FoA’s first challenge focused on the permits granted under the MBTA for the “scientific collection” of barred owls for the purpose of facilitating the recovery of the northern spotted owl. Friends of Animals, 879 F.3rd, supra, at 1003. FoA argued that it was impermissible to utilize scientific collection permits under the MBTA to remove one species of bird for the protection of a different species. Friends of Animals, 879 F.3rd, supra, at 1003. Although FoA acknowledged that the text of the MBTA and implementing regulations did not impose this “same-species” requirement, it contended the text of an underlying international convention with Mexico did impose this requirement and that the requirement was binding on FWS through the MBTA’s “consistency” provision. Friends of Animals, 879 F.3rd, supra, at 1003. The Ninth Circuit rejected this argument, finding that the underlying treaty did not limit scientific collection to the same species that was the target of conservation, and as such, the MBTA had no such limitation. Friends of Animals, 879 F.3rd, supra, at 1009.
FoA’s second suit focused on the effect of the experimental program on the northern spotted owl itself. FoA argued that the incidental take permits issued to cooperating private landowners under Safe Harbor Agreements were impermissible under the ESA because they provided only an “informational benefit” to the FWS and not a “net conservation benefit” to the northern spotted owl. Friends of Animals, 28 F.4th, supra, at 29. FoA argued that the term “net conservation benefit” within the ESA was ambiguous and that implementing FWS policy on SHAs required the permits to result in an increase in the population of the designated species. Friends of Animals, 28 F.4th, supra, at 29. The Ninth Circuit rejected this argument as well, saying that informational benefit fell under the “net conservation benefit” language of the ESA itself and would also be covered by the language in the Safe Harbor Policy. Friends of Animals, 28 F.4th, supra, at 30. Additionally, the court rejected challenges under ESA regarding the methodology FWS used in designing the plan as well as challenges under NEPA regarding the sufficiency of its environmental impact statement. Friends of Animals, 28 F.4th, supra, at 31–34.
Between these two decisions, FWS issued an initial report on the results of the experimental program. J. David Wiens et al., “Effects of Barred Owl (Strix varia) Removal on Population Demography of Northern Spotted Owls (Strix occidentalis caurina) in Washington and Oregon—2019 Annual Report,” U.S. Fish and Wildlife Service. Looking only at one of the study areas, the report found that in the control area (where barred owls were not removed) spotted owl population decreased by 83 percent while in the treatment area (where barred owls were removed) the population increased by 12 percent. Wiens et al., supra, at 9. While stressing that final conclusions are still pending, the report suggested that “removal efforts may be positively influencing territory occupancy, apparent survival, and population trend of spotted owls in the study areas.” Wiens et al., supra, at 13.