Northern Spotted Owl Credit: U.S. Fish and Wildlife Service
The spotted owl wars in the forests of the Pacific Northwest have dragged on longer than America's shooting wars in the Middle East. And they may be just as far from any kind of lasting peace.
But chalk one up for the conservationists — and, just possibly, for the owls. The U.S. Fish and Wildlife Service has published yet another critical habitat designation for the Northern Spotted Owl, increasing the Bush Administration's scientifically indefensible acreage by almost 90 percent, and earning qualified applause from environmental groups. Some conservationists complain that the FWS proposal contains roughly 4.2 million fewer acres than the agency proposed in a March draft.
Still, as they readily acknowledge, the new rule preserves more habitat than was envisioned by the Northwest Forest Plan of 1994. After the Bush administration spent two full terms trying to undercut that plan, restoring and even improving the status quo ante seems no mean accomplishment.
The original battle over saving the Northern Spotted Owl and the old-growth forests in which it lived was, of course, one of the bitterest and most significant environmental conflicts of the late 20th century. The owl was both a symbol of and surrogate for the old-growth coniferous forests of the Pacific Northwest. Timber interests wanted to preserve their access to old-growth trees in the national forests. Environmental groups wanted to restrict their access. The owl was listed as threatened in 1990. The next year, U.S. District Judge William Dwyer enjoined all new federal timber sales in spotted owl habitat until the administration of George H.W. Bush complied with the nation's environmental laws.
That first Bush administration never did. Campaigning for the presidency in 1992, Bill Clinton promised that if elected, he would bring all interested parties together and hammer out a solution to the spotted owl problem.
True to his word, Clinton convened a "Northwest Forest Conference" in Portland the following April. The meeting included the president, the vice president, four cabinet secretaries, and representatives of timber towns, environmental groups, scientific disciplines, forest-products companies for a full day of conversation. The following year, his administration came out with the Northwest Forest Plan, which protected some 6.7 million acres of owl habitat and potential habitat. It was designed to protect not just owls, but also marbled murrelets, which had been listed as a threatened species in 1992, and hundreds of other species that depend on or are associated with old-growth forests, and was basically organized around the stream corridors vital to wild salmon runs. It was also designed — Clinton said in an ill-advised, pie-in-the-sky, something-for-everyone political statement — to let loggers cut a billion board feet a year in the national forests. Predictably, virtually no one liked it.
Environmentalists — who, a few years earlier, would have gladly settled for much less — complained that it didn't go far enough. Forest products companies — which had prospered, along with mill town economies, from an unsustainable logging binge in the late 1980s — complained that it went too far. But the plan survived lawsuits, Dwyer lifted his injunction, and life went on, kind of.
Arguably, the plan and the conference that preceded it represent high-water marks in this nation's attempts at ecosystem management and environmental statesmanship. And yet . . . the old timber economy hasn't come back. Neither have the owls.
And the litigation has never gone away.
The Northwest's national forests have never yielded anything close to that billion board feet. Some people had predicted up to 150,000 job losses in Washington, Oregon and northern California, with a lasting regional economic slump as a result. In fact, the regional economy and regional employment both grew. Outside certain small communities, the old timber economy sank without a ripple. As a 1999 study by three Oregon economists put it, "the sky did not fall."
In Grays Harbor County, historically a timber-dependent area with high unemployment — earlier this year, it had highest unemployment rate in Washington — the timber economy peaked in 1929. It's all been downhill since the start of the Great Depression. But the county depends less on timber than it once did. And, in fact, until the Great Recession started in 2008, its unemployment rate was lower in the new millennium than it had been before the forest plan.
Economics were only one part of the equation. Normally, the federal government would have adopted a recovery plan and designated critical habitat for the owl. It started the process — a draft plan came out in 1992, and the FWS designated 6.7 million acres — but the Forest Plan seemed to make a recovery plan moot, so the FWS never finished. Then Bush was elected — with the support of forest products industry executives — and his administration spent the next eight years trying to undercut his predecessor’s plan — or helping some forest products companies undercut it. The Bush administration said that Clinton had "promised" the Northwest a billion board feet a year, and it planned to make good on that promise.
The link between Bush actions and an industry wish list wasn't just conjecture. In 2003, a Freedom of Information Act request by Earthjustice uncovered a memo that laid out the wish list that the administration subsequently tried to follow. In order to boost logging to Clinton's billion board feet a year — actually 1.1 billion — industry executives wanted the administration to reduce habitat protection for the owl and the marbled murrelet, drop old-growth protection on BLM land in southern Oregon and northern California; scrap the Forest Plan's aquatic strategy, which was designed to protect salmon; and drop the requirement to "survey and manage" for the survival of fungi, invertebrates, and other species protected by the Forest Plan.
