Spotted owl standard too narrow, court rules

GRANTS PASS, Ore. – The government must provide for the recovery of the northern spotted owl, not just its survival, when considering how much logging can be allowed in old growth forests designated as critical habitat, a federal appeals court ruled.

The ruling by the 9th U.S. Circuit Court of Appeals in San Francisco was the third since 2001 to find that the standard that the U.S. Fish and Wildlife Service uses to measure the harm caused by government projects within critical habitat for threatened and endangered species goes against the will of Congress in enacting the Endangered Species Act.

Similar rulings were made three years ago by the 5th U.S. Circuit Court of Appeals in New Orleans in a case involving the gulf sturgeon, and this week by a U.S. District Court in California in a case involving the desert tortoise.

“Habitat loss is the number one cause of the loss of endangered species,” said Kieran Suckling, executive director of the Center for Biological Diversity. “The Bush administration has pulled out every stop to kill critical habitat. After this string of losses, the administration needs to just cash in its chips and start obeying the law.”

The next step for conservationists will be to use this ruling to block old growth timber sales that the U.S. Forest Service and U.S. Bureau of Land Management are planning in areas designated for logging under the Northwest Forest Plan, said attorney Stephanie Parent, who represents the conservation groups.

In particular, they will be trying to stop logging of old growth timber sales along the Interstate 5 corridor. The owls need to safely cross the freeway while searching for mates and moving to new territories, Parent said.

Once a plant or animal is declared threatened or endangered, the Endangered Species Act requires designation of habitat critical to its recovery.

Any government project within that critical habitat must be reviewed by a federal agency to see if it will adversely modify or destroy the habitat.

The Bush administration has judged those cases by the standard that they can allow logging so long as it does not jeopardize the survival of the species.

Environmentalists have argued that the law requires a higher standard. The habitat must be good enough that the species thrives enough to eventually be taken off the endangered species list.

A coalition of environmental groups challenged six biological opinions issued by Fish and Wildlife allowing logging within critical habitat for the northern spotted owl on federal lands in Washington and Oregon.

The appeals court upheld the Fish and Wildlife practice of using the amount of owl habitat available in the Northwest rather than the numbers of owls to judge the bird’s current status. A review panel has reported that the population is continuing to decline.

The court, however, found that Fish and Wildlife cannot go outside designated critical habitat to old growth forest reserves created under the Northwest Forest Plan to decide whether there is enough total habitat for the bird.

The court said by using the standard of “conservation and survival” rather than the standard of “conservation or survival” to judge critical habitat, Fish and Wildlife “failed to implement” the will of Congress that species should thrive to the point they no longer need Endangered Species Act protection.

“The agency’s controlling regulation on critical habitat thus offends the (Endangered Species Act) because the ESA was enacted not merely to forestall the extinction of species but to allow a species to recover to the point where it may be delisted,” the judges wrote.

Fish and Wildlife spokeswoman Joan Jewett said the agency would have no comment on the ruling until its lawyers review it.

Chris West, vice president of the American Forest Resource Council, a timber industry group that intervened in the case on the side of the government, said the problem could be corrected by administratively changing the wording of the regulation.

Suckling disagreed, noting that nothing has been done since 2001, when the 5th U.S. Circuit Court of Appeals in New Orleans made a similar ruling in a case involving the gulf sturgeon. A U.S. District Court in California made a similar ruling this week in a case involving the desert tortoise.

“They’ve got nowhere to go,” he said.