Federal Judges 1, Forest Scientists 0 (Again)

This was printed this afternoon in Indiana, in “The Republic”: http://www.therepublic.com/view/story/292cede3ef954069b9b0a0ebd7d17a01/OR–Threatened-MurreletsMarbled murrelet critical habitat protections to stay in place for now

By STEVEN DUBOIS

PORTLAND, Oregon — A federal judge has handed the timber industry another defeat in its effort to expand logging on the habitat of a threatened coastal seabird.

U.S. District Court Judge John Bates in Washington D.C. said marbled murrelets will keep their Endangered Species Act listing, and rejected an argument that central California murrelets, which are doing poorly, should not be lumped in with the populations in Oregon, Washington and Northern California.

Bates also ruled old-growth forest habitat will remain protected during a three-year period when the U.S. Fish and Wildlife Service re-examines what it considers a flawed 1996 critical habitat designation.

“The court is not in a position to fully assess the seriousness of the deficiencies or to predict whether or how the new designation will differ from the current designation,” Bates said in an opinion Thursday.

The marbled murrelet was listed as threatened in 1992, and habitat protection has meant less logging in the Pacific Northwest. The tiny sea birds venture inland to raise their young and depend on old-growth forests for nesting.

“The timber industry keeps pushing to log this bird’s habitat and is using, I think, increasingly desperate tactics to try to say that we shouldn’t be protecting this bird and its habitat,” said Kristen Boyles, an attorney for Earthjustice. “I think it’s time for timber to figure how to live with this bird.”

The lawsuit was the timber industry’s fourth attempt in the past decade to eliminate protections for the forests that marbled murrelets call home, despite undisputed scientific evidence that murrelets are continuing to disappear from the coasts of Washington, Oregon and California.

The lawsuit was brought by the American Forest Resource Council, Carpenters Industrial Council and Oregon’s Douglas County.

Tom Partin, president of the AFRC, a timber industry group, said he had yet to hear about the ruling. He said the critical habitat portion of ruling was concerning, and that the council continues to believe that food shortages in the ocean are a bigger problem for the birds than limited nesting habitat.

“From our perspective, there has always been enough habitat for the nesting part of it,” Partin said. “It’s been the other aspects of their life cycle that may have the biggest influence on the marbled murrelet.”

16 Comments

  1. Seemes that the judge does mot remeber the fiasco aboudt 25 years ago with the spottet owlfiasco Let usremember that a similar measure was taken to protect the bird. This ment to stop all logging to protect the bird which ment the exodus of thousandsf families as no other alternatives were available. ALL this suffering regarding the moving of thousands of familys proved later that it was not justified as the ptotted owls det dissapearing anyway
    because another specie of birds occupied the spaces caniblizing the spottgesowls
    ¿ Where were the people and judjes who pushed thisi idea. But that isnothing compared to the solution they found to avoidthis was to shoot the other birds in orfer to preserve the
    spotted own ( even a premium was paid to incentivate this shooting by piece of bird killed
    one of the most outragius solutions ever proposed in history to kill one bird to save another
    did the judge ignore these happenings? or worst did not our defendant lawyer knoabout his? Once agaian we lost and it was by our inecperience to defend ourselves with the same tools use against us.The forest Industries after being in one of the most admired indjustries But the problem is not only this defeat ,it has been happening for the last 25 years that they beat us every time. So the forest industiies today is oneof the most hated
    industry,attacked by a far less numerous and powerfull entity
    ¿Whoy ahd who is saying the minorities do not have a ?voice ?
    Honestly we have to acceptthat they are smarter than we are and more unitedfor action
    which we are missing

  2. Shouldn’t the title of this piece be:

    Threatened Sea Bird 1; Logging Industry 0

    Wait, come to think of it, maybe the title of the piece be:

    Logging Industry: 1,999; Threatened Sea Bird: 1

    • I think the industrial forestland owners are very happy with this decision. It keeps their competitors out of the woods and into the courtrooms, going broke. It’s the mom n’ pop businesses that keep getting hurt by these games. “You can get a lot done, if you don’t care who gets the credit (or blame).”

      Maybe Lawyers 1,999: Workers 1; or “Threatened” sea birds 1: Science 0?

      Better?

  3. There is nothing in this article that suggests the judge is disagreeing with scientists. According to the author:
    1) “undisputed scientific evidence that murrelets are continuing to disappear from the coasts of Washington, Oregon and California.”
    2) “the council (AFRC) continues to believe that food shortages in the ocean are a bigger problem for the birds than limited nesting habitat.”
    At best this indicates that the reasons why the murrelet is disappearing and whether the southern California population is separate are uncertain, and the court is deferring to what the Fish and Wildlife Service believes rather that what the timber industry believes. That is what it is supposed to do.