The Bush administration and its allies followed a pattern of "sue and settle." That is, an outside group would sue to challenge an environmental law or rule or policy, and rather than defend it, the administration would reach a settlement that gave the group what it wanted. In some cases, the plaintiffs were arguably just asking the administration to do what the law required. One such settlement led to a review of the owl's status. Status reviews are required every five years but the Fish and Wildlife Service doesn't have the resources to do them that often. In the case of the owl, environmental groups feared that the administration would cook the science to say the owl was doing just fine, and would then try to de-list it.
Much to virtually everyone's surprise, the status review was scientifically sound — and it concluded that spotted owls were worse off than anyone had realized. Scientists had foreseen back in 1994 that the birds' population would continue to drop for decades, as some of the protected forest developed slowly into the kind of old-growth habitat the owls required. But the expected decline turned out to be more of an unexpected nosedive, especially in Washington state. While scientists had predicted an annual population loss of 1 percent, the average was closer to 4, and between the Canadian border and the Columbia River, it was more than 7.
The numbers looked bleak enough. And the owl was threatened in ways no one had envisioned in 1994: Invasive barred owls were displacing northern spotted owls way more than scientists had predicted. Sudden Oak Death, moving up the coast from California, posed an unknown risk to forests in which the birds lived. West Nile Virus, borne by birds and fatal to some species, might directly threaten the owls' survival. And then, of course, there was climate change, and the increased risk of big forest fires to which hotter, drier summers contributed.
The Bush administration settled another suit under terms that required a formal recovery plan. This time, the administration did cook the science. It assembled a team to draft a recovery plan in very short order, and gave the members such a short timeline that they had to ignore the science of the past 15 years. Working with what they had, the team members identified three main threats: past habitat loss, current habitat loss, and the barred owl invasion. Then they were told from on high that they'd better decouple the owl recovery plan from the Northwest Forest Plan, produce a second option — and identify the barred owl as the main threat. This plan would not emphasize — and would barely discuss — the importance of habitat loss.
In fact, recovery team member Dominick DellaSala told the U.S. House Committee on Natural Resources, in the fall of 2007, a "memo directed the recovery team to 'indicate [the barred owl] was [the] only threat given priority number one … and summarize the habitat threats discussion into less than a page.'"
It soon became clear, however, that no court would uphold the new recovery plan. Peer reviewers ripped it to shreds. “An investigative report issued by the Inspector General of the Department of the Interior on Dec. 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," the Obama administration subsequently told a somewhat astonished federal judge.
The Inspector General reported, “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.”
The report also pointed accusatory fingers at other officials, including 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.”
Even before the report came out, the Bush administration obviously realized that the recovery plan was tainted. It convened a committee to come up with a revised plan. Even the new, improved version failed miserably in the arena of peer review. Three organizations, the Wildlife Society, the Society for Conservation Biology (North American Section) and the American Ornithologists’ Union, blasted it. "Although the Final Plan omits the most heavily criticized misrepresentations of owl biology and habitat relationships contained in the Draft Plan," the last two groups wrote, "it retains many of the management guidelines derived from them."
The FWS then produced a critical habitat designation based on the recovery plan. It embraced some 5.3 million acres, a lot of trees, but nearly 2 million acres less than the area at least nominally protected by Clinton’s Forest Plan.
The Bush people also tried to exempt BLM land in southern Oregon and northern California from logging restrictions. On the last day of 2008 — Bush's last full year in office — the Bureau of Land Management adopted the Western Oregon Plan Revision (abbreviated as WOPR and pronounced “whopper”), which was designed to change the rules for 2.6 million acres of forest that the BLM manages in western Oregon. Environmentalists argued that by drastically reducing owl habitat, WOPR would cut the legs out from under the Northwest Forest Plan. WOPR “undermines” the whole Forest Plan, Earthjustice attorney Kristin Boyles said at the time.
The Obama administration has signaled that it won't resurrect WOPR. While one court ruled that it couldn't just abandon the plan, another ruled last year that the plan itself was illegal. In its original form, WOPR isn't coming back. But the desire to pump more timber dollars into county economies hasn't cooled, and politicians have pursued that goal by somewhat different means. Oregon Congressman Peter DeFazio and two colleagues, Greg Walden and Kurt Schrader, proposed putting 1.2 million acres of that BLM land into a logging trust, that could generate money for counties and schools. That legislation went nowhere, as did a somewhat more ambitious — and quixotic — scheme by Washington U.S. Rep. Doc Hastings, R-Wash., that would have increased the cut on all the nation's national forests 15-fold.
