More than two decades after the northern spotted owl was first identified as a threatened species, the lands designated as its critical habitat continue to cause legal battles. The American Forest Resource Council (AFRC) recently joined together with a number of parties, including forest products manufacturers and private forest landowners, to file a lawsuit in response to the new northern spotted owl critical habitat designation. At issue is the Department of the Interior (DOI) rule that designated approximately 9.29 million acres of federal and 291,570 acres of state forestlands as critical habit.
The lawsuit challenges the new rule, which took effect on January 3, 2013, on multiple economic and environmental fronts. In a press release to announce the lawsuit, AFRC President Tom Partin remarked, “We just don’t understand why the Fish and Wildlife Service persists in writing rules that hurt the folks living in our rural communities, while doing very little to help the species they are trying to protect. Habitat is no longer the limiting factor in the owl’s survival. The real threats are barred owls and wildfire. This rule does nothing to address these threats and in fact will make our forests more prone to wildfire.”
The Carpenters Industrial Council and Siskiyou County, California are also plaintiffs to the lawsuit, which names the Secretary of Interior and the Director of the United States Fish and Wildlife Service (USFWS) as defendants. It was filed in federal District Court in on March 21. In addition to this suit, Washington state counties Lewis, Klickitat and Skamania have announced plans to work together to prepare a lawsuit against the expansion of protected habitat within the Gifford Pinchot National Forest.
Job Impacts
A Presidential Memorandum from February 28, 2012, outlined the criteria the USFWS was required to consider when identifying an appropriate critical habitat for the owl. The “economic impacts of the proposed rule, including job impacts” were among the requirements. The AFRC and other plaintiffs maintain the USFS did not adequately address these impacts by failing to estimate the number of job losses that will affect loggers, truckers, wood product manufacturers, wholesalers and retailers as a result of the critical habitat designation.
In its final rule, the DOI and USFWS did respond to comments about the relationship between private timberland, timber harvests and employment. (The USFWS removed the private forestland it initially proposed as critical northern spotted owl habitat from its final rule.) Three of those comments were reported to have referenced the analysis Forest2Market conducted on the economic contribution of forestry-related industries to Washington State’s economy. Suzanne Hearn discussed that study in her piece Northern Spotted Owls: The Cost of Critical Habitat Designation.
The response suggested “estimates noted in the comment of lost employment and associated wages, fees, and revenues anticipated in the comments are likely overstated.” It also stated, “Thus, the DEA estimated that at worst, it is possible that 21,715 ac (8,788 ha) in Washington may not be harvested, or approximately 1,086 ac (439 ha) per year over the 20-year timeframe of our analysis. Estimating the impact of such a small change in harvestable acres on employment is difficult and likely to be highly dependent on the location and timing of the foregone harvests. The relationships between acres and jobs, revenues, or fees and taxes presented in the comments may not be applicable to such small, marginal changes in harvestable acres.”
Simple acknowledgement of potential impacts does not equate to a sufficient argument one way or another. Are the relationships between harvestable acres and employment, wages, fees and revenues applicable, or are they not? The DOI’s inability or unwillingness to commit to a firm answer about the economic impacts to the nearly 9.6 million acres identified as critical habitat – not just the 21,715 acres in Washington state - does little to inspire confidence in the overall economic analysis.
Wildfire Concerns
The lawsuit suggests the identification of critical habitat for the northern spotted owl today is complicated by two factors - wildfire and barred owls - that were not considerations when the species was identified as threatened back in 1990. Increasing temperatures due to climate change and increasing fuel loads due to an apparent lack of adequate management of federal lands leave old growth forests particularly susceptible to wildfire. Given the fact sustainable harvests can decrease fuel loads, one might ask if the northern spotted owl’s habitat is more at risk due to logging or the lack thereof.
Language in the rule seems to suggest active forest management may be permissible: “As recommended in the Revised Recovery Plan for the Northern Spotted Owl, active forest management may be required throughout the range of the owl with the goal of maintaining or restoring forest ecosystem structure, composition, and processes so they are sustainable and resilient under current and future climate conditions, to provide for the long-term conservation of the species. For example, in some areas, past management practices have decreased age-class diversity and altered the structure of forest patches; in these areas, management, such as targeted vegetation treatments, could simultaneously reduce fuel loads and increase canopy and age-class diversity.”
Because federal agencies are required to confer with the USFWS before engaging in any management activities on protected lands, the lawsuit brought forth by the AFRC and its partners argues the cost of such consultation is prohibitive and, in effect, restricts timber harvest on public lands. It also suggests a lack of logging will decrease county revenues from public timber sales, increase the cost of milling due to a lower supply of raw material and reduce the amount of work available to those who reside in rural areas.
Barred Owl Threats
The Revised Recovery Plan for the Northern Spotted Owl published by the USFWS in 2011 states barred owls have been observed in all areas surveyed for northern spotted owls. “Consequently, the Service assumes barred owls now occur at some level in all areas used now or in the past by spotted owls.” Climate change is not considered a factor in the presence of barred owls in areas typically inhabited by spotted owls. This brings up the question, does critical habitat designation protect spotted owl habitat or simply create more barred owl habitat?
Expanding the area of protected habitat may buy the northern spotted owl time to recover by increasing the distance between them and the predatory barred owl. Another short-term solution under consideration by the USFWS is the removal of barred owls from some areas to improve the chances of northern spotted owl recovery. However, according to the lawsuit brought forth by AFRC, “FWS estimates that 50-75 percent of all barred owl sites that undergo removal in one year will be reoccupied by a new barred owl the next year.” And let us be clear that removal is not relocation. Killing barred owls seems a steep price, especially when no hard evidence exists to indicate their removal will preserve northern spotted owls.
In light of threats like the barred owl and climate change, it is simply not yet known if critical habitat designations will actually help the northern spotted owl recover. What is known, however, is sustainable timber harvests provide economic benefits to rural local communities that need it most. At the same time, active forest management that follows documented best practices can improve the health of old growth forests by reducing their fuel loads, making them less susceptible to catastrophic wild fires. The current approach that aims to save northern spotted owls by designating, but not managing, protected old growth forests could unwittingly lead to the destruction of both.
The full lawsuit filed by the AFRC is available for review on the organization’s website or by clicking here. The final rule on the critical habitat designation is also available from the US Government Printing Office or by clicking here.
Forest2Market: July 14, 2023
