Spotted Owls & Litigation Under the Endangered Species Act. Karl Forsgaard & Kara Whittaker Washington Forest Law Center

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1 Spotted Owls & Litigation Under the Endangered Species Act Karl Forsgaard & Kara Whittaker Washington Forest Law Center

2 Overview Why is the NSO a threatened species? ESA Section 9 Provisions Why was litigation necessary? The owl lawsuit ( Take( Case ) Case Settlement Importance of litigation & the ESA Photo: Lisa Hayward

3 Why is the NSO a threatened species? Natural history & reproduction Habitat specialists of late- successional and old-growth forests Long-term monogamous pairs High site fidelity, large home range Adults breed every other year on average One to three chicks per brood Low fecundity (annual mean: female young per female; Anthony et al. 2004) Photo: Eric Harlow

4 Habitat loss Pressures & Threats Barred owls Prey Predation Anthropogenic disturbances Disease & Parasites Genetics

5 ESA Section 9 Provisions Illegal to engage in any activity that takes a listed species Take: : harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in such conduct Harm includes significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.

6 ESA Section 9 Provisions Harm includes significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.

7 Why was litigation necessary? NSO in steep decline (Anthony et al. 2004) WA populations declining at average annual rate of 7.3% for past 15 years Overall decline of 40-50% in the number of owl pairs detected in WA since the early 1990s

8 Why was litigation necessary? Federal lands alone insufficient for recovery State Rules provide insufficient protection Substantial loss of habitat on State and Private lands (Pierce et al. 2005) No protection outside of Spotted Owl Special Emphasis Areas (SOSEAs( SOSEAs) Need new State regulatory and non-regulatory measures to protect and recover NSO

9 Spotted Owl Special Emphasis Areas Loss of habitat outside of SOSEAs and HCP areas, WA: 25% SW WA: 44% (Pierce et al. 2005)

10 Federal forest lands

11 Private industrial forest lands

12 The owl lawsuit Seattle and Kittitas Audubon Societies v. Sutherland and Weyerhaeuser, et al. November 2006 Lawsuit filed in federal court in Seattle. June 18-21, Injunction Hearing. August 1, Injunction issued against Weyerhaeuser. July Lawsuit settled.

13 Who did Audubon sue, and why? State of Washington officials Weyerhaeuser Company Who intervened in the case? Washington Forest Protection Assn. American Forest & Paper Assn.

14 What defenses were asserted? Sovereign immunity Legislative immunity Standing Ripeness Tenth Amendment Burford abstention doctrine

15 Cosmopolis,, WA March 2007

16 Cosmopolis,, WA March 2007

17 Ellis Creek owl circle May 2007

18 Ellis Creek owl circle May 2007

19 Ellis Creek owl circle May 2007

20 Ellis Creek owl circle May 2007

21 Elk Creek owl circle May 2007

22 Elk Creek owl circle May 2007

23 Elk Creek owl circle May 2007

24 Elk Creek owl circle May 2007

25 What evidence was presented? Some habitat remains in Weyerhaeuser s s 4 circles. Some owls continue to reproduce in Weyerhaeuser s s 4 circles. Weyerhaeuser HMP instead of SOSEA. After HMP expired, Weyerhaeuser clearcut areas it had mapped as habitat.

26 What evidence was presented? Owl habitat quality & quantity. Owl population declining. Since 1996, State rules had allowed logging 50,000 acres of habitat. Weyerhaeuser planned to continue clearcutting habitat in its 4 circles. USFWS allowed Weyerhaeuser to edit its warning letter.

29 The Court s s injunction decision Weyerhaeuser enjoined from logging habitat in its 4 circles (56,000 acres). State was not enjoined from issuing logging permits in 200 other circles; Plaintiffs had not yet proven which of those 200 circles were occupied and amount of habitat remaining in them. Future trial would examine the above.

30 Plaintiffs have shown that, without an injunction, it is reasonably likely that take will occur within these four owl circles. the Court enjoins Weyerhaeuser from logging any suitable habitat within 2.7 miles of the center of the [four] circles.

31 Settlement talks begin Sept 2007: standstill agreement Parties asked Court to postpone trial date Allowed parties to focus on settlement January 2008: mediation process starts

32 The settlement with Weyerhaeuser Maintains habitat within the four owl circles that were the focus of Audubon s s lawsuit. Other terms are confidential.

33 The settlement with the State & WFPA State Forest Practices Board established a Policy Working Group to recommend measures that result in a strategic contribution from non-federal lands in Washington to the broader goal of conservation of a viable population of the Northern Spotted Owl. Consensus Recommendations (Jan. 2010) Emphasis on voluntary incentives to landowners for maintaining and enhancing spotted owl habitat Create opportunities for the acquisition of lands with owl habitat Support pilot projects to restore owl habitat

34 The settlement with the State & WFPA Conservation Caucus Non-Consensus Recommendations Institute interim protections for NSO habitat at risk of harvest until a new NSO management approach is fully in place and working. Establish a programmatic Habitat Conservation Plan that includes a Habitat Conservation Banking Program One landowner is allowed to harvest (non-strategic) habitat in exchange for paying another landowner to improve (strategic) habitat. Puts lands into conservation status that strategically benefit NSOs.

35 What would have happened without ESA and litigation?

36 Questions? Photo: Lisa Hayward

37 Literature Cited Anthony, R.G., E.D. Forsman,, A.B. Franklin, D.R. Anderson, K.P. Burnham, G.C. White, C.J. Schwarz, J. Nichols, J.E. Hines, G.S. Olson, S.H. Ackers, S. Andrews, B.L. Biswell,, P.C. Carlson, L.V. Diller, K.M. Dugger,, K.E. Fehring,, T.L. Fleming, R.P. Gerhardt, S.A. Gremel, R.J. Gutiérrez rrez,, P.J. Happe,, D.R. Herter, J.M. Higley,, R.B. Horn, L.L. Irwin, P.J. Loschl,, J.A. Reid, and S.G. Sovern Status and trends in demography of northern spotted owls, Final Report to the Interagency Regional Monitoring Program, Portland, Oregon. September pp. Pierce, D.J., J.B. Buchanan, B.L. Cosentino,, and S. Snyder An assessment of the status of Spotted Owl habitat on non-federal lands in Washington between 1996 and Washington Department of Fish and Wildlife, Olympia, Washington.

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