ESA, Spotted Owls, and the Role of Science in Lawmaking, Politics and Litigation

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ESA, Spotted Owls, and the Role of Science in
Lawmaking, Politics and Litigation

• November 2, 2006
• By D. Eric Harlow

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Talk Outline

• Introductions
• Spotted Owl Wars I
• Spotted Owl Wars II-
• The Return of the Litigant
• Current situation and things to come
• Role of Science in Lawmaking, Policy, and
  Litigation

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Introductions

• Introduction- who am I
• Education, work experience, advocacy, projects
• Working at the nexus of policy, law, and science
• Who are you?
• Scientists? Advocates? Policy Makers? Business
  Majors? Other?
• Motivations
• Effectiveness

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Spotted Owl Wars IA brief history

• 1988 State listed as endangered
• Did you know we have a state ESA law?
• Requires development of an unenforceable plan
  within certain timelines
• 1990 Federally listed as threatened
• Result of multiple rounds of litigation
• 1990 USFWS recommended the following strategies
  to avoid or reduce the risk of incidental take
• Avoid any harvest activity that results in less
  than 70 acres of the best available suitable Owl
  habitat encompassing the nest site
• Avoid any harvest activity which results in less
  than 500 acres of suitable habitat within a 0.7
  mile radius (1,000 acres) of a nest site
• Avoid any harvest activity that results in less
  than 40 percent coverage of suitable Owl habitat
  within the median home range circle.
• Immediately challenged and rescinded

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Politics

• 1992 Critical Habitat Designation-
• Draft proposal included private lands
• Final reduced designation by 4.7 million acres
  and included no private, state, or tribal land
• George Weyerhaeuser, president and chief
  executive officer of timber giant Weyerhaeuser
  Co., went to Washington, D.C., in late July of
  1991 and met with members of the Northwest
  delegation and top officials in the
  administration of George H.W. Bush. Critical
  habitat designation, he said, would shut down
  logging on 190,000 acres out of the 2.9 million
  acres the company owned in Oregon and Washington.
  Two weeks later, the Service dropped all private
  timberland, all Indian reservation land and some
  state land 3.4 million acres in all from
  consideration. The final rule, published in
  January 1992, whittled critical habitat
  protection to 6.9 million acres.
• Agency economists at the time predicted that
  critical habitat protection would cost only about
  2,500 more jobs than an owl conservation plan
  already in effect. The estimate might well have
  been accurate, but well never know, because
  critical habitat was never actually implemented.
• Source High Country News Article Spotted Owl
  or red herring March 20, 2006

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Spotted Owl Wars IA brief history

• 1992 Draft (and only so far) Recovery Plan-
• Based on 1990 interagency (ISC) report that set
  up reserve system
• Recognized importance of non-federal land in the
  recovery of the owl
• 1992 State 500-acre rule
• 1993-1994 FEMAT and NW Forest Plan

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Whats so special about the NWFP

• Clinton gathered up best scientists and locked
  them in a room and asked for options
• Results-
• Science based approach (paradigm shift) -
  ecosystem management, watershed analysis, survey
  and manage, riparian buffers, aquatic
  conservation strategy
• Ended the liquidation of federal old-growth
• One of the greatest conservation victories
• Fierce backlash from industry and grassroots
  (locked out of the room)
• It may not save the owl
• Biggest breakthrough for the NWFP- dont manage
  on a species by species basis

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Private LandsGet out of ESA free cards

• ESA section 4(d)
• This rule prohibits anyone from taking a listed
  species except in cases where the take is
  associated with an approved program.
• ESA section 10- Habitat Conservation Plans
  (Incidental Take Permit)
• Lack of enforcement

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Spotted Owl Wars IA brief history

• 1995-1996 Development of 4(d) rule for NSO
• Weyerhaeuser DNR promise to do HCPs in SW
  Washington
• NEVER FINALIZED
• 1996 State Forest Practice Rules regarding the
  NSO and MM (current)
• 1997 DNR HCP for management of state lands- state
  permitted to incidentally take owls in exchange
  for having some habitat over the next 70 years

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Overview of Washington FPRs

• Inside Spotted Owl Special Emphasis Areas
  (SOSEAs) vs Outside SOSEAs
• SOSEA goal compliment owl protections on
  federal lands
• Protections approximate federal take avoidance
  guidelines
• Outside of SOSEAs
• Maintain 70 acres of highest quality habitat
  between March 1 and September 31
• Allows destruction of these sites
• Assumed 4(d) rule

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Southwest Washington

• Identified as important for connectivity and to
  maintain distribution of the species
• Weyerhaeuser and DNR promised HCPs
• 4(d) rule excluded it from protection
• DNR HCP and state rules dropped protections based
  on proposed 4(d) rule
• Lobbying by Weyerhaeuser
• Promise to do an HCP

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The big problem with state regulations

• Federal Guidelines (sort of)
• Avoid any harvest activity that results in less
  than 70 acres of the best available suitable Owl
  habitat encompassing the nest site
• Avoid any harvest activity which results in less
  than 500 acres of suitable habitat within a 0.7
  mile radius (1,000 acres) of a nest site
• Avoid any harvest activity that results in less
  than 40 percent coverage of suitable Owl habitat
  within the median home range circle.

