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


ESA, Spotted Owls, and the Role of Science in Lawmaking, Politics and Litigation. November 2, 2006 ... Won the battle, but losing the war ' ... – PowerPoint PPT presentation

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

ESA, Spotted Owls, and the Role of Science in
Lawmaking, Politics and Litigation
  • November 2, 2006
  • By D. Eric Harlow

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

  • 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

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  • Immediately challenged and rescinded

  • 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

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

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

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

Spotted Owl Wars IA brief history
  • 1995-1996 Development of 4(d) rule for NSO
  • Weyerhaeuser DNR promise to do HCPs in SW
  • 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

(No Transcript)
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
  • 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

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

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

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

(No Transcript)
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

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
  • Begin Spotted Owl Wars II

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

Photo from Scott Gremels presentation to 5-yr
review panel
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)

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

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

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

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)

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
  • SHC suit
  • Recovery plan

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
  • The listing of the owl in 1990 the result of
  • Many early management plans challenged and deemed
    legally insufficient

Shift Gears
  • Role of Science in Lawmaking, Policy, and

Values Science
Economic System
Mgt. Of Natural Resources (Rare species)
Representation Laws Agencies/Institutions Regulati
on Litigation
Free Markets Capitalism Corporations
Three Arenas
  • Laws- made by politicians (RCW- revised code of
  • 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)

1- Science in Lawmaking
  • Laws
  • Result of crisis, lobbying, media public
  • 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
  • Results in litigation to interpret what they mean
  • Vic Moon example (Senior NR analyst to state
  • Industry lobbyists always present

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
  • Often long, resource intensive processes
  • Industry lobbyists always present
  • Example TFW and FFR

Adaptive Management Under FFR
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
Adapted from NWIFC Website
Washington Forest Law Center
3- Science in Litigation
  • Litigation
  • Asking a judge to interpret or enforce existing
  • Penalties for frivolous lawsuits all sides use
  • 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
  • Need both legal and scientific aspect
  • Costly, difficult, resource intensive
  • Clash between science and law
  • Issues with the administrative record or expert
  • 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

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

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
  • People look for facts to support their worldview
  • If they only understood, they would agree with
  • 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

The End...?