When a Take is Not a Take: The Regulatory Quagmire of the ESA No-Take Provision

The Endangered Species Act (ESA) states that it is unlawful to “take” any endangered species of fish or wildlife.  50 CFR Part 17.31 expands the prohibition to take endangered species to wildlife species listed as threatened. The term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Harm is further defined in 50 CFR §17.3 to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing behavioral patterns such as breeding, feeding, or sheltering. Harass is defined as actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding or sheltering. All of the “takings” alleged to have occurred due to habitat modification caused by timber sales on federal land are in the form of harassment. The Secretary is also authorized by the ESA to permit any taking if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.

Incidental Take Guidelines for the Northern Spotted Owl

The USFWS issued “Procedures Leading to Endangered Species Act Compliance for the Northern Spotted Owl” in July of 1990.  This document defined how take would be determined when associated with “degradation or the destruction of suitable spotted owl habitat”.  These guidelines were established based on limited research done in the 1980’s that showed a tenuous relationship between the amount of suitable habitat and spotted owl occupancy and reproductive success.  Based on this limited research, the USFWS determined that there is a high likelihood of take if the amount of suitable habitat within the home range falls below 40%.  The actual research this was based on showed that stands over 21% suitable habitat functioned as well as those with greater amounts of habitat. (Bart, J and E.D. Forsman 1992)  The USFWS formally rescinded the take guidelines in October 1991 but has continued to use the 40% standard as ‘the best scientific information”.

As a result of a ruling in a case called ONRC vs. Allen. The USFWS, USFS and BLM developed the Owl Estimation Methodology (OEM) which updated the habitat conditions that would determine the likelihood of take.  They retained the 40% of the home range determination and modified the threshold conditions within the nest site and core areas.  The OEM also defined that a take would occur if any suitable habitat is removed within a 300 foot radius circle around the nest tree or the amount of suitable habitat falls below 50% of the core area which range in size from 5,720 acres in northern Washington to 500 acres in Oregon and California.  The OEM was formally withdrawn in 2015 after Judge Leon ruled its use by the federal agencies was illegal but the USFWS still utilizes the three habitat criteria to determine if owls will be “taken” due to changes in suitable habitat conditions.

Take Determination on USFS and BLM Timber Sales

When a timber sale is being planned, the action agency (USFS or BLM) must determine how it will affect the spotted owl.  There are three affect determinations.  The first is that the project will have no effect in which case the action agency does not have to notify the USFWS about the project.  The second is a “may affect but not likely to adversely affect” the spotted owl.  In this case, the action agency must obtain a “letter of concurrence” from the USFWS.  The third determination is one that “may affect and is likely to adversely affect” the spotted owl.  Currently, the USFS and BLM have been directed by the USFWS to treat projects that remove or downgrade any suitable spotted owl habitat regardless of the presence of any spotted owls as being “likely to adversely affect” spotted owls.  In this case, the action agency submits a Biological Assessment to the USFWS who then prepare a Biological Opinion that must conclude that the proposed actions will not “jeopardized the existence of the specie” or “adversely modify critical habitat”.  If either of these occur as a result of the project, the project will not go forward.

If the project receives a no jeopardy and no adverse modification determination, the USFWS then determines if any take will occur as a result of the project.  If so, they will prepare an incidental take statement which allows the agency to proceed with the project since the take “is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity”.  In determining take, the USFWS uses the take guidelines found in the Owl Estimation Methodology.  The amount of take that is assumed to occur if habitat is below one of the three thresholds is 2 adults and 1.5 young per home range.

How the Thresholds are used in Determining Take on Timber Sales

Using hard line thresholds for take determination leads to a number of very bizarre situations.  The first of these occur in southern and eastern Oregon and northern California.  In these provinces, over 90% of the historic home ranges do not contain 40% suitable habitat in their natural state.  This is due to climate and soil productivity factors that limit stand density.  It also frequently occurs on land managed by the BLM because of their checkerboard ownership created by the O&C Act.  Since the home ranges in these areas are below threshold levels naturally, removing any “suitable habitat” will result in a take determination of 3.5 owls. This determination will be made regardless of the known presence of any spotted owls.  If even a small amount of suitable habitat is removed a short time later in another project, another 3.5 owls will be said to be taken.  This could go on ad infinitum leading to the ridiculous conclusion that hundreds of owls could be “taken” from a single home range even if no owls were using the area.

