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Logging on Private Land Enjoined to Protect Spotted Owls

September 12, 2007

A federal district judge in Washington recently issued a preliminary injunction under the Endangered Species Act (ESA) barring the Weyerhaeuser Company (Weyerhaeuser) from logging its own land in Southwest Washington. Seattle Audubon Society v. Sutherland[1] appears to be the second ESA case to temporarily halt logging on private land on account of the Northern Spotted Owl (spotted owl) in the Pacific Northwest.[2] The lawsuit is part of a larger controversy regarding spotted owl recovery and forest practice regulation that involves federal and state regulators, the timber industry, private landowners, and conservation groups.

Background

The Northern Spotted Owl and Its Habitat

The spotted owl’s range extends from southern British Columbia to northern California. The U.S. Fish and Wildlife Service (USFWS) listed the spotted owl as a threatened species under the ESA in 1990, and designated its critical habitat two years later.[3] In 2004, the USFWS completed a five-year status review and recommended that the species remain listed as threatened. The USFWS also found that the species continues to decline, perhaps more so in Washington than in Oregon or California.[4] Although Southwest Washington covers about 40% of the owl’s Washington historic range, remaining owl habitat in the area is “limited and fragmented.”[5] Reportedly, only a few pairs and single spotted owls remain in Southwest Washington today.[6]

Spotted owl habitat and recovery is regulated jointly by the state and federal government. Washington’s Department of Natural Resources (WDNR) administers a Habitat Conservation Plan (HCP) to protect spotted owls on WDNR-managed forested lands within the owl’s range. The HCP, a long-term management plan authorized under the ESA, covers about 1.6 million acres of state trust land in Washington and aims to allow timber harvesting and other activities while conserving the spotted owl and other species.[7]

Washington State Forest Practices Regulation

The Forest Practices Act governs forest practices on non-federal land in Washington.[8] WDNR administers and enforces regulations promulgated under the Forest Practices Act.[9] The Forest Practices Appeals Board hears appeals of decisions related to forest practice permits. In 1996, the Forest Practices Board adopted rules regarding spotted owls that included: (1) defining and prioritizing locations of spotted owls recorded by the Washington Department of Fish & Wildlife (WDFW) called “site centers”; (2) establishing Spotted Owl Special Emphasis Areas, intended to contribute to recovery efforts on federal lands; and (3) designating administrative “owl circles.”[10]

The Audubon v. Sutherland Lawsuit

In November 2006, the Seattle and Kittitas Audubon Societies filed suit against Weyerhaeuser, Doug Sutherland and Vicki Christiansen of WDNR, and several other Washington State officials and agencies.[11] The Plaintiffs alleged violations of Section 9 of the ESA (prohibiting “take” of listed species) on land containing owl habitat in Southwest Washington,[12] including lands that Weyerhaeuser owns.[13] Plaintiffs sought to enjoin: (1) State Defendants Sutherland and Christiansen from authorizing logging of certain spotted owl habitat on private lands; and (2) Defendant Weyerhaeuser from logging within four owl circles in Southwest Washington. Plaintiffs alleged that all Defendants’ actions were likely to “harm” and result in a “take” of spotted owls under the ESA.

Under the ESA, a plaintiff seeking a preliminary injunction must show that a violation of the ESA is “at least likely in the future.”[14] In order to obtain an injunction under Section 9 of the ESA, the Audubon Plaintiffs were required to show “that there is a reasonable likelihood of future habitat modification that is reasonably certain to injure spotted owls by impairing their essential behavioral patterns.”[15] The Court adopted a science-based “take” standard in the case, finding that “removal of suitable habitat below [40%] of the median annual home range area risks harming spotted owls by removing resources necessary to their essential behavioral functions.” The Court explained that, “[a]lthough the 40% threshold is a guideline, rather than a bright-line rule, it is a guideline that is supported both by peer-reviewed science and by usage by the State and [the USFWS].”[16]

Applying the ESA-specific test for preliminary injunctions, and noting that the ESA tipped the balance of hardships and the public interest “heavily in favor of endangered species,”[17] the Court still found that Plaintiffs failed to show a reasonable likelihood that the State Defendants will authorize a take of spotted owls by approving Forest Practice Applications affecting suitable habitat within administrative owl circles outside of Special Emphasis Areas.[18] Because the Court found that Plaintiffs failed to establish a definitive threat of future harm, the Court denied injunctive relief against the State Defendants.

