ESA, Spotted Owls, and the Role of Science in Lawmaking, Politics and Litigation

November 2, 2006

By D. Eric Harlow

Talk Outline

Introductions Spotted Owl Wars I Spotted Owl Wars II-

The Return of the Litigant Current situation and

things to come Role of Science in

Lawmaking, Policy, and Litigation

Introductions

Introduction- who am I Education, work

experience, advocacy, projects

Working at the nexus of policy, law, and science

Who are you? Scientists? Advocates?

Policy Makers? Business Majors? Other?

Motivations Effectiveness

Spotted Owl Wars IA brief history 1988 State listed as endangered

Did you know we have a state ESA law? Requires development of an unenforceable plan within certain timelines

1990 Federally listed as threatened Result of multiple rounds of litigation

1990 USFWS recommended the following strategies to “avoid or reduce the risk of incidental take”

Avoid any harvest activity that results in less than 70 acres of the best available suitable Owl habitat encompassing the nest site;

Avoid any harvest activity which results in less than 500 acres of suitable habitat within a 0.7 mile radius (1,000 acres) of a nest site;

Avoid any harvest activity that results in less than 40 percent coverage of suitable Owl habitat within the median home range circle.

Immediately challenged and rescinded

Politics 1992 Critical Habitat Designation-

Draft proposal included private lands Final reduced designation by 4.7 million acres and included no private, state, or tribal land

“George Weyerhaeuser, president and chief executive officer of timber giant Weyerhaeuser Co., went to Washington, D.C., in late July of 1991 and met with members of the Northwest delegation and top officials in the administration of George H.W. Bush. Critical habitat designation, he said, would shut down logging on 190,000 acres out of the 2.9 million acres the company owned in Oregon and Washington. Two weeks later, the Service dropped all private timberland, all Indian reservation land and some state land — 3.4 million acres in all — from consideration. The final rule, published in January 1992, whittled critical habitat protection to 6.9 million acres.

Agency economists at the time predicted that critical habitat protection would cost only about 2,500 more jobs than an owl conservation plan already in effect. The estimate might well have been accurate, but we’ll never know, because critical habitat was never actually implemented.”

Source: High Country News Article “Spotted Owl or red herring” March 20, 2006

Spotted Owl Wars IA brief history 1992 Draft (and only so far) Recovery Plan-

Based on 1990 interagency (ISC) report that set up reserve system

Recognized importance of non-federal land in the recovery of the owl

1992 State “500-acre” rule 1993-1994 FEMAT and NW Forest Plan

What’s so special about the NWFP Clinton gathered up best scientists and locked

them in a room and asked for options Results-

Science based approach (paradigm shift) - ecosystem management, watershed analysis, survey and manage, riparian buffers, aquatic conservation strategy

Ended the liquidation of federal old-growth One of the greatest conservation victories Fierce backlash from industry and grassroots (locked

out of the room) It may not save the owl Biggest breakthrough for the NWFP- don’t manage on

a species by species basis

Private Lands:Get out of ESA free cards ESA section 4(d):

This rule prohibits anyone from taking a listed species except in cases where the take is associated with an approved program.

ESA section 10- Habitat Conservation Plans (Incidental Take Permit)

Lack of enforcement

Spotted Owl Wars IA brief history 1995-1996 Development of 4(d) rule for NSO

Weyerhaeuser & DNR promise to do HCPs in SW Washington NEVER FINALIZED

1996 State Forest Practice Rules regarding the NSO and MM (current)

1997 DNR HCP for management of state lands- state permitted to incidentally “take” owls in exchange for having some habitat over the next 70 years

Overview of Washington FPRs Inside Spotted Owl Special Emphasis

Areas (SOSEAs) vs Outside SOSEAs SOSEA goal: compliment owl

protections on federal landsProtections approximate federal take

avoidance guidelines Outside of SOSEAs

Maintain 70 acres of highest quality habitat between March 1 and September 31

Allows destruction of these sitesAssumed 4(d) rule

Southwest Washington

Identified as important for connectivity and to maintain distribution of the species

Weyerhaeuser and DNR promised HCPs 4(d) rule excluded it from protection DNR HCP and state rules dropped

protections based on proposed 4(d) ruleLobbying by WeyerhaeuserPromise to do an HCP

The big problem with state regulations…Federal Guidelines (sort of) Avoid any harvest activity that

results in less than 70 acres of the best available suitable Owl habitat encompassing the nest site;

Avoid any harvest activity which results in less than 500 acres of suitable habitat within a 0.7 mile radius (1,000 acres) of a nest site;

Avoid any harvest activity that results in less than 40 percent coverage of suitable Owl habitat within the median home range circle.

