MENAGERIE, OR Peregrine Closure

[g orton]

The Willamette National Forest is conducting an Environmental Assessment (EA) as required under the National Environmental Policy Act (NEPA) to expand its seasonal Peregrine Closure in the Keith Creek Drainage of the Menagerie Wilderness, Oregon.

This is a complex issue made more so by a lack of (in my opinion) professional accountability and willingness by local biologist to identify and consider the Best Available Science or develop a monitoring plan where there are data gaps to access reasonable management of Peregrine Nest Sites (eyries) and climber access (Information Quality Act).

 

As to not overwhelm the reader to this ongoing issue I will provide a history, background information, and responses to the Forest Service's Proposed action in multiple posts. Please note: the Forest is asking for public comments to its Proposed Action. The deadline for your comments is SEPTEMBER 3, 2013. http://www.fs.fed.us/nepa/fs-usda-pop.php/?project=38620

Please be respectful in your comments as to not alienate those within the agency who would share your views.

I would also encourage others who provide comments to the Forest to post your comments here also.

 

The five posts that follow are:

1) My summary of the Menagerie History and History of the current access issues.

2) Map of Current, Proposed (Forest), Recommended (Climbers) closures at the Menagerie.

3) The Access Fund's response letter to the Forest Service.

4) Southwest Oregon Climbers response letter.

5) Greg Orton's summary of information provided by the Forest Service in response to an Access Fund Freedom of Information Act (FOIA) request concerning all records of communications concerning seasonal closure of the Menagerie.

 

Note: Reduced public access on Public Lands to overly restrictive Peregrine closures is a National issue. I've provided a lot of information here. Much of it you can just skim, some of it you will want to spend more time reading. Rarely will you be presented with such a candid look at an issue that affects your access. - greg

BRIDGE ROCK TURKEY MONSTER

CHICKEN ROCK

Edited August 31, 2013 by g orton

[g orton]

History:

MENAGERIE WILDERNESS

ROCK CLIMBING AND PEREGRINE MANAGENT PLAN

August 16, 2013

 

THE MENAGERIE

The Menagerie wilderness is a small wilderness area located in the Willamette National Forest about twenty miles east of Sweet Home, Oregon. In this relatively unknown wilderness is a geologic wonderland containing a diverse collection of ryhodacitic cliffs, pinnacles, and arches. These features vary from boulder size to 400-foot monsters. At present count there are over 60 different formation, with the majority of these located in the Upper Keith Creek drainage and its bordering ridges. Other formations continue into the Trout Creek drainage to the west. Rock quality at the Menagerie varies from stellar to hollow and loose. Cracks that offer an opportunity for gear placement are few and routes protected with fixed anchors placed on lead are the norm. Most routes here are considered run-out by today’s standards, are not generally accessible for toproping, and have long, steep, blind approaches only suited to experienced climbers.

 

CLIMBING HISTORY

Although most climbs at the Menagerie are bolted, it is not a sport climbing area. Setting fixed protection has historically been done on lead here and that tradition has carried on and become the local ethic of the Menagerie. The climbing history at the Menagerie began in 1949, with the first ascent of the Rooster Tail by Bill Sloan and Bryon Taylor. During the latter half of the 1950s and into the 1960s, Pat and Gayle Callis were active at the Camel Head and Rooster Rock areas, establishing first ascents of Chicken, Hen, and new routes on Rooster Rock. With Soren Norman, Pat went on to establish the first aid line up the North Ear of Rabbit Ears in 1960. By 1966, with the arrival of the Bauman brothers, climbers had established a solid presence at this area they referred to as the “Menagerie”. During this period Tom and Bob lead the first assault of the South Ear, The Spire, and Rooster Rock’s ‘South Face’ and the ‘West Face Dihedral’. The Turkey Monster, just east of Keith Creek was finally ascended in 1966 when Eugene Dodd, Dave Jensen, and Bill Pratt made their classic aid ascent up the north face. Two years later this was followed by Tom and Bob making and equally impressive 5.10d, A2 ascent of Turkey Monster’s southwest face. By 1968, Tom had completed the first free ascent of the Cave Route (5.10a) on the North Rabbit Ear.

The efforts of Tom Bauman and Jim Anglin pretty much dominated Menagerie climbing through the 1980s when their adventurous climbing pushed their lead bolting into the high .10s and .11s. Other climbers during this period were Jack Lewis, Paul Fry, Dennis Root, Tom Blust, Doug Phillips and others. Chris and Peter Fralich established themselves at the Bridge with the Newt Route, a 5.10c classic. During this time Tom and others began petitioning the Forest Service to prevent road building into the Keith Creek Watershed and the Menagerie was designated Wilderness under the 1984 Wilderness Act.

 

In 1980, the first tyrolean between the North and South Rabbit Ears was made. This was followed in 1989 with a tyrolean between the North Ear and Panorama Point. Getting a rope across the gap between Panorama Point and the North Ear required shooting a lead line with an air cannon provided by local Search and Rescue. The first lead line was off target and became entangled in the trees, pieces of which are still present today. Ironically, twenty-two years later District biologist Tiffany Young sited the presence of this cord in her list of visual “facts” that showed climbers were violating the Peregrine closure on the North Ear in 2011.

 

During the 1990s, a synergy between climbers resulted in an extraordinary period of establishing adventure routes ranging from 5.9 to 5.12a. Extraordinary, particularly considering the push towards sport climbing ethics elsewhere in Oregon. Leading this remarkable effort where Tom Bauman and Jim Anglin with Jack Lewis, Chris Fralick, and Randy Rimby who carried the ethics of establishing routes on lead to a new level. During the spring of 1994, climbers reported seeing Peregrine activity at the Cave Route on the North Rabbit Ears. The following year the Forest Service established a mandatory seasonal closure of upper Keith Creek drainage extending to the upper gate access at road-2027. The Forest signed a Management Plan for the Rabbit Ears Eyrie (Moose Site OE-21) in 1997. While this plan identifies the Primary Management Zone for restricting foot traffic, it tiered to the original closure established in 1995. It also called for lifting the closure two week after the young have fledged, notifying climbers, and removing closure signs (pg. 12 and pg. 20).

 

As we entered into, 2000, new route setting at the Menagerie had begun to wane. After a severe climbing accident and in his 60s Tom Bauman was becoming less active at the Menagerie.

Jim Anglin, moved to White Fish but returned frequently to the Menagerie. During this period Greg Orton and Jim worked together on producing a climbing guide for the Menagerie to replace the original 1968 and 1975 Nickolas Dodge guides for the area. Jim, also began mentoring a young Tyler Adams and others into the climbing at the Menagerie during this period. Jim Anglin’s untimely death in 2007 created a climbing void at the Menagerie. Tyler has begun mentoring new climbers into the area. But, for the most part entry into the area is down drastically from its peak during ‘80s and ‘90s.

 

BREAKDOWN IN CLIMBER-FOREST SERVICE RELATIONS

During the Spring of 2005, Greg Orton was contacted by a climber who was interested in helping to monitor Peregrine at the Menagerie. In previous years Greg had been active in helping to monitor and band Peregrine outside the Roseburg area. He had also worked with the Forest Service in developing a policy of verifying and open closures to climbing at Acker Rock two weeks after fledging. In response Greg contacted the Sweet Home District Office of the Forest Service in the hopes of coordinating a monitoring effort at the Menagerie. After being redirected to the Forest Biologist at the Forest Supervisor’s Office and several unreturned phone calls Greg elected to take this climber to a vantage point just outside the designated closure and introduce him to Peregrine monitoring. Greg later learned that the Forest was between Biologists and not one had been covering phone messages.

 

That Fall 2005, while climbing at Rabbit Ears the same climber found a pigeon leg band. The next Spring 2006 he returned to the monitoring site he had been shown the previous year and felt he heard two young at the eyrie. He was unable to make a visual observation due to poor weather conditions. The following day he called Greg Orton with his observations and an enquiry about how to track the pigeon tag he had found the previous Fall 2005. Greg asked that he send an email with his observations so he could send it on to the local U.S. Fish and Wildlife Service Biologist, since he still had not heard back from the Forest. Greg then sent the email with this climber’s observation descriptions and his enquiry for information on the pigeon leg band to USF&W who forwarded it on the State Raptor biologist. Greg then contacted Sweet Home District Ranger Mike Rassbach and Mike opened the closure two weeks after confirmed fledging in 2006.

 

THE "SMOKING GUN"

Unfortunately, upon receiving their copy of the email of this climber’s observations which passed from Greg Orton to US F&W Service, to State Fish and Game, to the Forest Service, Forest biologist’s chose to interpret the email as though the Spring 2006 observation and the Fall 2005 finding of the pigeon leg band had both occurred during the same period and therefore was evidence that climbers were violating the seasonal closure. To add to this paranoia, in August Greg receives a call from the same climber who while climbing at Rabbit Ears with his girlfriend (now a BLM biologist) find an unhatched egg at the nesting ledge and an unidentified carcass at the base of the climb. Unaware of the fervent paranoia among biologists on the Forest Greg advises this climber to contact the new Forest Biologist which he does and offers to retrieve the egg for them since he knew they are not climbers. From emails obtained from the Forest Service during this period it is clear that biologist had convinced themselves that climbers were to blame. Where professional accountability is lacking, “Opinions and ideas” repeated enough times among the same individuals can quickly be seen as “facts”.

 

This can be especially true if one has a PhD:

“This is regarding the single addled egg…we collected on 04 August 2006. Yesterday, we opened the egg to obtain a serile sample for contaminant analysis, and were surprised that the egg contained a feathered embryo that was at hatching age. (see attached file: picture 002.jpg and 067.jpg). As I indicated to you during our nest entry, the adults appeared as if they had been disturbed prior to our arrival during the nesting season. You further indicated to me your suspicions that the site had probably been visited during the nesting season by people other than the permitted monitors; i.e. the seasonal restrictions for entry to the site had been violated several occasions. As you recall, we were alerted to this addled egg by a rock climber who appeared to have made regular trips to this wilderness and closed site during the year. This dead embryo suggests to me that there may have been disturbance to the site during the hatching phase of the nesting chronology. As you also indicated, at least one young peregrine potentially is missing. In previous years, this site has received additional pressure from people violating the closure. I collected a young dead peregrine that was at fledging age at the base of this cliff that my assistant and I had believed was pumped from the nest ledge by illegal human entry. We have also documented human footprints to the rock during the seasonal closure in other years that were not made by permitted peregrine monitors…I would be willing to meet with you et al.. 02 or 04 October…” – Joel Pagel@fws.gov, August 2006.

 

AT THE HEART OF THE ISSUE

From the Forest Service’s perspective during this period it would be difficult not to draw the conclusion that climbers are out of control and unmanageable in the Menagerie. Emails between biologist during this period show that they had become convinced that climbers were actively violating seasonal closures and therefore the Peregrine are “extremely agitated”. It is concerning that the myth climbers are actively violating closures, leading to reduced site productivity, when the Forest’s own monitoring results fail to support this conclusion (refer to table 1)

 

“I chose to not lift the closure early due to the extensive recreation activity in that area. The last time I was there, the birds were extremely agitated.” – Tiffany Young, District Biologist, July 2007

 

Table 1-Fledging records for the eyrie at Rabbit Ears between 2004 and 2011. (would not copy)

 

CREATING THE MYTH

From this point on it is evident in emails and messages sent to climbers that the Forest had begun biasing all negative observations to climbers (refer to 3rd post below). It is also clear that reasons for extending the closure beyond the two week period as directed in the Menagerie’s Peregrine Management Plan (pg 12 and 20) were based on a myth created through combining unsubstantiated unrelated observations by the district biologist. Incidences such as brushing the 850 road and a boy and his father attempting to drive over the slide on the 850 road had occurred during the fall of years unrelated the issue being sited by the District biologist. And the opening of a gate at road-2027 which had warn hinges that allowed the chain to be lifted over the post, and trash left at this gate were not necessarily contributable to climbers. Mixing ORV’s and climbers is like mixing snow mobiles with x-county skiers, yet an ORV track has been offered as evidence of climbers violating the closure. It is also clear that reasons for extending the closure were disingenuously being fabricated a year in advance.

 

ATTEMPTED ABUSE OF ATHORITY

“I’m working on updating the current closure and getting that ready to go for the next season. I will be extending the closure date to August 15th with the same clause that the district biologist may lift the closure earlier as he/she sees fit.” – Tiffany Young, District biologist, August 2007.

 

CLIMBER REACTION

Tiffany’s proposal to extend the closure into August 15th was drafted in 2009 but never signed with good reason. In 21 years of observations at this site July 13 has been the latest recorded fledging date. We would like the Forest to follow its own direction provided under their Management Plan. This direction would lift the closure two weeks after the young have fledged. 90% of the time fledging occurs between June 22 and June 31 (Table 2). Therefore, the closure would be open to public access between July 6 and July 15.

Table 2 Fledging at Rabbit Ears typically occurs between June 22 and June 31 (p=0.1).

 

THE CURRENT CONDITION

Jim Anglin, was the primary promoter and mentor of climbing at Menagerie up until his death in the summer of 2007. During this period climbers visiting the Menagerie were usually accompanied by Jim who would come into the Rooster Rock area (outside the closure) from the bottom during seasonal closure. After Jim’s death climbing at all but the Rooster Rock area dropped significantly. Today, first ascents are primarily limited to one local climber and the primary focus at the Menagerie for the past decade has centered on upgrading existing anchors.

 

The State of Oregon delisted the Peregrine from Threatened and Endangered Status. State Fish and Game considered the need for easing restrictions at some sites.

“… The Willamette NF now has the highest number of know[n] peregrine nest sites of any forest in Oregon (@25). As the number of breeding pairs increases, I would expect more conflicts with both climbers and other outdoor recreation activities. We need to look at this in the context of how far do you go with protection at any particular site given the species is now delisted and recovering and nest sites are legally protected under the MBTA, at least to some extent.” – Charlie Bruce, State Raptor Biologist, October 27, 2008.

 

CLIMBER POSITION

However, we strongly support the use of reasonable seasonal closures that insure successful reproduction of Peregrine at our climbing areas. Reasonable management that does not overly restrictive access has been shown to be successful at climbing areas that manage for Peregrine including but not limited to Yosemite National Park, Rocky Mountain National Park, Arapahoe National Forest, and Eldorado Canyon State Park. These areas successfully utilizing much smaller buffer zones that are tailored to the specific topography around the nest location.

 

CLIMBER-FOREST MEDIATIONS

On November 21, 2008, Greg Orton met with Sweet Home District Ranger Melany Glossa in an effort to dispel some of the myths and false accusation being made toward Menagerie climbers. On January, 2010 Forest Supervisor agreed to hold a formal meeting between climbers, biologists, recreation, District Ranger, the Forest Supervisor concerning issues at the Menagerie. This first meeting occurred with Joseph Doerr and Dick Davis representing Forest biologists, Dave Peterson (retired USF&W and falconer), Meg Mitchel (Forest Supervisor), Melany Glossa (District Ranger), and Greg Orton representing local climbers. Greg asked that a proposal for limiting the seasonal closure to the Primary Management Zone as designated in the Moose Creek Management Plan be considered. Dick Davis was concerned with allowing access to the east side of Keith Creek. We also discussed opening the closure two weeks after the young fledge as provided in the Moose Creek Management Plan for the Menagerie.

