Two weeks ago I was standing on Swinington Hill Road in Leicester at 10:00 PM watching bats fly through my flashlight beam. I had a bat detector so I could “hear” when a bat was approaching and then easily find it with the flashlight. At one point a moth flew through the beam and I was able to follow it until it dove downward as a bat swooped in and caught it a few feet above the tarmac. All the bats I saw in the flashlight beam were less than 20 feet above the road. I made 46 recordings of bat calls in 35 minutes, and later a call identification program told me that all four of Vermont’s endangered species of bat had been present. I am not convinced that all four of them were there. Those species have similar ultrasonic calls and the program cannot always distinguish them reliably. But most of them can usually be distinguished from Vermont’s other bats, so although I can’t be sure which species were present, I have some confidence that many of the bats I encountered that night were on Vermont’s endangered species list.
Swinington Hill Road is on one of the routes that the spray trucks follow on summer nights to disperse malathion or permethrin into the air to kill mosquitoes. The mist of small droplets spreads 150 feet on either side of the road in concentrations dense enough to kill flying mosquitoes. During the first week of September, at 30 other sites in the BLSG Insect Control District, I stood in the dark next to the road and detected state endangered or threatened bat species at more than half of the sites. The bat detector is sensitive enough to record a bat about 150 feet away, so all those bats might have been exposed to the chemicals had a spray truck passed by.
While I was making these nightly bat surveys, the Vermont Endangered Species Committee (ESC) was reviewing a 20-page report about the risks to endangered bats from the chemical pesticides sprayed from BLSG’s trucks. The ESC includes three members of the current state administration plus six volunteer members from the fields of forestry, agriculture, wildlife, and botany. Their role is to advise the Secretary of the Agency of Natural Resources (ANR) on all matters relating to endangered species. Six Scientific Advisory Groups (SAGs) of other scientists advise the Committee members on specific matters related to mammals, birds, invertebrates, reptiles/amphibians, fish, or flora.
On September 17, the ESC held its fall meeting. Bill Kilpatrick, Professor Emeritus of Biology at UVM and Chair of the ESC’s SAG on mammals, addressed the Committee about his SAG’s review of the report. Although seven of the eight members of the SAG had earlier agreed that listed bats were likely negatively impacted by BLSG’s spraying activity, only five members submitted an official response as the fall meeting approached. So the SAG voted four to one (with three abstentions) in support of the report’s conclusions that BLSG’s roadside spraying was likely hurting threatened or endangered bats.
One possible outcome of this report and vote from the Mammal SAG was that the ESC could have voted to recommend to the ANR that bats on Vermont’s endangered species list were probably being impacted by BLSG’s pesticides. Instead, two agency administrators spoke strongly against making such a recommendation. The discussion that followed was baffling and seemed to accomplish little other than delaying action on the issue until next year. Several things were disconcerting to me.
When is a take a take?
The word “take” is an old term associated with hunting, essentially a euphemism for kill. A hunter can take a deer, and if the hunter has no license, that would be an illegal take. More recently, the word has been incorporated into language about endangered species – if a hunter kills an endangered animal, that would be a take and it would be illegal. In Vermont, if you dig up a marsh valerian for your garden, that is an illegal take (Valeriana uliginosa is an endangered species in Vermont).
Vermont has a strong endangered species law and everyone at the September 17 meeting was aware of that and aware of how the law defines take. When the volunteer scientists on the ESC or a SAG used the term take, they were referring to the legal definition in Vermont: “an act that creates a risk of injury to wildlife, whether or not the injury occurs.” But the term had the traditional meaning of “hurt or kill” whenever it was used by Cary Giguere (Division Director at the Agency of Agriculture), Louis Porter (Commissioner, Fish & Wildlife Department), or Alyssa Bennett (Bennett is a Fish & Wildlife Department small mammal biologist who was not present but Porter read a statement he attributed to Bennett).
- “If a take is actually occurring, we can go ahead and modify their operation.”
- “…to determine if a take was actually occurring…”
- “…to when they can have demonstrated evidence that a take or attempted take had in fact occurred.”
- “If the standard is going to become potential take, without a demonstration of take…”
- “…that‘s different than a documentation of a take. ”
- “We are saying show us evidence of a take.”
- “…one could conclude a potential threat of take is likely.”
- “…there is a lack of actual evidence that bats have been or are being taken by this activity…”
Try substituting “risk of injury” for “take” in those sentences. The sentences make little sense. Then substitute “killing” instead and it becomes obvious which one better preserves the intended meaning.
Although the agency personnel are aware that Vermont’s legislators intentionally wrote the law to afford strong protection for endangered species, their consistent misuse of the term “take” indicates that they reject that law and have redefined the key term. In their view, there must be evidence that injury to a bat has already happened. Documentation of a likely risk of injury, which is what the law requires, is not good enough for the agencies. Although most members of the ESC and Mammal SAG agree that BLSG’s roadside spraying creates considerable risk of injury to bats and understand that therefore BLSG is violating Vermont law, the agencies’ ad hoc redefinition of “take” effectively muzzles the scientific consensus.