State regulations for areas outside of SOSEAs

Seventy acres of highest quality suitable Owl habitat surrounding the site center should be maintained during nesting season

Summary of DNR HCP(From the Biological Opinion)

1.6 million acres, 70 year contract Required mitigation over term of contract:

101,000 acres NRF habitat (6%) 100,000 acres dispersal habitat (6%) OESF (managed for 20% YFM and 20% older):

54,000 acres young forest marginal (3%), 54,000 acres older forest (3%)

Between 165,000 and 329,000 acres of suitable habitat were made available for harvest (DNR policies in addition to the HCP reduced harvestable habitat)

“The demographic support provided by these NRF Management Areas may be limited in the first 30 years while habitat is developing”

Expected to operate as a population “sink”

DNR HCP Take expectations

Includes unknown owls and projected take Short term (0-10 years): 179 owl pairs Long term (10-70 years): 72 owl pairs plus

unknown numbers in the OESF Projected take based on estimated population

decline of 0.6% per year over next 50 years Take reduced in first 10 years of HCP through

voluntary agreement with DNR, and now, to a lesser extent, by a settlement agreement

Spotted Owl Wars IIMore recent developments 2002 Industry sues USFWS

USFWS announces 5-year ESA status review of NSO and MM in response to forest industry lawsuit.

Industry was hoping to delist species Included a review of critical habitat

Mismatch between CH and NWFP

2003 Washington Forest Law Center issues 60-day letter on behalf of the Seattle and Kittitas chapters of the Audubon Society alleging that actions by the DNR and UST are illegal under the ESA

Begin Spotted Owl Wars II

Spotted Owl Wars IIMore recent developments

2004 Range-wide “meta-analysis” of NSO population trends Populations declining 4.5%

across range, 7.3% in Washington

2004 USFWS maintains NSO as ‘threatened’ Starts delisting process for

Marbled Murrelet- no DPS “Habitat necessary but may

not be sufficient” Photo from Scott Gremel’s presentation to 5-yr review panel

Spotted Owl Wars IIMore recent developments

2005 10 year review of NWFP completed Lower than predicted logging and habitat loss

2005 Washington state FPB reviews NSO rule Results of two studies show the rules are not working

as intended and habitat has been lost Decides to take very limited action

2005 USFWS Announces intention to do NSO recovery plan as part of settlement with industry (and after we sued)

Spotted Owl Wars IIMore recent developments

2006 New 60-day notice issued to Washington DNR and Weyerhaeuser

2006 Recovery Planning process underwayFirst draft based on old plan rejected by DC

Spotted Owl Wars IIThe Future?

Section 9 Take case against WDNR, Weyco WOPR process

Western Oregon Plan Revision BLM pulls out of NWFP

Recovery Plan sets new benchmark Develop alternatives to reserve system Use “new science” Allow changes to forest plans if they get section 7 ‘no

jeopardy’ calls

Undermining of NWFP

NWFP Today Won the battle, but losing the war

“Since 1990, 130,000 timber industry jobs have been lost”, but according to Fed economic analysis, only 1 in 5 of those jobs was lost due to the NWFP

Myth that Enviros are ‘sue-happy’- industry sues all the time too, but since it is protecting the status quo, it is not as newsworthy

Industry pushes hard for ‘stakeholder’ processes, where they sit at the policy table and guide the process- recovery team, Forest and Fish

Regulatory rollbacks- survey and manage, aquatic conservation strategy, Marbled Murrelet delisting,

Changes in NFMA

“In place of the viability requirement, the regulations simply provide an “overall goal” to “provide a framework to contribute to sustaining native ecological systems by providing ecological conditions to support diversity of native plant and animal species in the plan area”

Eliminate NEPA review of forest plans Roll of science in decisionmaking under NFMA changed

from ‘consistent with BAS’ to ‘When making decisions, the Responsible Official also considers public input, competing use demands, budget projections, and many other factors as well as science.’ (Federal Register, vol 70, No. 3, pg 1027)

What Now? Assumptions of the NWFP are no longer valid

Worst-case- 1% decline over next 40 years 4.5% decline (actual data at the time) would have ‘very serious

consequences’ Owls will continue to decline for next ~50 years until suitable

habitat grows in, and then pops will increase- demographic transition period

Did not address barred owl, potential west nile virus, sudden oak death, global warming

Current rate of decline in Washington- 7.3% average per year Owl conservation strategy on non-federal lands tiered to fed

strategy- HCPs, etc. DNR HCP is legally allowed to ‘take’ over 140 owl pairs in

exchange for growing habitat over the next 70 years. Ok, times have changed- what now? Time for a “Trainwreck?”