 

One result that came out of this initial meeting was that the Forest sent out a survey at Greg Orton’s request for an independent review of biologists managing rock climbing and Peregrine closures to see how these closures are being managed elsewhere in the country. Unfortunately, the survey was only sent to a limited number of biologists. These biologists all had previous knowledge from the Forest’s perspective that would bias them towards over regulating the site. Not only did this survey have a limited sampling, it was extremely biased towards treating a preconceived threat that does not exist at the Menagerie and none of the biologist in the sample had experience managing both Peregrine and rock climbing.

 

FOREST SERVICE STOPS LISTENING

On May 25, 2011 a second meeting was held between the Forest and climbers. This meeting was attended by Mitchel (Forest Supervisor), Cynthia Glick (new Sweet Home District Ranger, Tiffany Young, Joseph Doerr and Dick Davis representing Forest biologists, Dave Peterson (retired USF&W and falconer), and Tom Bauman, Chris Fralick, Tyler Adams, and Greg Orton representing climbers. Prior to this meeting the Forest had scrapped the proposal by climbers for reducing the closure to only the Primary Nest management Zone for a proposal by Tiffany which expands the closure in Keith Creek to include the Bridge, outside the nesting ledge viewshed and over ½ mile from the backside of the eyrie to the east. This proposal would also extend the closure until August 1 without provision for an early opening.

 

FOREST SUBMITS ITS PROPOSAL FOR PUBLIC COMMENT

On July 8, 2013 this proposal was issued as “Menagerie Seasonal Closure Change for Species Protection Project” for public comment (deadline August 30, 2013) https://cara.ecosystem-management.org/Public/CommentInput?Project=38620

and assessment under NEPA (http://www.fs.fed.us/nepa/fs-usda-pop.php/?project=38620

The four posts that follow are:

1) Map of Current, Proposed (Forest), Recommended (Climbers) closures at the Menagerie.

2) The Access Fund's response letter to the Forest Service.

3) Southwest Oregon Climbers response letter.

4) Greg Orton's summary of information provided by the Forest Service in response to an Access Fund Freedom of Information Act (FOIA) request concerning all records of communications concerning seasonal closure of the Menagerie.

Edited August 19, 2013 by g orton

[g orton]

CURRENT CLOSURE (black outline),

PRIMARY NEST ZONE MANAGMENT AREA (Pink area)

Estimated Viewshed from Eyrie ledge (Yellow areas)

PROPOSED CHANGE recommended by District biologist (Red outline)

ALTERNATIVE BOUNDARY recommended by Southern Oregon Climbers (Blue outline),

 

Edited August 16, 2013 by g orton

[g orton]

ACCESS FUND response:

August 15, 2013

 

Menagerie Seasonal Boundary Change for Species Protection Project

Environmental Assessment

Willamette National Forest

Sweet Home Ranger District

4431 Highway 20

Sweet Home, OR 97386

 

RE: MENAGERIE SEASONAL BOUNDARY CHANGE FOR SPECIES PROTECTION PROJECT

 

Dear Natural Resource Team:

The Access Fund appreciates this opportunity to provide input during the scoping phase of the Menagerie Seasonal Boundary Change for Species Protection Project Environmental Assessment (EA). We are working closely with local climbers, raptor experts, and the Sweet Home Ranger District to provide national climbing/raptor management expertise, local knowledge, volunteers, and educational outreach to the climbing community. The Menagerie Wilderness is a special place to our members, and this EA is a great opportunity to forge a model management plan based on the best available science and practices. These comments are intended to assist planners develop management policy that protects nesting peregrines and public access to the Menagerie Wilderness.

The Access Fund

 

The Access Fund is the national advocacy organization that keeps U.S. climbing areas open and conserves the climbing environment. We represent over 2.3 million climbers with five core programs performed on the national and local levels: climbing management policy; stewardship and conservation; local support and mobilization; land acquisition/protection; and education. The Access Fund supports managing climber access when necessary to protect sensitive natural and cultural resources, including wildlife. Indeed, we manage and publish the largest list of wildlife-related climbing closures in the country.

 

For more than twenty years, we’ve worked with federal, state, and private land managers to develop and implement climbing management plans that are currently in use across the country, and have organized and hosted several national climbing management conferences, attended by hundreds of land managers from across the country. In many cases, climbers actively assist by maintaining trails, removing trash, and participating in the locating, monitoring, and reporting on species of concern. The Access Fund currently holds memoranda of understanding concerning climbing management/resource conservation with the National Park Service, the Bureau of Land Management, and the United States Forest Service. To learn more about the Access Fund, see www.accessfund.org.

 

Comments

Climbers care deeply for the places they climb and for the opportunity climbing affords to interact with the natural world. Watching a peregrine effortlessly soaring on a thermal is typically more memorable than the climb itself. It is the wildlife and natural beauty of places like the Menagerie that draws climbers, and protecting an area’s ecology is central to conserving the climbing experience. Climbing is a low impact activity that managed properly poses no threat to cliff dwelling raptors, such as peregrines. A combination of seasonal buffers, based on credible evidence, monitoring/data collection and expert participation can protect peregrines and keep public access restrictions to a minimum. Our group has the interest, resources, and experience to assist the Willamette National Forest design and implement an effective management plan for protecting peregrines nesting in Menagerie Wilderness. We also have independent national experts willing to provide scientific evaluation of data and comments.

The Access Fund and local climbing community appreciate the Willamette National Forest’s willingness to reconsider the way in which peregrines are managed within the Menagerie Wilderness. Unfortunately, the recent history of climber and Forest relations regarding peregrine management has not always been smooth. Based on the information we received in response to our latest Freedom of Information Act (FOIA) request, we feel climbers have been unjustifiably accused of violating the closure and disturbing the nest. Greg Orton’s comments use the FOIA information to detail why we believe climbers have been wrongly implicated and this comment letter will focus on how best to move forward and how the climbing community can assist the Forest monitor and manage peregrines in the Menagerie. Protecting peregrines is important to climbers and climbers are very familiar with and routinely comply with seasonal closures to protect cliff nesting raptors across the county.

Our two main concerns regarding the proposed action for the Menagerie Seasonal Closure Boundary Change for Species Protection are: 1) There is no indication that the proposed seasonal closure period (January 15th through July 31st) will be subject to opening earlier when the nest is unoccupied, fails, or if fledging occurs early; and, 2) The overall size of the closure is unnecessary (a.k.a. buffer zone).

Seasonal Closures

Generally, seasonal closures to protect peregrines run from January, February, or March and can last until August. The size, location, and length of a closure can vary each year based on nest location and success or failure of the hatch. Yosemite National Park, Rocky Mountain National Park, and the Arapahoe National Forest (Colorado) are great examples of reasonable seasonal closures that utilize site specific considerations like view shed, monitoring, and nest location to close only certain cliffs or just specific portions of a cliff (as is the case with El Capitan in Yosemite). Further, each location uses volunteers to help monitor any active nests to determine if the closure can be lifted early. We believe that this is the best approach to balancing recreational access and raptor protection. Additionally, active monitoring provides crucial data to better understand the reasons why nests succeed or fail while minimizing access restrictions.

Local climbers in the area are willing to volunteer their time to help the Willamette National Forest effectively manage climbing and raptor protection. The Menagerie’s management strategy should follow the above examples and ongoing monitoring can provide important data that allows the closure to be re-opened or re-shaped based on the location and status of any active nest/s. If no nesting occurs or a nest fails, the area can be re-opened. Similarly, a closure can be lifted early following a successful fledge. Either way, continued monitoring minimizes access restrictions and provides valuable information regarding peregrines in the area.

 

Buffer Zone

The current closure boundary encompasses 1,310 acres to protect one active nest. The proposed closure boundary basically encompasses the same acreage. Prior to the peregrine being delisted, recommended buffer zones typically involved circular ½ or ¼ mile buffer zone around an active nest. However, many world renowned rock climbing destinations, including but not limited to Yosemite National Park, Rocky Mountain National Park, Arapahoe National Forest, and Eldorado Canyon State Park, are successfully utilizing much smaller buffer zones that are tailored to the specific topography around the nest location.

As an example, Rocky Mountain National Park manages a heavily used climbing venue known as Lumpy Ridge by closing specific named rock formations with active nests: “When closed, the closures include the named rock formations and the areas surrounding the base of the formation. This includes all climbing routes, outcroppings, cliffs, faces, ascent and descent routes and climber's access trails to the formation. Areas not listed above are presumed to be open. These closures will be lifted or extended as conditions dictate.” Closing specific climbs or sections of cliff within the immediate vicinity of an active nest protects nesting peregrines and minimizes public use restrictions. The Willamette National Forest should reconsider the size of the proposed closure and consider closing only the immediate area and rock outcrops with active nests. This technique is utilized successfully at the above mentioned locations and each of these areas receive far more climber user days than the Menagerie.

Monitoring/Data Collection and Expert Participation

Several human-caused and natural factors (totally unrelated to human activity) can lead to nest failure (such as: lead poisoning, shooting, transmission line/wind turbine collisions, parasites, poisons, egg predation, loss of a parent, etc…). Evaluating potential disturbances of peregrines from benign recreational activities, such as climbing, must occur within the larger context of demonstrable (i.e. data supported) causes of mortality and nest failure. Collecting such information and consulting an expert are critical to understanding and rule-out causes of nest failure and developing a management plan focused on conservation without unnecessarily restricting activities that pose no threat to peregrines.

Below is a letter written by Professor Clayton White, a well-known peregrine expert totally unaffiliated with the Access Fund. We asked Professor White to visit a county park in California known as Summit Rock to provide insight as to why the Park’s year round closure was unnecessary to protect the resident peregrines. Many of Professor White’s opinions are relevant to the situation at the Menagerie and we are willing to pay for an independent expert like Professor White to visit the site and provide their professional opinions. I have bolded the sections that are particularly applicable to the Menagerie:

Clayton White, PhD

Emeritus Professor of Zoology and

Emeritus Curator of Ornithology

Department of Plant and Wildlife and

Monte L. Bean Life Science Museum

Brigham Young University

Provo, Utah, 84602

Horne Address

1146 South 300 West

Orem, UT 84058

 

3 March 2012

 

BY EMAIL:

 

Robb Courtney, Director

Santa Clara County Department of Parks and Recreation

298 Garden Hill Drive

Los Gatos, CAS 95032

 

Re: The Peregrine Falcon Nesting Site at Summit Rock,

Sanborn County Park

 

Dear Mr. Courtney:

 

At the behest of Paul Minault of the Access Fund, I have put together some comments on our meeting of Monday, 13 February 2012 regarding the Summit Rock peregrine falcon nesting site in Sanborn County Park, Santa Clara County. I very much enjoyed meeting you and everyone else. I learned a great deal from all of you and broadened my perspectives by understanding your points of view. That is always a gratifying result. One of the great events for me was witnessing the appearance of the male peregrine, his typical behavior of giving a few calls, then drifting away. Such an event does not lose its thrill for me even though I have seen it countless times in diverse places over the past 50 years.

 

At the outset, I do hope that prior to making any official policy you should contact a few other peregrine falcon workers in order to glean their views on the issue. Please do not just take my statements as the only view. There are at least two people in California I might suggest, both of whom Don Rocha knows; Joel "Jeep" Pagel and Glenn Stewart, the latter of the Santa Cruz Predatory Bird Research Group, who I understand has already written you a letter about this issue. Additionally, should it be worth your time, I recommend Rene-Jean Monneret. He is a well recognized peregrine worker in France, has written widely, including at least two on books on peregrines, and spends a great deal of time in the Jura Mountains. There the limestone cliffs host both peregrines and climbers. His email is:rjmonneret@wanadoo.fr. I do hope that any decision made will weight heavily on the biology of peregrines, since that is the issue, and not on something administratively easy or political desires since they are not the issue.

 

For starters, there was a suggestion from Bruce Morris at the February meeting, based on his having traversed the mountain range within Santa Clara County, that there are other cliffs along the range, some larger than Summit Rock, that might have nesting peregrine falcons. It seems worthwhile to learn from Bruce where those cliffs are and check them during the peregrine breeding season. If there are other peregrines using such cliffs, then the concern that Summit Rock is the "only" natural site within the county becomes of lesser concern. I gather that county boundary lines, expressed several times, are being made critical to the issue.

 

I would also like to say that, as a field biologist, I believe that people and animals, including peregrine falcons, need to learn to live with each other. In the case of peregrine falcons, I have the greatest respect for those agencies that have identified their critical needs and provided for them, and at the same time have enlisted the aid and support of recreational, environmental and educational groups to take an active and participatory role in managing them and caring for their needs. Management models developed along these lines are helping with the management of wildlife of all types all over the world, and we need more of them.

 

Based on my previous experiences over many years and in many places, the Summit Rock eyrie is a marginal peregrine nesting site easily accessed by predators. Marginal nesting sites frequently have a high tum over rate of breeding adults and frequently attract first time breeders. There is good access to the Summit site by humans during the nesting season and to the actual nesting ledge by predators. The cliff s small size with a vegetative screen over the lower portion makes it more difficult to defend adding to the concept of it being marginal. Peregrines prefer to have big open spaces around and in front of the nest site providing more defensible space and room for them to make defensive dives called stoops. Don pointed out the one large pothole near the ground used for nesting one year. Such sites are frequently used elsewhere but with little reproductive success.

 

Don also mentioned that the falcons have fledged young as late as September. This suggests that they are having second and or perhaps even a third clutches, which is also an indicator that they are losing eggs or nestlings. One could speculate that a pair selecting such a site are perhaps first time breeders with little experience. Over time this site is not likely to produce many offspring. While the value of this site might be enhanced by the closure of the entire area to human access during the breeding season, such a closure would not reduce or eliminate predation from natural predators such as ravens, eagles, raccoons, rats and so forth, who have access to the upper nest site via cracks that run from the bottom to the top of the rock. From the brief visit it seems that scavenger, and perhaps predator, access is indeed easy, since there were not the numerous feathers, carcasses and so forth that are usually found at "good" nesting cliffs. Such items seem to have been cleaned up.

 

From an esoteric or simply scientific viewpoint, it would be of interest to determine if the orangish coloration on the lower cliff face is a result of the lichens that grow, enhanced by nitrogen, where falcons continuously deposit feces. Such a condition, however, may simply result from that cliff knob being used as a bird perch and not from actual long term nesting use by falcons.

 

Concerns expressed at the meeting were several but could be, from my view, simplified to the following items. My response to each is based on experience, and the biology of peregrines is then given. I am not a stakeholder. The response is based on normal, "reasonable" recreational use of the cliff, including rock climbing, outside the breeding season, since closure during the breeding season is not at issue. If someone or something were to use the cliff throughout the day and throughout the year my response and perspective would be different. Any event might occur, of course, and I am not willing to speculate about extraordinary circumstances. I have not attempted to address those here.

 

1. The rarity, sensitivity, and vulnerability of the peregrine falcon warrant a "zero-risk" management strategy for the falcons at Summit Rock that includes year-round closure of the cliff.

 

Response. The peregrine falcon is not "rare" in a biological sense. Healthy populations are found in every continent except Antarctica. As a predator, it is of course much less common than many other species. Glenn Stewart has identified 33 nesting sites in the Bay Area and there are estimates that there is one unattached adult "floater" in the population for every pair. These floaters are ready to replace any individuals who do not survive to the next breeding season. And as a matter of fact there are replacements, sometimes two or three, at a given nesting site even during the breeding season. This is roughly 99 individual falcons in the greater Bay region. While this may not seem like a lot of falcons, the peregrine has reached the population levels for official recovery under the Endangered Species Act, and the regional population is still growing, perhaps at about 5% a year, which is a very healthy rate.