In contrast, the Court found that Plaintiffs demonstrated a reasonable likelihood of a take in and around four owl circles on Weyerhaeuser’s land. Specifically, the Court found that “[a]ny additional harvest of suitable spotted owl habitat within 2.7-miles of the center of the [relevant] circles is reasonably likely to harm spotted owls by impairing their essential behavioral functions. Additional harvest in these areas, particularly within the 0.7-mile core area, poses a reasonably certain threat of actual injury to these owls in the form of diminished reproductive success or death from starvation, exposure, or predation.”[19] The Court also found that Plaintiffs demonstrated that Weyerhaeuser intends to harvest suitable spotted owl habitat within the 2.7-mile radius circle around each site center, and concluded that “[a]ny harm from logging of these circles will be irreparable[,]” because “[t]he loss of a single listed species is an irreparable harm.”[20]

Accordingly, the Court issued a preliminary injunction to prevent harm to the owls in four owl circles on Weyerhaeuser property, pending a trial on the merits. Specifically, the Court enjoined Weyerhaeuser “from any further logging of suitable habitat mapped as part of the take-avoidance plans of the mid-1990s within the 2.7-mile radius circles around each of these four site centers. In those portions of these 2.7-mile radius circles that were not mapped for the take-avoidance plans, Weyerhaeuser [is enjoined from logging] any stands over 50 years in age without conducting a comprehensive survey of the harvest unit.”[21] Trial is set in the case for April 2008.

Audubon v. Sutherland in the Context of Spotted Owl Recovery Planning

This case is part of a larger debate about spotted owl recovery and timber harvest in the Pacific Northwest.[22] In April 2007, the USFWS released a Draft Recovery Plan for the Northern Spotted Owl.  In that Plan, the USFWS estimated that recovery and delisting of the spotted owl could feasibly occur within the next 30 years, at a cost of approximately $198 million.[23] That determination was based, in part, on the USFWS’ conclusion that barred owls represent the primary threat to the species[24] – a conclusion that has met with significant criticism.[25] In June 2007, the USFWS proposed reducing the spotted owl’s critical habitat by 22 percent, from 6.9 million acres of federal land to 5.4 million acres.[26]

Additional research is likely needed regarding threats to the spotted owl, as well as the species’ behavior and use of certain habitats. This year, Weyerhaeuser and the USFWS entered into a Northern Spotted Owl/Barred Owl Research Agreement and Management Plan for owls inhabiting three of the four circles at issue in the Audubon v. Sutherland lawsuit. Pursuant to the agreement, Weyerhaeuser is collecting radio-telemetry data in Southwest Washington to determine how the spotted owls in the research area are “using these managed forests,” and to gather data about interactions between spotted and barred owls.[27] Weyerhaeuser plans to base harvest decisions on the telemetry data “and either the issuance of an incidental take permit by the USFWS or the USFWS’s written confirmation that the risk of take from a harvest is low.”[28]

For more information about the Endangered Species Act, contact Jessica Ferrell.

[1] No. 06-1608, 2007 WL 2220256 (W.D. Wash. Aug. 1, 2007) (Audubon PI Order).

[2] See also United States v. West Coast Forest Res. Ltd. P’ship, No. 96-1575, 1997 WL 33100698 (D. Or. 1997) (denying United States’ motion to permanently enjoin the clearcut harvest of 94 acres of privately-owned forest land in Oregon containing a pair of northern spotted owls, but preliminarily enjoining harvest pending completion of radio-telemetry monitoring, used to determine the pair’s actual home range); United States v. West Coast Forest Res. Ltd. Partnership., No. 96-1575, 2000 WL 298707, at *5-6 (D. Or. 2000) (same); see also see also C. Welch, Owl ruling halts logging on 56,000 acres of private land, Seattle Times (Aug. 2, 2007).

