Northern Spotted Owls caught a break on November 10, when the Biden administration announced it would restore nearly all of the 3.4 million acres that the departing Trump administration tried to cut from the threatened owl’s critical habitat. That cut represented more than one-third of the 9.6 million acres that in 2012 the feds had deemed “critical habitat” – that is, the area needed to prevent jeopardizing the species, which may require special management.
At the beginning of last year, when the Trump administration published a Federal Register notice announcing the critical habitat cut, the Center for Biological Diversity’s (CBD) endangered species director Noah Greenwald observed that “this revision is Trump’s latest parting gift to the timber industry.”
Undoing that gift to the timber industry is a very big deal. But it may not be enough to save the endangered owl, an indicator species for old-growth forests of the Northwest. To see why the owl is still in trouble, we have to go back to the early chapters of this very long saga.
The Northern Spotted Owl inhabits old-growth forests in the Pacific Northwest. In the 1980s, researchers found that whenever they discovered an owl nest site they could be pretty sure that the trees were scheduled to be logged. The owl was clearly in trouble. The federal government, presiding over a late-’80s logging binge in the national forests, clearly didn’t want to list the owl as threatened or endangered. The stalls by the feds lost repeatedly in court, since they were trying to ignore both science and the law. After Reagan’s U.S. Fish and Wildlife Service (FWS) decided against listing the owl, U.S. District Judge Thomas Zilly noted that “the Service disregarded all the expert opinion on population viability, including that of its own expert, that the owl is facing extinction.” Listing then became inevitable.
A committee chaired by the Forest Service’s senior wildlife biologist, Jack Ward Thomas, proposed setting millions of acres aside as spotted owl habitat. Congressional committees convened the so-called Gang of Four, which included both Thomas and University of Washington forestry professor Jerry Franklin, to come up with alternatives for preserving the owl’s old-growth habitat. U.S. District Judge William Dwyer enjoined all future timber sales on national forests in spotted owl territory until the Forest Service complied with the law. Dwyer didn’t mince words; he described “a deliberate and systematic refusal by the Forest Service … to comply with the laws protecting wildlife.”
Bill Clinton campaigned in part on his ability to end the Northwest’s timber wars. Soon after he took office, he convened a “Forest Conference” in Portland, where he — plus Vice President Al Gore and four cabinet members — heard from scientists, loggers, small-town officials, and ordinary citizens. The Forest Ecosystem Management Alternatives Team (FEMAT) — chaired by Jack Ward Thomas and including Jerry Franklin — came up with a menu of possible strategies to conserve the spotted owl, the equally imperiled Marbled Murrelet, and many other critters, including salmon, that made their homes in the old-growth forests. Clinton chose one, which became the 1994 Northwest Forest Plan. Nobody liked it, but it did the trick and Dwyer lifted the injunction. Thomas became chief of the Forest Service.
No one lived happily ever after. The scientists who devised the plan expected spotted owl numbers to drop before they swung upward. The experts were shocked, though, by how steeply the numbers fell. They had known that barred owls (larger, less specialized non-native birds) were waiting, as it were in the wings, but they had no idea how aggressively barred owls would invade spotted owl habitat and displace the smaller birds. And who knew that vested commercial interests would still be fighting to gain access to old timber in Oregon nearly three decades after the Northwest Forest Plan was approved?
Even before Clinton’s Northwest Forest Plan was approved, the Bureau of Land Management (BLM) convened the “God Squad” — the federal cabinet-level Endangered Species Committee that could be convened under special circumstances to weigh the economic harm of a decision to protect a listed species against the probable harm to the species of not protecting it. The God Squad was to consider letting the agency go ahead with 44 Oregon timber sales in what had already been designated as spotted owl habitat. There were serious allegations that the George H.W.Bush’s White House had intervened behind the scenes to pressure God Squad members to approve logging. The case for logging was pretty weak, so the God Squad approved only 13 of the 44 sales.
In Oregon, the BLM managed the so-called “O & C” lands under the federal Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act of 1937. The O&C lands generate jobs and revenue for counties that don’t have a lot of other options, and the legislation makes that local-revenue option a goal. The BLM has implied that it therefore has a duty to provide a certain flow of timber. Language in the 1937 legislation does say that, but viewing the O&C Act as a whole, the courts have said otherwise. In a 1993 decision, which upheld an injunction against old-growth logging on O & C land until the agency complied with the National Environmental Policy Act (NEPA), the 9th Circuit said that “the plain language of the [O&C] Act supports the district court’s conclusion that the Act has not deprived the BLM of all discretion with regard to either the volume requirements of the Act or the management of the lands entrusted to its care. . . . [W]e cannot allow the Secretary [of the Interior] to ‘utilize an excessively narrow construction of its existing statutory authorizations to avoid compliance [with NEPA].'”
