What Does CASPO Listing Mean and How Does the Process Work?

Larry frequently cautions us about the different kinds of owl habitat, so I thought I’d post this handy table from the 2019 Forest Service CASPO conservation strategy.

Anonymous posted this link under “Topics of Interest”. It says it’s a proposed rule..

We, the U.S. Fish and Wildlife Service (Service), propose to list two distinct population segments (DPSs) of the California spotted owl (Strix occidentalis occidentalis), a bird species from California and Nevada, under the Endangered Species Act of 1973, as amended (Act). This determination also serves as our 12- month finding on a petition to list the California spotted owl. After a review of the best available scientific and commercial information, we find that listing the Coastal-Southern California DPS as endangered is warranted, and that listing the Sierra Nevada DPS as threatened is warranted. Accordingly, we propose to list the Coastal-Southern California DPS as an endangered species under the Act and the Sierra Nevada DPS as a threatened species with a rule issued under section 4(d) of the Act (‘‘4(d) rule’’). If we finalize this rule as proposed, it will add these two DPSs to the List of Endangered and Threatened Wildlife and extend the Act’s protections to them.

She/he/they added .. “including a bunk 4(d) rule.”

Steve posted on the E&E news story here.

Claudia Elliott asked how this determination of “threatened” might change the management of giant sequoias and asked for our help and insights. Also, she asked what is a 4(d) rule?

It would be great if someone could explain the steps in the process from here on in, and especially how that ultimately gets translated into management direction, including where the public might be involved. Thanks!

We can also discuss 2ndLaws comment under Steve’s post. Hopefully it won’t be confusing to focus all the current CASPO discussion on this thread. Here’s 2nds comment:

This listing announcement is foreshadowing a aggressive program of “logging it to save it” even though it is well-established (thanks to the state-and-transition models used by carbon scientists) that the adverse effects of fuel reduction logging, plus unavoidable wildfire, are worse for spotted owls than the effects of wildfire alone, due in large part to the low probability that fuel logging will interact with wildfire during the brief period that treatments are effective.

Raphael et al (2013) used a state-and-transition model to explore the effects of landscape fuel reduction logging on spotted owls and found:

Active fuel reduction activities in moderate habitat contributed to substantial short-term (simulation years 0 to 30) population declines under the larger area, higher intensity scenarios. … The combination of BDOW interactions and high-intensity, larger-area treatments contributed to the most substantial NSO population bottlenecks. … It appears that management regimes that take out owl habitat through treatments (either current or potential future) do not reduce the amount of habitat that is lost to wildfire enough to make up for the habitats lost through treatments.

Principle Investigator: Dr. Martin G. Raphael. Project Title: Assessing the Compatibility of Fuel Treatments, Wildfire Risk, and Conservation of Northern Spotted Owl Habitats and Populations in the Eastern Cascades: A Multi-scale Analysis. JFSP 09-1-08-31 Final Report, Page 19. http://www.firescience.gov/projects/09-1-08-31/project/09-1-08-31_final_report.pdf.

18 thoughts on “What Does CASPO Listing Mean and How Does the Process Work?”

  1. This comment is directed at Second’s comment. It appears that the Raphael study cited is about the Eastern Cascades, not the Sierra. Having worked in both, I can’t imagine extrapolating from one to the other (and I think the owls are a different species, also)

    I reviewed some of the Conservation Strategy. This was done by scientists who study the Sierra.

    This seems like one of the relevant sections (p. 30)

    Restoration treatments that reduce stand density can also facilitate regeneration (York et al. 2004, Zald et al. 2008), accelerate the development of the large and tall trees favored by spotted owls (Das et al. 2008, Latham and Tappeiner 2002, McDowell et al. 2003, Ritchie et al. 2008, Skov et al. 2004), and reduce competitive stress around existing large trees (Fettig et al 2007, McDowell and Allen 2015, Safford and Stevens 2017, Young et al. 2017). Restoration of heterogeneous patterns in distribution, tree density, and tree species composition that mimic historic conditions may contribute to a forest that is resilient to mass disturbances (Fry et al. 2014, Show and Kotok 1924, Stephens et al. 2008), especially catastrophic wildfire, while increasing habitat diversity for the CSO and their prey.

    Since fire was the dominant disturbance agent that shaped Sierra Nevada forests under NRV, reintroduction of fire as an ecosystem process is an important element of this Strategy. However, given the reintroduction of fire is not presently practical or safe in some parts of the Sierra Nevada, forest thinning may be used as a fire surrogate (albeit an imperfect one) to help move current forests toward NRV. To mimic the effects of a natural fire regime, managers would need to burn, mechanically treat, or both 184,000 to 488,000 acres annually on National Forest System lands in the Sierra Nevada (North et al. 2012). Given the backlog of nearly 3 million acres of firesuppressed land (North et al. 2012), active management is needed at a significant pace and scale. Treating more than 20 percent of the landscape with strategic treatments can reduce modeled fire size and behavior (Collins and Skinner 2014), but effectively influencing ecosystem function, especially where treatment patterns are limited by management constraints, requires restoring,
    treating, or both more than 40 percent of the area at the landscape scale (Lydersen et al. 2017). At a mid-scale (1,000s to 10,000s of acres), roughly 25 to 60 percent of the area may need to be treated to influence fire severity (Lydersen et al. 2017), and at a patch/stand scale, more treatment may be necessary to influence fire severity (50 to 75 percent at the scale of 500 acres; Lydersen et al. 017). Even more treatment for restoration may be required under future climate regimes (Westerling et al. 2015).