 

Nor is the peregrine falcon particularly sensitive to disturbance during the non-nesting season. The birds' response to disturbance is typically what we experienced during our meeting at the site--a series of brief "kek-kek-kek" alarm calls, after which the bird flies off to a safe distance and either ignores the site or watches the intrusion with little concern. Birds may remain around the eyrie during the non-nesting season because they are habituated to it, or they may move around their hunting territory using perches of convenience. They have little or no need for, attachment to or investment in the nest site during the non-nesting period, and they aren't greatly upset by recreational activity. During the nesting season, by contrast, the falcons will vigorously defend eggs or hatchlings, their investment, with continuous and unremitting alarm calls and diving attacks.

 

As a general matter, the peregrine falcon is not a particularly vulnerable species. It has two primary avian predators, great homed owls, which hunt by night, and golden eagles, which hunt by day. Small mammals such as raccoons and rats, and some birds, particularly ravens, may take eggs or nestlings from the eyrie. Predation by owls is not an issue here, since legitimate recreation does not take place at night. It is possible that recreation would cause the peregrines at Summit to perch in locations where they are more susceptible to predation by golden eagles, but without a banding and monitoring program to identify the birds, this cannot be determined. Given the healthy growth rate of the regional population, there appears to be no reason to believe that peregrines are unduly subject to predation by golden eagles.

 

The peregrine falcon is not "precious" or fragile in any sense, and they were not thought to be until they were listed as an endangered species. It should be remembered that they were listed because of their susceptibility to pesticides, not because of their sensitivity to hunting, predation, human disturbance, habitat loss, disease, or any of the usual reasons for species to be listed. And despite the fact that the peregrine is fully recovered, many people continue to think of it as endangered. As a scientist, I'm least concerned with individuals; I'm concerned with species. The value of the individual is the emotional value to humans, which is a very different matter. Without a banding and monitoring program, it is not known if the falcons at this cliff, regarded as the same year to year individuals, truly are, or if what you're seeing is just a succession of members of the species. Some researchers have been able to identify individual falcons year to year based on peculiar marking or distinctive behavior, but this was not mentioned in regard to the falcons at Summit Rock.

 

At a site like Summit Rock where abundant trees provide locations for perching during the day, the birds have no use for the nesting site per se during the non-breeding season. At night, because the nesting site is in a recess in the rock, it may provide better protection from predation by great horned owls than perching in a tree. But this would not affect daytime recreational access.

 

2. Since the falcons reside at the cliff year-round, closure during the breeding season only will not reduce disturbance. A year-round closure is required.

 

Response. There are no data to support the concern that normal recreational disturbance during the non-breeding season will cause resident peregrines to experience disturbance of a significantly different type or of greater severity than that experienced by many other species exposed to recreational activities like hiking and rock climbing. The year-round closure has no biological foundation.

 

3. Calls given by falcons when they see something at the nesting cliff, even in the nonbreeding

season, are cause enough to close the site to human use.

 

Response. Calls may be given even as someone or something is within some 100 yards or so of the cliff and the call might have several meanings, such as, to alert a mate, to indicate that the territory is taken, defense against the intruder, etc. One must be careful in putting meaning to the call. Typically, during the non-breeding season, peregrines will make a call or series of calls for a short period and then fly to a nearby location and observe the activity without exhibiting any further signs of distress. It is rare for the calls to least more than a few seconds. Calls of this brief duration are routine and should not serve as the basis for management actions.

 

4. Disturbance causes significant psychological and metabolic stress.

 

Response. This is pure supposition, and I am not aware of any data to support it. How does one measure stress, which surely does occur, and more importantly how does one determine if it is significant? I do not see how anyone can determine this without laboratory experimentation, and by the time the experimental animal is in the laboratory, it has experienced sufficient stress so that it is impossible to get a true baseline level against which to measure the stress of the disturbance. Stress certainly does occur but its significance is elusive. There is just no way to measure stress or the impact of disturbance on peregrines or know whether it might be significant in their lives. The only certain response for purposes of managing human disturbance is the behavior of the birds, as discussed above.

 

5. Disturbance could cause the falcons to abandon the site or alternatively could harm the falcon.

 

Response. I can think of no literature documenting resident pairs abandoning nesting territories during the post-breeding season, say about a month after the young have fledged, on account of recreational disturbance. Nor have I ever seen anything like this. In fact, it is common for resident breeding pairs to defend nest sites from the large number of migrant falcons which appear in winter. It is also not unusual for even good nesting sites to experience some turnover of breeders occupying the eyrie. Often, females will move between eyries every few years, and while males tend to be more loyal to a particular site, they may also move. There is a rather large body of literature on the movement of falcons from one nesting site to another.

 

Some falcons may move on an annual basis while others may remain for their life spans. By contrast, it is clear from other studies that falcons are particularly sensitive to disturbance (human) and nest site abandonment at the time they are courting and selecting a nesting ledge, slightly less so during the egg laying period, less so during incubation, and I cannot think of any legitimate record of falcons abandoning young during brood raising for anything other than natural cases (eg. loss of food resources that may happen to falcons feeding on sea birds). There are no records, so far as I know, of pairs abandoning young because of human disturbance. There is a small chance that eggs may be abandoned during incubation, more so during early incubation, but a high probably that pairs may abandon a nesting ledge if disturbed during ledge or nesting "scrape" selection and late courtship.

 

"Harm" is a defined term contained in the definition of "take" under the federal Endangered Species Act, and I do not believe it makes any sense to introduce it into this discussion, since the sort of disturbance we are talking about does not rise to this level of significance or concern.

 

6. Exposure to predation at this site is increased because of human disturbance.

 

Response. This is difficult to put a cause and effect relationship to, and there are too many nuances that must be considered on a case by case basis. Night roosting in dense forests could result in depredation by great-homed owls, but that would not be a normal consequence of daytime recreation. Golden eagles are a prime daytime avian predator but then the circumstances of where the falcon is, what it is doing and other things govern the probability of exposure to predation by eagles. As explained above, without data from a banding and monitoring program, one cannot know if there is any predation, let alone whether it is significant.

 

7. Peregrines have limited ability to adapt to disturbances.

 

Response. To the contrary, peregrines have a great ability to adapt. This is determined, in part, by what is called the imprinting process during some stage in the breeding cycle (see # 5 above). Post-breeding peregrines can be very adaptable to disturbance. This adaptability is witnessed by the great array of nesting situations they occupy presently, including nest sites on building window sills, where the birds are within a few feet of people. There are probably over 100 major cities in the U.S. and Canada that have breeding populations. Los Angeles has about 6-7 pairs at my last understanding. This adaptability may be in part a function of the release of peregrines during the reintroduction process, during which whole populations became accustomed to human intrusion and disturbance. The result is a vast and growing population that exists today, in which each generation of young learns (through imprinting) to tolerate successively higher levels of disturbance from its parents. A good deal of variability and adaptability has been introduced simply as a function of this process.

 

I could recount scores of anecdotes about the birds' adaptability to disturbance. As I mentioned in our meeting, I have ridden in helicopters hundreds of times to within 50 feet of peregrine nests, even while females were incubating, with the falcons showing no signs of disturbance. I have also seen injured adult falcons brought in from the wild that were kept in a cage and would allow people to approach within 10 feet of them, as long as the people were outside the cage which measured some 10 feet by 20 feet, while exhibiting no signs of alarm or distress. This observation is published. I have seen peregrines hunting bats during crepuscular periods over the bustling streets of Porto Alegre, Brazil (a city of several million people), only 30-40 feet above the sweeping sidewalks lined with people. These are wintering falcons from the unspoiled, unpeopled, wilderness of Arctic North America. I have heard of peregrines in Australia eagerly greeting the arrival of climbers who periodically brought them pigeons for food. And I have seen peregrines follow a car down a dirt road to catch birds flushed by the car.

 

In the Aleutian Islands I have witnessed a peregrine learn to use our helicopter as cover, as we slowly precede across a lake while surveying ducks, and awaiting the ducks on the lake to reach the lake shore and be flushed. At that time the falcon turned on the speed, left the cover of the helicopter, and pursed the ducks. Professor Tom Cade has seen peregrines nesting in the face of a quarry in Britain that was being used as a landfill. Throughout the day, trucks backed up to the edge of the quarry and dumped trash over the side, right past the entrance to the nest site. The falcons were so accustomed to it they took no notice. Apparently when adults tolerate disturbances, their young "learn" from them that the presence of the disturbance is not threatening.

 

In Arctic Alaska, on the Colville River, I have witnessed pairs of nesting falcons become adapted to paleontologists that came daily to the cliffs to pound on rocks, even to working within 100 feet of the eyries. However, when we stopped our boat at the edge of the river over 400 feet from the falcons they took to the air and began to scream at us. We were "newcomers" and not a part of their environment. This adjustment apparently happens at urban nest sites, where falcons become accustomed to humans. This is true of most animals. In the Galapagos, for instance, most animals don't have a threat response to humans (there are no peregrines there). Another example: in the 1920's and 30's, the Fish and Wildlife Service introduced the arctic fox on the Aleutian Islands for the Aleuts to hunt for the fur trade. Not surprisingly, the foxes developed a fear of hunters. On Agattu, one of the islands, foxes were hunted during the 1970s in an attempt to restore the habitat to original conditions and restore nesting seabirds that were eliminated by foxes. Foxes would yelp and run when they saw a person half a mile away. But on the Island of Kiska, where there were no people after the Japanese left during World War II and there was no hunting, the foxes would come right up to a person. I could go on ...

 

Now let me address a number of concerns about the site that have been raised by agency staff or other stakeholders.

 

8. The small size of the site makes disturbance more threatening to the falcons.

 

Response. It might make disturbance more frequent, due to easier access, but it would not be more threatening. Falcons would be disturbed more easily if one were closer to the nesting site, which would be the case at a small site, but it cannot be demonstrated that the disturbance is more significant or more threatening. Threatening is a word that has human connotations and would be very difficult to measure and demonstrate.

 

It's important to understand that birds don't defend a nesting site; they defend the contents--the eggs or young, and/or incubating female. During breeding season one should expect falcons to spend more time attacking a person, and the intensity would be greater at a small site where a person first appeared closer to them than you would at a large site. As one gets closer to the nest, the falcons gets bolder in its attacks, so the initial response at a small site would already be more intense than at a big site.

 

9. The small size of the site requires a more protective management strategy during the non-nesting period than large sites in national parks.

 

Response. Not true. During the non-nesting season, the size of the nesting site is irrelevant. Birds may still call because they have become accustomed to defending their nest site, but it's simply an innate response, and the disturbance doesn't have any biological significance.

 

10. Because of the small size of the site, the entire rock must be closed; lateral or vertical partial closures would not be sufficiently protective.

 

Response. I don't subscribe to this for the reasons stated above.

 

11. The natural character of the site enhances the biology of the birds.

 

Response. I understand that people like to see falcons at natural sites, but the question is whether one wants peregrines in the environment or wants them at particular locations? If one wants peregrines, it's irrelevant where they nest. In Utah, people want to cut down the artificial nesting towers where peregrines have nested since the reintroduction period to force them to nest on cliffs. There is absolutely no data to support the proposition that cliff nesting sites are better for falcons. In fact, in the upper Midwest, falcons had better reproduction at man-made sites than at natural sites.

 

Summary and Conclusion:

 

I understand that people have emotional responses to animals and attach human values to them that have no bases in biology. That's what makes us human. The listing of the peregrine falcon caused many people to attribute sensitivities to the bird that it doesn't possess, and to develop an over-protective response to the falcon. Some people are astonished and feel betrayed when the peregrine turns into a pest. Pigeon fanciers in the greater Los Angeles area know more about where falcons nest than many researchers do, because the pigeon raisers kill nestling falcons. In Washington State, peregrines routinely harass and hunt snowy plovers, an endangered shore bird. It is said that peregrines are currently so numerous that foraging shorebirds are not able to accumulate the fat reserves needed to continue migration. The fact seems to be that people have just happened to see falcons flush resting shorebirds and then many unwarranted conclusions are drawn. In marshes of New Jersey where peregrines were introduced during the 1970s reintroduction period, bird watchers thought it was wonderful to see them. Now, there is a move to cut down the nesting towers because it is said that the presence of the falcons threatens other bird life. The very human need to be protective of other animals, particularly those with "charismatic" attributes like the peregrine, one of the world's fastest birds, is the only reason I can see for the year-round closure at Summit Rock. From a biological standpoint, there is no support for protecting the site from human disturbance after the young have fledged and a sufficient period of time has passed to ensure that the adults have not entered another breeding cycle.

 

Sincerely yours,

Clayton White, PhD

 

* * *

Rock climbers have a long history of contributing their expertise to the research, conservation and management of many species, including the peregrine falcon, golden eagle, birds and mammals living in the rainforest canopy, bighorn sheep, and highly endangered California condor and recently rediscovered Lord Howe Island stick insect. In each of these cases, climbers provided critical skills, including scientific expertise, that have made important contributions to conservation. It is our hope that the Willamette National Forest will continue this traditional in the spirit of cooperative conservation efforts.

 

The Access Fund and local climbing community care for the wildlife that share the climbing environment. Protecting nesting raptors is extremely important and climbers regularly volunteer their time to help properly manage cliff nesting raptors. At the Menagerie, the proposed seasonal closure period (January 15th through July 31st) is reasonable, but should be subject to opening earlier depending the success or failure of the nest. Further, the size of the buffer zone can be reduced to the rock formations with an active nest and the areas surrounding the base of the formation (including all climbing routes, outcroppings, cliffs, faces, ascent and descent routes and climber's access trails to the formation). Such closures our used effectively across the country, they are proven to protect nesting peregrines, allow for better monitoring, and minimizes access restrictions.

 

Thank you for considering our comments. Our group has the experience, local contacts, and resources to assist planners craft alternatives that protect peregrines and limit access restrictions. We look forward to participating throughout the entire planning process. Please keep us informed as the planning process proceeds. Feel free to contact me via telephone (303-545-6772 x105) or email (ty@accessfund.org) to discuss this matter further.

 

Best Regards,

 

 

 

 

 

Ty Tyler

Stewardship Manger

Access Fund

 

 

 

 

cc: Brady Robinson, Executive Director, Access Fund

Adam Baylor, Mazamas and Access Fund

Eddie Espinosa, American Alpine Club

Greg Orton, Regional Coordinator, Access Fund

 

Edited August 16, 2013 by g orton

[g orton]

Comment to: Menagerie Seasonal Closure Boundary Change for Special Protection Project.

 

From: Greg Orton

Roseburg, Oregon 97471

 

Date: August 15, 2012

To: Amanda Colton, Natural Resources Team Leader, and

Cynthia Glick, Sweet Home District Ranger

Sweet Home Ranger District

4431 Highway 20

Sweet Home, OR 97386

 

The Southern Oregon Climbers are in support of adjusting the Menagerie’s seasonal closure boundary for Peregrine falcon rearing on the North Ear of Rabbit Ears. We feel strongly that Peregrine are an essential element to our climbing environment that we would like to see more reasonably managed under the Migratory Bird Treaty Act. We expect Peregrine to be removed from the Forest Service’s Sensitive listing once results are out from USF&W Service monitoring in two years. However, we would hope a reasonable management plan would be one that makes sense and is supported by all future users groups regardless of the Peregrine’s political status.

