Mexican Spotted Owl Case: Monitoring, Biological Opinions, Firewood Cutting and Transparency

Matthew posted the WEG press release here..with links to other posts on the case.

Frankly, I have never really understood ESA litigation. Maybe Jon and others can help me understand via this case.

1. From what I’ve read, this case is about the FS (and FWS?) not monitoring/improving the status of the MSO. But some forests are exempt, because they have a 2012 biological opinion, and it will supposedly take a year for the other forests to get a biological opinion. But if those other forests have a biological opinion, and it says “don’t do these things because of the MSO” then couldn’t another solution be to adopt those restrictions until the new BO is completed? Could that have been the judge’s decision? Would the plaintiff then have to agree? If some forests are exempt from the order due to their BO’s, then is it really about monitoring, or really about having a recent BO? To get back to Jon’s point, does it make better sense to have something like the Southern Rockies Lynx Amendment where a bunch of forest plans are amended at once?

It’s also interesting from the political science point of view. Thanks to the NAFSR twitter feed for this link to a story in the Las Cruces Sun News.

U.S. Sens. Tom Udall and Martin Heinrich, and U.S. Reps. Ben Ray Lujan, Deb Haaland and Xochitl Torres Small — all Democrats — signed the letter, asking Christiansen to “resolve a variety of issues, including, but not limited to, traditional firewood gathering, tribal cultural activities, and forest restoration and fire mitigation projects.”

The affected people and their elected officials can only ask the Forest Service to negotiate. If I remember correctly, it was also an ESA case in Region 3 about which Chief Jack Ward Thomas said:
“In my opinion, and those of my legal advisers, the proposed agreement contained three real clunkers to which we strenuously objected. The Department of Justice is, in my opinion, almost always too eager to settle legal actions, particularly when plaintiffs are of the environmental persuasion. It was a shock to my system to find that the Department of Justice does not consider the Forest Service a client. They have little concerns as to the desires of the Forest Service or any other agency. They set their own course and in doing so are de facto setters of policy. Somehow that seems to be a serious flaw in the system. But for now, at least, it is the system.”

So we don’t know if that situation has changed since JWT’s time, nor how much influence the FS actually has in negotiation.

Meanwhile, the plaintiffs in that court case — the Santa Fe-based environmental group WildEarth Guardians — are asking the judge to exclude firewood permits from his order on Thursday.

“It was never our intention to affect firewood cutting,” said Executive Director John Horning, who claimed Forest Service personnel have been telling people to call WildEarth for the permits.

“That was the U.S. Forest Service … inciting fear in all sorts of ways and frankly scapegoating us,” he said. “It’s unprofessional for a federal agency that has broken the law and been held accountable by a judge to direct people to our organization.”

3. Note that in this news story, WEG is saying that they are asking the judge to exclude firewood permits from the order. To me, this implies the judge developed the order without the plaintiff’s desired sideboards. Is that a natural consequence of taking something to court.. the decision can be what neither party wants?

4. If WEG took the FS to court, and the judge makes a ruling, doesn’t WEG share some responsibility for that? Is WEG accountable for that decision going to court, even if the results are not what they intended? Not that it wouldn’t be unprofessional, in some sense, if the Forest Service directed them to call WEG. What would it look like, though, for people to hold groups accountable for actions that affect their activities. Note that these folks (say, people who want fuels projects done) can’t force the FS to monitor either.

5. Wouldn’t it be terrific if all of the ongoing communication between the attorneys (DOJ and plantiffs’) and the judge were available to the public? Then we would know who was being reasonable, if anyone.

15 thoughts on “Mexican Spotted Owl Case: Monitoring, Biological Opinions, Firewood Cutting and Transparency”

  1. Below is an editorial written by The New Mexican paper out of Santa Fe, NM.

    Our View
    Firewood suspension fuels the wrong battle
    By The New Mexican Editorial Board

    People angry about the U.S. Forest Service suspending permit sales to collect firewood in forests across New Mexico should redirect their outrage.

    Don’t blame environmentalists for suing the federal government over the endangered Mexican spotted owl, alleging that both the Forest Service and U.S. Fish and Wildlife Services have failed in their obligation to monitor owl populations. In response to the lawsuit, a federal judge has suspended all timber management activities in national forests in New Mexico and parts of Arizona. That’s a clear sign that, yes, proper monitoring of the owls did not occur.