    • Re: “the Raphael study cited is about the Eastern Cascades, not the Sierra. Having worked in both, I can’t imagine extrapolating from one to the other (and I think the owls are a different species, also)”

      The Forest Service regularly extrapolates from Sierra Nevada-based studies to support logging in NSO habitat in the Eastern Cascades (i.e., east side of Mt. Hood National Forest).

      • Ironically, there is (almost) zero cutting of trees (beside roadside hazard trees) within Owl PACs in the Sierra Nevada. (I did work in a small unit, within an owl PAC, selecting a few trees between 10 and 14.9″ dbh. Personally, I didn’t think it was really needed, based on the small amount of those small trees.)

  2. Here’s what the AFRC newsletter says:

    FWS has now determined that the greatest ongoing threats to the CSO include habitat loss resulting from large-scale, high-severity wildfires, competition, and hybridization with non-native barred owls, tree mortality due to drought and beetle infestations, and temperature and precipitation changes related to climate change. According to FWS’s press release:
    “The Coastal-Southern California DPS does not have a strong ability to withstand normal variations in environmental conditions, persist through catastrophic events, or adapt to new environmental conditions throughout its range, which led the Service to propose listing the DPS as endangered. The Sierra Nevada DPS has a reduced ability to adapt to changing environmental conditions due to habitat loss and fragmentation from wildfires. However, this DPS can still withstand normal variation in environmental conditions, and some parts of the population remain in stable condition, which led the Service to propose listing it as threatened with a 4(d) rule.”

    As stated by FWS above, large-scale, high severity wildfire is the biggest threat to the CSO. The inclusion of a 4(d) rule permitting “take” of the Sierra Nevada DPS specific to forest management designed to reduce the risk of such wildfire indicates FWS’s support for forest health and fuels reduction treatments that may have short-term adverse effects to the CSO.
    In 2017 and 2020, a Memorandum of Understanding was signed by Sierra Pacific Industries, the California Department of Forestry and Fire Protection, the National Fish and Wildlife Foundation, and the Forest Service to coordinate on certain actions that involve wildfire fuel reduction efforts and CSO conservation. Because most of the land inhabited by the CSO is managed by the Forest Service and Sierra Pacific Industries, FWS acknowledges that “[i]mplementation of their fire risk reduction plans could help improve California spotted owl habitat in the coming years.”
    AFRC will submit comments on the proposal which are due April 24.

    So apparently you can comment.

    • Here’s an overview of what the listing rule says. “The long-term benefits of properly managed fuel treatments for reducing the risk of severe wildfire are likely to outweigh the short-term negative impacts to spotted owl habitat (Ager et al. 2007, pp. 54-55; Roloff et al. 2012, p. 7; Jones et al. 2021b, pp. 4-5). These trade-offs are complex and ultimately depend on the extent that treatments have negative impacts to owl habitat and the magnitude of effects from subsequent wildfires (Jones et al. 2021b, p.2).”

      It looks like you have to focus on what “properly managed” means in a particular circumstance. And the “magnitude of effects from subsequent wildfires” would have to factor in the likelihood of their occurring. The notice also says “treatments should still strive to maintain large trees and high canopy cover forest.” It does not represent unqualified “FWS’s support for forest health and fuels reduction treatments that may have short-term adverse effects to the CSO.”

    • How many CASPO PACs have burned and are still viable as nesting habitat? (Probably none)

      Additionally, the idea that thinned areas might not burn within their effectiveness period is not really a concern. If it burns, great. If not, even better. The effects of thinning on forest silviculture remains. Also, with fires burning 200,000 acres or more, we can be more sure that burn intensities will be reduced in those thinned areas. Today, people oppose thinning projects for reasons other than science. Those thinning projects follow all rules, laws and policies, but preservationists don’t want them, still.

  3. Re: ESA section 4(d), this relates to the proposed “threatened” DPS. Many ESA species protections, including most notably the “take” prohibition, apply only to species listed as endangered rather than threatened. A section 4(d) rule establishes protections for threatened species. Until 2019, FWS had a “blanket” 4(d) rule that automatically applied most endangered species protections to threatened species. The Trump administration amended the blanket rule in 2019 to make it inapplicable to species listed as threatened after the amendment’s effective date. So for the moment each species listed as threatened will apparently have its own species-specific 4(d) rule.