Mason Overstreet, from the Environmental Advocacy Clinic at Vermont Law School, pushed back on this tactic, “I think it’s a dangerous threshold if the level of take from the Agency’s standpoint is ‘we know a take when we see one,’ and basically we decide when there is a take and when there is not.” The response from Louis Porter demonstrated how his redefinition of take was like a Jedi mind trick, “We are not saying we know a take when we see it and we are the sole arbiters of when a take occurs. We are saying show us evidence of a take.” He might as well have waved his hand and said, “These aren’t the takes you are looking for.”
Future discussions among this group about a take of endangered species should set some ground rules for what this term means. If agency personnel want to use their own definition, everyone should be made aware of that.
When does following the law set a precedent?
Louis Porter is concerned that accepting the fact that BLSG is probably having a negative impact on endangered species will set a precedent. He argues that previously ANR has determined that a take is occurring only when there is documentation that injury to a listed species has already happened. Porter said, “If the standard is going to become potential take, without a demonstration of take, …this request from the law school would be a very significant change in how we approach takings permits, in our view.”
This seems to be an admission that ANR has not been following Vermont law but instead following their own rules based on a revisionist definition of take. It is odd how strongly the agency resists modifying those rules to align them with the law.
There might be a concern that allowing the risk of injury (as opposed to documented injury) to trigger ANR’s enforcement would open the floodgates for hundreds of requests to stop activities. But everyone admits that this is the first time any third party has presented ANR with a case suggesting risk of injury to listed species. It seems unlikely that ANR would receive many 20-page reports that convince the SAG and ESC scientists that injury is probably occurring to listed species. It seems unlikely that ANR is so insulated from the risks to Vermont’s listed species that they are unaware of dozens of cases potentially injuring them.
There does not seem to be any evidence that ANR will suffer upheaval if they agree with the independent scientists that BLSG’s activities are probably hurting endangered bats. On the other hand, this agreement could cause important and positive changes for bats in the BLSG District.
When is a permit permitted?
If BLSG’s roadside spraying is creating a risk of injury to endangered bats, then it violates Vermont law. That does not mean BLSG must stop spraying, it means they can continue only if they have a permit from the ANR (Fish & Wildlife Department). Vermont endangered species law allows important activities to continue even if they create risk to listed species. In this case, an incidental take permit (ITP) can be granted so BLSG is no longer violating the law. An ITP informs the Department about the risk to listed species and outlines why the activities are necessary and how they have been designed to mitigate the risk.
ANR also deals with another type of take. If an endangered species is intentionally hunted or collected, ANR must gather evidence that a criminal offense has occurred. To survive in a court of law, that evidence must provide proof beyond a reasonable doubt. This burden of proof differs from that needed to determine that an ITP is appropriate. If BLSG is injuring bats, it is incidental to their otherwise legal activities. If that risk appears to be credible, and especially if there are ways to mitigate the risk, then no other evidence is needed in order to require an ITP.
There is a legitimate question about how much risk of injury is required before we decide that it is a take. To bolster their argument that BLSG does not create sufficient risk to bats, an odd comparison with cars hitting bats was made by Louis Porter. Bats are known to collide with moving cars in some places, and if the bat is a listed species, this would violate endangered species law. So there is a risk of injury to listed bats whenever people drive their cars at night where the bats are active. Of course, it would be unworkable to require all such drivers to have an ITP. So the Vermont Fish & Wildlife Department allows driving to happen at night without requiring a permit.
This is a wildly inappropriate analogy for the BLSG issue. The reason no ITP is required of all drivers is not that there is insufficient evidence of risk of injury to bats. The reason is that bats being killed by cars is one of the many ways endangered species might be harmed by a widespread, common activity which Vermonters have been doing for decades and which is essential for maintaining our economy and social customs. We accept this risk because reducing it would be economically and socially devastating. In contrast, roadside spraying of pesticides on public roads in Vermont is done only in the BLSG District (six of Vermont’s 237 towns). It is not an ordinary part of economic or social activity in Vermont. Unlike driving at night, it is simple to modify BLSG’s activity so the risk to bats is reduced while the public service continues. The only thing similar between driving at night and BLSG’s spraying is that scientists agree both pose a risk of injury to bats.
The Fish & Wildlife Department needs a better analogy. It needs an example of an activity impacting a small area of Vermont where five threatened and endangered species are known to live; an activity that almost all independent scientists reviewing the issue agree is probably harming those species; an activity that could easily be modified so risk to the species is minimized with little or no loss in the public benefit of the activity. The Department is welcome to try to use such an example to illustrate why an ITP is inappropriate for BLSG’s spraying.
Requiring that BLSG have an ITP seems like a simple and effective way to ensure that the Fish & Wildlife Department is aware of BLSG’s activities and can advise on how to minimize the risk to endangered bats. The agencies’ inexplicable and rigorous opposition to this solution suggests that their goal is something other than protection of endangered species.
Are SAGs qualified to think about ITPs?
