NSO Back in the News

Excerpt from the Herald and News, Klamath Falls, Oregon….

Federal Government agrees to reevaluate Northern Spotted Owl habitat after Supreme Court ruling

A coalition representing counties, business and labor has reached an agreement with the U.S. Fish and Wildlife Service that will initiate a public regulatory rulemaking process for reevaluating critical habitat designated for the Northern Spotted Owl (NSO) under the Endangered Species Act (ESA), according to a news release.

The agreement was filed Monday in the U.S. District Court for the District of Columbia and is subject to court approval.

The agreement is related to a unanimous 2018 U.S. Supreme Court decision finding the ESA does not authorize the government to designate lands as critical habitat unless it is in fact habitat for the species. The Supreme Court also ruled that courts can review government evaluations of the impact of designating critical habitat, which the lower courts had refused to allow for over 30 years.

The coalition brought legal action after the Fish and Wildlife Service designated 9.5 million acres of mostly federal lands as NSO critical habitat across Washington, Oregon and Northern California in 2012. This was 38 percent more than was set aside in 1992 following the listing of the NSO. The coalition’s legal action focused on the inclusion of millions of acres of forests not occupied by the species, including over 1.1 million acres of federal lands designated for active forest management activities and where no owls are present.


6 thoughts on “NSO Back in the News”

  1. This was the case about the dusky gopher frog in Louisiana where critical habitat was designated on private land because it was the only place possible. The Supreme Court remanded the case to determine if the area designated was “habitat” despite lacking the necessary forest. I don’t think this determination of “habitat” should depend on current vegetation if the natural vegetation for the area would support the species, and hopefully that is where the remand will end up. For owls, the issue is not whether there are owls present but whether their habitat is present (it is entirely legal to designate unoccupied habitat as critical if it is habitat.)

    Meanwhile, it looks like the Administration is going to see how many log trucks they can drive through this loophole by expanding the question to other places. At best (for the timber industry) this should only affect private lands and only where critical habitat on public lands is insufficient. It should not affect public lands where there is owl habitat (occupied or not).

    The economic analysis has always been a requirement for critical habitat, so it would have been done for spotted owls, but it may now be reviewable in court. This again is probably only a possible issue on private lands because on public lands critical habitat does not increase the economic effects over those resulting from the listing itself (which does not have to account for economics).

    • Jon, thank you for clarifying the news story. I had been under the impression that the Supreme Court ruling blocked any CH in unoccupied areas, but you are right that it only blocked CH in areas without currently-suitable habitat. I wonder, for NSO, if that means they will have to carve out polygons in the CH for every unit that has been logged recently? That seems unnecessarily complicated, and hopefully you are right about where the remand ends up.

      I just want to point out the fact that critical habitat really doesn’t matter much for any projects that happen on public land or private land. For private land, there is no impact of CH other than maybe perception of the project. That was the issue for the Dusky Frog – the landowner wanted to develop that area and it looked bad to have it shown as CH on a map. For logging on private land in NSO CH, there is zero impact of it being designated CH. On public lands, there is minimal impact of NSO CH other than analysis in the NEPA document. NSO PACs are how NSO is really managed, but those are a small subset of the CH.

  2. I agree that critical habitat designation is generally not a big deal (though both sides seem to want it to look like one). Unoccupied critical habitat could have an effect though. Section 7 requirements only apply where a species is “present” or where there is designated critical habitat. Unoccupied habitat would presumably not trigger Section 7 unless it is designated as critical.

    One difference on private land that came up in this case was the question of whether there was a likelihood that the owner would improve or allow the habitat to become suitable for the frog. National forest management must contribute to species recovery, so there should be no question about improving habitat there. (One problem with calling temporarily unsuitable forest habitat non-habitat, and therefore not critical, is that it would create an incentive to cut down trees to avoid critical habitat designation.)

  3. Let the barred owl have it. After 3+ decades and zillions of dollars the needle on the recovery is still going the wrong way, the last that i knew – about a year ago.

    Evolution supports the barred owl & it’s ability to survive over a wider range of climate conditions and forage habitats both present and future.

    Has shooting barred owls helped any? I’d be interested in finding out.
    I’d also like to know if shooting them will be legal for other than research purposes. If not, why bother to continue the research? If it will be legal will it rise high enough on budget priorities considering it’s cost & evolutionary outlook.

    • Most recent FWS update – https://www.fws.gov/oregonfwo/articles.cfm?id=149489616

      “Across all study areas, barred owl removal appears to have stabilized spotted owl populations, though at low levels, on the removal areas compared to continuing declines of spotted owls where no barred owl are removed. There is evidence that barred owl removal has substantially improved the apparent survival rate of spotted owl on the Hoopa study area, though the total spotted owl resident population remains relatively low and is not increasing significantly yet.”


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