Sisikiyou County files suit re: owl “critical habitat”

I was just headed out, when this came in from Sisikiyou County Commissioner, Marcia Armstrong. My opinions of hoot owl varietals and “scientific” designations of so-called “critical habitat” are well known to people familiar with my opinions, and can probably be inferred by my choice of adjectives. Once this is posted, I will email the link back to Marcia so she can monitor (and maybe even participate) in any possible discussion on this. Also, so she can distribute to Brian and her own network of scientists, politicians, landowners, and resource managers.

NEWS RELEASE

SISKIYOU COUNTY CHALLENGES CRITICAL HABITAT

DESIGNATIONS FOR NORTHERN SPOTTED OWL

Contact: Brian Morris, County Counsel March 22, 2013

(530) 842-8100 or

bmorris@co.siskiyou.ca.us FOR IMMEDIATE RELEASE

Yreka, CA – Siskiyou County has joined with the Carpenters Industrial Council, the American Forest Resource Council, and a number of forest products companies to file a lawsuit in Washington, D.C. challenging the latest critical habitat designation for the northern spotted owl.

The lawsuit seeks declaratory and injunctive relief to address violations of the Endangered Species Act, National Environmental Policy Act, and Administrative Procedure Act. The defendants are Interior Secretary Ken Salazar and U.S. Fish and Wildlife Service Director Daniel Ashe.

“With the new habitat designations, the Fish and Wildlife Service is doubling down on a strategy that has been failing for over two decades,” said Supervisor Marcia Armstrong. “We will not just stand by as forest health continues to decline, catastrophic fires increase, and our economy suffers the consequences of failed federal policies.”

“The County issued repeated warnings to the Fish and Wildlife Service about their flawed approach, but our request for appropriate coordination was denied,” said County Counsel Brian Morris. “This lawsuit should be a warning to other federal and state agencies that the Board of Supervisors will not tolerate violations of procedural and substantive laws when agency actions are hurting the people of Siskiyou County.”

Critical habitat for the owl was originally designated in 1992 and revised in 2008. A lawsuit successfully challenged the 2008 designations, and the court ordered the Fish and Wildlife Service to start over again. The third attempt was completed in November 2012.

The lawsuit alleges that the Fish and Wildlife Service failed to conduct proper analysis of economic impacts and consider detailed economic data submitted by a coalition of forest counties. The lawsuit also argues that the Fish and Wildlife Service failed to integrate measures to fight the invasion of the competing barred owl into its spotted owl strategy, and that the agency’s determinations are legally unsustainable because of numerous errors in science, modeling, and statistical analysis.

“The repeated failures of the Fish and Wildlife Service underline the need for reform of the Endangered Species Act and the laws governing management of our National Forests,” said Supervisor Michael Kobseff. “We call on Congress to ensure that the current session does not end without enactment of reforms that will put our forests back on a path to healthy management and restore economic opportunity in forest communities.”

The County is working actively on federal legislation to establish a pilot project on the Shasta-Trinity National Forest demonstrating innovative, effective, and economical forest management practices.

The Interior Department will have 30 days to respond to the lawsuit. The timeline to get to a decision from the federal district court will likely take most of a year.

6 Comments

  1. Here’s a copy of the complaint:

    http://www.amforest.org/images/pdfs/Final_Complaint_for_Filing.pdf

    I just got this newsletter today also: (with links to their comment s and scientifc findings)

    http://www.amforest.org/images/pdfs/AFRC_Newsletter_3-22-13.pdf

    AFRC submitted extensive comments on the draft rule, as well as information from the National Council for Air and Stream Improvement and Western Ecosystems Technology, Inc. explaining the deficiencies and flaws in the draft rule. Those deficiencies and flaws were not corrected in the final rule. AFRC strongly believes that the modeling process used has resulted in a flawed habitat designation. Meanwhile, the lack of consideration given to the prevention of catastrophic wildfires and impacts from the barred owl raises serious questions about the FWS’ approach to recovering the owl.

    After considerable study and review, AFRC has determined that the rule is fatally flawed in a number of ways, including:
     violation of the O&C Act’s requirement to manage those lands for a permanent sustained yield and to offer the allowable sale quantity annually;
     failure to follow required notice and comment procedures prior to adopting the rule and to respond to major public comments, including those of AFRC and the counties;
     reliance on erroneous modeling techniques and on untested and unreliable predictions;
     errors in determining the area occupied by the species at the time it was listed and the primary constituent elements of habitat needed for the survival of the species;
     failure to properly account for the likely impact of the barred owl on the future survival of the species; and
     reliance on an erroneous Economic Analysis of the impacts of the rule change.

    It is indeed unfortunate that the FWS chose to ignore the comments of AFRC, the impacted counties in Washington, Oregon and California, and federal land managers, while promulgating another set of rules which violate the Endangered Species Act while having little or no effect on the decline of the spotted owl which is now more threatened by wildfire and barred owls than by forest management activities.