    The ruling, however, has led the Forest Service to stop individuals from gathering wood for personal use. In Northern New Mexico, where people need wood for heat or gather wood to sell as a means of making a living, this is a ban with immediate and negative impact.

    It likely was unnecessary, too, since the lawyers for the government could have asked the judge for more direction about the scope and breadth of his order. Personal-use wood gathering likely would have been exempted, making the worry spreading through communities unnecessary. Our local forest rangers are left to enforce an order they had no part of.

    WildEarth Guardians, plaintiff in the lawsuit, quickly filed a motion asking for wood-gathering for personal use to be exempted, saying, “Plaintiff WildEarth Guardians does not believe that personal firewood cutting and gathering on national forest lands is associated with any possibility of irreparable harm to the Mexican spotted owl or its habitat.”

    The U.S. Forest Service motion in response concurs. Those motions, we trust, mean the federal judge will issue guidelines that make the ban unnecessary. This avoids another loud fight among the logger-traditional community-environmental groups.

    Perhaps together, these interest groups can hold federal agencies accountable. To bring back the Mexican spotted owl, it is necessary to keep track of the creatures’ movements — something federal agencies were charged with doing.

    Back in 1993, the owl was listed as a threatened species, its habitat decimated by logging. By 1996, the Forest Service had developed a plan to watch owl numbers, but U.S. District Judge Raner Collins of Arizona ruled that he has seen no evidence that the monitoring efforts have been put into practice. For anyone worrying about partisanship in managing the forests, both Democratic and Republican administrations fell short. This is a problem of bureaucracy, rather than politics.

    The failure to monitor the owls means that we can’t know if the species is recovering, or what activities slow its comeback. The agencies are claiming that the Mexican spotted owl is in “no jeopardy” — but they lack data to support that position. That’s why monitoring is necessary.

    This has repercussions beyond the health of the Mexican spotted owl. Individuals in New Mexico who need wood for heating and cooking, or who sell it as a way to put food on the table, also are threatened right now. Stopping all timber activity means a loss of jobs and damage to some local economies, and it’s an action that might be unnecessary. We don’t know, however, without monitoring the population.

    The forests should be available for many uses, for many types of creatures — humans and animals alike. By failing to track how human activities affect forests, we lack the information necessary to make informed decisions. For that, don’t blame an environmentalist. Demand more from the agencies charged with managing our common resources — and that means advocating for bigger budgets and adequate staffs to do the job right.

    In the meantime, the Bureau of Land Management is selling fuelwood permits for personal use, allowing people to collect dead wood — either downed or standing piñon and juniper. No live trees can be cut. This will help ensure people have access to fuel.

    Should the suspension last longer than a few days or weeks, it might be necessary to make funds available so that people can afford to buy wood. Costs will go up if the supply is limited, and people who depend on wood for heat don’t have money to burn. Adding dollars to fuel-assistance funds is a place where both the federal and state governments might be helpful; the same is true with private charities. No one should be shivering at home because they can’t afford fuel.

    For now, we wait to see what the judge says — he can end this by exempting personal use from his timber management ban, relieving pressure on local communities. Then, focus on requiring federal agencies to do their jobs. After all, had the agencies been doing the work, the environmentalists would have no case to take to court. Nope, the tree-huggers didn’t get us in this mess.

  2. Matthew, with all due respect to the New Mexican editorial board,

    “By failing to track how human activities affect forests, we lack the information necessary to make informed decisions. For that, don’t blame an environmentalist. Demand more from the agencies charged with managing our common resources — and that means advocating for bigger budgets and adequate staffs to do the job right.”
    There are two issues here.

    1. Monitoring as required by law. OK, they said that they were going to do it, so they should do it.

    2. Monitoring as “information on what is affecting species”. There are so many variables that just because a species is going up or down in numbers, monitoring alone can’t tell us why. Could it be climate change? Competition or predation by other species? A few good years or bad years of prey availability due to other unknown factors? Disease? Habitat being burned up? All those possibilities may lead to completely different conservation approaches.

    Perhaps the agencies should never have agreed to something that perhaps they can’t afford to do at the level “to do the job “right”” (in the eyes of whom? as a person who has been in many monitoring discussions..). Which raises the question- was this the result of another settlement that seemed like a good idea at the time and kicked the unfunded can down the road?

