(CN) – A government experiment to kill barred owls to bolster Oregon’s threatened spotted owls got a green light from the Ninth Circuit last year. Now, environmental groups are once again taking aim at the controversial program, this time claiming it also harms the very birds it is intended to protect.
Owl species that are as closely related as the barred and spotted owls don’t usually share the same habitat. If they do, they have different hunting methods or diets. But barred owls’ territory has expanded so quickly that the two species haven’t evolved to adopt the separate niches that would let them live peacefully in the same forests.
The 1990 listing of spotted owls as threatened under the Endangered Species Act launched the timber wars that largely hushed the region’s chainsaws. But the birds’ numbers are still declining, and they face continuing threats from logging, climate change and a brand new predator.
The Ninth Circuit ruled last year that the government can proceed with its experiment to remove some barred owls from spotted owl habitat in an effort to determine whether that benefitted spotted owls.
But Friends of Animals filed another suit objecting to the plan’s implementation on private land, and said the two cases are legally distinct. In the first, the Ninth Circuit rejected environmentalists’ challenge based on claims under the Migratory Bird Treaty Act. The current case is based on claims under the Endangered Species Act.
In the current case, Friends of Animals claims U.S. Fish & Wildlife illegally issues permits to let Weyerhaeuser and three other logging companies harass or kill spotted owls. It also suggests that 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 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 like the use of chainsaws and heavy equipment, building rock pits and spraying and fertilization.
U.S. District Judge Ann Aiken dismissed the case last December, finding that 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.
On Tuesday, U.S. Fish and Wildlife Service attorney Rachel Heron told a three-judge Ninth Circuit panel that the experiment “may be drawing some spotted owls to some locations” according to preliminary results.
“I don’t want to overstate it,” Heron said. “But there are maybe some signs of that.”
The coastal forests where the plan would be enacted are a patchwork of intertwined federal, state and privately owned land. And that’s another problem, according to Friends of Animals: after private timberlands are cleared of barred owls, spotted owls will then fly into the adjacent private land 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.
That’s because the government says the plan will have an overall benefit for spotted owls.
“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.
But Friends of Animals claims the plan will harm 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.
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, sat on the panel. They did not say when they would issue a ruling.
If they find Friends of Animals had standing to bring the lawsuit, they would likely send the case back to the lower court where it was filed. There, Judge Aiken could rule on the larger questions at the heart of the lawsuit.