Judge Rules Agencies Failing to Ensure Recovery of Mexican Spotted Owl in Violation of Endangered Species Act

Here’s a press release from WildEarth Guardians about an issue that has been discussed on this blog before.

Santa Fe, NM – A Federal District Court Judge in Arizona ruled on September 11 that the U.S. Fish and Wildlife Service and the U.S. Forest Service have shirked their responsibilities to ensure that Forest Service management activities are making progress towards recovery of the Mexican spotted owl, a species protected under the Endangered Species Act. WildEarth Guardians filed the case in March 12, 2013 over the agencies’ failure to ensure the recovery of the owl by collecting basic information, for more than 20 years, about the status of owl populations across the Southwest.

The ruling halts all “timber management actions” on six national forests in New Mexico and Arizona including all the national forests in New Mexico and the Tonto National Forest in Arizona. None of the 11 national forests in the two-state Southwestern Region have adequately monitored owl populations. The lawsuit originally targeted all 11 national forests in New Mexico and Arizona. However the five national forests in Arizona not subject to the injunction on logging completed new forest plans with new Endangered Species Act (ESA) consultations since the original filing of this lawsuit which led the judge to find that the lawsuit was moot on those forests.

“This decision is about agency accountability, to the public and to the recovery of the Mexican Spotted Owl,” explained John Horning, Executive Director of WildEarth Guardians. “With this decision, the agencies will finally be held accountable for ensuring that all forest management practices help, not hinder, owl recovery.”

As the decision explains, the Forest Service was required to implement a population monitoring protocol for Mexican Spotted Owl since at least 1996. It was expected that, within 10-15 years, management activities such as logging and prescribed burning that the agencies claimed would improve owl habitat, supported by monitoring that would show the species recovery, would enable its de-listing from the Endangered Species Act. Yet, as the decision states, “Over twenty years later, delisting has not occurred, and information about the current [Mexican spotted owl] population is still minimal.”

“The judge’s recent decision constitutes the clearest possible rebuke to this foot-dragging, and recognizes that the Forest Service’s failure to monitor Mexican spotted owl populations has enabled the agency to avoid accountability for its failed conservation efforts,” stated Horning. “Thankfully for these national forests and for the Mexican spotted owl, those days have now finally come to an end.”

The decision requires the agencies to initiate consultation pursuant to the ESA “addressing occupation monitoring of the MSO for recovery.” Because timber harvesting and other related activities may cause irreparable harm to the owl, the court has enjoined timber management actions, including timber harvesting, until consultation is complete. This is necessary, the Court recognized, because “It has been demonstrated over the past 20 years that the status quo will not lead to recovery of the listed species.”

“While the Forest Service finally steps up to its conservation obligations and assesses how its management programs affect the recovery of the Mexican spotted owl as a species, certain timber projects will be paused in light of the judge’s decision,” explained Steve Sugarman, the attorney representing WildEarth Guardians. “WildEarth Guardians has already opened up a dialogue with the Forest Service to assure that this pause will be orderly, and that it will not unnecessarily impede the implementation of projects that are truly necessary for the protection of life and property.”

17 thoughts on “Judge Rules Agencies Failing to Ensure Recovery of Mexican Spotted Owl in Violation of Endangered Species Act”

  1. “WildEarth Guardians has already opened up a dialogue with the Forest Service to assure that this pause will be orderly, and that it will not unnecessarily impede the implementation of projects that are truly necessary for the protection of life and property.”

    I wonder whether/how the public will be involved in this dialogue? Previously we’ve discussed settlements and the fact that their impacts are generally more analysis and not changes to projects on the ground. Yet it seems to me that doing projects and not doing others is a decision that the public should be involved with.

    • Maybe we should distinguish between pre- and post- court decision settlements. In my experience, the former is more often about the process of complying with the law, and the latter is about the scope of an injunction where a law has been violated. If a court has made a decision that warrants enjoining ALL projects that have caused legal harm to the plaintiffs, then the plaintiffs are now the decision-maker, and should have a lot of discretion, regarding which ones to let off the hook. But I would assume that if their criteria are “life and property,” then they will be looking for expertise on that.