Once again, that wasn’t the end of the story. In 2003, during George W. Bush’s first term, Earthjustice used the Freedom of Information Act to get a wish list of four actions that the forest products industry had given the Bush administration. One item on the list was opening up those BLM lands to increased logging. At the very end of the Bush years, only three weeks before Barack Obama’s inauguration, the Bush administration settled an industry lawsuit — which had previously been dismissed — by approving the Western Oregon Plan Revision — usually abbreviated to its acronym WOPR and pronounced “whopper” — which was designed to allow more logging on those O&C lands. The logging didn’t happen under Obama, but the desire for it didn’t go away.
Keeping up the 11th-hour surprises, the Trump administration, with its twin goals of helping certain vested interests and screwing the Greens, settled another industry suit — just days before Biden’s inauguration — by issuing a rule that would have chopped those 3.4 million acres out of the owl’s critical habitat. Trump’s administration had proposed removing roughly 204,000 acres only six months before. Then, without any advance warning, the number ballooned. If Biden hadn’t acted to rescind the withdrawal of these lands, the rule would have taken effect this past December 15.
The new Biden-era rule does exclude almost exactly the same acreage that the first iteration of the Trump rule would have lopped off. Not everyone was pleased about that. “We’re glad the Biden administration repealed the ridiculous and politically driven decision to strip 3 million acres from the spotted owl’s critical habitat,” Noah Greenwald of the Center for Biological Diversity said. But, he argued, “204,000 acres should not have been excluded . . . . The spotted owl and hundreds of other vulnerable species can’t withstand the loss of more old forest.”
No one who has followed the spotted owl saga for long thinks that the Biden administration’s restoration of critical habitat marks a final happy ending. Still, it makes a happy ending more plausible.
So might a serious effort to remove — i.e., shoot — the competing barred owls. Franklin doesn’t express much optimism about the spotted owl’s future, but he does expect — and would welcome — a push to get rid of their competition The experimental erasure of barred owls, which began years ago, hasn’t quite finished, he explains, but everyone knows what the results will be and it’s time to move beyond the experimental stage. To do any real good, he says, government marksmen will have to shoot a lot of barred owls. Because the barred owls will eat just about anything while spotted owls are very picky, a barred owl’s home range will be a tenth or less as large as a spotted owl’s. Therefore, in a given area, where you may have one pair of spotted owls, you may have ten or more barred owl pairs. Will the public accept that kind of a barred owl massacre? The alternative is probably accepting the spotted owl’s demise.
People tend to think of the Northern Spotted Owl as endangered. As a matter of legal status, though, it’s not. The FWS listed it in 1990 as merely “threatened,” and “threatened,” it remains. Should it be promoted to “endangered”? Of course, it should. Even the Trump administration’s FWS conceded it should, although the agency declined to do anything about it.
FWS wrote that “the stressors acting on the [spotted owl] subspecies and its habitat, particularly rangewide competition from the nonnative barred owl and high-severity wildfire, are of such imminence, intensity, and magnitude to indicate that the northern spotted owl is now in danger of extinction throughout all of its range.” Then FWS decided that listing the owl as endangered was “warranted but precluded.” In other words, FWS was busy with a long list of other species, and the owl would just have to wait its turn — if it lived that long.
So, where does this leave us? The most prominent environmental battle of the late 20th century; the most ambitious ecosystem management plan ever attempted; the most acres of critical habitat for a listed species; the only environmental conflict that has been the subject of a conference led by the President and attended by a good deal of the Cabinet; a species in a steep, scientifically-acknowledged and widely-reported decline — even with all those factors the FWS can’t find time to boost its status from “threatened” to “endangered?” This is bizarre. But hardly surprising.
Franklin thinks that’s about to change. He expects the government to upgrade the owl’s status. At least for now, he doesn’t expect the bird’s critical habitat to shrink. “The whole notion of reducing critical habitat for the Northern Spotted Owl in the face of continuing dramatic declines just makes no sense whatsoever,” Franklin says. Biological sense, that is. As a business proposition, he well knows, it still makes sense for some people. While administrations come and go, vested interests seem all-but-eternal.
Still, rolling back the Trump cut in critical habitat is a big deal. “The Trump revision that came down at the last minute as they were on their way out the door . . . is gone,” says Kristen Boyles, managing attorney of Earthjustice’s Northwest office. “That’s the huge news. That terrible gift to the industry,” Boyles says, was “the biggest habitat gift in this region, for sure.”