    • Jon: The question is why a judge is making a determination on scientific evidence, rather than legal grounds. Disagreeing with WHAT scientists is the question:
      1) What is this evidence, and who says it’s “undisputed”?
      2) What science? The council (“lawyer”) continues to BELIEVE something! wow. Especially for the council of an industry group that is filing the action. Very scientific.

      These assertions and beliefs only indicate what the judge and some biased legal representatives “believe.” Where are the actual scientists in this discussion?

      How did this turn into a “belief” vs. “belief” determination anyway? Isn’t that what religion is supposed to be about. The fact that the judge is not disagreeing with anything even makes science less involved — science is supposed to be a game of challenges, not consensus.

      Murrelets are a common sea bird that spends most of its time in water and nests mostly in rocks; particularly in the northern parts of its range. If this is truly a “threatened seabird,” then why are we having trouble getting any logging done in the range of Roosevelt elk and threatened butterflies?

      Ten years of this stuff in court. The lawyers are happy — and so are many forest industrialists who do not want competitive timber from state and federal lands. Maybe I can go into court sometime and tell the judge what I “believe.” I’m sure they’d be happy to hear it and assume I was fully qualified in my opinions.

  4. Bob, I think the single quote here that specifically came from the Court actually backs up what you’re saying. The “undisputed” assertion comes from one party, the “believe” part from the other side, both comments apparently made outside the courtroom (btw, “council” here refers to the industry group, if it referred to a lawyer it would be “counsel”). But the judge says, he’s not in a position to decide these scientific differences himself, so he’s sending it back to the presumed FWS experts to have a second look at their critical habitat designation and revise if they find it appropriate. Meanwhile, he’s taking the conservative approach of not changing things until that information is in. He really has no choice but to do that, since to change the designation would be to butt into the scientific debate and make a decision that wouldn’t provide any deference to agency decision-making. He would have to say that the FWS designation was arbitrary and capricious, and it seems he doesn’t find the evidence compelling enough to decide that. Giving FWS three years to re-examine their designation does seem like a pretty long time, especially since they’re not starting from scratch, I guess I’d be pretty unhappy about that if I was the plaintiff here. Both the industry attorneys (possibly, maybe not) and the government attorneys (for sure) are on salary, and fed attorneys don’t get paid exorbitant salaries anyway, so I doubt there’s any real windfall for lawyers involved, at least not the FWS attoryens… maybe a little more job security 🙂 -Guy

    • Thanks, Guy. Much appreciated — spelling lesson, too! In reading your comments and re-reading the post, it was reassuring to see you were correct regarding the specific quote from the Court. Not sure how much government lawyers are paid (and job security certainly IS an important factor, especially when compared to loggers and sawmill workers), but government scientists usually get six-figure salaries, significant allowances to attend conferences and take vacations, and have substantial retirement plans. Plus, thy are really hard to fire, no matter their level of competence or capabilities. And yes, three years does seem like a really long time — but maybe not so much compared to the 20 years this charade has been taking place. Add up the salaries — and unemployment benefits — paid over that period of time and you have to wonder why taxpayers don’t step in and do something about this.

  5. “Government scientists usually get six-figure salaries.”

    Your source for this assertion is?

    Assuming the Rest of US locality area (within Oregon, only Portland metro is on a higher locality pay) a General Schedule employee has to be at least a GS-13 Step 8 or a GS-14 Step 3 to make $100,000 or more. Thus, I would challenge your claim that government scientists are “usually” GS-13/GS-14. The field-level FS fish biologists, archaeologists, ecologists, etc. that I know are GS-9 or GS-11 employees.

    • Travis: You are probably right. Most of the government scientists I’ve worked with have been GS-13 and GS-14 pay scales. That came up a lot of times on forms and proposals I assisted with. Other than that, I have little or no knowledge of government pay scales. I had just assumed these were normal rates for all USDA forest scientists and ecologists — not just the ones I was dealing with. I’m not sure what is meant by “field level,” but I do know there is an academic arrogance regarding the difference between “scientists” (usually PhD’s) and “technicians” (usually Master’s degrees and grad students). I’m guessing some kind of similar bias might exist in assigning GS ratings, too.