  2. Thanks, JZ! Here’s a post from a few years ago on this blog that provides some background to this suit:

    http://ncfp.wordpress.com/2010/09/06/the-spotted-owl-experiment-lessons-learned/

    Those darned birds just don’t seem to go away! Usually Friday posts are buried or forgotten by Monday, but I’m guessing there may be some feedback at that time — maybe from some Siskiyou County readers or a few of our legal experts regarding the merits (and maybe potential drawbacks) of this action.

  3. Clearly, we need to find ways to make owl habitats more resilient to wildfires, without severely impacting the owls’ usage. It might mean thinning and piling submerchantable trees by hand in nesting habitat, outside of nesting season. Their foraging habitats might need commercial thinning. Both owls and goshawks need nesting habitats AND foraging habitats. The good thing is that they seem to forage almost anywhere. Due to a lack of unoccupied nesting habitats, it is difficult to see any increase in populations. Remember, owls and goshawks are territorial.

    • Larry: It is interesting to note that many of your concerns regarding catastrophic-scale wildfires and the need for active management to maintain owl habitat were clearly spelled out five years ago in the 2008 report Courtney et al. prepared for the US Fish & Wildlife Service: http://www.fws.gov/pacific/ecoservices/endangered/recovery/documents/NSODPR_Final_Report_April-2.pdf

      The report is seriously flawed in some regards — mostly because the scientific panel chosen to do the review were primarily looking at their own work (“professional bias”) on the topic and giving it a thumb’s up — might as well guarantee some consensus right from the get-go! Other problems include the questions being sought by the sponsoring agency, and the seeming blanket acceptance of key scientific assumptions without any meaningful debate or challenges. This was literally a case of taxpayer funded scientists reviewing their own work in order to obtain more taxpayer funding.

      Still, the report brings up several important points regarding the near-complete lack of meaningful baseline data and significant weaknesses in monitoring designs and analyses. Here are some “key findings” from the Executive Summary that I find interesting, and worth considering for current discussions:

      5. Current models of owls and their habitats are largely heuristic. Hence decisions on important issues such as reserve size, spacing, etc., must be made with relatively weak predictive tools.

      6. The approach of the DRP for designating habitat goals (based on habitat fitness potential) is deeply flawed. However the need to set locally appropriate and sustainable habitat goals remains a valid goal.

      7. In some circumstances, owls may remain in, or rapidly re-colonize habitats that have experienced a low intensity fire. Hence, it is incorrect to assume that all fires result in habitat loss. In other circumstances, owls or their habitats are lost as a consequence of intense or catastrophic fires. It is important to recognize such variation of fire effects when developing a conservation strategy.

      8. Control of Barred Owls may be warranted (to be determined after experimentation and other research), and would be consistent with conservation actions for other endangered species.

      9.The threat from wildfire is underestimated in the DRP for the dry forest provinces, and is inadequately addressed. This threat is likely to increase given both current forest conditions, and future climatic change.

      10. In east-side habitats of the Washington and Oregon Cascades, the only viable conservation strategy will be to actively manage fire-prone forests and landscapes to sustain Spotted Owl habitat. However this needs to be closely monitored through an adaptive management process.

      Note: One interesting thing is when I was growing up, “heuristic” meant learning from experience, or “trial-and-error.” Here the way it is being used I believe is “Modeling-talk.” That word now means something like: getting a quick answer instead of actually working for it, or, using an approximation when the actual answer is unknown (or difficult to obtain). Yep, more Animal Farm. When these guys aren’t making up new acronyms, they’re busy redefining the King’s English.

      • Any plan that doesn’t address the differences in nesting and foraging habitats is doomed to fail. This is what happens when the more general “ecologist” types pretend to know what owls and goshawks really need. Sure, it would be nice to have more nesting habitat but, its decline is largely ignored or discounted by preservationists. Some, through their stated loves for “free range fire”, do not realize they are part of the problem with declining populations of owls and goshawks. Preserving owl and goshawk PACs means hoping that wildfire won’t burn at ultra-high intensity. Meanwhile, many of these PACs have been off limits for 20 years now, certainly long enough to further increase the wildfire risk. The PACs were selected as being the best contiguous nesting habitats, meaning more dense old growth stands, which are at high risk to intense wildfire.

        Is “whatever happens” a valid management plan for owls and goshawks?? Our Ranger District doesn’t think so. One of our units last year was in a PAC. Since it was too dense to accomplish a prescribed fire, some commercial fuels work was needed. We were directed to mark trees between 10 and 15 inches dbh, to prepare the stand for burning. There are no nests within the unit.

  4. Thanks for the critique of the paper, Bob. I remember your point #10 from many years ago and a field trip on the Wenatchee; I think it was on the PNW Station Review in the 90’s? Before I was in planning, so at least 12 or so years ago. We visited some stands that were growing into non-habitat and folks made that point. It’s nice to have obvious things get the imprimatur of “science.”

    About heuristics.. I don’t think it’s the modeling folks themselves, I think they use the terms as in computer systems

    Check out this wikipedia discussion. Sounds like it has a variety of interesting meanings.

    “Heuristics are strategies using readily accessible, though loosely applicable, information to control problem solving in human beings and machines”

    I guess it’s one of those words that when you read it somewhere people should footnote and point out what they really mean. I particularly like the “loosely applicable.”

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