Continued: More Questions on the Mexican Spotted Owl Litigation

Thanks to Defenders of Wildlife for this photo.

Thanks to MD For this E&E news article: I put some questions and comments in italics.

ENDANGERED SPECIES: Judge halts forest projects in Mexican spotted owl habitat (Thursday, January 12, 2012)

Three tree removal projects planned within Mexican spotted owl habitat in Arizona and New Mexico cannot go forward until the Forest Service has a better idea how such projects could affect the imperiled bird, a federal judge ruled last week.

Is this a true statement? It sounds like the judge was saying they couldn’t go forward until the FS does the monitoring, not that the environmental documents did not adequately address impacts.

Last summer, WildEarth Guardians sought an injunction to stop the projects, two involving thinning to reduce the risk of wildfire and another designed to clear trees in a utility corridor. In a decision issued Jan. 5, U.S. District Judge David Bury agreed with the Santa Fe, N.M.-based environmental group, saying the agency must monitor the Mexican spotted owl population and determine how well the birds are faring before allowing trees to be cut within the project areas.

“The issue is that they’re just not doing what they said they would do, which is monitor the population numbers,” said Bryan Bird, public lands director for WildEarth Guardians. “We feel like they shouldn’t take any more actions that could jeopardize the bird without knowing the actual population number.”

This isn’t clear to me; how is the total number of owls relevant to specific projects designed to minimize impacts to the owl. If there are 30,000 owls or 40,000 owls, should the FS stop maintaining the power line and doing fuel treatments around communities? What if some disease occurs in owls and their populations drop in the future.. will the power company be told to top maintaining the power line? I get that organizations should live up to their agreements; just not sure how this agreement is conceptually directly related to the matter at hand.

Critical habitat for the Mexican spotted owl, which was listed as threatened under the Endangered Species Act in 1993, covers 8 million acres in 11 national forests in Arizona and New Mexico.

The group targeted the three projects — a fuel reduction project in south-central New Mexico’s Lincoln National Forest, the Upper Beaver Creek logging project in Arizona’s Coconino National Forest and a utility maintenance project that spans several national forests in the state — because those were “the worst” of all projects planned within the owl’s habitat, Bird said.

Here’s the Decision Notice and FONSI for Upper Beaver Creek. It says..

The acres of treatment within the WUI were decreased because mechanical harvest was not proposed within Mexican spotted owl Protected Activity Centers (PACs) that are within the WUI.

It seems like there must have been a great deal of analysis. Maybe it’s the size of this project that’s of concern? It seems like this one and the power line might have been larger in size, the New Mexico project not so much. It would be interesting to have the rationale for selection of these three projects – why exactly are they considered to be “the worst?”.

Cathie Schmidlin, a spokeswoman for the Forest Service, said the ruling really only affects two projects, because the agency already decided to suspend the Beaver Creek project due to concerns about the owl. She said she could not comment on the court order itself, due to the agency’s policy not to weigh in on pending litigation.

Under the order, the Forest Service also must complete a new consultation with the U.S. Fish and Wildlife Service to determine how to better protect the bird.

Initially, Judge Bury denied WildEarth Guardian’s request to halt the three forest projects, but he reconsidered after the group pointed out that the first ruling was at odds with a broader companion case filed by the Center for Biological Diversity that also involved concerns about the Mexican spotted owl.

‘A considerable undertaking’
A new recovery plan for the owl issued by FWS last summer calls for “vigilant monitoring,” along with habitat restoration, as part of its revised blueprint for pulling the nocturnal bird back from the brink (Land Letter, June 23, 2011).
“The facts aren’t in dispute,” Bird said. “What’s in dispute is how do we move forward and protect the owl while managing the forest.”

The Forest Service itself has noted the need for monitoring the population in documents dating back to 1996, but the agency has repeatedly said budgetary constraints have prevented it from doing so. FWS has designated 8 million acres as critical habitat for the owl, and monitoring that much territory could cost millions of dollars, according to the Forest Service.

“It’s a considerable undertaking,” Bird acknowledged. “But considering they spend up to $1 billion annually on firefighting, just a small fraction of that could completely fix this current problem.”

Not sure that Congress would think that that’s a good idea, appropriation law -wise.

The injunction is the latest development in a long-running lawsuit over the Forest Service’s management of owl habitat that dates back almost a decade. The suit contends that the Forest Service is violating the Endangered Species Act by permitting forest projects, grazing and other activities in national forests in Arizona and New Mexico that could further endanger the owl.

I thought we found out that the grazing is not about the owl, it’s about another species.