To this end, we would like to identify 6 key issues with both the current management plan and with your proposed action.

 

1) FAILURE TO MEET THE INTENT OF THE INFORMATION QUALITY ACT

the following guidelines have not been been met:

For quantitative risk assessments in support of the dissemination of influential information, the agency will use:

• the best available science and supporting studies conducted in accordance with sound and objective scientific practices, including peer reviewed science and supporting studies when available. We feel strongly your “Independent Peer Review” does not meet these needs because:

a) it was limited to the handful of biologists currently on your mailing list and views of Peregrine climber issues at the Menagerie ; and

b) your review failed to include biologists either within or outside your agency with first hand knowledge of managing both climbing issues and Peregrine habitat.

• data collected by accepted methods (if reliability of the method and the nature of the decision justifies use of the data). By proposing to maintain a closure through July 31 the team has failed to consider the District’s own monitoring data for Moose Site OE-21 which support a more reasonable closure lifting between July 6 and July 15.

In a risk assessment document made available to the public, the agency shall specify, to the extent practical;

• Describe applicable effects on “Take” to occur at the eyrie;

• The expected or central estimate of risk for the specific populations affected;

• Each appropriate upper-bound and/or lower-bound risk estimate and the methodology used to reconcile the inconsistencies in the scientific data and best available science when considering areas that are already managing Peregrine and climbers;

• Data gaps and other significant uncertainties identified in the process of the risk assessment and future monitoring and studies that would assist in characterizing the uncertainties; and

• Additional studies not used to produce the risk estimate that support or fail to support the findings of the assessment, and the rationale of why they were not used.

 

2) TIMING and DURATION OF CLOSURE

The current 1997 management plan for Moose Site OE-21 as prepared by by Alice Smith and Joel Pagel directs:

“The following guidelines are applicable to all zones. 1) Restriction periods will be adhered to until any young have fledged, and will include the period when young are still within the nest area and dependent upon prey delivered by the adults.This normally is about two weeks after the eyases first flight.” (Pg. 12)

Appendix II: Implementation Schedule. “Two weeks after young fledge cease area closure and seasonal restriction, notify climbers and remove signs.” (pg 20)

 

This direction was provided to the Forest during a time when Peregrine were in a Threatened and Endangered status. In addition, following 21 years of observations at this site, July 13 has been the latest recorded fledging date . We would like the Forest to follow its own direction provided under the 1997 Management Plan lifting the closure two weeks after the young have fledged. A statistical assessment of the fledging records for Moose Nest Site OE-21 found and average fledging date of June 26 with fledging typically (90% confidence) occurring between June 22 and June 31. Therefore, lifting the closure two weeks after fledging would typically allow public access between July 6 and July 15 (t=0.1).

 

3) NEED TO MINIMIZE EVIDENCE OF HUMAN USE

Rock climbers have a long history at the Menagerie beginning in 1949, with the first ascent of the Rooster Tail by Bill Sloan and Bryon Taylor. User trails between rocks were established prior to the Menagerie’s Wilderness designation in 1984. These trails were identified in the Menagerie Wilderness Management Plan (FEIS pg. A-15). Climbing activity at the Menagerie is down significantly from its peak use in the 1980s. As a result these trails are difficult and in many cases impossible to follow. The three criteria for monitoring impacts under the Forest Plan (FEIS pg. A-14) increased resource damage, declining opportunities for solitude, and use that exceeds carrying capacity and causes impacts are all in a better condition than when the Forest Plan was signed. The inherent nature of climbing at the Menagerie, run-out leads, difficult approaches, variable rock quality, and local climbing ethics detours all but the most skilled climbers. We feel the need to minimize evidence of human use would be more approporiately addressed through education and colaboration with your user groups (FEIS pg. A-14) rather than establishing access retrictions. Therefore, we would like to see an Alternative which addresses minimum use as a human quality rather than a Draconean objective.

 

4) EXTENT OF CLOSURE

The current closure was based on the 1995 CFR appears predicisional to development of the 1997 Management Plan for the Moose Peregrine Nest Site (OE-21). Both the current and proposed extent of the closure does not reflect the “Best Available Science” for managing rock climbing and Peregrine.

We would consider a reasonable closure to be one that :

• considers physical features such as a ridge or cliff face with different aspect that serve as effective barriers in reducing visual and audible disturbances.

• considers the vertical height of the nest ledge. Depending on the height of the nest ledge on the cliff, Peregrine typically appear less tolerant of disturbance at or above nest level.

• considers the patterns of climbing. Which routes are consistently outside the view shed of the nest ledge?

Based on these criteria we feel it would be reasonable to reduce the seasonal restriction of public access to the Primary Management Zone with the following considerations: a) consider moving the east edge of the Primary Management Zone from Keith Creek west to the west side of Arch Rock; b) expand the southwest portion of the Primary Management Zone to include most if not all of the view shed from the eyrie ledge located approximately 75 feet up the Southwest face of the North Rabbit Ear; c) move the north edge of the Primary Management Zone to the south side of the 850 road.

 

5. APPROPRIATE AND REASONABLE PROTECTIONS

The current closure and No Action Alternative was established January of 1995 through special order 169 and predates the 1997 Management Plan for the Moose Peregrine Nest Site (OE-21). Under the 1997 Management Plan ‘Primary’, ‘Secondary’, and ‘Tirtuaty’ Nest Protection Zones were identified under the recognized Best Management Practices of that period to meet the intent of Peregrine protection under the Endangered Species Act. In that plan the stated purpose of the Primary Nest Protection Zone (pg. 8) was to: “1) protect the integrety of the nest site, 2) maintain or enhance the surounding vegetation, 3) minimize human disturbance.” The purpose of the Secondary Zone (pg 10) was to, “maintain and enhance prey habitat and minimize noise generating activities and/or equipment use during the nesting season.” Implementing public access restrictions beyond the Primary Management Zone is inconsitent with other seasonal closures the Forest Service managed for Peregrine during that time. Instead, the area of closure defaulted to the more restrictive 1995 prescription which was predecisional to a management plan.

In proposing to carry a seasonal closure beyond the designated ‘Primary Nest Protection Zone’ the District is being inconsistent with current Best Management Practices and fails to distinguish between reasonable protections under the Migratory Bird Treaty Act (MBTA) versus under the Endangered Species Act (ESA). Federal Court decisions provide a clear distinction between management of Peregrine eyries under the Migratory Bird Treaty Act which Congress clearly wrote to be less restrictive by addressed preventing "Take" and not "Harassment" opposed to the higher measure of protection under the Endangered Species Act in which Congress clearly address protection against both "Take" and "Harassment".

 

Reading together FMC Corp., Corbin Farm Service, and the Forest Service's briefs in Mahler v. US Forest Service, 927 F. Supp. 1559 - Dist. Court, SD Indiana 1996, one would conclude that Congress has written a very broad statute — one that imposes strict criminal liability for even the unintentional death of any single bird from a vast number of species, so long as that death results from human action. Although the courts in those cases expressed some misgivings about giving the statute such a broad reading (the FMC Corp. court said, for example, that that result "would offend reason and common sense"), those courts left any meaningful limitations on the scope of the statute to "the sound discretion of prosecutors and the courts." See FMC Corp., 572 F.2d at 905. However, in Mahler v. US Forest Service the Court stated, “Properly interpreted, the MBTA applies to activities that are intended to harm birds or to exploit harm to birds, such as hunting and trapping, and trafficking in birds and bird parts. The MBTA does not apply to other activities that result in unintended deaths of migratory birds.” The ESA was enacted in 1973. Congress amended the Migratory Bird Treaty Act the following year, but did not modify its prohibitions to include "harm." See Pub.L. 93-300 § 1, 88 Stat. 190 (1974). Courts have held that the Migratory Bird Treaty Act reaches as far as direct, though unintended, bird poisoning from toxic substances. The statute prohibits "killing" migratory birds in a phrase that makes it unlawful to "to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, ... any migratory bird, any part, nest, or egg of any such bird...." 16 U.S.C. § 703. Courts may not disregard the context in which even apparently broad statutory terms are used. The words "take" and "kill" were used in a context that clearly focused on hunting, trapping, and poaching. This context is confirmed by the regulations under the MBTA, which define "to take" in the MBTA as "to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect." 50 C.F.R. § 10.12. The connection between these words and hunting, trapping, poaching, and trade in birds and their parts is apparent. There simply is no signal in any of these statutory terms that Congress intended the MBTA to be applied to any and all human activity that may result in unintended and accidental deaths of migratory birds (including logging operations).

 

Accordingly, in Mahler v. US Forest Service the Court stated, ‘the phrase "by any means or in any manner" in the MBTA can easily be understood as intended to reach the full range of means for hunting or capturing birds, so that creative hunters and poachers could not avoid the statute by devising 1580*1580 new techniques to accomplish their ends. The phrase, while broad, need not be read as extending the statute to activities that cause unintended deaths of birds — the result that the Second Circuit said in FMC Corp. would "offend reason and common sense." 572 F.2d at 905.’

While we support the need for reasonable season restrictions, the statute also does not show any concern for migratory bird deaths that result incidentally from human activity that is not intended to kill or capture birds (Mahler v. US Forest Service). The focus of the MBTA has always been the hunting and trapping of birds, and commercial trafficking in birds and bird parts. Congress enacted the MBTA in 1918 to implement a treaty between the United States and Great Britain (on behalf of Canada) "for the protection of the many species of birds [which] in their annual migration traverse certain parts of the United States and ... Canada." United States v. State of North Dakota, 650 F.2d 911, 913 (8th Cir. 1981) (quoting Migratory Bird Treaty Act, 39 Stat. 1702). The MBTA applies to hunting, capture, possession, and sale of migratory birds and their parts. North Dakota, 650 F.2d at 913. Obviously, the Forest Service must comply with a myriad of statutory and regulatory requirements to authorize even the very modest activity as wilderness access. Those laws require the Forest Service to manage national forests so as to balance many competing goals, including timber production, biodiversity, and protection of endangered and threatened species, human recreation, aesthetic concerns, and many others. See, e.g., 16 U.S.C. § 1600 et seq. (NFMA); 42 U.S.C. § 4321 et seq. (NEPA); 16 U.S.C. § 528 et seq. (Multiple-Use Sustained-Yield Act of 1960); 16 U.S.C. § 1531 et seq. (Endangered Species Act).

 

Included in this issue is the potential removal of Peregrine from the Forest Service's list of Sensitive following completion of USF&W service's monitoring as a reasonably foreseeable future action to be considered under NEPA.

 

6. PUBLIC TRUST

Climbing history at the Menagerie began in 1949, with the first ascent of the Rooster Tail by Bill Sloan and Bryon Taylor. The Menagerie probably saw its highest level of activity during the 1980s when ethics for establishing new routes on lead were established. These ethics for the Menagerie have been maintained through local mentoring and carried to each successive generation. The 1980s were also the high point in climber-Forest relations. However, we are concerned with the current relations between climbers at the Menagerie and the Forest.

 

We feel the Forest’s response to Kent Benesch in 2006 was harmful and a breach in public trust. The Sweet Home District has a long history of open and collaborative management between climbers and the Forest’s recreation staff at the Menagerie both before and following the Wilderness Act of 1984. We feel that these ethics provide a strong model for climbing in other Wilderness areas nation-wide. However, our fear is that actions taken by the District between 2005 and 2010 leave doubt as to your sincerity towards finding the best solution.

 

Our position is that fostering the few climbers who take active interest in monitoring and maintaining a local resource will have a profound effect on how climbers as a whole respect that resource. We are concerned that monitoring results between the periods in question (2006-2009) do not support the allegations of abuse leveled at climbers by your Forest and District biologists. From the Forest Service’s perspective during this period it would be difficult not to draw the conclusion that climbers are out of control and unmanageable in the Menagerie. Emails between biologists during this period show that they have become convinced climbers are actively violating seasonal closures and therefore the Peregrine are “extremely agitated”. It is concerning that the myth climbers are actively violating closures and leading to reduced site productivity continues when the Forest’s own monitoring results fail to support this conclusion (refer to table 1). During the period between 2006 and 2009 the eyrie average success rate was 1.5 fledged young per year. This is higher than the 21-year site average of 1.14 fledge young per year and we feel helps to support our assertion that fostering climber involvement in managing a resource can be a win-win.

 

To that end we would like see the District’s recreation staff take a more active role in continuing to work closely with climbers to manage climbing as a recreation opportunity at the Menagerie. We would like to see the district take a more conciliatory and active role in working with those climbers and other members of your public who show an interest in helping to monitor and maintain resources at the Menagerie. We understand the difficulties involved in restoring the public’s trust once violated. We have confidence in Meg Mitchel and Cynthia Glick capabilities and remain hopeful.

Respectfully,

 

Greg Orton

Southern Oregon Climbers

 

Edited August 16, 2013 by g orton

[g orton]

MENAGERIE WILDERNESS PEREGRINE MANAGEMENT AREA CLOSURE

FOIA TIMELINE BRIEF, 1995 through 2011

 

Last year, 2012, the Access Fund received information from the Willamette National Forest in response to a Fredom of Information Act (FOIA) request pertaining to all available information conserning the Forest’s managing of the seasonal Peregrine closure of the Menagerie Wilderness. I have been asked to review and present this information. Most of the information provided is in the form of emails which are often incomplete and disconnected. The challenge in presenting this information has been to do so in a manor that allows the reader to track key issues as they occurred. To do this I was constantly tasked with choosing sentances and statements from written conversation, I felt were relavent to the key issues, and help the reader understand events as they occurred. I also provide narative I hope will help the reader muddle through some of the mindsets and personal biases presented in these documents. In doing so, I have run the risk of presenting my own personal bias to the telling. The entire FOIA documentation is available upon request. – Greg Orton, August 3, 2013

 

DIRECTION

Special Order 169 January 17, 1995

This closure is implemented two years before the management plan was developed. The 1997 Management Plan identified a primary Management Zone but maintained this orginal 1995 closure which is more restrictive.

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Peregrine falcon Habitat Management Plan, Moose Nest Site OE-21 November, 1997

Prepared by Alice Smith and Joel Pagel.

“The following guidelines are applicable to all zones. 1) Restriction periods will be adhered to until any young have fledged, and will include the period when young are still within the nest area and dependent upon prey delivered by the adults.This normally is about two weeks after the eyases first flight.” (Pg. 12)

Appendix II: Implementation Schedule. “Two weeks after young fledge cease area closure and seasonal restriction, notify climbers and remove signs.” (pg 20)

REGION 6 Peregrine Falcon Policy Following De-Listing and During the Five-Year Monitoring Period.

“If a propsed project may potentially impact the species or its habitat, surveys using the Regional protocal should be conducted.” (Pegal, Joel E. 1992. Protocol for observing known and potential peregrine falcon eyries in the Pacific Northwest)

“Spatial boundaries for these [management] zones around nest sites should be detailed on a site-specific basis in the individual [management] plan, and will vary according to observed use of the site by the birds (for example, for perches and foraging) and topgraphic conditions. General distances that guide identification of these zones are:

Primary: an average of 0.5 miles around an active nest cliff (0.25 – 0.75 mile)”

“Projects within Secondary and Tertiary Zones should be carefully screened for potential disturbance effects during the nesting season from sources such as aircraft or explosives, or activities that are located within line-of-sight of the eyrie.”

