Tuesday, December 6, 2022 | Back issues
Courthouse News Service Courthouse News Service

Advocates for northern spotted owl appeal Southern Oregon logging project at Ninth Circuit

Is there a reasonable way to remove habitat from a federally protected species? A Ninth Circuit panel will decide.

PORTLAND, Ore. (CN) — The fates of northern spotted owls in Southern Oregon are in the hands of Ninth Circuit judges on Thursday, where attorneys for Klamath-Siskiyou Wildlands appealed a district court’s dismissal of its attempt to stop a logging project in the Klamath Falls Resource Area.

In 2019, Klamath-Siskiyou Wildlands and four other conservation groups sued the Bureau of Land Management and the U.S. Fish and Wildlife Service for approving the North Landscape Project, which, over ten years, allots up to 9,000 acres of timberland harvest.

“That’s over 14 square miles of spotted owl habitat,” said Klamath-Siskiyou attorney Sangye Ince-Johannsen, who explained that planned logging will lead to the expected abandonment of five currently occupied spotted owl sites in the project area.

According to Ince-Johannsen, the project comes at a time when the threatened species’ population is declining by 5% a year across its range and approximately 34% between 2011 and 2016. Similar arguments are made by Klamath-Siskiyou in its 2019 complaint, which claimed the government violated the National Environmental Policy Act and the Endangered Species Act by allowing a project that imperils threatened northern spotted owls.

However, attorneys for the government agencies claim the allotment of timberland only constitutes a small percentage of land — 1 million acres in total — that have otherwise been set aside as a reservation.

“This is not a case where plaintiffs are seeking to stop the sale of timber in a reserve area set aside for owls or forests, but one in which they are seeking to stop the sale in the comparatively very few areas where regular timber production can still be conducted,” said government attorney Katelin Shugart-Schmidt.

Not the first rodeo

Northern spotted owls are a federally protected species under the Endangered Species Act, so it’s no surprise that this is not the first time Klamath-Siskiyou has sued over the owl and it’s not the first time the species has been central to controversy involving the logging industry.

Previously, Klamath-Siskiyou sued Fish and Wildlife in 2010 for issuing a biological opinion that approved a different logging project in the same resource area and, in April 2020, the group sued the Forest Service for approving logging in the Klamath National Forest.

In January 2021, Fish and Wildlife published a revised critical habitat designation for the threatened owl, removing federal protections from 3.5 million acres of forests in Oregon, Washington and California. The move sparked fury among conservationists but was praised by those in the timber industry who claim logging has been unfairly blamed for the demise of a creature that is being outcompeted by other owl species. Fish and Wildlife reversed the designation later that year, though still omitted over 200,000 acres of protected federal land in Oregon.

After receiving the defendants’ motions to dismiss and supporting claims from intervenor logging entity Murphy Company, U.S. Magistrate Judge Mark Clarke found the project and supporting biological opinion did not violate the ESA. According to Clarke, the government agencies “reasonably considered” the effects of the projects on northern spotted owls through its initial project proposal in 2016, including the species’ life cycle, critical habitat and relevant recovery plans.

“The government has been clear that if any NSOs are detected in the harvest area, that timber harvest would stop and be reevaluated,” wrote Clarke in his findings, adding that Klamath-Siskiyou’s arguments for species recovery expand the government’s obligations beyond those required by the ESA. As noted by Clarke, the obligation of the government is not to restore or recover the owls, but to “implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.”

Additionally, Clarke rejected Klamath-Siskiyou’s claim regarding the National Environmental Procedure Act, which, altogether, was adopted by U.S. District Judge Michael McShane in November 2021. However, Klamath-Siskiyou subsequently filed an appeal to the Ninth Circuit in January 2022, arguing the logging project puts the northern spotted owls at risk.

“By the time implementation of the North Landscape Project concludes, federal defendants anticipate every spotted owl and all suitable habitat will have disappeared from the project area, a condition that will persist for up to 120 years,” Klamath-Siskiyou wrote in its appeal, adding: “The agencies variously seek to conceal, minimize, or justify the project’s dire implications, leaving core questions—such as whether and how spotted owls will ever recolonize the area—unanswered.”

As explained by government attorneys on Thursday, areas allotted for harvest undergo multiple inspections before timber sales to ensure spotted owls are not in the direct vicinity. Five years into the project, there have been five sales so far.

“But if you eliminate some of the area of where this animal can live, that's certainly having an impact on the habitat of the animal by definition, right?” asked U.S. District Judge Maurice Baker, a Trump appointee.

“Perhaps the way to think about it would be that if you had 100 squares of habitat and you had one animal right, and the animal needs one square at any point in time, that you could potentially remove some of that habitat and not actually impact the species,” attorney Shugart-Schmidt said, who later argued that even if the government used the entire 9,000 acres of timberland, it would have no detrimental effect to the species as a whole.

In his closing remarks, Ince-Johannsen disputes this claim.

“Spotted owls face truly a death by 1000 cuts,” Ince-Johannsen said, adding: “And a species past extinction is often the result of many actions, and one of which may appear small in light of the species range. But it's exactly that type of slow slide into oblivion, as this court put it in National Wildlife Federation versus NFMS. It's one of the very ills that the ESA seeks to prevent.”

With that, U.S. Circuit Judges Collins, Holly Thomas, a Joe Biden appointee, and Richard Clifton, a George W. Bush appointee, adjourned court with no indication on how they may lean.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.

Loading
Loading...