Many thanks to Jon for another excellent litigation round-up! The discussion of the barred owl strategy reminded me of what I think is an excellent AFRC podcast talking about how the strategy works on the ground. Thanks to Nick Smith and Andy Geissler!
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Since we discussed the genetics study of barred and spotted owls previously, that was mentioned in the complaint, I thought Jon’s link to the Friends of Animals complaint was worthy of its own set of comments.
FWS claims that the historical range of barred owls was initially limited to the eastern United States before some barred owls began to expand west around the turn of the 20th century through natural ecological processes. FWS states that climate change and increased trees in the Great Plains enabled barred owls to reach the Pacific Northwest.
75. There is also genomic evidence, including a 2021 study, that shows substantial differentiation between eastern and western barred owls, which suggests barred owls have likely existed in the Pacific Northwest for thousands of years. Today, barred owls’ range overlaps much of the range of northern spotted owls and California spotted owls.
(I wrote to the authors of the study, one I couldn’t locate, and one did not answer my email, so see whether they had updated information.)
The below is on pages 21 and 22 of the Friends of Animals complaint.
F. Lethal Barred Owl Management Plan
139. The stated purpose of the Decision is to “reduce populations of non-native barred owls in selected areas to provide for the survival of the native northern spotted owls and prevent the invasion of non-native barred owls into the range of California spotted owls.”
140. The central premise underlying the Decision is that barred owls meet the definition of an “invasive species” under Executive Order 13751.
141. Barred owls are not an invasive species under Executive Order 13751 or the MBTA.
142. Barred owls did not come to the Pacific Northwest by way of “introduction.”
143. There was no “introduction” of barred owls to the Pacific Northwest because they did not arrive there “as a result of human activity” by “escape, release, dissemination, or
placement.”
144. Barred owls were not introduced to the Pacific Northwest because, according to FWS, they migrated there on their own over the course of many years.
145. FWS determined that the “probable explanations” for the migration of barred owls to the Pacific Northwest were climate change and increases in trees in the Great Plains.
146. Whether or not their migration to the Pacific Northwest was aided by human changes to the environment is not determinative of whether barred owls came to the Pacific Northwest through “introduction.”
147. FWS thus based the Decision on the erroneous classification of barred owls as an invasive species.
148. Barred owls are native to the areas in the Pacific Northwest where the Decision will be implemented because they arrived there through a natural ecological process
I didn’t realize that the concept of “introduction” was so important (if it is, or it’s just plaintiffs “throwing it at the wall and seeing if it sticks”). It seems to me that human activities and post-glaciation time frames are almost entirely correlated. How could anyone parse out the importance of each in a long-term process like migration? And if it’s impossible to parse out, should it be in regulation (if it is)? I don’t have a bird in this fight, but I think the concepts are worthy of discussion.
Sec. 2 of Executive Order 13751 of December 5, 2016 (Safeguarding the Nation From the Impacts of Invasive Species) contains the following relevant definitions:
(e) ‘Invasive species’ means, with regard to a particular ecosystem, a non-native organism whose introduction causes or is likely to cause economic or environmental harm, or harm to human, animal, or plant health.
(f) ‘Non-native species’ or ‘alien species’ means, with respect to a particular ecosystem, an organism, including its seeds, eggs, spores, or other biological material capable of propagating that species, that occurs outside of its natural range.
https://www.federalregister.gov/documents/2016/12/08/2016-29519/safeguarding-the-nation-from-the-impacts-of-invasive-species
In its Final Barred Owl Management Strategy (August, 2024), FWS said:
We concluded that the barred owl in western North America meets the definition of an invasive species as defined in E.O. 13751 for the following reasons. The barred owl is a non-native species, not historically present in the range of the northern and California spotted owls. Barred owls were introduced unintentionally through dissemination across the previous barrier to movement of this forest owl created by the generally treeless conditions of the Great Plains and harsh conditions of the northern boreal forest in Canada. This movement was made possible by human-caused changes to the Great Plains and northern boreal forest. Barred owls are causing significant environmental harm to northern spotted owls, a subspecies listed as threatened under the ESA, and are likely to cause significant harm to California spotted owls as barred owl populations continue to expand
https://www.fws.gov/sites/default/files/documents/2024-08/final-barred-owl-management-strategy-2024_508.pdf at pdf p. 15.
Thanks, Rich. My question would be why it matters whether barred owls are “invasive” or “non-native.” These terms in the “purpose of the decision” look simply descriptive, and not relevant to the legal question of whether FWS can do this. It looks to me like the FWS did NOT base their decision on “the erroneous classification of barred owls as an invasive species.” The main point is that, however they got there, they are a threat to spotted owls, which should easily justify approval to kill them from the FWS under the Migratory Bird Treaty Act. (But if the record doesn’t support this reasoning, they may have a problem.)
I guess I have the same question as Jon, does the ESA say it’s OK to kill any species that interferes (predates upon, or competes for habitat or food) with endangered species whether they are native, non-native or invasive?
I don’t think anything in ESA addresses that question one way or the other; it just seeks to protect listed species; the MBTA doesn’t focus on ESA but allows justifiable killings. Here is the other example I know of – a state killing ravens to protect sage-grouse: https://www.nwpb.org/2019/03/21/bird-advocates-question-raven-killing-plans-to-protect-sage-grouse/ (Apparently this has been implemented in at least one case.)
Apparently, according to Sec. 2 of Executive Order 13751 of December 5, 2016, people of European, African, and/or Asian ancestry are an “invasive species” and should be dealt with accordingly. Aussies, too! Your tax dollars at work.