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NEST SITE OE-21 OCCUPANCY/PRODUCTIVITY HISTORY

Based on the 13 observations successful fledging would most likely occur between June 22 and June 31 (t=0.1, refer Table 2). From 21 observations of fledging success or failures this site has experienced a productivity of 0.8 to 1.5 young year-1 (t=0.1). The average productivity for this site is 1.14 young year-1 (Stdev = 0.910). During the three year period that the Forest is accussing climbers of creating adverse disturbance to the poductivity of Site OE-21 (2006 through 2008), the average site productivity for that period was 1.67 young year-1. Therefore the three year average productivity during this period was higher than the site’s 21 year average and more productive than would be expected 90% of the time for this site. - greg

 

HISTORY OF THE CURRENT CONFLICT

June, 2005 ATTEMPT TO CONTACT FOREST BIOLOGIST AND MONITORING WITH KENT BENESCH.

Background: Around March or May, 2005 I was contacted by Kent Benesch who had heard of the monitoring I had been doing in Douglas County. Kent was interested in getting involved with assisting with monitoring at the Menagerie. In response I attempted to contact the District biologist on the Sweet Home Ranger District to see if I could coordinate Kent going out with them when they monitored at the Menagerie. The District may not have had a biologist at the time because I was given a number to call and redirected to the Forest biologist in Eugene. After making and leaving three unanswered calls to the Forest biologist’s voice message (I later learned that he had retired and no one was monitoring his messages) I offered to take Kent out for a day. We made our approach from the Rooster Rock Trail south of the closure. We located a small opening located off a slight ridge just south and outside the designated closure where we had a view of the eyrie. We were in this location for approximately two hours until an adult flew in and we heard one young respond. Unable to make a visual we left. – GREG ORTON

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May 18, 2006 FOIA Request by Greg Orton.

Request:

1. A copy of the most current Peregrine falcon management plan for the Menagerie Wilderness.

2. Addendums

3. We ask that you exclude information to actual eyrie location that the Forest may feel to be sensitive information.

This request was filled. The request was also sent on to Joel Pagel in June of 2006.

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May 18, 2006 Peregrine Monitoring Email, Canyon Eyrie

Brian McGinley response to message sent by: Dick Davis, Monitoring Wildlife biologist

cc: Donna Short, Fred Wahl

This email track was sent to us incomplete, we do not have the original message which discusses the status of the Menagerie (Moose Creek) eyrie in May.

Menagerie eyrie: “good news for the falcon”

(not sure what this refers to). It appears that the district had failed to get the gate closed and the biologist finally got it closed in May.

Dick Davis responds to question of a rock up Canyon Creek, “Despite annual occupancy and nesting activity, there has been virtually no reproductive success at this site. Could be climbing activity has had a large undetected negative impact in this regard.”

When interviewing local climbers on what climbing activities had occurred at this site it was found that it was short and exploratory. The rock was never actually climbed. On top of that, Forest Service policy at the time was not to release information on Peregrine activity or closures to the public (other than the Menagerie closure), so there was no way for the climbers who visited the Canyon Creek site to know there was a peregrine until they saw or heard it.

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June 15, 2006 “SMOKING GUN” Kent Benesch’s Peregrine Monitoring Email

Kent Benesch email sent to Greg Orton and made the following rounds: Dave Peterson (USF&W Service), Frank Isaacs (OSU Cooperative F&W Research), Dick Davis (Biologist Willamette NF).

For complete copy of this email refer to APPENIX, FOREST SERVICE’S “SMOKING GUN” at the end of this document.

June 14, 2006

I received a phone call from Kent Benesch in which he told me that he had been up to the monitoring site I had showed him the year before, located on a ridge just outside the closure. He also asked me about a leg band he had found while climbing at Rabbit Ears the previous fall. I asked Kent to jot down his information in an email so I could send it to Dave Peterson (USF&W). The leg band was later identified as a pigeon band from a pigeon. A common find when climbing at Rabbit Ears. Probably because I had received the call and because I recognized “And that was the extent of my viewing” as the closing of one event transitioning to his report of the second event, I failed to anticipate how others could read into and embellish on this over simplified email. – greg Orton

In this email Kent provides a clear, consistent monitoring report about returning to the original site I had shown him the year before, just south of the designated closure. He writes about arriving at the monitoring site at 1150 and leaving at 1715. He reports that he was unable to see, but could hear the young at the eyrie. “5:15 I depart as fog is not lifting and rain is not letting up.” He finishes his monitoring report by stating, “So that was the extent of my viewing.” [note: please see Appendix, Forest Service’s “Smoking Gun”, for the entire email conversation from Kent]

In the following paragraph Kent then writes:

“One question is; are you aware of a time when the chicks were banded with leg bands? I found a leg band with a very small leg still in the ring. The band is green in color with the number 98, 0087 and the letters AU FHI. I found the ring at the base of the South Ear on the east side.” - Kent

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June 27-28, 2006 Once in Forest Service’s hands Kent’s original Email fallaciously takes on a life of its own.

[note: please see Appendix, Forest Service’s “Smoking Gun”, for the entire email conversation from Kent and subsequent response by Dick Davis] - greg

Dick Davis forwards Kent’s email to Brian McGinley (District Recreation), Mike Rassbach (District Ranger), Michael Green (Nat’l Peregrine monitoring coordinator), Charles Bruce (Oregon Dept. F&W) Fred Wahl, Joel Pagel with the following fallacious embellishments:

1. June 27, “The order was clearly ignored…I have always been able to sneak into the close OP undetected at this site – until 6/22… was the attentive reaction from the adult female a result of human disturbance the previous week?...what happened to chick #2?...what is meant by “talking” (need better description)?...why was this individual prowling around below a nest ledge picking up leg bands?...why did this individual spend 5.25 minutes on top this site in such foul weather??...has this individual received any training in peregrine monitoring???...if so, by whom????...There is clearly a need for better communication here, and a better understanding of who is doing what and how they’re doing it.” – Dick Davis

I feel these were all valid questions at the time. However, a) the Forest made the assumption that monitoring could not have occurred without violating the closure, this assumption is incorrect. There are three locations from outside the closure from which one can look into the nesting ledge without violating the closure. In fact because of the dense tree cover it is impossible to look into the nesting ledge from inside the closure; b) one failed to recognize Kent’s closing statement. My understanding is that Kent made both observations covered in the email Fall 2005 and June 2006 with his climbing partner, now a BLM biologist. - greg

2. June 28, 2006, “This is the second year in a row where there has been clear and documented evidence of violation of the closure order during a critical time of the breeding season.” – Dick Davis

Fallacious Assumptions: Evidently referring to our monitoring report the previous year, again we were outside the closure. The assumption made from my report the previous year appeared to be based on their opinion that it was not possible to monitor the eyrie without violating the closure. - greg

3. “I have personal experience monitoring this site…., and believe the individual reporting these observations negatively affected the outcome of this year’s nesting effort at OE-21.” – Dick Davis

Fallacious Assumption: One, violation of the closure did not occur as previously assumed. Two, Kent and I did not experience a response to our presence at our monitoring site the year before, nor did Kent report a response to his presence in the forwarded June 2006 email. - greg

4. “I have discussed this incident with the former FS Regional peregrine falcon specialist [Joel Pagel] who concurs that behavior I observed last week was likely influenced by recent disturbance, and the discrepancy between two chicks reported and one chick confirmed is suspect.” – Dick Davis

Fallacious conclusion: One: Kent never reported a response to his presence. Two: Kent never reported seeing two chicks, only hearing what he believed was what sounded like two chicks in “thick fog”. [for the entire email see Appendix, Forest Service’s “Smoking Gun”]

Something is very wrong with the embellished story line that developed between Dick and Pagel. - greg

5. “sounds like the climber wishing credit for the spotting report should get a framed citation for violating the closure…” – Brian McGinley

 

The following is from the internal discussions concerning direction in Moose Creek [Menagerie] Peregrine Management Plan for opening the closure:

 

June 26, 2006 “Site management guidance states seasonal restrictions in immediate vicinity of the nest site should be enforced until at least two weeks after young have fledged. The posted closure order states access restricted through July 31. Based on 2006 outcome, closure could be lifted after July 15, but unless there is reason to do so best management would be to keep in effect as stated” – Dick Davis

Dick is referencing Peregrine falcon Habitat Management Plan, Moose Nest Site OE-21 November, 1997, Prepared by Alice Smith and Joel Pagel. Which states: “The following guidelines are applicable to all zones. Restriction periods will be adhered to until any young have fledged, and will include the period when young are still within the nest area and dependent upon prey delivered by the adults.This normally is about two weeks after the eyases first flight.” (Pg. 12), and Appendix II: Implementation Schedule. “Two weeks after young fledge cease area closure and seasonal restriction, notify climbers and remove signs.” (pg 20)

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July 5, 2006 Letters from Climbers submitted to Sweet Home District Ranger

“Dear Sir, Approx. 48 volunteer hours (including driving) have been contributed to peregrine eyrie monitoring of the headwaters of Keith Creek Drainage…between June 12 and 30, 2006…successfully fledged two eyeases (young) sometime between June 22 and June 30. In accordance with current management policy for the Keith Creek Drainage this would establish a Cease Area Closure and Restriction date of July 14…There appears to be positive public interest for continuing to assist your district with next year’s monitoring in Keith Creek. Unfortunately, this year’s monitoring efforts were hampered by poor communication between the public at both the district and supervisor’s office and posted closures which extend beyond the primary management zone. Current public closures include the preferred view site location identified in the Moose Nest Site Management Plan. However, a secondary and less desirable site in terms of access and distance, is located at the Keith Drainage Viewpoint on the east ridge of Opossum Rock…” - Doug Phillips, President Metolius Mtn. Products, Inc.; Cassandra Hummel, Bend; Kent Benesch, Powel Butte; Edward Miller, Redmond; Greg Orton, Roseburg; Rod Jacobson, Bend; Jim Anglin, White Salmon; Harold Hall, Roseburg; Tom Baumann, Springfield.

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July 13, 2006 District Ranger orders Menagerie Closure of Moose Creek OE-21 at Rabbit Ears Lifted two weeks following fledging of young.

District Ranger Mike Rassbach sends email to Joseph Flether, Brian McGinley (District Rec), Rod Stewart, Tiffany Young , Fred Wahl, Dick Davis, Dallas Emch, Scott Fitzwilliams.

“I can confirm that Dick felt this chick fledged sometime between June 24 and 26. Given the nest site management plan guidance that allows the area closure to be lifted 2 weeks after the chick(s) has fledged; this closure could have been lifted as early as July 9th. Based on this information and in Dick’s absence this week, I asked Fred Wahl if he was comfortable lifting the area closure on July 14 or 15th for FY2006. Fred said he was comfortable with this recommendation.” – Brian McGinley

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“With this message I am informing you of my decision to lift the closure around OE-21 on July 14th… I have contacted Regan and Dick Davis to talk about follow-up needed (if any) due to the monitoring activities the climbing group did this year…Also, Brian and Tiffany – could you two work together to organize a meeting with the climbing group for some time this winter to discuss future monitoring of the site…” – District Ranger Mike Rassbach

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August 16, 2006 Kent Makes Contact with Dick Davis concerning finding an unhatched egg while climbing though eyrie on the Cave Route on Rabbit Ears. Kent originally contacted me to report his finding and I asked him to contact Dick Davis directly.

Re: dead raptor found in menagerie.

Tiffany, et al. Late Monday when I got back to the office I found a phone message from the climber [Kent Benesch]…said he found a dead raptor while hiking back up to trailhead after climbing on South Rabbit Ear over the weekend [this was outside the closure period] with his girlfriend [a BLM wildlife biologist]. He reported head and feet were missing from the carcass having ‘a white chest and brown spots on feathers’, and as you say was volunteering to go back and collect the carcass so we could figure out what it was…He has no permits to posses or collect. I welcome any interest you have in intervening in this ongoing situation to reign this guy in. This person climbed into the eyrie over the weekend of July 29-30 and on Monday 7/31 called to inform” [rest of the message is missing] – Dick Davis, Wildlife Biologist

Typically, the peregrine would no longer be using the eyrie during the time of year Kent was climbing. Kent made no mention in his conversation with me of seeing peregrine during his climb. – greg

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Re: dead raptor found in menagerie.

“Thanks for the update, Dick. I’m glad you feel this has gotten out of control and needs attention as well. On dealing with a response:..However, I do feel we need to sit down with this group and drill the regulations in[to] their heads. They just don’t seem to be listening. Whether we need to group up with Fred present to make a stronger presence to them or create a longer restriction in the area, something needs to be done…2 times he claims to have been in that area…As far as this climber collecting anything, I think he is out of line even offering. He really doesn’t understand regs and permits…” – Tiffany Young (District Wildlife biologist)

When Tiffany refers to “2 times” I think she is referring to Kent’s first monitoring email and then his more recent call to Dick Davis to report finding the addled egg. In neither occasion was Kent in violation of the closure. The observations he made at the eyrie cliff were made while climbing outside the closure period. – greg

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“I am sure all know that disturbance at nest sites that result in the death of eggs, chicks or adults, is a violation of the Migratory Bird Treaty Act. Whatever evidence there is of disturbance at this site might be of interest to the USFWS law enforcement…I think I can speak for LE in saying that they would be happiest if this were resolved through agreements with the climbers. However, if that fails, they can ‘up the ante’. They should be brought into this conversation regardless…” - Mike Green, Regional Landbird Biologist.

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September 22, 2006 Results of Addled Egg investigation that Kent Reported to Dick Davis.

“This is regarding the single addled egg…we collected on 04 August 2006. Yesterday, we opened the egg to obtain a serile sample for contaminant analysis, and were surprised that the egg contained a feathered embryo that was at hatching age. (see attached file: picture 002.jpg and 067.jpg). As I indicated to you during our nest entry, the adults appeared as if they had been disturbed prior to our arrival during the nesting season. You further indicated to me your suspicions that the site had probably been visited during the nesting season by people other than the permitted monitors; i.e. the seasonal restrictions for entry to the site had been violated several occasions. As you recall, we were alerted to this addled egg by a rock climber who appeared to have made regular trips to this wilderness and closed site during the year. This dead embryo suggests to me that there may have been disturbance to the site during the hatching phase of the nesting chronology. As you also indicated, at least one young peregrine potentially is missing. In previous years, this site has received additional pressure from people violating the closure. I collected a young dead peregrine that was at fledging age at the base of this cliff that my assistant and I had believed was pumped from the nest ledge by illegal human entry. We have also documented human footprints to the rock during the seasonal closure in other years that were not made by permitted peregrine monitors…I would be willing to meet with you et al.. 02 or 04 October…” – Joel Pagel@fws.gov

The conversation has now gone from fallacious to delusional.

Forest Service’s response to the ongoing perception that climbers are actively violating the seasonal closure.

October 11, 2006 Letter sent to climber mailing list inviting us to attend a meeting.

“…In response to site management needs beyond 2006, I have asked …to schedule a meeting with you and other interested rock climbers sometime this winter. I have two purposes for this meeting with your group. First, I simply want to express my thanks to those who are interested in helping …Connected to my expression of thanks could be discussions of possible partnerships between your group and the Forest… Secondly, I am interested in sharing my displeasure with members of your group who are violating the CFR area closure…in order to pursue their recreation interests. Your group needs to be reminded of the legal consequences for violators of this area closure. In short, unauthorized monitoring of nest sites by you or your climbing group must stop.” – written and sent for the District Ranger. Again a fallacious assumption that monitoring was violating the closure.

