Plan to save one owl species by killing another clears Ninth Circuit hurdle

(CN) — The government is free to kill barred owls in an effort to prevent the birds from killing their rivals: Northern spotted owls, after the Ninth Circuit on Friday tossed out a challenge to the program.

Compared to northern spotted owls, barred owls are newcomers in Oregon’s forests. But owl species as closely related as the two don’t normally share the same areas, unless they have different diets or hunting methods. The rapid westward expansion of barred owls in the wake of habitat destruction and climate change hasn’t allowed time for the two species to develop the different niches that would allow them to peacefully coexist.  

The U.S. Fish & Wildlife Service announced plans in 2011 to try killing some barred owls to prevent them from attacking spotted owls and pushing them out of their habitat. But the coastal forests where the plan was enacted are a patchwork of intertwined federal, state and private land.

So the service asked state and private logging agencies to help it carry out its experiment. The government gave permits to the Oregon Department of Forestry, Weyerhaeuser and Roseburg Resources Company, among others, to kill barred owls on their property and survey those areas to see if their removal resulted in an increased number of spotted owls.

In exchange, the companies were allowed to keep logging in areas where no spotted owls were found before the experiment began.

Friends of Animals said that meant the plan to help spotted owls survive an influx of barred owls actually killed spotted owls. After private timberlands are cleared of barred owls, spotted owls then fly into those areas and nest in trees slated for logging. And under the program’s permits, the logging companies are allowed to cut down trees newly occupied by spotted owls, under exceptions from the Endangered Species Act granted by the U.S. Fish & Wildlife Service.

The government said that was a justified means to an end.

“The take of spotted owls on the temporarily reoccupied sites is more than offset by the value of the information gained from the experiment and its potential contribution to a long-term barred owl management strategy,” the agency wrote in court documents.

Friends of Animals sued U.S. Fish & Wildlife in 2017, suggesting the government’s interest in protecting spotted owls from barred owls may be motivated by the economics of logging on state and federal land. The group claimed the permits allowing logging companies harass or kill spotted owls are illegal.

U.S. District Judge Ann Aiken dismissed the case in 2018, finding two individuals affiliated with Friends of Animals hadn’t shown they were personally harmed by the government’s program and therefore lacked the basis to sue.

Friends of Animals appealed. At a hearing before a three-judge Ninth Circuit panel in December 2019, Friends of Animals argued the plan harms the very birds it is supposed to benefit.

“They’re killing both owls under this permit,” the group’s attorney Jennifer Best told the panel.

The judges found that one of the two plaintiffs did have standing to proceed and sent the case back to Judge Aiken, who agreed with the government’s assessment that the plan would have a “net conservation benefit” for spotted owls, which meets requirements under the Endangered Species Act to issue the permits to the private logging companies.

Friends of Animals again appealed, and the Ninth Circuit on Friday shut that down. The panel found the government’s experiment would yield important information that would help it create a policy to better protect northern spotted owls, thus complying with the “net conservation benefit” requirement under the Endangered Species Act.

“The definition of ‘conservation’ in the ESA — and, by extension, in the ESA regulation at issue — includes activities aimed at collecting information (such as the efficacy of barred owl removal as a conservation strategy),” U.S. Circuit Judge Kenneth K. Lee, a Donald Trump appointee, wrote in Friday’s ruling. “And thus ‘net conservation benefit’ includes informational and research benefit contemplated by the barred owl removal experiment. Whether this informational benefit outweighs the harm done from any incidental take is an expert judgment that we generally defer to the agency.”

As for the spotted owls killed by private logging companies after they fly from adjacent federal forests into private land newly cleared of barred owls, Lee found those animals aren’t critical to the preservation of the threatened species.

“As FWS explained, there is ‘no evidence that floaters (young and displaced territorial spotted owls) successfully breed unless they first become established on a territory’ and are thus unlikely to contribute to the recovery of the species,” Lee wrote. “It was reasonable for FWS and the parties to set baseline sites based on ‘resident’ owls that are of primary conservation importance.”

U.S. Circuit Judge Johnnie B. Rawlinson, a Bill Clinton appointee, and Senior U.S. District Judge Matthew F. Kennelly, a Clinton appointee sitting by designation from the Northern District of Illinois, joined the ruling.

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