    FWS has a good 2-pager on section 4(d) rules here:


    • “For now” because courts have kept this in place while the Biden administration takes a turn at it. https://www.endangeredspecieslawandpolicy.com/court-sends-endangered-species-act-regulations-back-to-the-agencies

      I don’t believe there is a requirement that every threatened species have a 4(d) rule, so the current default is no prohibition against incidental take for threatened species. The rule for threatened Cal owls imposes a take prohibition, and then makes exceptions: “Therefore, we propose to prohibit take of the Sierra Nevada DPS of the California spotted owl, except for take resulting from those actions and activities specifically excepted by the 4(d) rule.”

      The “bunk” 4(d) rule includes this exception:1) “Forest or fuels management to reduce the risk or severity of wildfire (such as prescribed fire) where fuels management activities are essential to reduce the risk of catastrophic wildfire, and when such activities will be carried out in accordance with an established and recognized fuels or forest management plan that includes measures to minimize impacts to the California spotted owl and its habitat and results in conservation benefits to California spotted owls.” That seems to leave a lot of discretion, but the last sentence is key, and has to account for short-term effects. If any effects are adverse, there would be consultation with the FWS, and that should document that the benefits exceed the harms.

  4. Other than the changed paper trail and circus hoops to jump through, on the ground, I doubt there will be any change in thinning projects. The USFS already follows all those rules regarding protections. It seems to be a non-issue to me, but I’ll get the popcorn popping to watch the entertaining anguish from anti-management folks, who might see this as an opportunity to end timber sales.

  5. Listing has been found warranted by the 12 month finding. CSO is now a candidate species for listing. Next step is to issue a proposed rule to list it (or withdraw the warranted finding). Once there is a proposed rule, it will become a proposed species and will need a final rule to list it. If they make it workload priority, the process will take at least 3 years.

    FWS has always had the ability to issue 4(d) rules when making listing decisions and has done so for some species prior to the Trump administration. I think it is important to note that 4(d) rules do not alleviate federal action agencies of section 7 obligations (the trigger for section 7 is “may affect” and the purpose of section 7 is to ensure no jeopardy, not to exempt take). However, if all potential take is covered under a 4(d) rule, then the BO does not include an incidental take statement, as the take is not prohibited as per the 4(d) rule. Also, non-federal agencies will not be required to obtain an HCP to cover any taking that may occur if their action is covered entirely by the 4(d) rule.

  6. Sorry, my bad. It appears it’s both a 12-month finding and a proposed rule to list. I have not see this done before (but I am sure it has been). They skipped the candidate stage. It is proposed.

    • That’s potentially an important distinction because candidate species receive no protection under ESA, but proposed species do. Candidate species are also often described as “warranted but precluded” from listing due to species with higher priority, but the owls were evidently a top priority. Proposed species receive some protection because federal agencies must “confer” (as opposed to consult) with the relevant listing agency if their action will jeopardize the continued existence of a proposed species. There are some definitions of these terms here: https://ipac.ecosphere.fws.gov/status/list.

      The Forest Service Manual requires that a Biological Assessment be prepared for proposed species (and proposed critical habitat). I am not aware of examples of actual conferencing on a jeopardy finding to proposed species, but the agencies often use formal consultation procedures (applicable to listed species) so that a Biological Opinion can be “rolled over” to meet ESA requirements when a proposed species is subsequently listed through a final listing rule. I have also seen examples (such as for the Planning Rule) where candidate species are addressed in a biological assessment).

      This may mean some more work with the FWS for the Sierra/Sequoia and other California forest plan revisions as well as projects that may affect California spotted owls. (ESA would normally require that there be reinitiation of consultation on existing forest plans for a newly listed species, but that is overridden by language in appropriation riders.) The Forest Service Planning Rule also includes proposed and candidates species in its diversity requirements.

    • I’m guessing that whoever used that term believes the proposed 4(d) exception (which would, per Jon, allow fuel management activities under certain circumstances) is so broad as to severely undermine the take prohibition contained in that proposed rule for the Sierra Nevada DPS. Jon pointed out that the situation might not be quite so bleak:

      “That seems to leave a lot of discretion, but the last sentence [referring to the proposed rule language to the effect that fuel management activities would need to, among other things, have CASPO “conservation benefits”] is key, and has to account for short-term effects. If any effects are adverse, there would be consultation with the FWS, and that should document that the benefits exceed the harms.”

      As an aside, the short vs long-term argument under the ESA has been around for a long time. Those in favor of more active forest management sometimes argue that projects that would impose short-term harm on a given listed species should be allowed to proceed if they would provide long-term benefit. I don’t know if a federal court has ever upheld a project (or rather, refused to enjoin it) on this basis.

      • Thanks; I should have referred to the “last clause” rather than last sentence (it was a long sentence). It puts a substantive limit on management that the FS would have to deal with.


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