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Response from Tom Baumann

“…I can, unfortunately, not say I am part of the Menagerie group of climbers who ever they might be. As far as the seasonal closure is concerned I have always disagreed with the size of the area closed off but not the closure itself. I also have not violated that closure over the years…I am aware that the closure violations have happened during the years I was active and stated then it was not a direction to go…” – Tom Bauman

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December 05, 2006 Meeting invitation to climbers.

“Thank you for your enthusiasm in expressing your rock climbing interests in the Menagerie Wilderness. After receiving many letters from rock climbers voicing concern over the seasonal closure in the headwaters of Keith Creek and other recent events over the summer, I would like to schedule a meeting this January to discuss specific issues regarding this site.

Issues to be discussed are as follows:

1. Overview of seasonal restrictions…

2. Overview of the CFR…closure…and violations

3. Overview of the Migratory Bird Treaty Act and violations.

4. Future cooperation and possible partnerships between the climbing community and the Forest Service.

5. Area closures being lifted early due to Forest Service monitoring

6. Unauthorized monitoring of nest sites by the general public or climbing community

- Tiffany Young

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Response by Greg Orton

“Thank you for inviting me to your January 11, meeting in Bend. However, after reviewing the agenda for this meeting I see little need to attend. In the event future meetings that are less Draconian and more partnership oriented are planned, please let me know.” – Greg Orton

This meeting was never held.

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July 07, 2007 fledging report from Kent to the Forest Seervice

“…last Saturday (July 7, 2007) while climbing on the Rooster Rock formation my partner and I saw 4 peregrines in the area. This sighting leads me to believe that the falcons have fledged is this your finding as well?...If the falcons have fledged an opening of mid July of the upper area around Rabbit Ears would be expected.” – Kent Benesch

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Forest Service’s reaction:

July 23, 2007 Closure date extended to August 1.

“Due to the extensive climbing activity in the Menagerie Wilderness Area, along with the sensitivity of peregrine adults and fledglings, the closure will not be lifted until August 1st. Law enforcement has also been notified and will be monitoring the area for violations.” - Tiffany Young (District biologist)

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Climber reaction:

July 25, 2007 Request for Peregrine management policy review.

“I have recently been contacted by climbers who are frustrated by perceived incon[siste]ncies in the way some Region-6 Forests are managing seasonal closures for Peregrines and what appears to be an apparent increase in restrictions…My intent in addressing this message to you are the following:

1. Identify what appears to be an inconsistency in implementing established management plans…refer to..Menagerie Plan….

2. Request a cons[iste]ncy review of policy and management direction.

3. Attempt to articulate the concern I am hearing from climbers in Western Oregon.

Please see attached letter.” – Greg Orton

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Forest’s reaction based on the continued myth that climbers are actively violating the seasonal closure, therefore all questionable Peregrine behavior is necessarily linked to climbers:

July 26, 2007 Biologist Frustration at being question by public

Dick Davis to Sarah Madsen (Regional T&E biologist)

“My comment is to wonder why this site OE-21) has been the focus of so much attention over the years and why the District has been so continually pressured and challenged regarding the seasonal restriction…I have seen and heard human activity…throughout the breeding season…I have observed what appears to be growing sensitivity displayed by the resident peregrines to human presence. Examples of this sensitivity extend beyond the breeding season as reported by District personnel…it is my understanding that in most situations a local biologist has the discretion to extend protection measures for species/habitat beyond stated minimums when he/she recognizes a biological reason to do so…I have to admit the transition from Ken to Fred to Joe as Forest Bio[logists] over such a short timeframe has not been particularly conducive to developing much of a local working relationship with certain climbing “groups”. Some folks seem to be a lot more receptive to local site management than others.” - Dick Davis (biologist)

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July 26, 2007 Rational for extending the closure to August 1. From Tiffany Young to Dick Davis, cc Joseph Doerr (recently filled Forest Biologist), Sarah Madsen (Regional T&E biologist)

“As far as handling things on a local, District level, you are correct. I chose to not lift the closure early due to the extensive recreation activity in that area. The last time I was there, the birds were extremely agitated. On 2 separate occasions, Brian and I were contacted by the climbing community before July 15th and they proceeded to tell us about 2 fledglings in the area. They claimed they were observing this from Rooster Rock. However, in my observations, I never saw fledge fly above tree line around Rabbit Ears area. The one I saw stuck really hard to the trees and I couldn’t get a visual on what I thought I heard to be a second fledge. Therefore, I find it very curious that those climbers who made calls to tell us about the fledges saw these observations from Rooster Rock. It seems like a hard thing to visually determine from that distance, but I could be wrong. ..In addition the maps//closure information on the gate at the North end were torn down 3 times. I also picked up a bunch of litter around the area. As a result, I chose to give the birds a bit more time to get themselves going…”– Tiffany Young (District biologist)

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The monitoring location referred here as Rooster Rock, is actually a location near Rooster, and offers the best view of the eyrie. Even though it is ½ miles from the North Ear, it offers the only clear view of the eyrie ledge. Tiffany’s location was Panorama Point just to the north of Rabbit Ears with no view of the actual ledge used for nesting. The north gate she refers to is located in a completely separate drainage from the eyrie next to a main access road. Leaving trash at the scene doesn’t make me think it was climbers. - greg

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August 03, 2007 Tiffany is already writing the letter she will use to extend the closure in 2008.

Message to Joseph Doerr (Forest biologist)

“I’m working on updating the current closure and getting that ready to go for the next season. I will be extending the closure date to August 15th with the same clause that the district biologist may lift the closure earlier as he/she sees fit. After speaking with a few bios down south and some literature I’ve been skimming to back myself up, I’ve got some good rational for extending the closure. One primary reason is due to the sensitivity of the birds after the young have fledged, especially the adults. The adults tend to be highly emaciated post-fledging since they expend most of their energy feeding the young. The young are dependent on the parents for at least several weeks and sometimes up to 6 weeks after fledging. By late July, the adults are wiped out and need to get their energy levels up. The young are starting to feed and fly on their own, however, the family as a whole is working on foraging near the nest sight. The Parents work on delivering food to the young in the air to show them the ropes on feeding themselves.” – Tiffany Young (district biologist)

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September 18, 2007 Tiffany response to FOIA requests for maps of Peregrine management zones

“…those management zones are sensitive information. They indicate exactly where the nest would be. Given the current situation of Menagerie and how blatant the climbers were in abusing the closure this summer, I do not feel comfortable giving that information out, nor do I think it is appropriate for the public to have access to.”

– Tiffany Young (district biologist)

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September 21, 2007 Concerning FOIA Request and compromise

“Tiffany…does the latest one [FOIA] make three requests so far this summer?...I feel strongly about ‘protecting’ site location info, like you do. Our forest bio throughout the ‘90s was extremely protective and I believe successfully denied releasing info on more than one occasion. Delisting seems to really had an effect on how some folks perceive things. During that timeframe the state had a couple ‘sacrifice’ sites, where location information was actually publicized. I guess I’d like to talk with you about your situation. Everything I’ve seen/heard about your approach to managing I agree with. It feels like some compromise options are out there swirling in the wind though…and might need to be considered??? ”

– Dick Davis

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September 26, 2007 REGIONAL OFFICE RESPONSE TO REQUEST FOR REVIEW OF INCONSISTENCIES WITH IMPLEMENTATION OF THE MENAGERIE CLOSURE

“Based on my review of the management of this site during the past nesting season, I do not see any inconsistency with the management plan or a more restrictive policy being applied. The current closure order for that site is until July 31, which allows for at least a critical two-week period for protection of fledglings after they leave the nest and are being fed by the adults. The district wildlife biologist [Tiffany] used the data that she had, assessed the situation, and identified the need for the protection to remain in place. The biologist can always exercise professional judgment to provide protection measures when there is reason to do so. This approach is consistent with that taken by biologists on other Forests that manage peregrine falcon sites in the Pacific Northwest Region…the species is still on the Regional Forester’s Sensitive Species and will remain on the list until the post de-listing monitoring has been completed.” - Sarah Madsen (R6 T&E,sensitive species Program Leader)

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January 29, 2008 State to issue permits for Peregrine Take on Federal Lands

Under Federal (USF&W guidelines, states can allow take of up to 5% of the estimated annual production of young. For 2008 there will be 7 permits issued which will allow young to be taken from nest sites between May 15 and June 30. Permitees may also take young from the nest area up to 30 days after fledging…At least one young must be left in the nest… - Charley Bruce (ODF&W)

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July 15, 2008 notice that Menagerie closure will be extended to August 1

The following claims were issued

1. Unauthorized entry of the closure area was observed in June and July from the north side of the Wilderness Area.

2. North closure gate was opened by someone with an unauthorized key and damage was incurred on the gate’s hinges

[hinges on gate were worn to the point that the chain could be lifted off its post without unlocking the gate - greg]

3. Unauthorized entry was observed on the 850 spur that leads to the north trailhead.

[occurred October 2005 three years prior and when the closure was open - greg] http://www.rockclimbing.com/cgi-bin/forum/gforum.cgi?post=1206374

4. Brush and encroaching trees were cleared from the 850 spur to the north trailhead and into the forest leading to the nest site during June and July.

[occurred the summer of 2007 while the area was open - greg]

5. Observations found that the peregrine in the area where displaying high levels of agitation, especially in the presence of human activity.

- Tiffany Young (District Biologist)

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July 22, 2008 Dick Davis response to Tiffany

“Thanks Tif…Maybe I wasn’t paying attention, but I did not realize you were once again dealing with the level of disturbance documented in your letter…” - Dick Davis (biologist)

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In fact their own monitoring showed that this site was doing well – greg

Table 1 From monitoring results obtained through FOIA.

 

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August 15, 2008 - Tiffany’s responds to FOIA request

“This letter is in response to your request for clarification to your August 15, 2008 FOIA submission.

1. No new documents exist for the Menagerie site at this time. …Tiffany..chose to keep monitoring results confidential and not written to paper due to the extreme harassment by your group since 2006. The USF&W and USFS allow the District Biologist to exercise professional judgment to provide protection measures when there is reason to do so…In addition, the District Biologist has chosen to not document monitoring locations due to the sensitivity of the species and the history of harassment by your group...closure should be extended in future years…” – Tiffany Young, District biologist

---------------------------------------------------------------------------------------------------------------------

August 23, 2008 FOIA Request Response to Regional response

“The following request for information is in reference to a July 15, 2008 letter to the public from Sweet Home District Biologist concerning extended closure of the Moose Creek Peregrine Management area affecting access into upper Keith Creek and a similar letter to the public issued in 2007.”

---------------------------------------------------------------------------------------------------------------------------

October 23, 2008 Greg Orton request meeting with Sweet Home District Ranger.

“Melany, I was wondering if you would have any interest in getting together sometime informally to discuss Climber – District relations.” – Greg Orton

=================================================================================

October 27, 2008 Oregon Dept. of F&W Raptor biologist email concerning Menagerie

Charlie Bruce to Nancy Taylor and Rick Boatner (State biologists)

“… The Willamette NF now has the highest number of know[n] peregrine nest sites of any forest in Oregon (@25). As the number of breeding pairs increases, I would expect more conflicts with both climbers and other outdoor recreation activities. We need to look at this in the context of how far do you go with protection at any particular site given the species is now delisted and recovering and nest sites are legally protected under the MBTA, at least to some extent.” – Charlie Bruce

My concern here is that our objective in questioning the current closure has been misconstrued by Forest Service biologists. In short we support a reasonable seasonal closure. Concern over current management of the closure arises from the District’s failure to follow its Management Plan to lift the closure two weeks following fledging. Concern also centers around the myth that climbers are actively violating closures, leading to reduced site productivity, when their own monitoring results fail to support this conclusion (refer to table 1). - greg

=====================================================================================

November 04, 2008 Tiffany sending request for support

sent to: Sarah Madsen (Regional T&E biologist); Dick Davis (District biologist); Nancy Taylor (state); Joseph Doerr (Forest Bio); Melany Glossa (new Sweet Home District Ranger); Brian McGinley (Rec); Joel Pegal (USF&W); Michael Green (USF&W); Ray Davis (Umpqua Forest biologist); Jeff Bohler (Umpqua district biologist); Theresa Stone (Umpqua biologist)

“I am very concerned with the claims that Greg Orton is making and how that reflects on the District Program and how I manage it…The Menagerie site is still experiencing high levels of closure violations and trespassing throughout the closure season. …We began seeing footprints to the trailhead in June…The decommissioned road to the trailhead was also pruned and cleared during the closure sometime in June.” - Tiffany

[i’ve interviewed the two individuals who cleared the trail during the previous fall while there was no closure in effect - greg]

“I did extend the closure to July 31 due to the high level of agitated behavior from the pair and their young. I could only get into the site three times and only stayed 45 minutes or less due to their high stress levels.”- Tiffany

[They have been monitoring from the top of Panorama Point which is not listed as a monitoring site in their management plan. This site maybe too close to the eyrie to monitor from without triggering a response - greg]

“…someone from outside our District is locking the gate” - Tiffany

[this statement may be pointing the finger at me since I have a key - greg]

“...Someone also closed the gate again…and put a USFS lock on it that is not ours.” – Tiffany

[from what I understand recreation opened the gate and felt that the lock was a wildlife lock. It sounds like wildlife often places non-standard Forest Service locks on wildlife closures. All I know is that local climbers were getting pretty upset that the gates kept getting locked on them -greg]

“…He [Greg] has made and active effort to contact multiple people at ODFW, Umpqua NF and USFWS to complain about the way I manage this site, but will not contact me directly. He has requested that the State should step in to be a mediator and to clarify management duties…I need someone to step in and put this to rest. I will not lose the only reliable peregrine pair on the Sweet Home Ranger District because a small group of people who are not biologists feel they need or can manage the site better. I was brought to this District to manage wildlife and their habitat. Greg Orton or his interested group were not…;

“The management plan is accurate for this site. It only needs to be updated with our current ranger’s signature and mine. We plan on completing the update this fall;

“...and the previous harassment at this nest site. In 2006, an egg was pushed out of the nest due to human activity and a dead raptor was found on the trail. The raptor’s head and feet had been removed. A climber called in and offered to bring in the egg and raptor. Dick Davis, Joel Pagel and myself advised against this…Ironically, the climber [Kent] that called in did not fill out a Wilderness permit for that weekend and we have also documentation of him monitoring the nest area during the closure…We also found that many recreationalists were not filling out permits to be in the area. This climber in particular, was one of them.” – Tiffany Young (district biologist)

====================================================================================

November 06, 2008 Tiffany’s reply to District Ranger’s request to meet with me

“…Greg wants the management plan and seasonal restriction dropped because the rest of the Umpqua has done it.” – Tiffany Young

[Tiffany was aware that this is not correct; the Umpqua has seasonal restrictions, only one of which is opened two weeks after the young have fledged. The rest are closed until July 31. – greg]

“I will not negotiate that even slightly. Not one bit. We are not the Umpqua and I believe in site specific management where applicable. He also wants the exact nest location and observation locations. I will not negotiate that either.” – Tiffany Young

[The fact that the cave on the south wall of the North Ear of Rabbit Ears and had a Peregrine on it each season was no secret to anyone. – greg]

-----------------------------------------------------------------------------------------------------------------------------

November 07, 2008 Joel Pagel response to Tiffany’s cry for assistance [reprisal?]

