February 04, 2021

If Not Now, When?: Fish and Wildlife Service Issues “Warranted but Precluded” Finding in Response to Northern Spotted Owl Uplisting Petition, then Eliminates 3.5 Million Acres of Critical Habitat

Marlee Goska

Timber harvest in federal forests (and private and state-owned forests) in the Pacific Northwest began increasing after World War II, as the demand for lumber to build homes for returning veterans increased nationally and abroad. Local economies in rural “timber counties” sprouted and grew nearly wholly dependent on logging, particularly of public forests managed by the U.S. Forest Service and the Bureau of Land Management. The timber industry continued to grow over the next few decades, with harvest on the national forests reaching nearly 12 billion board feet of timber in some years. Environmental activists soon realized that the Northwest’s old-growth forests were on track to be completely lost to the ax and began mobilizing to save the remaining ancient forests in the region. Around the same time, scientists also began to recognize the unique and complex ecosystems of old growth and became concerned about their imminent demise.

While conservationists adamantly tried to stop the harvest of old-growth forests using a wide range of creative tactics, they initially had limited success. That changed when the northern spotted owl, a medium-sized brown owl with small whitish spots, dark eyes, and a shy but curious personality that calls the complex old-growth forests of the Pacific Northwest home, was listed under the Endangered Species Act (ESA). The owl was listed as threatened in 1990, after a judge found that the Fish and Wildlife Service (FWS), the agency tasked with administering the ESA, had acted arbitrarily, capriciously, and contrary to law when it failed to list the owl. Northern Spotted Owl (Strix Occidentalis Caurina) v. Hodel, 716 F. Supp. 479 (W.D. Wash. 1988).

The owl’s listing had salient long-term effects on the Pacific Northwest timber industry, since the ESA provides protection for both a listed species and its critical habitat. Subsequently, a federal injunction in 1991 prohibited the Forest Service from logging in owl habitat until it had set standards and guidelines for ensuring owl population viability. Seattle Audubon Soc’y v. Evans, 771 F. Supp. 1081 (W.D. Wash.), aff'd, 952 F.2d 297 (9th Cir. 1991). A similar ban on logging in forested lands managed by the Bureau of Land Management would follow a year later. Lane County Audubon Soc. v. Jamison, 958 F.2d 290 (9th Cir. Or. 1992). Tensions between conservationists on one hand and the timber industry and the many rural communities that relied on logging on the other reached new heights, and the owl became the poster child for the fight over the fate of the Pacific Northwest’s forests.

Despite the owl’s listing, its population has continued to decline across its range over the past three decades. Since 1996, analyses of northern spotted owl populations have shown declining population trends, with range-wide declines of 3.8 percent per year reported from 1985 to 2013. There are several contributing factors to the owl’s decline: habitat loss caused by past and ongoing logging of owl habitat on public and private lands, the increased frequency and intensity of wildfires, and the invasion of the barred owl into northern spotted owl habitat. 

Barred owls are a major threat to the spotted owl’s survival. Native to the eastern United States, barred owls are larger and more aggressive than the northern spotted owl. Due to their larger size, barred owls also have a more varied diet compared with the northern spotted owl, making them more adaptable and therefore less vulnerable to ecosystem changes. In addition, barred owls disrupt the nesting habits of northern spotted owls (making reproduction more difficult), compete with them for food, and even kill them directly. Overall, the larger owl has had a detrimental effect on northern spotted owl populations and now outnumbers the smaller native owl throughout its range.

In an attempt to address the barred owl threat, FWS began experimenting with the species’ removal from northern spotted owl territory in 2013. The study, which is still ongoing, has led to reduced and declining barred owl populations in removal areas, but has found that barred owls continue to increase in all other areas. While studies have shown that removing barred owls benefits northern spotted owl populations, doing so is not a panacea since suitable habitat must also be conserved to halt or reverse population decline.