      • I don’t know that Bob is all that far off at least for more “senior” scientists… I was once a GS-11 scientist (postdoc) with USDA (about $30 k, that might give you an idea how long ago), but now that I’m a state (university) employee I’m permanently mired in the five-figure range, whereas my federal colleagues with equal or less experience generally are in the low six-figures. But Bob’s other point is equally or more important: many many folks are out there working just as hard or harder, and making significantly less, I think it’s important to keep that in mind. One thing about forestry, forest science, forest litigation, etc., is you better do it for love because you won’t be doing it for money 🙂 -Guy

  6. @Bob Zybach
    I guess my question is why this case is being used as an example of judges ignoring or misusing science. There were actually no scientific issues here.

    There are two issues in the case. One involved the decision by FWS to designate the Washington, Oregon and California population as a ‘distinct population segment’ of murrelets for individual attention under ESA. The only factual issue was whether central California murrelets interbreed with others elsewhere in these three states. The plaintiffs actually conceded that this fact ‘reflects scientific consensus since 2007.’ The rest of the opinion is about whether the record shows that the FWS correctly applied the law to the facts in making its DPS decision. Plaintiffs offered no competing science, but simply claimed the FWS reasoning was flawed. The court refused to ‘second-guess’ the FWS determination.

    The other issue involved critical habitat designation, and whether the court should address the merits of that decision now, or allow it to stay in place while FWS supplemented known deficiencies in its record. The court had discretion to consider various equitable factors, but the merits (and science) of this issue had not been presented to the court at this point. Consequently, AFRC’s suggestion in the article that nesting habitat should not be considered critical habitat was not discussed in this case, but could be raised in a future challenge to a final critical habitat designation.

  7. Hi Jon: I think Guy cleared that up — when I reread the post I realized the judge was saying the same thing I was. It was the opposing parties who were making those claims. However, there certainly were scientific issues here:

    The determination of species is a scientific issue. So is a statement of “scientific consensus,” of course. The judge ruled that — as a matter of law — he is going with the Fish & Wildlife determination.

    “Critical habitat” is another scientific issue, on the surface. Maybe more semantics and politics in practice.

    The whole thing was based on scientific issues, but from a legal perspective. I think we’re splitting hairs here — I just think these issues should be resolved transparently, with full public review, by scientists. Then let people and professionals decide before it has to go to court and become interpreted by lawyers and organizational representatives.

  8. @Bob Zybach
    Bob, I’m not sure that any of those issues are entirely science issues. I think that ESA makes the legal and scientific hopelessly conflated.

    It reminds me of Pielke’s book, the Honest Broker in which he says some topics are too hot for science to help. Here’s a review that talks about some of these issues.

    Anyway, I agree that the openness and transparency of the scientific effort would be key to helping understand where science and scientists can help.

  9. @Sharon
    Sharon: I agree. I also brought in legal, semantics, and politics as modifying factors. I don’t think the issue is too hot for science to handle, necessarily, I think it is mostly another example of scientific data becoming politicized. Where is Earthjustice’s and AFRC’s information coming from? And why is a judge ruling on it? I think ESA is 40 years old and needs to be updated — and I would hope that scientists would be involved. Now I’ll read the review!

  10. “I just think these issues should be resolved transparently, with full public review, by scientists. Then let people and professionals decide before it has to go to court and become interpreted by lawyers and organizational representatives.”

    That’s pretty much what the ESA process does. Listing/de-listing and critical habitat decisions must be published as proposed regulations in the Federal Register for public comment. ESA also requires that these decisions be made ‘solely on the basis of the best scientific and commercial data available.’ There should be ample opportunity to debate the science prior to a decision by the agency. Or at least this is about as transparent as a government process gets.

  11. @Jon Haber
    Jon: I probably agree with your statement that the ESA “is about as transparent as a government process gets.” That being said, I think there is a lot of room for improvement. A whole lot. How many people routinely read the Federal Register? Can the contents be searched by Google? Where is the opportunity to “debate the science prior to a decision?” I’m guessing it’s a small and fairly exclusive audience we’re talking about, not the general public.

    I used to take part in such “debates” several years ago, until I found there were no direct responses and that my comments had no apparent effect. And who is it — exactly — that gets to define “best?” Agency scientists and/or university professors with a bias toward their own work and methods? How is “critical” defined, and by whom? And why are these “listings and de-listings” decided “solely” on the basis of scientific and commercial data? How did that come about, and is it even possible? And so on.

    I think the record shows we’re pretty much dealing with a small group of individuals who are adept at dealing with regulatory methods, rather than a truly transparent participatory process. From my perspective, the ESA is woefully outdated and has proven itself to be a grossly expensive, cumbersome, and ineffective process. Barred owl hunting expeditions and public campground murrelet habitat concerns — and costs — are just two recent examples.

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