In reviewing the Arrowwood report on BLSG’s potential risk to endangered bats, the Mammal SAG considered whether BLSG’s activities constituted a take and whether an ITP would be appropriate. This is the first time a SAG or the ESC has considered these things before an organization has applied for an ITP. Bill Kilpatrick said, “I don’t think I have been asked before about whether an activity should require a permit. We have always been asked to evaluate an application of a permit. So to me this is a little bit different from other things that we have looked at.”
Louis Porter does not think this is an appropriate new role for SAGs, “I guess I have never viewed the SAGs as having the responsibility of determining whether a permit is possible or reasonable.” Allan Strong, ESC Chair, disagreed, “The Endangered Species Committee is charged to give advice to the Commissioner and the Secretary around endangered species. So it seems like we do need to fulfill that role in terms of being able to suggest that this is an activity in which a permit should be issued.”
Members of the ESC and members of SAGs have extensive experience reviewing applications for ITPs, and some members have done this for more than a decade. This makes them more familiar than others with what ITPs are and how they work. But a more important role of the independent scientists is to decide how much risk to listed species is created by an activity.
By reviewing the extensive evidence presented in the Arrowwood report, and in light of their extensive scientific experience, the Mammal SAG is in an excellent position to recommend whether bats are at risk (i.e., a take is occurring). If a take is occurring, it is the responsibility of ANR to make the decision that an ITP is required.
Louis Porter is understandably concerned that this might represent a change and appears to transfer some authority from his department to the independent scientists. However, the members of the ESC and the SAGs are aware that they serve solely in an advisory capacity and that ANR makes the final decisions about whether a take is occurring and whether an ITP is appropriate.
Porter and the ANR should welcome the judgement of the ESC on these difficult decisions and accept that sometimes the scientific consensus could be at odds with the Agency’s other agendas.
Who is exploiting endangered species law?
The most troubling moment in the September 17 meeting came at the end when Louis Porter responded to Mason Overstreet’s argument that when the scientific evidence is examined in the light of Vermont endangered species law, “the only reasonable outcome you get is that a take is happening.” Porter said, “If the broadness of the definition of take that we have in the statute now becomes an avenue for stopping activities that people oppose in other ways, for other reasons, I suspect that the Vermont legislature will propose further clarifying and defining what a take is.”
It seems that Porter assumes the scientific evidence that roadside spraying of pesticides can harm endangered bats has been exaggerated or fabricated in order to achieve some other objective, presumably shutting down BLSG’s operation. This is an inappropriate accusation and an insult to people who have been concerned about struggling bat populations for more than a decade.
When people in Salisbury learned in 2008 that a large maternal roosting colony of the federally endangered Indiana bat was within our town boundaries, our Conservation Commission invited Scott Darling, now retired from the Vermont Fish & Wildlife Department, to present workshops about his work on bats. There was a large turnout for these workshops in which we built bat roosting boxes and witnessed Indiana bats and northern long-eared bats captured in mist nests. We have been rooting for these beleaguered bats ever since and protective of the exceptional habitats throughout the town that support their populations.
The Arrowwood report about the impacts of pesticides on bats that the ESC has been reviewing was not produced by people in the BLSG District. The report has been endorsed by each of the regional, national, and international conservation organizations who were asked to review it. Those organizations have no agenda about the fate of BLSG, their concern is that ANR upholds Vermont law and protects endangered bats. The report’s conclusion that BLSG’s activities constitute a take of endangered species is strongly supported by two of the country’s foremost scholars on endangered species law. There is nothing fabricated about the evidence that bats are probably being impacted in violation of the law, or about the broad support for this conclusion.
The independent scientists of the Endangered Species Committee of Porter’s own agency have overwhelmingly agreed with the evidence in the Arrowwood report and support its conclusions that BLSG’s pesticide program is likely hurting endangered bats. It seems a far fetched idea that this is all part of a local scheme to achieve some devious objective.
Porter’s agency has wide discretion to apply Vermont endangered species law. Their opposition to applying it to protect endangered bats is puzzling, and Porter’s insulting accusations suggest some motive beyond the mission of his agency. It seems that it would be better for all involved, including the bats, if ANR’s discretionary power was focused more carefully on fulfilling its mission of protecting wildlife.
People who live in the BLSG District know about the endangered bats that live here. They also watch every summer as trucks inch along the roads after dark releasing a rising plume of chemical pesticides at just the time those bats are hawking for prey, sometimes right over the road. It seems reasonable to us that the Vermont Fish & Wildlife Department should take this seriously.
Is bat season over?
I covered lots of plants in the garden for three cold nights in a row in the third week of September. It did not freeze, but that was one of the earliest frost scares I remember. I listened for bats each of those nights and heard only one. I thought maybe they were all heading toward their hibernacula, but in the last week of the month it was 80°F and we were almost back to normal with several species flying around the backyard.
I would really like to listen for bats near the old mine in Brandon where Indiana bats have been known to hibernate. The bats might be congregating there during the weeks before they enter the mine for the winter. If anyone knows where that mine is, get in touch.