      • I agree that the pre court settlements (which I have been on phone calls about) tend to be about “doing more analysis”.

        “If a court has made a decision that warrants enjoining ALL projects that have caused legal harm to the plaintiffs,”
        But no project have caused any legal harm to the plaintiffs… there could be some areas more or less likely to have spotted owls, since this is what the case was about.

        If I were Queen, the group doing the deliberation would involve at least one person knowledgeable about each proposed project that might be shut down (including having read the public comment), and FWS and FS owl experts. The discussions would be recorded and available so that the public and workers on the projects could understand how the decision was made.

        • The court found that all timber harvesting projects cause harm to the MSO, which constitutes legal harm to these plaintiffs under ESA. I’ll admit that I don’t know how the process works for plaintiffs to selectively remove projects from an injunction they asked for and got, which was, “all USFS management action in Region 3 national forests that involve actions that are inconsistent with the adaptive management approach adopted by the USFS in the 1996 S&Gs” (with some forests later mooted by consultation on recent plan revisions). (I also don’t understand how there could be any projects that would fit this criterion because the 1996 S&Gs were incorporated into forest plans, and all projects must be consistent with them, but the court is enjoining all “USFS timber management actions.”)

          • But how could the court find that, when it is unlikely to be true? Since (1) MSO’s are unlikely to be everywhere in Region 3, and (2) if they are everywhere, then how can they be endangered? I know this is simple-minded but it seems very confusing to me.

            • I have to assume that this will actually be limited to places where there is (or was) owl habit. Otherwise ESA would not apply.

              There are a lot of parallels to the Columbia River salmon and steelhead listings where consultation on forests plans had to be reinitiated for new species. Every project (on many forests) had to be reviewed under Section 7(d) of ESA, which prohibits “any irreversible or irretrievable commitment of resources which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures” necessary to comply with ESA, and timber harvest was enjoined. This court invoked the “irreversible or irretrievable commitment of resources” language regarding timber harvest, which should only be relevant to protecting the species and its habitat.

  2. Court rulings not withstanding, let’s talk about some realities on the ground in our National Forests here in the Southwest where the Mexican Spotted owl is concerned. In 1996 as Forest Service employee I moved from an Oregon national forest to the Carson National Forest in northern New Mexico, where I was recruited in part because of my skills in mapping critical habitat for the Northern Spotted Owl as well as determining this species actual presence. Dept. of Interior Fish & Wildlife service made what I was informed was a “quick & dirty” determination of where Mexican Spotted Owl Critical Habitat was located on the 11 National Forests of the Southwest Region without ever setting foot on the Carson National Forest where I was stationed. After examination it became apparent this determination was based pretty much on topography. For the next several years we tried to find Mexican Spotted Owls on the Carson National Forest, no luck. Local Native American Tribes had no knowledge of this species over a thousand years of their habitation. Meanwhile, because of restrictions to what little timber harvesting that there was in the area, the few mills closed, people lost jobs, local rural economies collapsed. Wonder about lack of interest on the Forest Service part to monitor?

  3. Here’s how the scope of the injunction is starting to play out:

    “A spokesman for Forest Service’s Southwestern Region said the Forest Service had no choice but to suspend fuel wood sales, given the court’s ruling.” I think they had plenty of choice. They could interpret the language of the injunction to not apply to firewood, and they also could reasonably assume that plaintiffs aren’t going to complain if they allowed firewood cutting to continue. But maybe they wanted to score some political points (at the expense of some locals) …

    John Horning, executive director of WildEarth Guardians, said the blame falls on the Fish and Wildlife Service, which failed to monitor the owl’s population, and the Forest Service. “I think the Forest Service is trying to inflict as much pain as possible on rural communities by needlessly interpreting this injunction in a way that incites people,” he said, adding that personal firewood use should not have been included in the injunction. “The bottom line here is what they are doing now by over-broadly interpreting the injunction is irresponsible, as was the illegal behavior that got us here in the first place.” He called the Forest Service’s response “petty and vindictive.” “I care deeply about people, about the forest, about the Mexican spotted owl, and I resent that this agency’s failure and irresponsible politicizing of this has confused and scared people needlessly,” he said.