Tiffany Young, Dick Davis,

“…I also think that the Umpqua NF Supervisor [my boss – Greg] needs to be alerted that Greg is creating some problems regionally.” – Joel Pagel (USF&W)

[Apparently in response to these accusations, my Forest biologist who’s been on the mailing list stops me in the hall at work where I’m openly accused of violating the closures at the Menagerie. This is the first I am made aware of the extent of the myth being circulated by biologists – greg]

----------------------------------------------------------------------------------------------------------------------------

My response is to schedule a face to face meeting with the Sweet Home District Ranger - greg

 

November 07, 2008 Tiffany response to Joel Pagel (USF&W)

“…she [District Ranger] wants to have a meeting with just her and myself present with Greg. I have been actively declining this and am in the process of working something out with her…” – Tiffany Young (District biologist)

-----------------------------------------------------------------------------------------------------------------------------

November 21, 2008 Meeting between Greg Orton and Sweet Home District Ranger

My purpose for meeting with the District Ranger was to dispel the large amount of misinformation and myths coming out of her District concerning local climbers.

1. “someone is opening the gate with a Forest Service key” the Forest failed to open the gate at the end of several closures. Climbers were able to lift the chain off the post because the gate was old and the hinges were wobbly. I offered to apply for funds that could be used to replace the gate with a new one. I also requested that the gate be opened on time each season.

2. “someone opened the gate with a key and attempted driving through slide closing the 850 road during the closure” I viewed this site before and after the closure and it had not changed. I then looked though the websites and found the following which I presented to the DR http://www.rockclimbing.com/cgi-bin/forum/gforum.cgi?post=1206374. It talks about a kid and his father trying to get through the slide but not making it during the fall of 2005.

3. “Climbers are violating the closure when they are monitoring.” I showed her the two locations on a map that we had used when monitoring. Both outside the closure.

I was told that she would not question the judgment of her District Biologist.

– Greg Orton

=====================================================================================

2009 proposal to extend the Closure from December 1 through August 15.

Appears to be unsigned by the Forest Supervisor.

The push for maintaining the closure beyond July 15 is not supported by monitoring records for the Menagerie. If the Forest were to follow its own direction provided under Peregrine falcon Habitat Management Plan, Moose Nest Site OE-21 November, 1997 (Pagel and Smith), calling for lifting the closure two weeks after the young have fledged, 90% of the time public access would statistically occur between July 6 and July 15 (p=0.1). In fact, in 21 years the latest recorded fleding date observed for this site has been July 13 (Moose Peregrine Nest Site (OE-21) Occupancy/Productivity History Sweet Home Ranger District - Willamette National Forest). Therefore, the proposal to extend the closure until August 15, would exceed the eyrie’s latest observed fleding date by 32 days.

 

Table 2 Statistical assessment of fledging records from Moose Creek monitoring records for site OE-21 (Menagerie)

 

==============================================================================

January, 2010 Forest Supervisor agrees to conduct formal meetings begin between climbers, biologists, recreation, District Ranger, Forest Supervisor concerning issues at the Menagerie.

First meetings occurred with Joseph Doerr and Dick Davis representing Forest biologists, Dave Peterson (retired USF&W and falconer), Meg Mitchel (Forest Supervisor), Melany Glossa (District Ranger), Greg Orton (climber). I presented and we discussed a proposal for limiting the seasonal closure to the Primary Management Zone as designated in the Moose Creek Management Plan. Dick Davis was concerned with allowing access to the east side of Keith Creek. We also discussed opening the closure two weeks after the young fledge as provided in the Moose Creek Management Plan.

One result that came out of the initial meetings was that the Forest sent out a survey at my request for an independent review of biologists managing rock climbing and Peregrine closures to see how these closures are being managed elsewhere in the country. Unfortunately, the survey that was sent out asked a limited sample of biologist all of which were on the current mailing list and being kept current with the ongoing “myth that climbers were actively violating the closure each season and causing the death of young”. They were asked how they would chose to manage the Menagerie closure. Not only was did this survey have a limited sampling, it was extremely biased towards treating a preconceived threat that does not exist, none of the biologist in the sample had experience managing Peregrine and rock climbing. - greg

-------------------------------------------------------------------------------------------------------------------------------

May 25, 2011 Cynthia Glick (new Sweet Home District Ranger takes over Menagerie meetings.

Tiffany Young (district Biologist), Tom Bauman, Chris Fralick, Tyler Adams, and Greg Orton represented climbers. Joseph Doerr and Dick Davis representing Forest biologists, Dave Peterson (retired USF&W and falconer), Meg Mitchel (Forest Supervisor), Melany Glossa (District Ranger)

Tiffany proposed a closure that included the Bridge and does not open two weeks after the young fledge. Pretty much what has been presented as the District’s current Proposed Action. The justification for this proposal is that the Peregrine periodically sits ontop of the Bridge during the seasonal closure. The support for this closure expansion comes from a limited a biased survey of biologist that have no experience managing climbers and Peregrine. - greg

 

 

Appendix

Forest Service’s “Smoking Gun”

 

June 14, 2006

I received a phone call from Kent Benesch in which he told me that he had been up to the monitoring site I had showed him the year before, located on a ridge just outside the closure. He also asked me about a leg band he had found while climbing at Rabbit Ears the previous fall. I asked Kent to jot down his information in an email so I could send it to Dave Peterson (USF&W). The leg band was later identified as a pigeon band from a pigeon. A common find when climbing at Rabbit Ears. Probably because I had received the call and because I recognized “And that was the extent of my viewing” as the closing of one event transitioning to his report of the second event, I failed to anticipate how others could read into and embellish on this over simplified email. – greg Orton

 

From: kent

>> To: ‘borton'

>> Sent: Thursday, June 15, 2006 8:45 AM

>>Subject: re;Birds

>>

>> Hi Greg, well I saw my first Peregrine Falcons! Pretty cool, I was

>>surprised by the amount of activity in the nasty weather.

»

>> 11:50 arrived at viewing area by south ear

>> 12:40 1 chick started into "talking" this continued for several minutes

>> 12:50 1 adult left nest heading south

»

» 1:15 1 chick began "talking" joined by a second after about 30

>> seconds again this continued for several minutes off and on for around 10 minutes.

>> 1:30 adult returned to cave with something clutched in its talons

>> 2:00 adult left nest

» 2: 40 2 chicks "talking" for several minutes this continued this time quite regularly for 30 minutes

>> 3:45 adult returned to cave I could no[t] tell if anything was being carried in its talons this time as fog was thick

>> 3:46 both chicks very vocal lasting about 5 minutes

» 4: 3 0 adult leaves nest

>> 4:50 heavy rain and fog obscure view of cave both chicks very loud

>> 5:15 I depart as fog is not lifting and rain is not letting up.

>> So that is the extent of my viewing, I am almost positive that there are only 2 chicks in the cave I never heard a third ''voice” chime in during their squawking sessions.

»

>> One question is; are you aware of a time when the chicks were banded

>> with leg bands? I found a leg band with a very small leg still in the

>>ring. The band is green in color with the numbers 98, 0087 and the

>> letters AU FHI. I found the ring at the base of the South Ear on the east side.

Talk to you soon, Kent

>> Kent Benesch

-----------------------------------------------------------------------------------------------------

> borton wrote:

>> From: 11 borton11

>> To: 11 Dave Peterson"

>> Subject: Fw: re;Birds

>> Date: Wed, 10 Jan 2001 20:38:32 -0800

>> Dave,

>> How the hay bailing going. Chandler says the rain has you on hold.

>> Below is a monitoring report I received for the Menagerie Wilderness

>> area on the Willamette NF near Sweet Home. I'm a little upset with

>> the Forest Biologist for not returning my calls so was hoping you

>> could take the information and submit it to the State for us without

>> going through the Forest. This site is a known eyrie at approximately

WGS 84 l0T 555409m.E. 4918455m.N.

>> I was also hoping Kent Benesch, Rock Climber could be given credit

>> for the report.

>>

>> Also, Kent found a band "green in color with the numbers 98, 0087 and

>>the letters AU FHI ". I was hoping you would be able to track down

>> the information on the Band for Kent.

>>He says he's considering taking on bird watching as a hobbie.

>> greg

----------------------------------------------------------------------------------------------------

 

On 19 Jun 2006, at 3:35 PM, David L. Peterson, Sr. wrote:

> Hi Frank

> Here is a[n] email on a 2006 successful peregrine site. Is it a new one?

>I am checking on Greg's request for info on the bird band, I am

> guessing it is a homing pigeon band, any ideal on that. There is a

> local racing pigeon club here I am going to contact.

> Dave

>--------------------------------------------------------------------------------------------------------

 

06/26/2006 .02:013 PM

To "David L. Peterson, Sr."

cc Dick Davis

Subject Re: New Peregrine site?

Dave -

Thanks for the report. That appears to be the site called Moose

(OE-021). It is being monitored by Dick Davis. I'm sending this to him

also. I haven't dealt with pigeon bands before so can't help with that

now. I could work on it after the nesting season, if you don't have it

figured out by then.

- Frank

Frank B. Isaacs

24178 Cardwell Hill Dr., Philomath, OR 97370

Senior Faculty Research Assistant

Oregon Cooperative Fish & Wildlife Research Unit

Oregon State University, Corvallis, OR

--------------------------------------------------------------------------------------------------

 

Dick Davis/R6/USDAFS

0612812006 02:37 PM

To Brian McGinley/R6/USDAFS@FSNOTES

Mike Rassbach/R6/USDAFS@FSNOTES,

Michael_Green@fws.gov, Dick

cc Davis/R6/USDAFS@FSNOTES, Fred

Wahl/R6/USDAFS@FSNOTES

Subject Re: New Peregrine site?

Brian, for a number of reasons this incident continues to bother me. I too wonder what the LEOs would say about the evidence provided in the initial message - and encourage sharing this information with them to find out. This is the second year in a row where there has been clear and documented evidence of violation of the closure order during a critical time of the breeding season. I have personal experience monitoring this site (along with other Willamette sites) for the better part of the past decade, and believe the individual reporting these observations negatively affected the outcome of this year’s nesting effort at OE-21. I have discussed this incident with the former FS Regional peregrine falcon specialist [Pagel] who concurs that behavior I observed last week was likely influenced by recent disturbance, and the discrepancy between two chicks reported and one chick confirmed is suspect OE-21 is one of the few peregrine nest sites on the Willamette that has an officially signed management plan. It probably also has the oldest associated closure order for protection during the breeding season

Despite the fact that peregrines are no longer listed under the Federal ESA, we still have an obligation to protect known sites. There are tools in place to do so at this site, and I'd like to believe that they could be used to support some official follow-up to this incident. If they can't I'll be wondering what they are good for.

Mike G., as National Peregrine Monitoring Coordinator I feel compelled to share this incident with you. Although OE-21 is not one of the nationally selected sites, this incident raises some questions about what is really occurring at nest sites. I wish I could admit to thinking this incident represents some rare example of blatant ignorance, but I can't I rather think it represents an all too common example of overeager untrained individuals pursuing personal agendas that have little to do with the welfare of peregrines in mind. How things such as this affect monitoring data is anyone's guess. Mine is that it would be measurable. rfd

Dick Davis (rfd) - Wildlife Biologist

Willamette National Forest - Middle Fork Ranger District

541-782-5256 or 541-782-2283

e-mail: ddavis01@fs.fed.us

 

 

 

[ivan]

can you summarize the above please, as i'm interested but lack the necessary attention span to wade through it?

[g orton]

Ivan,

Thanks for the heads-up.

Your right, this is a lot of information.

 

The five posts I've made above are:

1) Introductory post.

2) My summary of the Menagerie History and History of the current access issues.

3) Map of Current, Proposed (Forest), Recommended (Climbers) closures at the Menagerie.

4) The Access Fund's response letter to the Forest Service.

5) My Southern Oregon Climbers response letter.

6) My summary of information provided by the Forest Service in response to an Access Fund Freedom of Information Act (FOIA) request concerning all records of communications concerning seasonal closure of the Menagerie.

 

Reduced public access on Public Lands to overly restrictive Peregrine closures is a National issue. I've provided a lot of information here on this issue at the Menagerie. Much of it you can just skim through, some of it you will want to spend more time reading. How much your choose to read will definitely depend on your attention span for details. But, rarely will you be presented with such a candid look at an issue that affects your access as is provided here.

 

In response to your comment, I've added headings to the 2nd post I think will help with its reading. If you only want the condensed version this is the place to go.

 

But, if understanding issues isn't to your taste, I strongly recommend supporting the Access Fund, so someone has your back.

 

greg

 

 

 

 

Edited August 19, 2013 by g orton

[g orton]

A PORTLAND CLIMBER'S RESPONSE TO THE FOREST SERVICE PROPOSED ACTION

 

My first trip to the Menagerie was in 1971 and I climbed there throughout the 1970s and 1980s.

 

I also was part of an American Alpine Club group that met with Senator Mark Hatfield and were able to convince him to include the area in his 1984 Wilderness bill. At the time Senator Hatfield's aid told us directly that the ONLY reason the Senator included the Menagerie in his bill was because he was impressed by the fact that our photographs showed him that climbers used the area.

 

I have read the July 8, 2013 letter notifying the public of the Menagerie Seasonal Closure Boundary Change for Species Protection Project. I believe that both the current boundaries and proposed boundaries are overly restrictive especially when compared to other major climbing areas in the Pacific Northwest. I also believe that the extension of the opening date of the Menagerie to August 1 is also overly restrictive.

 

So for example at Beacon Rock State Park in the Columbia River Gorge, a trail runs up the west side of the formation that is used year round by 1000s of people and comes within 60 meters of the Peregrine nest on the south side, yet the trail is not closed during the Peregrine nesting season. In addition there is year round climbing allowed on the northwest side of Beacon Rock that is approximately within 400 meters of the nest. Despite the close proximity of hikers and climbers to the nest the peregrines have successfully fledged at least one young bird every year since 2005 and this year two birds successfully fledged. (This data is from Joseph Healy, a climber who volunteers as an observer for Dave Anderson, the biologist in charge of monitoring the peregrines at Beacon Rock.) The obvious question from a common sense stand point is, why can the peregrines at Beacon Rock successfully nest with hikers and climbers within 60 and 400 meters respectively while in the Menagerie areas such as the Bridge, which are nearly 1000 meters away and not within visual range of the nest, must be closed?

 

Continuing with Beacon Rock again as the example, the south face where the peregrines nest is generally open for climbing two weeks after the young fledge, which is generally around the middle of July. I understand that the fledging pattern of the peregrines in the Menagerie is about the same and that in the past the area could have and sometimes was opened in the middle of July as showed by the following data.

 

2004: date fledged, # fledged 0

2005: date fledged 7/1, # fledged 3

2006: date fledged late June, # fledged 1

2007: date fledged 6/27, # fledged 2

2008: date fledged June, # fledged 2

2009: date fledged 7/2, # fledged 1

2010: date fledged late June, # fledged 2

2011: date fledged, # fledged 0

 

Since the original 1997 management plan for the Menagerie as prepared by Alice Smith and Joel Pagel directs that, “Two weeks after young fledge cease area closure and seasonal restriction, notify climbers and remove signs,” and this plan was carried out in the past without apparent detriment to the falcons, and closely mirrors what currently happens at Beacon Rock, there must be clear scientific data to extend the date in the Menagerie past the two week after the young fledge.

