Ninth Circuit Gives Green Light to Fight Over Owl Killings

(CN) – The Ninth Circuit Tuesday gave environmentalists another chance to fight a government experiment they say results not only in the intended deaths of barred owls but also in the killing of spotted owls – the very birds it was intended to protect.

Friends of Animals sued U.S. Fish & Wildlife in 2017, claiming it illegally lets logging companies such as Weyerhaeuser harass and kill threatened spotted owls that nest in tree farms. 

The deaths are “incidental,” according to permits the agency issues to logging companies, since they occur after the companies legally kill barred owls, which are neither listed under the Endangered Species Act nor native to the Oregon forests at issue. But killing barred owls clears the way for spotted owls to move into forests formerly occupied by the non-native owls – who have migrated west due to climate change and habitat destruction and often kill smaller owls.

The environmental group suggested in its lawsuit that the scheme shed new light on a government “experiment” to kill barred owls for the stated purpose of protecting spotted owls. 

The Endangered Species Act allows the killing of a limited number of threatened spotted owls. And if barred owls account for the deaths of spotted owls up to that limit, the service would be hamstrung in its ability to let logging companies continue the “incidental killing” of spotted owls during operations involving the use of chainsaws and heavy equipment, building rock pits and spraying and fertilization.

U.S. District Judge Ann Aiken dismissed the case in 2018 but the groups appealed, arguing last month before the Ninth Circuit that two of its members, camping and birding enthusiasts, had shown that they were personally harmed by the government’s program and therefore had standing to sue.

On Tuesday, a three-judge panel of the circuit court agreed in part, finding that one of the two members had suffered “concrete and particularized” injury based on her love of viewing both barred and spotted owls within the Oregon Coast Ranges Study Area. And one injured member is enough for Friends of Animals to bring its suit, according to the ruling issued by U.S. Circuit Judges Susan Graber, Marsha Berzon – both Bill Clinton appointees – and Stephen Higginson, a Barack Obama appointee sitting by designation from the Fifth Circuit.

The panel sent the suit back to Aiken for a ruling on the merits of the lawsuit – at least on claims within the Oregon Coast Ranges Study Area. The second Friends member did not establish standing, the panel found, which meant a forfeit on its claims within the Klamath Study Area.

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