The group’s other main concern, Bird said, is that the projects that already have been carried out within Mexican spotted owl habitat may have harmed or killed enough birds to reach the Forest Service’s “take” limit. Under special permits from FWS, a certain number of birds can be killed incidentally during forest projects, as long as those losses do not jeopardize the overall survival of the species. Again, a good population estimate could help the Forest Service make better management decisions, Bird said.

Are owls actually “killed” during forest projects? Wouldn’t the test of whether forest projects harmed owls to look at pre and post project and see what specific owls are doing- did they move somewhere else? There are so many other factors can affect the species as a whole. Monitoring does not/cannot answer the question about project impact.

For example, suppose there was a fire that burned up a lot of owl habitat and reduced the population. According to the above model, the FS would have to have fewer fuel treatments because now there are fewer owls. So communities would not get their WUI fuel treatments and more owl habitat could also get burned up. It seems a bit counter intuitive.

Rep. Steve Pearce (R-N.M.), who has introduced a bill designed to revitalize the logging industry while setting aside preserves for the owl, said in an emailed statement that taking a hands-off approach to forest management in owl habitat could leave Southwestern forests at risk of “devastating” wildfires like the ones that burned through millions of acres in Arizona and New Mexico last summer.

“Overgrown forests are a fire hazard — not only threatening to burn the homes of the people in surrounding communities, but also destroying the habitats of wildlife that special interests are claiming to protect,” Pearce said. “While I agree that the [Mexican] spotted owl and other endangered species must be protected, we cannot do so at the cost of public safety and we cannot afford to do so without a legitimate reason.”

The diminutive owl, which was listed as threatened under the Endangered Species Act in 1993, prefers mature forests that are also prized by logging companies for their large, valuable trees. In more recent years, attempts to reduce fuel loads within owl habitat, which some argue will improve habitat for the bird and protect it from unnaturally large, super-hot wildfires, have taken center stage in the debate over how to balance forest management with protection of the owl.

Reading the projects we are talking about, they are not really about logging companies and “large valuable trees.” Also I’m not sure we’re talking about “unnaturally large superhot wildfires”, but any “natural” fires that lead to reduced habitat for owls.

Again it’s not clear as to whether the debate is about “these specific projects will decrease owl habitat compared to the no action alternative” or “there was a requirement to monitor and the FS did not.”

I did find this information on the Defenders of Wildlife site here, about other factors that affect owl populations including wildfire.

Climate Change and Other Threats

The Mexican spotted owl is threatened by the loss of old growth forests (its preferred habitat) throughout its range, starvation and fire. They are also affected by barred owl encroachment, great horned owl predation, low reproductive success and low juvenile survival rates.

Like other Southwestern species, the Mexican spotted owl faces an uncertain future as climate change makes this region hotter and drier. The birds’ nest success is tied to precipitation, probably because vegetation, and in turn prey populations, depend on adequate monsoon rains. Extended droughts also increase the likelihood of wildfires will decimate their remaining forest habitat.

Finally, higher temperatures and drought conditions favor diseases like the mosquito-borne West Nile virus. West Nile develops more rapidly at higher temperatures, increasing the likelihood of transmission. Drought conditions also concentrate birds at remaining water sources, making them an easier target for disease-carrying mosquitoes.

10 thoughts on “Continued: More Questions on the Mexican Spotted Owl Litigation”

  1. Looks like you hit the nail on the head with many of your questions. First off, there are some inaccuracies in the article (e.g. the grazing preliminary injunction was not a result of the owl, but the rattlesnake). Second, these two lawsuits are really frustrating to me because at the project level (i.e. Upper Beaver Creek) we did survey, analyze and include a number of mitigations to minimize and limit impacts to the MSO. These site-specific efforts were not even considered in the issuance of the preliminary injunction, because the lawsuit/injunction had nothing to do with the site-specific NEPA planning, but with the 2005 Biological Opinion completed for the Forest Plan. I undersand the plaintiff’s overarching point here – if you cannot meet your monitoring requirements, then it is not realistic that you can accurately assess impacts to the owl or show whether you have exceeded the take levels in the Forest Plan BO. In the order, Judge Bury says the injunction stands until the BO is revised. But to me simply stating a new take level and new more realistic monitoring requirements will have no actual tangible affect in the owl. Rather, it would just align the paperwork for and that more realistic monitoring requirements.