 

Given the apparent discrepancies with the way the Forest Service has managed and proposes to manage the Menagerie versus the way Beacon Rock is managed I would like to see at least one alternative in the environmental assessment that examines the effects of opening up the east side of the Keith Creek drainage to year round climbing and the west side of Keith Creek two weeks after the young peregrines fledge.

Edited August 19, 2013 by g orton

[ivan]

best of luck - the menagerie is a cool place and it's nutty that it stays closed longer than beacon - were it closer, i'd spend more time there.

[treekiwi]

Howdy Folks,

Here is the text of my comments re this proposal as submitted to the FS.

 

Re Menagerie Seasonal Closure:

As an outdoors enthusiast for over 45 years, I strongly support protection of species that need protection. I have a particular love of raptors, crows, etc because of their beauty and incredible flying ability. As a pilot, I can only wish I had just a small amount of their skills.

I have been involved in many outdoor activities over the years, including mountaineering, hiking, kayaking, mountain biking, running, and, yes, rock climbing.

Unfortunately, it appears that rock climbing has become an epithet when used in the same sentence as the Menagerie Wilderness. It seems that a lengthy history of mis-communication has led us all to a situation where a huge amount of distrust is spoiling what could remain an incredible resource to both humans and the birds.

I fully support reasonable, scientifically based closures that are in line with normal current practices at other sites, and that have the backing of a diverse peer review.

I understand that local biologists should be able to adjust the closures to reflect any special local concerns, but in this case, I believe that this process has been tarnished by fallacies and unbridled mistrust.

I have climbed in the Menagerie several times over the the last 4-5 years, have never broken the closure rules. I firmly believe that the folks I know that climb there are likewise respectful of the closure.

However, based on my research into this issue, the proposed closure extension does not appear to pass a sniff test of science or reasonableness.

To conclude, if the past differences between biologists and climbers could be set aside and the issue properly re-evaluated by suitable experts and authorities, I firmly believe that a solution can be found that satisfies all parties, and especially the raptors requirements.

Yours,

Steve Elder

[treekiwi]

Just wanted to bring to everyone's attention the fact that the UFS has not yet released the comments by the Access Fund to be viewed in the Public Reading Room forum, which is where we are all able to post our comments.

Apparently they do not wish the general public to be able to access these extremely detailed and pertinent comments.

I really believe this may speak volumes about the agenda of the Forest service in this matter......

[g orton]

NOTE: The Forest Service has extended the comment period to Sept 3. Thanks to all who have sent comments to them. We need more responses! Peregrine management at climbing areas is a national issue.

greg

[g orton]

This is an excerpt from Justice Kennedy concerning the risks of agencies passing vague statutes then providing interpretations to meet their needs. In light of the Menagerie these words seem especially poignant.

=============================================================

 

[font:Arial Black]F[/font]or decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of "defer[ring] to an agency's interpretation of its own regulations." Talk America, Inc. v. Michigan Bell Telephone Co., 564 U.S. ___, ___, 131 S.Ct. 2254, 2265, 180 L.Ed.2d 96 (2011) (SCALIA, J., concurring). This is generally called Seminole Rock or Auer deference. See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945); Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997).

 

Two Terms ago, in my separate concurrence in Talk America, I expressed doubts about the validity of this practice. In that case, however, the agency's interpretation of the rule was also the fairest one, and no party had asked us to reconsider Auer. Today, however, the Court's deference to the agency makes the difference (note the Court's defensive insistence that the agency's interpretation need not be "the best one,"ante, at 1337). And respondent has asked us, if necessary, to "`reconsider Auer.'" I believe that it is time to do so. See Brief for Respondent 42, n. 12; see also Brief for Law Professors on the Propriety of Administrative Deference as Amici Curiae. This is especially true because the circumstances of these cases illustrate Auer's flaws in a particularly vivid way.

 

The canonical formulation of Auer deference is that we will enforce an agency's interpretation of its own rules unless that interpretation is "plainly erroneous or inconsistent with the regulation." Seminole Rock, supra, at 414, 65 S.Ct. 1215. But of course whenever the agency's interpretation of the regulation is different from the fairest reading, it is in that sense "inconsistent" with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The agency's interpretation will be accepted if, though not the fairest reading of the regulation, it is a plausible reading — within thescope of the ambiguity that the regulation contains.

 

Our cases have not put forward a persuasive justification for Auer deference. The first case to apply it,Seminole Rock, offered no justification whatever — just the ipse dixit that "the administrative interpretation... becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation." 325 U.S., at 414, 65 S.Ct. 1215. Our later cases provide two principal explanations, neither of which has much to be said for it. See generally Stephenson & Pogoriler, Seminole Rock's Domain, 79 Geo. Wash. L.Rev. 1449, 1454-1458 (2011). First, some cases say that the agency, as the drafter of the rule, will have some special insight into its intent when enacting it. E.g., Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144, 150-153, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991). The implied premise of this argument — that what we are looking for is the agency's intent in adopting the rule — is false. There is true of regulations what is true of statutes. As Justice Holmes put it: "[w]e do not inquire what the legislature meant; we ask only what the statute means." The Theory of Legal Interpretation, 12 Harv. L.Rev. 417, 419 (1899). Whether governing rules are made by the national legislature or an administrative agency, we are bound by what they say, not by the unexpressed intention of those who made them.

 

The other rationale our cases provide is that the agency possesses special expertise in administering its "`complex and highly technical regulatory program.'" See, e.g., Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994). That is true enough, and it leads to the conclusion that agencies and not courts should make regulations. But it has nothing to do with who should interpret regulations — unless one believes that the purpose of interpretation is to make the regulatory program work in a fashion that the current leadership of the agency deems effective. Making regulatory programs effective is the purpose of rulemaking, in which the agency uses its "special expertise" to formulate the best rule. But the purpose of interpretation is to determine the fair meaning of the rule — to "say what the law is,"Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). Not to make policy, but to determine what policy has been made and promulgated by the agency, to which the public owes obedience. Indeed, since the leadership of agencies (and hence the policy preferences of agencies) changes with Presidential administrations, an agency head can only be sure that the application of his "special expertise" to the issue addressed by a regulation will be given effect if we adhere to predictable principles of textual interpretation rather than defer to the "special expertise" of his successors. If we take agency enactments as written, the Executive has a stable background against which to write its rules and achieve the policy ends it thinks best.

 

Another conceivable justification for Auer deference, though not one that is to be found in our cases, is this: If it is reasonable to defer to agencies regarding the meaning of statutes that Congress enacted, as we do per Chevron, it is a fortiori reasonable to defer to them regarding the meaning of regulations that they themselves crafted. To give an agency less control over the meaning of its own regulations than it has over the meaning of a congressionally enacted statute seems quite odd.

 

But it is not odd at all. The theory of Chevron (take it or leave it) is that when Congress gives an agency authority to administer a statute, including authority toissue interpretive regulations, it implicitly accords the agency a degree of discretion, which the courts must respect, regarding the meaning of the statute. See Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 740-741, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996). While the implication of an agency power to clarify the statute is reasonable enough, there is surely no congressional implication that the agency can resolve ambiguities in its own regulations. For that would violate a fundamental principle of separation of powers — that the power to write a law and the power to interpret it cannot rest in the same hands. "When the legislative and executive powers are united in the same person ... there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner." Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151-152 (O. Piest ed., T. Nugent transl. 1949). Congress cannot enlarge its own power through Chevron — whatever it leaves vague in the statute will be worked out by someone else. Chevron represents a presumption about who, as between the Executive and the Judiciary, that someone else will be. (The Executive, by the way — the competing political branch — is the less congenial repository of the power as far as Congress is concerned.) So Congress's incentive is to speak as clearly as possible on the matters it regards as important.

 

But when an agency interprets its own rules — that is something else. Then the power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a "flexibility" that will enable "clarification" with retroactive effect. "It is perfectly understandable" for an agency to "issue vague regulations" if doing so will "maximiz[e] agency power." Thomas Jefferson Univ., supra, at 525, 114 S.Ct. 2381 (THOMAS, J., dissenting).

 

Combining the power to prescribe with the power to interpret is not a new evil: Blackstone condemned the practice of resolving doubts about "the construction of the Roman laws" by "stat[ing] the case to the emperor in writing, and tak[ing] his opinion upon it." 1 W. Blackstone, Commentaries on the Laws of England 58 (1765). And our Constitution did not mirror the British practice of using the House of Lords as a court of last resort, due in part to the fear that he who has "agency in passing bad laws" might operate in the "same spirit" in their interpretation. The Federalist No. 81, pp. 543-544 (J. Cooke ed. 1961). Auer deference encourages agencies to be "vague in framing regulations, with the plan of issuing `interpretations' to create the intended new law without observance of notice and comment procedures." Anthony, The Supreme Court and the APA: Sometimes They Just Don't Get It, 10 Admin. L.J. Am. U. 1, 11-12 (1996). Auer is not a logical corollary to Chevron but a dangerous permission slip for the arrogation of power. See Talk America, 564 U.S., at ___, 131 S.Ct., at 2266 (SCALIA, J., concurring); Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L.Rev. 612 (1996).

 

It is true enough that Auer deference has the same beneficial pragmatic effect as Chevron deference: The country need not endure the uncertainty produced by divergent views of numerous district courts and courts of appeals as to what is the fairest reading of the regulation, until a definitive answer is finally provided, years later, by this Court. The agency's view can be relied upon, unless it is, so to speak, beyond the pale. But the duration of the uncertainty produced by a vague regulation need not be as long as the uncertainty produced by a vague statute. For as soon as an interpretation uncongenial to theagency is pronounced by a district court, the agency can begin the process of amending the regulation to make its meaning entirely clear. The circumstances of this case demonstrate the point. While these cases were being briefed before us, EPA issued a rule designed to respond to the Court of Appeals judgment we are reviewing. See 77 Fed.Reg. 72974 (2012) (to be codified in 40 C.F.R. pt. 122, sub pt. B). It did so (by the standards of such things) relatively quickly: The decision below was handed down in May 2011, and in December 2012 the EPA published an amended rule setting forth in unmistakable terms the position it argues here. And there is another respect in which a lack of Chevron-type deference has less severe pragmatic consequences for rules than for statutes. In many cases, when an agency believes that its rule permits conduct that the text arguably forbids, it can simply exercise its discretion not to prosecute. That is not possible, of course, when, as here, a party harmed by the violation has standing to compel enforcement.

 

In any case, however great may be the efficiency gains derived from Auer deference, beneficial effect cannot justify a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge (to hold or pronounce to be) its violation.

[g orton]

The Mazama's have responded with a good letter.

https://cara.ecosystem-management.org/Public/ReadingRoom?Project=38620

 

Edited September 11, 2013 by g orton

[g orton]

The Forest is still looking for comments.

Don't feel like you need to have climbed at the Menagerie to send your comments in. You just need to care how Peregrine closures are being over regulated. This is an issue that can affect other areas the Forest Service manages as well. And, you can bet those speaking out for increases in closures have never climbed at the Menagerie or most likely never been to the area they are commenting on.

 

From the Forest Service:

If you are not able to get your comments in to us by September 3rd you can still submit your comment via email

or mail after that date. The September 3rd date is suggested as it is most useful to us if we receive comments

before we start developing alternatives, but we welcome comments at any point throughout the planning

process.

http://www.fs.fed.us/nepa/fs-usda-pop.php?project=38620

 

[Water]

bump. Haven't been there but as you said...i submitted some comments. recommend others do the same. Email them to:

 

Subject: Menagerie Seasonal Closure Boundary Change for Species Protection #38620

 

Amanda Colton

4431 Highway 20 , Sweet Home, OR, 97386

arcolton@fs.fed.us

 

 

When it comes to peregrine protection, I like to let this statement from the US Dept. Fish and Wildlife Services stand for itself:

 

"The peregrine falcon has the most extensive natural distribution of any bird in the world, limited only by high elevations, extreme heat, and extreme cold. It is found on all continents except Antarctica."

 

-delisted from endangered species list and state level lists.

[g orton]

Here is a photo of the viewshed from the eyrie on Rabbit Ears to go with the viewshed map.

[g orton]

The Forest Service is interested in knowing where there are potential problems with how information is being generated and used by the Agency. The following is intended to provide anyone interested in helping to red flag this or similar issue of generating and using bad information within Forest Service.

 

USDA Forest Service Quality of Information Guidelines

http://www.fs.fed.us/qoi/'>http://www.fs.fed.us/qoi/

 

Request for Information Correction under the Information Quality Act:

http://www.ocio.usda.gov/policy-directives-records-forms/guidelines-quality-information/correction-information

Where to Submit a Formal Request for Correction

Formal requests for correction of USDA information must be submitted by letter, fax, or e-mail to the Information Quality Official(s) of the USDA agency or office that disseminated the information (henceforth in these procedures, the term "USDA agency" shall mean "USDA agency or office"). For requests for correction concerning information on which USDA seeks public comment, submit the correction request during the comment period.

 

Quality of Information/Peer Review Officer

 

USDA Forest Service

George Vargas, Data Quality Official

Mail Stop 1143

1400 Independence Ave. SW

Washington D.C. 20250-1143

 

Quality of Information Web Site:

http://www.fs.fed.us/qoi

 

Peer Review Web Site: http://www.fs.fed.us/qoi/peerreview.shtml

E-MAIL: gvargas@fs.fed.us

PHONE: (202) 205-0444 FAX: (202) 260-3245

 

Information That Should Be Submitted to the Appropriate USDA Agency with a Request for Correction

Requests for correction of information should include the following elements:

• Statement that the Request for Correction of Information is Submitted Under USDA's Information Quality Guidelines

• Requestor Contact Information

The name, mailing address, telephone number, fax number (if any), e-mail address (if any), and organizational affiliation (if any) of the person requesting the correction.

• Description of Information to Correct

The name of the USDA publication, report, or data product; the date of issuance or other identifying information such as the URL of the web page; and a detailed description that clearly identifies the specific information contained in that publication, report, or data product for which a correction is being sought.

• Explanation of Noncompliance with OMB and/or USDA Information Quality Guidelines

An explanation that describes how the information fails to meet either the OMB or USDA Information Quality Guidelines.

• Explanation of the Effect of the Alleged Error

An explanation that describes the requestor's use of the information in question and how the requestor is affected by the alleged error.

• Recommendation and Justification for How the Information Should Be Corrected

The requestor should state specifically how the information should be corrected and explain why the corrections should be made. A request for correction that is specific and provides evidence to support the need for correction is likely to be more persuasive than a request that is general, unfocused, or that simply indicates disagreement with the information in question.

This guidance for the content of requests for correction of information is not intended to constitute a set of legally binding requirements. However, USDA may be unable to process, in a timely fashion or at all, requests that omit one or more of the requested elements. Requestors bear the "burden of proof" with respect to the necessity for correction as well as with respect to the type of correction they seek. USDA will base its decision on the merits of the information provided by the requestor.

 

[beaconben]

Thanks for all your work Greg. Has the FS decided on a closure yet?

[g orton]

Sorry for late response, I've been out of town.

Currently the Forest Service is in the process of developing alternatives to their original proposal to expand the seasonal closure in Keith Creek drainage. These alternatives will be in response to issues raised by your comments. They are still taking comments! I encourage anyone who hasn't commented to do so. US Forest Service - Menagerie Closure