SHC suit Recovery plan

Role of litigation

Recovery Plan lawsuit 5-year review result of industry

lawsuit Most of the data reviewed

result of NWFP NWFP resulted from rounds of

litigation Critical habitat designation the

result of litigation The listing of the owl in 1990

the result of litigation Many early management plans

challenged and deemed legally insufficient

Shift Gears…

Role of Science in Lawmaking, Policy, and Litigation

Governance Economic System

RepresentationLawsAgencies/InstitutionsRegulationLitigation

Free MarketsCapitalism Corporations

Mgt.OfNaturalResources(Rare species)

ValuesScience

Three Arenas

1. Laws- made by politicians (RCW- revised code of Washington)

2. Regulations- developed by agencies to implement laws (WACs- Washington Administrative Code)

3. Litigation Interpret laws or regulations Enjoin illegal activities, challenge decisions Change policy (Judge Redden’s orders re:

Columbia operations, Roe v. Wade)

1- Science in Lawmaking

Laws Result of crisis, lobbying, media & public pressure Public generally not engaged in Natural Resource law unless

there is a crisis (ANWR) Science does not play much of a role

Testimony- but comes from all sides Scientific reports- usually stakeholder product Lobbyists are not scientists

Laws have to be compromises to pass They tend to be vague- don’t make the difficult decision Results in litigation to interpret what they mean Vic Moon example (Senior NR analyst to state senate)

Industry lobbyists always present

2- Science in Policy

Regulations To avoid litigation and hassle, agencies often

convene stakeholder groups Stakeholders generally the ones being regulated with

the occasional public or advocacy representative Often long, resource intensive processes Industry lobbyists always present Example: TFW and FFR

Adaptive Management Under FFRAdaptive Management Under FFR

Washington Forest Law Center

FPB

POLICY SCIENCE

FFPCAMPA(DNR)

Adapted from: NWIFC Website

CMER

SRC

SAGs

Acronyms:AMPA: Adaptive Management Program AdministratorFPB: Forest Practices BoardFFPC: Forests and Fish Policy CommitteeSRC: Scientific Review CommitteeCMER: Cooperative Monitoring, Evaluation, and ResearchSAGs: Scientific Advisory Groups

3- Science in Litigation Litigation

Asking a judge to interpret or enforce existing laws Penalties for ‘frivolous lawsuits’; all sides use them One of the best venues for using science

Technical cases evaluated on scientific merit Politics set aside- decision over existing laws or regulations Chance to evaluate whether best available science was used

One of the most difficult venues for using science Need both legal and scientific aspect Costly, difficult, resource intensive Clash between science and law Issues with the administrative record or expert testimony

“For every expert that you get to say that an owl needs a particular patch of habitat to survive, the industry will get three expert biologists who will say they have found owls living in abandoned cars.’’ Jack Ward Thomas, former Chief of the Forest Service

Scientific vs Legal Standards

Scientific Standards Conformity to existing research

& est. methods Transparency Sufficiency and quality of data Statistical tools- Type I & II

errors, p=.05, confidence intervals, R2 values

Peer review Acknowledgement of

limitations Repeatability

Legal Standards Clearly Erroneous Arbitrary and Capricious Burden of Proof Beyond Reasonable doubt

(criminal law) Preponderance of evidence

(51%) Substantial evidence Agency discretion Legislative Intent Expert opinion as fact

The Role of Science- Observations

Recent state-level owl rule negotiations: the role of science in developing a recovery plan- scientists or stakeholders? FFR- better than before, but it may not recover salmon ‘Actual recovery’ vs. ‘call it recovery’ Is society willing to pay?

Even ‘Best Available Science’ may not change opinions- People look for facts to support their worldview ‘If they only understood, they would agree with me.’ Ex: ‘Can’t eat owls’, ‘Intelligent Design’, Egos in science

Science in the age of polarization- Science used as a political tool- spin, political screens, media No-win scenario- if you are not an advocate, politics will trump science,

if you do advocate- you are ‘biased’ (e.g. I’m a leper) Agency scientists and consultants muzzled by politics

The End...?