The idea that the Oregon and California Lands Act of 1937 requires a certain level of logging on BLM land in southern Oregon and northern California has been shot down by the 9th Circuit. But the idea that the economic welfare of counties in southern Oregon and northern California is an object of forest management on that BLM land is firmly enshrined in the law. And efforts to squeeze more money out of the forests won't stop. In that sense, says Noah Greenwald, endangered species director at the Portland office of the Center for Biological Diversity, "WOPR continues."
An industry group challenged the habitat designation in the District of Columbia's U.S. District Court, and conservation groups, represented by Earthjustice, intervened. The government had a lousy case, and rather than defending the indefensible, a few months after the Obama administration took office, it asked the court to let it remand the plan and the habitat designation to the Fish and Wildlife Service for another try. Results were the recovery plan adopted last year and the new critical habitat rule.
Whatever the big-picture rules say, the actual fate of the forests, and of their inhabitants, will depend on the plans for and management of individual forests. There, some critics see cause for concern.
DellaSala, who is currently president of the Society for Conservation Biology's North America Section, points to the Okanogan-Wenatchee National Forest, which has suggested that new science will preclude any need for designating late successional reserves.
Both the Bush recovery plan and the Obama version call for plenty of “active management” within that designated habitat. Translated, that means thinning to reduce fire danger, to promote forest health — and to create jobs in the woods. Virtually no one denies that reducing fuel loads around buildings — whether or not those buildings should ever have been built in fire-prone locations — is a good idea. But thinning has traditionally been used as a pretext for letting chain saws into areas from which they would otherwise be barred. And even if it’s not used to bend the rules, no research shows that thinning benefits owls. Some scientists also doubt that reducing fuel loads through thinning and prescribed burns ultimately prevents the really big fires that dominate people’s thoughts.) “There’s a lot we don’t know about this issue,” DellaSala says. “But they’re logging first and asking questions later.”
The Bush planners wanted to shoot barred owls. The Obama planners do, too. But no one has done much barred owl assassination yet. (Perhaps at some point, the federal government could re-purpose some of its military drones.) Clearly, no one will be able to shotgun all the barred owls lurking in 9.6 million acres of critical habitat, much less in the entire Northwest. It may be a good idea, but it can’t be the only idea. DellaSala suggests that judicious use of government shotguns “may solve some of the problem by establishing strongholds” within which spotted owls would be free from competition. But currently, he says, “there’s this wave” of barred owls sweeping over the region, and if we rely on shooting them, “we’re kind of sticking out finger in a dike.
Outside those "strongholds," his answer is habitat: The greater the stress on the population, he says, the more sense it makes to give that population an adequate place to live. Experience bears that out. While it’s true that spotted owl populations have plunged faster than anyone expected in forests protected by the Northwest Forest Plan, DellaSala points out, they’ve declined even faster in forests outside the plan.
Virtually all forests on state and private land lie outside the plan and outside the new critical habitat designation. Expunging state and federal land is what brought the acreage down to 9.6 million. There's a good reason for this. Privately, says Earthjustice attorney Kristin Boyles, people working for federal agencies say, “if we designate [critical habitat] on private and state land, people just go crazy.”
The Endangered Species Act requires a federal agency contemplating action in critical habitat to consult with the Fish and Wildlife Service to see if the action would adversely affect the recovery of the spotted owl. The feds won’t be doing much on state or private land except, perhaps, issuing permits. If the land is covered by a Habitat Conservation Plan, they have to sign off on any action that will result in an “incidental take” of owls. And it isn't legal to "take" a member of a listed species, anyway. Still, this isn’t federal territory. Who cares?
Greenwald points out that through the prohibition on "taking" a listed species, the ESA can indeed reach beyond federal land. His group and two others, Cascadia Wildlands and the Portland Audubon Society, have recently won a preliminary injunction against timber sales and logging in three coastal state forests on the grounds that timber sales and plans that enable industry to log old-growth and mature forest in which marbled murrelets nest would violate the ESA by "taking" the threatened birds. (Murrelets have been disappearing as rapidly as Northern Spotted Owls.) The state had started and then abandoned the process of creating a habitat conservation plan for the murrelet. Now, Greenwald guesses, if the state wants to resume timber sales in the three forests, it will have to come up with a plan to protect not only the murrelet but also the Northern Spotted Owl.
This is not a scenario that anyone wanted or predicted back in 1993. The litigation and political machinations — and population declines — go on.
Next year will mark the 20th anniversary of the Northwest Forest Conference. It's worth celebrating. But it wasn't even the beginning of the end.