• State regulations for areas outside of SOSEAs
• Seventy acres of highest quality suitable Owl
  habitat surrounding the site center should be
  maintained during nesting season

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Summary of DNR HCP(From the Biological Opinion)

• 1.6 million acres, 70 year contract
• Required mitigation over term of contract
• 101,000 acres NRF habitat (6)
• 100,000 acres dispersal habitat (6)
• OESF (managed for 20 YFM and 20 older)
• 54,000 acres young forest marginal (3),
• 54,000 acres older forest (3)
• Between 165,000 and 329,000 acres of suitable
  habitat were made available for harvest (DNR
  policies in addition to the HCP reduced
  harvestable habitat)
• The demographic support provided by these NRF
  Management Areas may be limited in the first 30
  years while habitat is developing
• Expected to operate as a population sink

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DNR HCP Take expectations

• Includes unknown owls and projected take
• Short term (0-10 years) 179 owl pairs
• Long term (10-70 years) 72 owl pairs plus
  unknown numbers in the OESF
• Projected take based on estimated population
  decline of 0.6 per year over next 50 years
• Take reduced in first 10 years of HCP through
  voluntary agreement with DNR, and now, to a
  lesser extent, by a settlement agreement

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Spotted Owl Wars IIMore recent developments

• 2002 Industry sues USFWS
• USFWS announces 5-year ESA status review of NSO
  and MM in response to forest industry lawsuit.
• Industry was hoping to delist species
• Included a review of critical habitat
• Mismatch between CH and NWFP
• 2003 Washington Forest Law Center issues 60-day
  letter on behalf of the Seattle and Kittitas
  chapters of the Audubon Society alleging that
  actions by the DNR and UST are illegal under the
  ESA
• Begin Spotted Owl Wars II

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Spotted Owl Wars IIMore recent developments

• 2004 Range-wide meta-analysis of NSO population
  trends
• Populations declining 4.5 across range, 7.3 in
  Washington
• 2004 USFWS maintains NSO as threatened
• Starts delisting process for Marbled Murrelet- no
  DPS
• Habitat necessary but may not be sufficient

Photo from Scott Gremels presentation to 5-yr
review panel
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Spotted Owl Wars IIMore recent developments

• 2005 10 year review of NWFP completed
• Lower than predicted logging and habitat loss
• 2005 Washington state FPB reviews NSO rule
• Results of two studies show the rules are not
  working as intended and habitat has been lost
• Decides to take very limited action
• 2005 USFWS Announces intention to do NSO recovery
  plan as part of settlement with industry (and
  after we sued)

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Spotted Owl Wars IIMore recent developments

• 2006 New 60-day notice issued to Washington DNR
  and Weyerhaeuser
• 2006 Recovery Planning process underway
• First draft based on old plan rejected by DC

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Spotted Owl Wars IIThe Future?

• Section 9 Take case against WDNR, Weyco
• WOPR process
• Western Oregon Plan Revision
• BLM pulls out of NWFP
• Recovery Plan sets new benchmark
• Develop alternatives to reserve system
• Use new science
• Allow changes to forest plans if they get section
  7 no jeopardy calls
• Undermining of NWFP

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NWFP Today

• Won the battle, but losing the war
• Since 1990, 130,000 timber industry jobs have
  been lost, but according to Fed economic
  analysis, only 1 in 5 of those jobs was lost due
  to the NWFP
• Myth that Enviros are sue-happy- industry sues
  all the time too, but since it is protecting the
  status quo, it is not as newsworthy
• Industry pushes hard for stakeholder processes,
  where they sit at the policy table and guide the
  process- recovery team, Forest and Fish
• Regulatory rollbacks- survey and manage, aquatic
  conservation strategy, Marbled Murrelet
  delisting,

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Changes in NFMA

• In place of the viability requirement, the
  regulations simply provide an overall goal to
  provide a framework to contribute to sustaining
  native ecological systems by providing ecological
  conditions to support diversity of native plant
  and animal species in the plan area
• Eliminate NEPA review of forest plans
• Roll of science in decisionmaking under NFMA
  changed from consistent with BAS to When
  making decisions, the Responsible Official also
  considers public input, competing use demands,
  budget projections, and many other factors as
  well as science. (Federal Register, vol 70, No.
  3, pg 1027)

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What Now?

