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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Immediately challenged and rescinded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...?