    So from my standpoint it seems as if the projects are being temporarily enjoined for nothing more than a technical issue and it really doesn’t result in any protection for the owl. In my opinion, this preliminary injunction may actually have the opposite effect of causing unforeseen impacts to the owl. This preliminary injunction effectively halts projects that would reduce the fire risk to owl habitat, which is identified as the number one risk to the owl in the MSO Recovery Plan.

      • Yep, the we have a programmatic BO and in addition to that we do site-specific consultation (formal or informal). The programmatic BO was done for all 11 National Forests in Region 3. It set a number on the total number of ‘take’ for owls and other species as well as monitoring requirements, etc. This approach didn’t work very well as far as implementation goes because the Forests were not able to keep up with the monitoring requirements and monitoring that was done was often not aggregated and reported by the Region to Fish and Wildlife annually as was the requirement. Eventually, the Regional Forester wrote a note to the Fish and Wildlife Service saying taht we could not meet the monitoring requirements and we may have met the level of take assigned, while asking for reconsultation. We are in the process of reconsultation now. REconsultation is being done on a forest-by-forest basis.

  2. We need to consult under the Endangered Species Act when creating or modifying a Forest Plan, so the question of added value is somewhat irrelevant. That being said, I believe the value is to set an upper limit of ‘take’ and integrate broader management direction and monitoring at a mid-scale (below a species range or recovery area, above a project or treatment unit). By doing it at a forest or multi-forest level, it makes (or is supposed tto make) the forests keep tabs on the cumulative impact of their individual projects on a species and in some cases make decisions to defer actions that may result in unacceptable species declines.

  3. I’ll be back with my hoot owl and Pygmy-Swede analogies on this topic in a few days (report deadline and Uncle Sam), but first wanted to share how we’re taking care of the forest here in Oregon:


  4. Thanks, Bob, I started a new post with your link.

    MD.. I guess for that logic to work, at some point if things got bad enough for the bird, say if some combo of agency actions, climate change and fires, were reducing bird populations, you would have to stop all fuel treatments and power line maintenance no matter how little of an impact it has on the bird. That’s the concept I’m having trouble with.

    If agency actions were the only activities having an impact, maybe it would make sense.
    If “not doing things” didn’t also have a potential impact (“not doing” treatments increases the chance of fires burning up habitat) it might also make sense. But that’s just a concrete-oriented person dealing with the abstract field of law.

    On a more important note, what are your “lessons learned” from this situation? The bigger decisions are spatially, the harder they are to implement successfully across the area, and the harder it is on everyone when they fall?

  5. Well, some projects where it was estimated that there could be an adverse impacts on the owl were postponed indefinitely because we had reached our alloted level of take. So, the LRMP BO did set a ceiling and we had to drop projects to avoid hitting our heads against it.

    Your comment about how ‘not doing things’ may also have an impact and this is not counted is very true. Just look at Travel Management… we neglected impacts from our forest road management policy for decades by having an “open unless closed” policy on many forests and had “no impact”. But when we go through a designation process, designating already existing and regularly used roads can result in an adverse impact even though (a) these designations are not actually changing anything on the ground, and (b) the overall result often includes a Forest with more area closed to motor vehicles. In my opinion it is because it is a Federal action that triggers ESA, NHPA, and NEPA; not Federal inaction.

    Regarding your question about lessons learned… there are two I can put my finger on from the top of my head. The first is that we are no longer doing BOs at the Regional level, but at the Forest level. Accountability works better the closer it is to the ground.The second is that we now manage our disagreements with FWS (and I hope other agencies) better. For example, we now provide each other with draft documents for review and then sit-down and discuss points of disagreement rather than just issuing FS decisions/BOs and letting the consequences fall where they may. Of course, others who were more involved may have a different opinion, but that’s how it appears to me.

  6. Thanks, MD, thank you for your patience in explaining all these things.

    I think it would be interesting if interagency disagreements were required to be fully and a publicly documented and discussed. “Federal Agency Throwdown”- perhaps a reality TV show? 😉

    The Feds could negotiate for a proportion of the proceeds from the show that could go to endangered species conservation (FWS and NOAA Fisheries) and riparian enhancement (EPA water). Of course, there could be a spinoff- “state vs. feds”…

    • Or, how about, “Are You Smarter Than a GS-5?”, hoisted…. errr, hosted by Jack Ward Thomas (quite charming after a few drinks!) “The Secret Circle of Nines”, where the occult has invaded the American Justice System. Or, “Man vs Roadless Wilderness”, where ordinary people are put into remote settings without a GPS. The pairs of contestants get a big map, a brand new compass, food and equipment to survive for a few days. The goal is to be the ones to get to a Starbucks first.


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