[3] 55 Fed. Reg. 26114 (June 26, 1990); 57 Fed. Reg. 1796 (Jan. 15, 1992). Spotted owls requires old growth forests to survive. Most old growth had been removed from private land in the Pacific Northwest by 1990, and harvest of remaining old growth on federal land was accelerating at that time.

[4] Seattle Audubon Society v. Sutherland, No. 06-1608, 2007 WL 1300964, at *2 (W.D. Wash. May 1, 2007) (Audubon Summary Judgment Order) (discussing USFWS findings).

[5] Audubon PI Order at *5-6.

[6] Id. at *4-6, 13. At least three spotted owls were found dead in the area in the early 1990s. Id. at *13. The Audubon v. Sutherland Court found it “impossible to identify a single, direct cause of death, lack of reproduction, or abandonment of the nest site.” The Court found that “[t]he injury could have resulted from intense harvest of suitable spotted owl habitat around or including the nest site, or could have been caused by the presence of barred or great horned owls.” Id.

[7] In Washington, wildlife species associated with forest ecosystems are considered protected public resources of the state under state forest practices law. See Chapter 76.09 RCW.

[8] Id.

[9] See Audubon PI Order at *2 (citing RCW Chapter 76.09).

[10] Owl circles, also known as “median home range circles,” have a specified radius and are centered on a spotted owl site center. Id. (citing WAC 222-16-010, -080, -085, -086, 222-10-040 and 222-10-041). The Board did not establish any Spotted Owl Special Emphasis Areas in Southwest Washington. Id. at *3.

[11] The Audubon Court dismissed WDNR and the Board from the lawsuit because they are immune from the lawsuit under the Eleventh Amendment, and dismissed individual Board members from the lawsuit because they are immune under common law from civil suits related to lawmaking functions. Audubon Summary Judgment Order at *4. In contrast, the Court found that Sutherland and Christensen, “acting as implementors and enforcers, rather than as quasi-legislators, do not enjoy sovereign immunity in their role as Department administrators.” Id. Furthermore, state regulators “purportedly authoriz[ing] activities that violate the ESA” can be liable for take in their official capacities. Id. at *9-11; see also 16 U.S.C. § 1538(a)(1); id. § 1540(g)(1).

Two industry associations, the Washington Forest Protection Association and the American Forest and Paper Association, as well as Pacific County, intervened as defendants to protect the interests of members who own or manage forest land that could be affected by the lawsuit. Audubon PI Order at *2.

[12] The owl circles at issue in Audubon v. Sutherland are all outside Special Emphasis Areas, and the relevant forest activities are practices that are typically exempt from environmental review and must be approved by WDNR within 30 days. Id. (citing RCW 76.09.050(1)). Specifically, the practices at issue would not be categorized as “Class IV” practices because of owls unless they involved harvest of the best 70 acres of habitat around the site center during the nesting season. See WAC 222-16-080(h)(iii). Still, other Class IV triggers could apply. See WAC 222-16-050.

[13] Weyerhaeuser is a Washington corporation that owns and manages forest land in Washington upon which several spotted owl site centers are located. The company has engaged with state and federal regulators over the past decade to protect owls on its land. In 1994, the company committed to: (1) develop five-year management plans for seven such sites; (2) classify suitable habitat in cooperation with FWS; and (3) refrain from harvesting certain stands classified as suitable habitat within 2.2 miles of site centers for five years. In 1995 and 1996, the USFWS approved the company’s plans to avoid “take” of listed species under the ESA. Those plans remained in effect until 1999, and were not renewed. Audubon PI Order at *9 (citing WAC 222-30-021, -022).

[14] Id. at *14 (citing Nat’l Wildlife Fed’n v. Burlington Northern R.R., Inc., 23 F.3d 1508, 1511 (9th Cir. 1994)).

[15] Id. at *15. The Court rejected Plaintiffs’ proffered standard for injunctive relief in the context of the ESA – that “impairment of recovery” can constitute “harm” under the ESA. The Court emphasized that, under U.S. Supreme Court precedent, to establish take vis-à-vis harm by habitat modification, a plaintiff must show “‘actual death or injury of a protected animal. Id. (quoting Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 691 n.2 (1995)).

