The 9th Circuit Court of Appeals ruled March 4 the U.S. Fish and Wildlife Service (USFWS) can kill thousands of barred owls in Oregon forests to determine if it will help with the northern spotted owl’s recovery in the area.
The animal activist group Friends of Animals argued the experiment would harm northern spotted owls without any overall net conservation benefit to the species. However, the appeals panel affirmed the district court’s earlier decision that the experiment would in fact produce a net conservation benefit under the Endangered Species Act (ESA).
The panel said the barred owl removal experiment would allow the agency to obtain critical information to craft a policy to protect the species, and that the USFWS accurately analyzed baseline conditions and critical habitat. The judges also ruled that the agency complied with the National Environmental Policy Act (NEPA) and did not have to conduct a supplemental environmental impact statement.
Background
The northern spotted owl is considered a subspecies of the spotted owl and lives in mature and old-growth forests on the West Coast. The species has been listed as threatened under the ESA since 1990.
In contrast, the barred owl is an abundant species native to eastern North America, which has gradually moved westward, encroaching on the northern spotted owl’s range. The two species’ ranges now completely overlap, and their food sources and habitats are also very similar, according to USFWS.
In its latest recovery plan for the northern spotted owl, USFWS said there is strong evidence the barred owl negatively affects the spotted owl by displacing the species and reducing their survival and reproduction. The 2011 recovery plan called for the agency to design and implement large-scale control experiments to assess the effects of the barred owl’s removal.
USFWS issued a record of decision in 2013, authorizing the lethal barred owl removal experiment, which designated four study areas. In the Oregon Coast Range study area—the area of interest in the suit—about 3,600 barred owls were to be removed in four years.
The ensuing environmental impact statement acknowledged the northern spotted owl could experience minor and short-term negative effects, but the overall impact would be largely positive because of decreased competition.
USFWS is authorized to issue enhancement of survival permits, which authorize take for scientific purposes or to enhance the survival of an affected species. The agency can issue the permits and enter into Safe Harbor Agreements with nonfederal landowners whose land the agency seeks to use for conservation efforts. The Safe Harbor Agreements set the terms of the permits and try to incentivize nonfederal property owners to voluntarily undertake conservation activities on their property.
USFWS entered into agreements with four nonfederal landowners within the Oregon Coast Range study area, and in 2017, Friends of Animals sued the agency.
“We hold that FWS complied with the ESA and NEPA in issuing the permits and Safe Harbor Agreements. We affirm the district court’s grant of summary judgment for FWS,” the court’s opinion concluded. — Anna Miller, WLJ managing editor
