Tuesday, August 9, 2022 | Back issues
Courthouse News Service Courthouse News Service

Marbled Murrelet Habitat Stays Protected

(CN) - A federal judge rejected a joint proposal from the government and logging industry that would vacate critical habitat designation for the marbled murrelet in the Pacific Northwest.

The murrelet is a small diving seabird that nests in old-growth forests on the West Coast. Its habitat ranges from Central California to Alaska.

U.S. Fish and Wildlife listed the Oregon, Washington and California populations of the marbled murrelet as threatened in 1992.

At the time, the agency said it "lacked sufficient information to perform required analysis of the impacts of a critical habitat designation."

The American Forest Resource Council, Carpenters Industrial Council and Douglas County, Ore. petitioned the director of Fish and Wildlife and Secretary of the Interior Ken Salazar to delist the bird in California, Washington and Oregon.

Fish and Wildlife conducted two 5-year status reviews of the murrelet to determine if it was warranted to list the tri-state population of the bird as a distinct population.

In 2011, Fish and Wildlife removed nearly 190,000 acres in Northern California and Southern Oregon from its previous designation.

The American Forest Resource Council (AFRC) sued the agency in District of Columbia Federal Court in January 2012.

The parties moved for summary judgment, and on Monday a federal judge found Fish and Wildlife's decision was rational and not arbitrary or capricious.

Fish and Wildlife and AFRC jointly sought to enter a consent decree that would dismiss four of AFRC's claims and vacate Fish and Wildlife's critical habitat designation for the murrelet.

Several intervening environmental groups, including the Portland and Seattle chapters of the Audubon Society, argued against the consent decree.

Among other things, they said the consent decree would allow the murrelet's critical habitat to be vacated without notice and comment.

U.S. District Judge John D. Bates rejected that argument because vacating the habitat would be a judicial act allowed by the court.

Bates was not persuaded, however, that the critical habitat designation should be vacated entirely.

"If a longstanding critical habitat designation is to be vacated entirely pursuant to an agreement between a private litigant and the government - and over the objection of others - the Court must be reasonably confident that there is a sound legal basis for vacatur," Bates wrote.

"Missing from the equation is any concession of error by the agency, or even any hint as to how exactly, in FWS's view, the critical habitat designation 'may' be deficient."

Bates found it significant that if the habitat were vacated, Fish and Wildlife could not begin to act on the new designation until 2017.

"By that time, murrelet nesting habitat in the current designation - all or part of which may be legally justified - might be lost irretrievably, or at least for a very long time. Forested stands containing 33-foot-high trees do not grow overnight," Bates wrote.

"Considering that the Court would be vacating a longstanding critical habitat designation, without public notice and comment and without a determination on the merits, the Court is unwilling on this record to approve the lengthy and potentially disruptive remand period proposed."

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.