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ARTICLE

Legal and Effective: U.S. Fish and Wildlife Service’s Initiative for Spotted Owl Recovery through Barred Owl Removal

Adam Smith

Summary

  • Examines the two decisions upholding the legality of the initiative in the context of initial reports on the effectiveness of the initiative in supporting northern spotted owl recovery.
  • Addresses the implementation of the experimental program to determine whether removal of barred owls would broadly support spotted owl recovery.
  • Discusses how barred owl removal is just one component in the recovery plan for the northern spotted owl.
Legal and Effective: U.S. Fish and Wildlife Service’s Initiative for Spotted Owl Recovery through Barred Owl Removal
Carlos Camarena via Getty Images

In March 2022, the Court of Appeals for the Ninth Circuit rejected a challenge by environmentalist plaintiffs Friends of Animals (FoA) under the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) to an ongoing initiative by the U.S. Fish and Wildlife Service (FWS) to conduct experimental removal of barred owls (Strix varia) for the benefit of the northern spotted owls (Strix occidentalis caurina). Friends of Animals v. United States Fish & Wildlife Serv., 28 F.4th 19 (9th Cir. 2022). This case came four years after the Ninth Circuit rejected FoA’s earlier challenge to the same initiative under the Migratory Bird Treaty Act (MBTA). Friends of Animals v. United States Fish & Wildlife Serv., 879 F.3rd 1000 (9th Cir. 2018). The following examines the two decisions upholding the legality of the initiative in the context of initial reports on the effectiveness of the initiative in supporting northern spotted owl recovery.

The FWS initiative involves the targeted removal of barred owls within areas designated as habitat for spotted owls with the goal of determining whether such removal would broadly support spotted owl recovery. Department of the Interior, Experimental Removal of Barred Owls to Benefit Threatened Northern Spotted Owls; Record of Decision for Final Environmental Impact Statement, 78 Fed. Reg. 180, 57171 (Sep. 17, 2013). Spotted owls have been designated a threatened species since 1990, but since that time their population has continued to decline despite extensive maintenance and restoration of habitat. Revised Recovery Plan for the Northern Spotted Owl, U.S. Fish & Wildlife Service, vi (Jun. 28, 2011). Barred owls, which are not designated as threatened or endangered under the ESA but which are protected under the MBTA, were not historically found in the Pacific Northwest but have expanded their range to the habitat of the northern spotted owl in the past hundred years. Record of Decision, supra. In its 2008 and 2011 recovery plans, the FWS identified competition from the barred owl as a “significant and complex threat to the spotted owl” and recommended experimenting with removal of barred owls as an additional tool beyond “habitat conservation and active forest restoration.” Revised Recovery Plan, supra.

The experimental control program involved four study areas identified as northern spotted owl habitat within the states of Oregon, Washington, and California. Record of Decision, supra. Each study area was divided into treatment and control sections, so the effects of barred owl removal could be compared to areas without such removal. Record of Decision, supra. Although much of the habitat was on federal land, some sections of the study areas contained privately owned land that required cooperation from private landowners. Record of Decision, supra.

Implementation of the experimental program required two different permits. The first was a “scientific collecting permit” under the MBTA authorizing FWS to effectuate the lethal and non-lethal removal of barred owls. Record of Decision, supra. The second was an “incidental take permit” under the ESA issued to landowners as part of Safe Harbor Agreements (SHAs) with cooperating private landowners. Revised Recovery Plan, supra. SHAs incentivize landowners to participate in the plan by allowing them to return their property to the baseline conditions that existed before the SHA, even if such reversion would in fact constitute otherwise prohibited environmental harm and take of the listed species. See “Safe Harbor Agreements,” U.S. Fish & Wildlife Service.

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.

Importantly, barred owl removal is just one component in the recovery plan for the northern spotted owl. The current FWS recovery plan for the northern spotted owl stresses that recovery will also require habitat conservation and active forest restoration as well as range-wide habitat modeling and ongoing research and monitoring. Revised Recovery Plan, supra. This is supported by academic research analyzing FWS’ preliminary results that suggests that barred owl removal may be effective in the short term, but that long term species recovery will require improving habitat conditions. See J. David Wiens et al., “Invader Triggers Competitive Release in a Threatened Avian Predator,” 118 PNAS 31 (2021); Charles Yackulic et. al, “The Past and Future Roles of Competition and Habitat in the Range-Wide Occupancy Dynamics of Northern Spotted Owls,” 29 Ecological Applications 3 (2019). All in all, however, considering the decisions by the Ninth Circuit and the FWS results, it is reasonable to believe that barred owl removal will be a component in future initiatives to support spotted owl recovery. 

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