Murrelet Habitat Setup Shouldn’t Be Vacated

     (CN) – Logging interests failed to interrupt the creation of habitat protections in the Pacific Northwest for the endangered marbled murrelet, a federal judge ruled.
     Marbled murrelets are small seabirds that nest in coastal, old-growth forests throughout California, Oregon and Washington. They typically grow to about 10 inches long, and are characterized by dark plumage on their backs and mottled white feathers on their stomachs.
     Unlike most birds of their scientific family, marbled murrelets do not build nests in trees or on the sides of cliffs. Instead, they lay a single egg on a platform of moss or lichen formed where tree branches join the trunks of coniferous trees like Douglas fir and Sitka spruce.
     The U.S. Fish and Wildlife Service listed the marbled murrelet’s populations in the Pacific Northwest as threatened in 1992, and designated critical habitat for the species in 1996.
     American Forest Resource Council challenged the designation alongside Douglas County, Ore., and Carpenters Industrial Council. They sought delisting based on the agency’s failure to specify whether the murrelet’s tri-state population constituted a distinct population segment.
     After two five-year studies, Fish and Wildlife determined that the murrelet’s populations in the Pacific Northwest did form a distinct population segment (DPS) and that delisting the bird was therefore unwarranted.
     The Resource Council sued Fish and Wildlife in January 2012, arguing that its designation was unlawful because it included the central Californian murrelets as part of the protected population without evidence that these birds interbred with other populations.
     The parties proposed a consent decree to vacate the designation of critical habitat and remand the issue to FWS for new rulemaking.
     U.S. District Judge John Bates found earlier this year found that Fish and Wildlife’s decision was not arbitrary or capricious. He said the habitat designation should not be entirely vacated because Fish and Wildlife did not explain how it was deficient.
     Fish and Wildlife then told the court that the lacking explanation of critical habitat meant that it could no longer defend the 1996 designation. It said the critical habitat designation should be remanded without vacatur for a period two years shorter than that proposed in the consent decree.
     The Resource Council meanwhile claimed that the remand memorandum should be completely vacated.
     U.S. District Judge John Bates in Washington sided with Fish and Wildlife on Thursday, noting that vacatur would delay work on a new designation until 2018.
     The Resource Council claimed Fish and Wildlife’s remand memorandum failed to address relevant factors, such as the “reasonableness” of including an allegedly genetically distinct population in the protected population and whether the central California murrelet should have its own distinct population segment.
     Bates rejected these arguments, pointing out that Fish and Wildlife’s memorandum demonstrated that there were low levels of interbreeding between the central California murrelets and other populations.
     He also found that the agency did not have to address the issue of establishing a separate population for central California murrelets.
     In the previous ruling, “the court did not hold that FWS had to address, specifically and on the record, whether central California murrelets should be designated as a separate DPS, and it will not impose such a requirement now,” Bates wrote.
     Bates found nothing arbitrary of capricious with Fish and Wildlife’s failure to consider relevant factors.
     The Resource Council also claimed that upholding previous habitat protections for the marbled murrelet while Fish and Wildlife re-examines its critical habitat designation will harm the timber industry by hindering the collection of timber and causing federal timber sales in the Pacific Northwest to decline.
     Though Bates acknowledged that the current habitat rule is “flawed,” he rejected the Resource Council’s arguments about the alleged costs of remand without vacatur as “too abstract and speculative to clearly outweigh its benefits.”
     Remanding the designation to Fish and Wildlife will allow the agency to fix its previous mistakes while saving both the court and the parties money, the ruling states.
     “The court concludes that, although AFRC [the Resource Council] has raised some legitimate objections, it will not be unduly prejudiced by remand without vacatur,” Bates wrote. “As a practical matter, since briefing on the merits has not yet transpired, it would be many months before a decision on the merits could be rendered by the court. The critical habitat designation would remain in force during that time regardless of the court’s decision today, and so the additional amount of time that AFRC will be subject to the rule as a result of voluntary remand is actually less than three years. … The real possibility that the rule’s deficiencies can be addressed on remand, and hence that the rule would not be vacated in any case, decreases the expected benefit to AFRC and the public of going forward with this litigation now. That possibility also increases the likelihood that a three-year interim vacatur will be unduly disruptive.”
     Bates remanded the murrelet critical habitat designation to Fish and Wildlife, and ordered the agency to propose new habitat by Sept. 30, 2015.
     The defendants in the case are Fish and Wildlife Service director Daniel Ashe and Secretary of the Interior Sally Jewell.
     The Audubon Society of Portland; Seattle Audubon Society; Center for Biological Diversity; Oregon Wild; Conservation Northwest; Environmental Protection Information Center; and Sierra Club intervened as defendants.

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