    Here’s another story from the White Mountain Independent.

    The court order brings back painful memories of the shutdown of forest industries in the region after the Center for Biological Diversity sued the Forest Service in the mid 1990s to force the federal government to implement a recovery plan for the Mexican spotted owl.

    However, some aspects of the recent injunction may be modified to allow for some forestry-related activities, as WildEarth Guardians has indicated they are open to discussing that possibility.

    “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,” the group stated in a press release.

    It’s also interesting to me that Sugarman of WEG seems to say it’s not actually about monitoring but the FS needs to “assess how its management programs affect the recovery of the Mexican spotted owl as a species” which to me is more of a BO thing. Which many forests did. So is the real issue that some forests didn’t do a BO, or they didn’t monitor the apparently acceptable way that other forests did. So confusing!

  3. Regarding point #4 from Sharon about. What if we remove “WEG” and inserted the federal government, which as we all know, often sues corporations and individuals for illegal behavior.

    If the federal government took a corporation or individual that did something illegal to court, and the judge makes a ruling, doesn’t the federal government share some responsibility for that? Is the federal government accountable for that decision going to court, even if the results are not what they intended?

  4. R3 not only canceled firewood cutting, but cancelled current trail restoration projects because they “might” involve cutting live trees. As the volunteer trail organization friend pointed out to me, “I am not sure why they care calling this ‘timber management’ as trails don’t receive funding from the timber management program. Here is the note from R3 she forwarded to me:
    “The Forest Service received an Order from the United States District Court for the District of Arizona stating that the agency’s “timber management actions in Region 3 national forests must cease,” pending formal consultation regarding the Mexican Spotted Owl. As of this date and until we receive more clarification from the court and our Regional Office, this injunction effects trail work and we must stop/cease any live tree brushing, limbing and removal. “

    • Cindy- I wouldn’t interpret the judge’s order as anything funded by timber management. For example, when I worked on a forest a long time ago, the wildlife biologists were funding removing pines from an aspen stand for wildlife reasons using wildlife bucks. I would interpret it as simply “no tree cutting until we hear from the judge about particulars.”
      In my experience, the FS can be hypervigilant about not appearing to go against a judge’s order or freely interpret it. I think the reasoning is that judges are human beings and it is best not to tick them off, via possibilities of contempt. We were always very very wary of that. The trajectory is that the FS starts with hypervigilant and then dials back with more info. In my experience this usually only takes a couple of weeks.

  5. I also found this case a little difficult to understand, but here is my take. The facts that I think influenced the judge were that incidental take beyond what the FWS authorized was possibly occurring, but nobody had collected the information needed to address that question. However, I think the holding was more about not having a requirement to monitor than about not monitoring. More specifically not having a specific requirement to monitor populations forest-wide, because the Recovery Plan and other documents made it clear that range-wide population monitoring results would be essential to delist the species. Here is the key language from the court on this:

    “Future measures that are considered for the jeopardy analysis “have to be identified and included in the Final [BiOp], either as RPAs (reasonable and prudent alternatives) or incorporated into the [action agency’s] proposed action, to support a ‘no jeopardy’ decision.”

    “Stand-alone Forest Plan measures protecting habitat do not reasonably address recovery because even if ALL national forest land was preserved for the MSO, it will never provide enough information about population trends to allow for delisting nor an accurate assessment of whether the population range-wide is recovering. Therefore, it cannot be a basis for a no jeopardy determination.” (Emphasis by the court.)

    “… jeopardy must consider recovery, recovery must be geared towards eventual delisting, and delisting is dependent upon range-wide monitoring. FWS concluded the Forest Plan did not jeopardize the MSO because it was protective to MSO habitat and because there were increased PACs. But, as noted above, these are not sufficient indicators of recovery. The BiOps simply do not provide a route to recovery or a way to accurately assess it.”

    Back to the beginning of the quote, adequate monitoring requirements must be mandatory in either the forest plan (enforced through plan consistency requirements or the biological opinion (enforced through consultation reinitiation requirements). This was an ESA claim, and the court did not delve into what the implications might be for meeting the NFMA requirement to “contribute to recovery” (“route to recovery?”) of the species, but it might be this. Forest plans must have a requirement to monitor population trends for any species where that information is needed for delisting (which would likely be most species), and that monitoring must be mandatory. That’s problematic because by regulation monitoring requirements are not forest plan components and therefore not mandatory. But they can be made mandatory by linking them to standards that prohibit adverse effects when monitoring has not occurred or when certain findings are made.