  4. Mr. Haber, the reality is that, upon an injunction being filed, those affected do not have the ability to make decisions of what the judge meant, nor what the injunction meant. It said, “all forest management practices must cease”. Fuel wood gathering is indeed a forest management practice. If USFS had the ability to make such a decision, they could have said, “well, surely they don’t mean we have to stop harvesting in areas where forest restoration is occurring as that will help the owl long-term”. It just doesn’t work that way. Had USFS not followed the injunction precisely, they could have, and probably would have, been held in contempt of the court order. If WildEarth Guardians had wanted fuel wood collecting to continue, it should have been included in their appeal to the Judge. The Judge then could have added it to his original injunction. I am not defending USFS. I recognize they have fault in this. But I don’t believe we can simply make decisions on our own that might, or might not, be contrary to what the court intended. Thus, stopping all fuel wood collecting was the right move. WEG and USFS started talking and got it cleared up. The court made an amendment to the injunction. Seems pretty straight forward to me. Now another amendment has been made to allow some forest restoration to occur in non-critical MSO habitat. Good. That is also how it should work. I am pleased to see this happen. Matt Allen

    • You got me on that one. The agency terminology isn’t what I thought it was, which was that “timber management” was limited to the timber production program, and other “forest management” was broader and included firewood. While the FS doesn’t actually define the terms, “timber management” and “forest management” appear to be the same things. The title to this part of the Forest Service Manual (§2400) in 2009 was “Timber Management,” but since then has apparently been changed to “Forest Management.” Under this scheme, firewood is not a “silvicultural practice” (§2470) but is still considered “timber/forest” management (in §2460, “Uses of Timber Other Than Commercial Timber Sales”).

      But I’ll go back to my point that “timber management” does not appear to be a term used by plaintiffs (the court uses it a lot); as I mentioned above, they asked to enjoin “all USFS management action in Region 3 national forests that involve actions that are inconsistent with the adaptive management approach adopted by the USFS in the 1996 S&Gs.” It’s hard to believe that somewhere in this process the attorneys for the Forest Service did not ask what this meant, and this issue could have been resolved before the court issued its order.

      • It’s not hard for me to imagine that DOJ folks may not have understood all the intricacies of what timber management might possibly mean in the regs, manual and handbook. I know I don’t and I, like you, worked there. If they (DOJ) didn’t know it might be a problem, they might not have asked. Like I’ve said before, we always erred on the side of caution when things were enjoined until we figured out what was OK and not. That went from the FS to DOJ to court and back down the chain of command. This takes a while, but always becomes clarified.

        Just once, I think it would be fun if all those discussions were made public- anytime the attorneys and the judge met and spoke after the order was written. It would help everyone understand how the dynamics works. If an official made a decision about forest management, all her discussions would be FOIAble and discoverable. After the litigation cone of silence, though, we all can only wonder about what went on.

        • One other place where the scope of an injunction should normally come up is where the judge has to balance the harms of enjoining or not enjoining agency actions. To do that they would have had to know what is going to be enjoined. However, because this was an ESA claim, the judge stated that courts must presume the harm to listed species is greater, so maybe it was not briefed. Still, I find it hard to believe that government attorneys didn’t think about this and could have avoided temporary hardships.

  5. This recent article includes what is essentially a list of management requirements, but this is not a “decision about forest management” as implied by Sharon. Plaintiffs who won the lawsuit are just agreeing to the scope of an injunction that dictates what may occur until the agencies comply with the law. That will be done in a public process.


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