In 2012, FWS endeavored to mitigate spotted owl habitat loss by expanding the owl’s protected critical habitat by 4.3 million acres. Timber industry groups quickly moved to challenge the rulemaking, filing suit in Washington, D.C. Carpenters Industrial Council v. Bernhardt, No. 13-cv-00361-RJL (D.D.C. Mar. 21, 2013). In their complaint, industry plaintiffs claimed the model used to calculate owl habitat was flawed and arbitrary because it differed from FWS’s own calculations, making its use an abuse of discretion. Defendants initially challenged plaintiffs’ standing to sue and won in the district court but lost on appeal, leading to a delay of several years before the merits of the original claim were briefed. Carpenters Indus. Council v. Zinke, 854 F.3d 1 (D.C. Cir. 2017).

In April 2020—after seven years of litigation—FWS and the timber industry finally settled their dispute. As a result of the settlement agreement, FWS initiated a rulemaking in August 2020 that would revise the owl’s critical habitat, this time proposing to reduce it by over 200,000 acres in Oregon.

Meanwhile, environmental organizations anxiously watched the northern spotted owl’s continued decline. In 2012, a coalition of concerned organizations sent a petition to FWS, pursuant to the ESA, requesting that the agency “uplist” the owl’s status from threatened to endangered. The petition detailed the reasons the uplisting was necessary, citing years of scientific research showing the owl population’s steep decline across its range, the recent increase in that rate of decline, historic and ongoing loss of habitat, and the invasion of barred owls.

In 2015, FWS announced its ninety-day finding on the petition, acknowledging that the petition presented “substantial scientific or commercial information” indicating that uplisting of the owl is warranted. The ninety-day finding promised that a more thorough review would be forthcoming in a twelve-month finding, as mandated in section 4(b)(3)(B) of the ESA. Additionally, FWS stated that the twelve-month finding would also serve as a five-year review for the species, which was last completed in 2011.

Tired of waiting for FWS to complete the statutorily mandated twelve-month finding or five-year review as the northern spotted owl continued to decline, environmental organizations filed suit in federal court to compel FWS to act. In February 2020, the Center for Biological Diversity filed a complaint in D.C. District Court challenging, among other failings, FWS’s failure to list the northern spotted owl as endangered along with the agency’s failure to make twelve-month findings on petitions to list 231 other species. Center for Biological Diversity v. Bernhardt, No. 1:20-cv-0573-EGS (Feb. 27, 2020). And, on December 8, 2020, a coalition of environmental groups filed suit in the Northern District of California challenging FWS’s inaction regarding the northern spotted owl’s 12-month finding and five-year review. EPIC v. FWS, No. 3:20-cv-08657 (Dec. 8, 2020).

Seven days after the second suit was filed, FWS published a twelve-month finding stating that uplisting was “warranted but precluded.” This finding meant that while FWS agrees that the owl’s status should be uplisted to endangered, the agency had concluded that addressing other species is a higher priority.

One month later on January 15, 2021, despite FWS stating in the twelve-month finding that the owl “is now in danger of extinction throughout all of its range,” the agency proceeded to finalize a rule excluding nearly 3.5 million acres of the owl’s critical habitat in Washington, Oregon, and California. The final rule was a direct result of the April 2020 Carpenters settlement agreement with timber industry groups and, if allowed to proceed, is almost certainly a death knell for the owl. Environmental organizations have already announced plans to challenge the rule in court.

While a change in presidential administration is an auspicious development, especially considering the Trump administration’s lamentable record on conservation, the Biden administration has a lot of unwinding to do—environmental and otherwise. The new administration will easily have its hands full with addressing climate change, the 2020 Council on Environmental Quality National Environmental Policy Act rule, and oil and gas lease sales in the Arctic Wildlife Refuge, just to name a few other pressing environmental matters. Nevertheless, the new administration should prioritize action to save the northern spotted owl—a piece of our national heritage—before it disappears forever.

Marlee Goska

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Marlee Goska is a third-year law student at University of Michigan. She is a Wyss Scholar for the Conservation of the American West and is currently externing with the Western Environmental Law Center.