    I can’t answer most of your questions about the scope of the injunction or what needs to be done to remove it, but the problem was not just the procedural absence of recent consultation, but that the most recent consultation did not provide for adequate monitoring. I would have to assume the plans and/or BiOps for the more recent plan revisions have better monitoring requirements. In my experience, the FWS would prefer to look at as many plans together as possible, but there is no requirement to do so (a point the court agreed with here).

    I agree that monitoring by itself doesn’t tell you much about what you need to do. The Planning Rule also requires biennial monitoring evaluation reports to determine whether/what changes are needed. Arguably, failure to prepare a required evaluation report could lead to similar legal problems.

    3/4. The complaint filed by plaintiffs includes the requested relief, which I believe the court quoted in granting the injunction. Most complaints I’ve seen use broad language, I suppose because it is easier to shrink that after a decision than to expand it.

    Another issue in this case was the effects of management vs wildfire, which comes up on this blog frequently. FWS considered wildfires to be the greatest current threat to the species, but plaintiffs argued that owls continued to use burned areas. The Recovery Plan’s goal was “to protect conditions and structures used by [MSOs] where they exist and to set other standards on a trajectory to grow into replacement nest habitat or to provide conditions for foraging and dispersal.” The FWS recommended protective fuels reduction and forest restoration measures for areas outside of PACs and possible MSO habitat to reduce the risk of forest fires that could destroy MSO habitat. The court held, “The conclusion that holocaustic wildfire would negatively impact MSOs does not contradict evidence of MSOs’ survival after lower-grade wildfires (presented by plaintiffs),” and, “There is simply not enough data to ensure landscape-altering fires positively effect MSOs in the long run.” In this case, failure to monitor/evaluate may have helped the Forest Service.

  6. Thanks so much for this Jon!! First, it sounds like the judge is making a scientific judgment about a discussion between FWS and the plaintiffs(with regard to fires and owls). Maybe that’s not what those quotes mean, but it seems like an odd place to thrash that out ( a court).
    Does FWS represent “science” in this case, or not, and why?

    Second, these helpful quotes:
    “Stand-alone Forest Plan measures protecting habitat do not reasonably address recovery because even if ALL national forest land was preserved for the MSO, it will never provide enough information about population trends to allow for delisting nor an accurate assessment of whether the population range-wide is recovering. Therefore, it cannot be a basis for a no jeopardy determination.” (Emphasis by the court.)

    It sounds like the FS has some responsibility beyond “protecting all habitat” for delisting? Why is the FS responsible and not FWS or BLM or …??? And if the range includes Utah and Colorado, why isn’t this an issue there?

  7. The judge was saying it was not arbitrary, based on the scientific facts presented by both sides, for the FWS and FS to conclude that they needed to do something about catastrophic fire risk to owls.

    The judge was only addressing a particular agency action – a particular set of forest plans, and the relevant national forest land. I would characterize the holding as being that these forest plans do not provide for their share of the information needed for delisting the species; that which pertains to these national forest lands. This may become a litigation problem for other places and with other species.

    • Mr. Horning May call it unnecessary panic, but he has never been in Joyner’s shoes as part of a large organization in which he doesn’t call all the shots. It’s funny, in a way, to be attacked by a lawyer for following your own lawyers’ advice.

    • There are plenty of other National Forests to get a nice tree from. When was the last time a subalpine fir was used? I like that full, but narrow crown. Or, maybe a mountain hemlock, with that wonderful droopy leader, reminiscent of Dr. Suess.

  8. The Forest Service has filed its motion regarding the scope of the injunction, apparently along with a motion for reconsideration of the court’s decision. It’s interesting how the Forest Service is interpreting the decision: “This judgment appears to hold — erroneously — that [the] Fish and Wildlife Service cannot adequately address the owl’s recovery unless and until it has reliable population trend data — data that, under the 2012 owl recovery plan, will not be available until 2023 at the earliest.” That’s not the way I read the case, which was more in the line with the way another article characterized the opinion: “sidelining timber management activities until the federal agencies come up with a way to count the owls as part of a recovery plan.” And the “spinning” continues.


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