[16] Id. at *6.

[17]Id. at *14 (citing Burlington Northern, 23 F.3d at 1511).

[18] Id. at *15-16.

[19] Id. at *16.

[20] Id. (citation omitted).

[21] Id. at *17. Under Washington’s Forest Practice Rules (promulgated in 1996), “suitable habitat” means “forest stands which meet the description of old forest habitat, sub-mature habitat or young forest marginal habitat”; these habitats are further defined as areas that possess particular characteristics delineated in the regulations which are “needed by northern spotted owls” for essential activities such as nesting, roosting, foraging, and dispersal. WAC 222-16-085. Washington “does not assess the amount of suitable spotted owl habitat remaining in owl circles outside of special emphasis areas.” Audubon PI Order at *7. A 2005 study by the WDFW assessed spotted owl habitat on non-federal lands (Pierce et al. (WDFW), An Assessment of Spotted Owl Habitat on Non-Federal Lands in Washington Between 1996 and 2004 (Nov. 2005)), but “did not report on the amount of suitable habitat remaining in any particular owl circle.” Audubon PI Order at *7. As of August 2007, Audubon “ha[d] not presented any evidence [in the Audubon v. Sutherland lawsuit] documenting the amount of suitable habitat remaining in any particular owl circle in Southwest Washington, or anywhere else in Washington.” Id. at *8. Therefore, the Court had the option of relying on: (a) Weyerhaeuser’s classification of suitable habitat on its property, delineated between 1994 and 1996 in cooperation with the USFWS; or (b) Weyerhaeuser’s inventories conducted in 2006 “to assess whether selected harvest units within the four [relevant] owl circles met the definition of suitable habitat in the State’s rules.” Id. at *9 (citing WAC 222-16-085). The Court found the mid-1990s habitat mapping to provide “better estimates of habitat conditions than Weyerhaeuser’s more recent habitat inventories[,]” so based its order on the 1996 delineation of suitable habitat. Id. The 1994-96 delineation pre-dates the State’s promulgation of its definition of suitable habitat. Some ambiguity may remain regarding the amount of suitable habitat in the relevant owl circles, and the scope of the Court’s injunctive order may be subject to interpretation.

[22] See also Oregon Natural Res. Council v. Allen, 476 F.3d 1031 (9th Cir. 2007) (holding that withdrawal of a portion of a biological opinion, which initially approved timber sales impacting suitable habitat for the spotted owl, rendered the relevant incidental take statement (ITS) invalid, and also concluding that the ITS was invalid because it (1) presented a non-numerical measure of take without explaining why no number was provided, and (2) set a measure of take that did not allow for reinitiation of consultation).

[23] USFWS, Draft Recovery Plan for the Northern Spotted Owl (2007) at X.

[24] Id. at VI (“Actions associated with addressing the barred owl threat were the only ones given the highest priority in this Plan[.]”).

[25] See generally id. There is disagreement over the relative significance of threats to the spotted owl (particularly, habitat destruction and competition from the barred owl). See also Jeff Barnard, Scientists Flunk Bush on Spotted Owl, Forbes (Aug. 14, 2007) (summarizing comments of the Society for Conservation Biology (SCB), the American Ornithologists’ Union, and the Wildlife Society). The SCB North American Section also argues that FWS failed to use the best available science, as required by the ESA, and instead “selectively cited from the available science to justify a reduction in habitat protection.” Comment from R. Noss & J. Fitzgerald (Society for Conservation Biologists) to K. McMaster (FWS) (Aug. 10, 2007).

[26] 72 Fed. Reg. 32450 (June 12, 2007); see also Critical habitat for spotted owls could shrink, AP (June 13, 2007).

[27] Audubon v. Sutherland, No, 06-0608, Docket No. 85 (Weyerhaeuser Opp. to Mot. for Prelim. Inj.) at 14 (W.D. Wash. filed March 22, 2007); see also Audubon PI Order at *12 (discussing the 2007-2010 Northern Spotted Owl/Barred Owl Research Agreement and Management Plan).

[28] Weyerhaeuser Opp. to Mot. for Prelim. Inj. at 14 (internal citation omitted).

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