Battle Over Two Owl Species Takes Flight at 9th Circuit

PORTLAND, Ore. (CN) – A Ninth Circuit panel seemed interested Thursday in an environmental advocate’s novel argument against what has become an increasingly standard practice in wildlife management – killing droves of one wild species in an effort to benefit another.

Friends of Animals sued the U.S. Fish and Wildlife Service over a 2014 plan to kill thousands of barred owls, which in recent decades have encroached on the old-growth forest habitat of threatened spotted owls. The service said it wanted to kill the birds as an experiment to determine whether reducing barred owl numbers would benefit spotted owls.

While spotted owls are listed under the Endangered Species Act, barred owls are protected under the Migratory Bird Treaty Act.

Friends of Animals claimed the plan ignored the fact that the real problem was habitat destruction caused by deforestation, and instead unfairly scapegoated a protected wild animal for the spotted owl’s human-caused decline.

U.S. District Judge Ann Aiken dismissed the complaint in 2015, finding the service’s experiment was legally allowed under a provision of the Migratory Bird Act that allows the killing of protected birds “for scientific use, for propagation or for museum use.”

On Thursday, Friends of Animals attorney Michael Harris told a Ninth Circuit panel those exceptions must benefit the bird the service is considering killing. Harris said they did not apply in situations where the killing of one bird was intended to benefit another, whether by scientific, propagation or museum means.

Circuit Judge Richard Paez called the argument “interesting.”

A ruling that adopted such reasoning could have a wide-ranging effect, even if it applied only to birds. The service has adopted similar tactics to deal with other tricky conservation situations. It authorized the killing thousands of cormorants to prevent them from eating young salmon, and has killed ravens across the American West to keep them from eating protected sage grouse.

Harris told the three-judge panel the service illegally expanded legal meaning of “scientific purpose.”

“The heart of our argument here is that you can’t just take the words ‘scientific purpose’ out of context,” Harris said. “This is a phrase. ‘Used for scientific purpose, for propagation, or for museums.’ What’s the common thread there? What is the context and meaning of these words? That it’s got to be for the benefit of the bird being killed.

“Our take is that you really need to look at the actual language and ask yourself what were the drafters intending when they put in that phrase ‘used for scientific purposes, for propagation or for museum use?’ Were they really talking about taking birds for scientific study that has nothing to do with that bird itself? We just don’t think you could read it that way, if you want to make sure all those words connect and fit together.”

Rachel Heron, lawyer for U.S. Fish & Wildlife Service, said that argument invented a new meaning that doesn’t exist in the law.

“Friends of Animals is asking the court to read into the Migratory Bird Treaty Act and the conventions a requirement that does not appear in the text and that is not necessary to accomplish the law’s intent,” Heron told the court. “It is self-evident that the conventions and act contain no such requirement.”

Heron said Harris’ “close readings” of the law did not appear in the brief filed by Friends of Animals.

“The suggestion that ‘scientific use’ should be read in light of the phrases that follow – we don’t think there’s any reason the court needs to be troubled by that argument.”

Circuit Judge Carlos Bea questioned that logic.

“You will concede, I think, that normal canons of statutory interpretation should be used,” Bea said. “And, since birds of a feather flock together, so you should take words together in the context in which they are used.”

“That’s correct,” Heron replied.

“And if you use ‘scientific purpose, propagation and museum use,’ how does that not limit ‘scientific purpose’ to propagation and museum use of this species?” Bea asked.

“It could be read as a series of three different options: scientific use, museum or propagation,” Heron said.

“Propagation use of any species?” Bea pressed. “Because the whole purpose of the effort here is to preserve the spotted owl’s propagation by not allowing the barred owl to eat it.”

To which Heron replied, “Or to otherwise interfere with its habitat. But I just don’t think it’s necessary to view scientific use as limited to those other two purposes.”

Harris said the issue is as broad as his argument was narrow. He argued the court had to adhere strictly to the meaning intended by the framers of the act, in order to properly address a new ecological reality.

“This is about the legal and ethical considerations when it comes to human involvement in species on species conflict,” Harris said. “This isn’t a case in which barred owls were put in cages and brought to the Pacific Northwest and inadvertently or maliciously let loose. It’s about a species that, because of changing habitat conditions, migrated across the country over the course of decades and that now calls this area home as well.

“This is a phenomenon that scientists are telling us we may see happen more frequently in the future. So it’s important that we understand the legal framework for this type of species migration.”

 

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