Sand Hills – in particular – want the distinctly colored little beetle to thrive and in no manner have any malicious intent to undertake activities detrimental to their survival. Every property owner that has this beetle on their place can make their own decisions on management steps needed to make their place a success. They can personally evaluate whether or not it is beneficial or detrimental to the survival of the beetle, and there is even benign attention which applies in many instances because raising cattle is the key focus.

It seems that the American Burying Beetle is doing quite fine under current conditions in ranchland cattle country. If someone owns a ranch and wants to make it a distinct haven for the American Burying Beetle and provide ecotourism visitations to enjoy the life and times of this bug, that is their option. No government agency can try to control this right of a property owner.

This situation applies to other species of species of concern, including the Blandings Turtle. Land management efforts could occur to benefit this species and the government has no control over this. Yet the government wants to intrude by saying that they control the right to "handle or possess" a single turtle. It is easy for them to profess their rules from a taxpayer-financed office in a distant city.

A ranch owner with a property expanse where this turtle thrives has the complete right to know about the wildlife on their place. If a ranch couple want to venture out in an evening and look for turtles, they have the complete right to pick up a turtle of any sort and appreciate its presence. If a niece or nephew is visiting, they can carefully put a turtle in a suitable container and take it back to their home to share with visiting relatives for a short time, and the place it back where it was found. This is an educational and appreciation endeavor.

Property owners pay the taxes. They deal daily with the survival of so many species through their land management decisions. They have the inherent right to know and understand the natural life in their personal manner.

Yet, it is so wrong that governmental officials could swoop in and issue a criminal complaint, with possible fines attached. They would say that "handling" and "possession" is illegal.

It should be illegal for bureaucrats sitting within publicly-owned facilities to be enforcers upon those that actually own and manage great lands where plants and animals thrive and do not receive a single dime of financial support for protecting a publically appreciated resource.

If someone wants to establish a "Bluebell Ranch" where occurrence of the Blowout Penstemon is the primary focus, that is their right. They can manage for the habitat necessities of this plant, undertake revolving plot management spread across sections for the benefit of the survival of this singular plant. If they want a lack of grass and instead have a lot of sand within their property boundary that is their choice as long as it does not have an impact on neighbors. The whole complex of life at penstemon colonies is enough for a unique visit by naturalists or others that want to enjoy the so obvious biological diversity and natural life.
　
There are now great issues within the sand hills. There are however great opportunities because great people are actively working to conserve the heritage of the land and its people. There can be great times in the future as new generations realize, appreciate and understand what is essentially important for the region and its people now and in future times.

Is there an indifference to the history and future of the Great American Sandhills each day now and into tomorrow? Nope.  

Biological Opinion Issued for Keystone XL Pipeline

A biological assessment regarding potential impacts of the proposed Keystone XL pipeline was issued September 29th by the Fish and Wildlife Service.

Mammals, birds, fish, amphibians, reptiles, invertebrates and flowers were considered. For birds such as the Eskimo Curlew, interior Least Tern, Piping Plover, Whooping Crane and nearly all other species mentioned, the conclusion and rationale for their "effect determinations" was they were not present or that current "conservation measures" were adequate.

The primary finding was the potential impacts to the American Burying Beetle, with a determination that habitat and individuals would be a "adversely affected" and mitigatory steps would be required.

Surveys for this invertebrate were conducted in the project area during 2009 and 2010, according to the BA document. In 2011, a TransCanada financed project was taken to trap and relocate American Burying Beetles from the Keystone XL pipeline corridor in the eastern sand hills. The goal was to "clear" this species from the right-of-way prior to September 1.

Particular Reclamation and Post-construction Activities and Conservation Measures" along the project right-of-way, would include:

• alleviating soil compaction
• revegetation of project lands
• a monitoring program
• establishing a conservation trust for the beetle

The Blowout Penstemon had a determination that "habitat would be avoided."

Range of the American Burying Beetle in Nebraska, 1998 to 2010 The red dots indicate known presence. Image courtesy of the biological assessment.

The majority of the biological assessment concerns the federally listed, endangered American Burying Beetle, including the establishment of a conservation trust.

"A Habitat Conservation Trust (Trust) would be established in each state where impacts to ABB are likely to occur, including: south of Highway 18 in Tripp County, South Dakota; Keya Paha, Rock, Holt, Garfield, and Wheeler counties in Nebraska; and Hughes, Coal, Atoka, and Bryan counties in Oklahoma. The purpose of the Trusts is to offset the impacts to ABB habitat from construction and operation of the Keystone XL pipeline and promote conservation of the ABB. The amount of the Trusts would be computed based on the number of acres affected, quality of the acres impacted and average land values. Compensation would be based on total acres impacted and would be modified by habitat quality rating multipliers with prime habitat compensation at 3 times the total impact acres, good habitat at 2 times the total impact acres, fair habitat at 1 times the total impact acres, and marginal habitat at 0.5 times the total impact acres.

"Trust monies ... would be deposited in each state by Keystone within 6 months of approval of the Presidential Permit with an organization or entity familiar with managing funds for the benefit of public trust resources. Management fees would also be paid by Keystone to the funds management entity."

A "Habitat Conservation Trust" for the burying beetle would be used for species management, as indicated in Appendix D of the biological assessment. The agreement as defined would be between the Fish and Wildlife Service, Department of State and TransCanada Keystone Pipeline, LP.

"The American Burying Beetle Habitat Conservation Trust (Trust) will be used to acquire lands and easements from willing sellers, and to develop conservation plans and agreements with landowners for protecting and enhancing American burying beetle habitat within its range. Additionally, up to 10 percent of the Trust funds may be used for appropriate research such as re-establishment of ABB on disturbed sites such as the Keystone XL pipeline ROW."

The "compensatory mitigation" for temporary or permanent impacts to beetle habitat, were defined as follows:

South Dakota - $632,447

Nebraska - $1,978,312

Oklahoma - $376,491

Overall $2,987,250

Although this document has been prepared, it has not been signed by the parties involved, and would not be until the pipeline would receive approval, according to the field supervisor of the Nebraska field office of the FWS.

Habitats

Habitat for the American Burying Beetle in the Nebraska sandhills counties stretch of the proposed Keystone XL pipeline was classified under the category of temporary loss, and also as to whether it could be considered "prime" (1399.2 acres) with lesser amounts rated as poor (34.7 acres), marginal (41.7 acres), fair (120.6 acres) or good (186.1 acres). Overall, there would 1,782.1 acres of ABB habitat impacts.

In South Dakota the acreage is 629.6 and in Oklahoma, 1835.8 acres.

There is a set protocol outlined in the BA to address the presence of the ABB and how to deal with different situations. An annual report would also have to be submitted by the Department of State to document the "monitoring accomplished and progress of restoration of Project lands. The report would detail and document the number of acres affected by Project activities , and the number of acres meeting reclamation stipulations of the bond."

There would also be a "Reclamation Performance Bond" to ensure "Native prairie affected by the Project in Nebraska and South Dakota would be restored to the quality of the natural communities adjacent to the Project lands."

Consultation started in April 2008 with the pipeline developer, as document in the BA. The Nebraska Field office in Grand Island was the lead in preparing the 86 page assessment and appendices. Other state offices were also involved.

The Fish and Wildlife Service will also be involved with biological assessments for the construction of transmission lines to provide power to pipeline pumping stations. Potential impacts on the ABB are included in the biological assessment.