• Assumptions of the NWFP are no longer valid
• Worst-case- 1 decline over next 40 years
• 4.5 decline (actual data at the time) would have
  very serious consequences
• Owls will continue to decline for next 50 years
  until suitable habitat grows in, and then pops
  will increase- demographic transition period
• Did not address barred owl, potential west nile
  virus, sudden oak death, global warming
• Current rate of decline in Washington- 7.3
  average per year
• Owl conservation strategy on non-federal lands
  tiered to fed strategy- HCPs, etc.
• DNR HCP is legally allowed to take over 140 owl
  pairs in exchange for growing habitat over the
  next 70 years.
• Ok, times have changed- what now? Time for a
  Trainwreck?
• SHC suit
• Recovery plan

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Role of litigation

• Recovery Plan lawsuit
• 5-year review result of industry lawsuit
• Most of the data reviewed result of NWFP
• NWFP resulted from rounds of litigation
• Critical habitat designation the result of
  litigation
• The listing of the owl in 1990 the result of
  litigation
• Many early management plans challenged and deemed
  legally insufficient

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Shift Gears

• Role of Science in Lawmaking, Policy, and
  Litigation

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Values Science
Governance
Economic System
Mgt. Of Natural Resources (Rare species)
Representation Laws Agencies/Institutions Regulati
on Litigation
Free Markets Capitalism Corporations
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Three Arenas

• Laws- made by politicians (RCW- revised code of
  Washington)
• Regulations- developed by agencies to implement
  laws (WACs- Washington Administrative Code)
• Litigation
• Interpret laws or regulations
• Enjoin illegal activities, challenge decisions
• Change policy (Judge Reddens orders re Columbia
  operations, Roe v. Wade)

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1- Science in Lawmaking

• Laws
• Result of crisis, lobbying, media public
  pressure
• Public generally not engaged in Natural Resource
  law unless there is a crisis (ANWR)
• Science does not play much of a role
• Testimony- but comes from all sides
• Scientific reports- usually stakeholder product
• Lobbyists are not scientists
• Laws have to be compromises to pass
• They tend to be vague- dont make the difficult
  decision
• Results in litigation to interpret what they mean
• Vic Moon example (Senior NR analyst to state
  senate)
• Industry lobbyists always present

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2- Science in Policy

• Regulations
• To avoid litigation and hassle, agencies often
  convene stakeholder groups
• Stakeholders generally the ones being regulated
  with the occasional public or advocacy
  representative
• Often long, resource intensive processes
• Industry lobbyists always present
• Example TFW and FFR

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Adaptive Management Under FFR
POLICY
SCIENCE
Acronyms AMPA Adaptive Management Program
Administrator FPB Forest Practices Board FFPC
Forests and Fish Policy Committee SRC Scientific
Review Committee CMER Cooperative Monitoring,
Evaluation, and Research SAGs Scientific
Advisory Groups
FPB
SRC
FFPC
AMPA (DNR)
CMER
SAGs
Adapted from NWIFC Website
Washington Forest Law Center
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3- Science in Litigation

• Litigation
• Asking a judge to interpret or enforce existing
  laws
• Penalties for frivolous lawsuits all sides use
  them
• One of the best venues for using science
• Technical cases evaluated on scientific merit
• Politics set aside- decision over existing laws
  or regulations
• Chance to evaluate whether best available science
  was used
• One of the most difficult venues for using
  science
• Need both legal and scientific aspect
• Costly, difficult, resource intensive
• Clash between science and law
• Issues with the administrative record or expert
  testimony
• For every expert that you get to say that an owl
  needs a particular patch of habitat to survive,
  the industry will get three expert biologists who
  will say they have found owls living in abandoned
  cars. Jack Ward Thomas, former Chief of the
  Forest Service

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Scientific vs Legal Standards

• Scientific Standards
• Conformity to existing research est. methods
• Transparency
• Sufficiency and quality of data
• Statistical tools- Type I II errors, p.05,
  confidence intervals, R2 values
• Peer review
• Acknowledgement of limitations
• Repeatability

• Legal Standards
• Clearly Erroneous
• Arbitrary and Capricious
• Burden of Proof
• Beyond Reasonable doubt (criminal law)
• Preponderance of evidence (51)
• Substantial evidence
• Agency discretion
• Legislative Intent
• Expert opinion as fact

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The Role of Science- Observations

• Recent state-level owl rule negotiations the
  role of science in developing a recovery plan-
  scientists or stakeholders? FFR- better than
  before, but it may not recover salmon
• Actual recovery vs. call it recovery
• Is society willing to pay?
• Even Best Available Science may not change
  opinions-
• People look for facts to support their worldview
• If they only understood, they would agree with
  me.
• Ex Cant eat owls, Intelligent Design, Egos
  in science
• Science in the age of polarization-
• Science used as a political tool- spin, political
  screens, media
• No-win scenario- if you are not an advocate,
  politics will trump science, if you do advocate-
  you are biased (e.g. Im a leper)
• Agency scientists and consultants muzzled by
  politics

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The End...?