Back to the drawing board on spotted owls

The future of the Northern Spotted Owl, which seemed assured early in Bill Clinton's first term, remains firmly up in the air at the start of Barack Obama's. Another administration, another spotted owl plan. Will it never end?

Apparently not. Now, Obama's administration has backed away from the owl recovery plan and critical habitat designation pushed through at the end of George W. Bush's presidency. Facing suits by both environmental and forest products industry groups, the administration has told a federal judge it wants to remand both documents to the Fish and Wildlife Service and has asked the judge to grant 30 days to work out the details of a remand with the various litigants.

No one knows exactly what the administration has in mind. “All we know at this point,” says Doug Heiken of Oregon Wild, “is that they want to pull the plug.” Clearly, the administration doesn't want to be stuck defending the indefensible. Its notice to the court observed that an "Investigative Report issued by the Inspector General of the Department of the Interior on December 15, 2008 concluded that former Deputy Assistant Secretary of the Interior Julie MacDonald, acting alone or in concert with other Department of the Interior officials, took actions that potentially jeopardized the decisional process in the U.S. Fish and Wildlife Service’s recovery plan for the northern spotted owl."

Indeed, the Inspector General had ripped McDonald and her colleagues in no uncertain terms: “MacDonald's zeal to advance her agenda has caused considerable harm to the integrity of the [Endangered Species Act] program and to the morale and reputation of the [Fish and Wildlife Service], as well as potential harm to individual species. Her heavy-handedness has cast doubt on nearly every ESA decision issued during her tenure.”

There was plenty of blame to go around. “MacDonald's conduct was backed by the seemingly blind support of former Assistant Secretary for Fish and Wildlife and Parks, Judge Craig Manson. ...MacDonald was also ably abetted in her attempts to interfere with the science by Special Assistant Randal Bowman, Office of the Assistant Secretary for Fish and Wildlife and Parks, who held the position and authority to advance the unwritten policy to exclude as many areas as practicable from Critical Habitat Determinations. ...

“In the end, the cloud of MacDonald's overreaching, and the actions of those who enabled and assisted her, have caused the unnecessary expenditure of hundreds of thousands of dollars to re-issue decisions and litigation costs to defend decisions that, in at least two instances, the courts found to be arbitrary and capricious.”

The recovery plan and critical habitat designation created under this regime was “so scientifically flawed,” says Earthjustice attorney Kristen Boyles, that defending it “was going to be a monumental waste of time.”

But the consequences of not defending it aren't clear. Environmentalists had challenged the recovery plan, objecting primarily to the flawed science on which it was based. Both they and the forest products industry had challenged the critical habitat designation — one side, predictably, calling for more protected habitat, the other, predictably, calling for less — and it's hard to imagine them agreeing on the terms of a remand.

Boyles points out that if the administration scraps its new critical habitat designation, it can fall back on an earlier one. If it scraps the recovery plan, though, there is no earlier recovery plan on which it can rely. Boyles would like to see it revert, temporarily, to the Northwest Forest Plan and the individual forest management plans that have been in place for years, and to halt all destruction of owl habitat until a new plan is worked out.

The Northwest Forest Plan had served in lieu of a spotted owl recovery plan for 14 years. In the 1980s, the Reagan and George H.W. Bush administrations wanted to avoid listing the owl, but they got hammered in court. The listing came in 1990. The Bush administration started working on a recovery plan, and in 1992 it designated critical habitat. By that time, U.S. District Judge William Dwyer had enjoined new timber sales in the federal forests of western Washington, Oregon, and northern California, citing the administration's failure to protect the owl. Logging communities saw threats to their survival, and a lot of people predicted economic disaster. In 1994, the Clinton administration came out with the Forest Plan. People on both sides sued, but Dwyer lifted the injunction, the Fish and Wildlife Service didn't bother finishing its recovery plan, and the owl subsided as a national issue.

As a report by several Northwest economists put it five years later, “the sky didn't fall.” The kind of economic carnage that was widely anticipated simply didn't occur. On the other hand, Northwestern mills never cut anything close to the billion board feet a year that Clinton had suggested they would. Forest products companies gave generously to George W. Bush's campaign in 2000; after he was elected, Bush officials started referring to Clinton's “promise,” and tried in a number of ways — including settling, rather than defending against, industry lawsuits — to undercut the Forest Plan.