Because the take determination for timber sales rely on the prohibition of harassment, the USFWS should be determining if the proposed action will “create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior patterns”.  Since they do not do this and rely on the three hard line thresholds, a take would not occur if a home range currently had 41% habitat and would be reduced to 40% by a project yet a take would occur if a home range had 40% suitable habitat and a project would reduce it to 39%.   The same would occur concerning the 50% threshold for the core area.

No-Take Requirement within the Western Oregon BLM RMP’s

The BLM recently adopted new Resource Management Plans (RMP’s) for the lands they manage in western Oregon.  Due to the precipitous decline in the spotted owl population being caused by the barred owl, the BLM agreed to not “take” any spotted owl until the USFWS adopts a barred owl management plan.  If this plan is not done in seven years, the BLM will have to re-consult with the USFWS on their RMP’s causing major disruptions to their land management and perhaps triggering revisions of the RMP’s.  There is zero probability that the USFWS will adopt a barred owl management plan in seven years and it is not likely to occur in the next 20 years if ever.

It should be noted that the USFWS has determined that without a drastic reduction in the size of the barred owl population, the spotted owl will become extinct in most of its range regardless of how much habitat is protected or created.  They recognize the importance of reducing the size of the barred owl population and realize the only mechanism to do this is by lethally removing them.  They therefore embarked on a research project to determine the effectiveness of lethal removal.  This study stared in 2013 and was to remove a total of 3,603 barred owls from four areas within four years.  This effort is going much more slowly than expected.  Between 2013 and 2017, only 819 barred owls have been removed.  Even if the rate of removal doubled, it will take another six years to complete the field work.  This will be followed by 10-15 years of analysis, development of a plan, environmental analysis of the plan and public involvement.  In the best case scenario, a plan may be adopted in 20 years.

The adoption of a plan does not mean the plan will actually be implemented.  To implement the plan, it will have to withstand lengthy legal challenges from opposing environmental groups and if successful, convince Congress to allocate millions of dollars every year to carry out the plan.  In the 20-30 years it will take to maybe start barred owl removal, the spotted owl will have already become extinct throughout much of its range. -Ross Mickey

The Worst Type of Government Waste

National Environmental Policy Act (NEPA) compliance is typically the most costly part of implementing any type of vegetation management project on federally managed land.  Documents exceeding 200 pages are commonplace to comply with NEPA.  In 2015 the Roseburg District of the Bureau of Land Management completed one such analysis called Olalla-Camus.  This analysis focused on treatments designed to fulfil the BLM’s O&C mandate to provide a sustained production of timber on lands allocated for such production as directed by their 1994 Resource Management Plan.  Like all NEPA documents completed by federal agencies attempting to conduct active forest management and timber harvest, Olalla-Camus included an in-depth analysis on everything from wildlife habitat to carbon storage and beyond.  The timber sales analyzed under this document were estimated to provide about 16 MMBF of timber.

Next month the BLM will be offering the only timber sale generated off the Olalla-Camus EA for a total of 6.7 MMBF.  The remaining 10 MMBF considered in this EA will never be implemented.  This is due to the BLM’s new management plan completed in 2016, inconveniently finalized between the publication of the Olalla-Camus EA and the planned implementation of the treatments it considered.  Like the 1994 RMP, the 2016 RMP set aside many acres where sustained timber production cannot occur.  The only difference is that these “set-aside” acres grew exponentially.  Part of this “growth” includes the majority of the land included in the Olalla-Camus EA.  The BLM could have included a “grandfather clause” that would allow projects conceived and analyzed under the old management plan to move forward, but they didn’t.  The unfortunate result is the worst type of government waste-investments consuming large sums of money and time being squandered. -Andy Geissler

You Can’t Thin Forever

Since the inception of the Northwest Forest Plan in 1994 the Forest Service and Bureau of Land Management in Western Oregon have limited their timber management paradigm to one of nearly exclusive thinning of young forest stands where post-harvest residual closed forest canopies make regeneration of Douglas-fir impossible.  This is an ecological truth: Douglas-fir seedlings need at least partial, but preferably full sunlight to grow and thrive.  AFRC has often clamored regarding the near-sighted nature of this management regime and questioned its long-term sustainability.  In recent months some federal agencies have come to terms with the same truth that AFRC and most foresters who practice their trade in the Pacific Northwest know well: you can’t thin forever.

The Salem BLM District recently published an environmental assessment that considered just how long they could manage their timber resources with a young stand thinning-only approach.  The results were disturbing but not surprising.  The EA, dated April, 2016 read: At the current rate of harvest it is likely the Salem District will exhaust most commercial thinning options in 40-80-year-old stands in a little over a decade.  In other words, the BLM timber program as we have come to know it, will expire in ten years on the Cascades Resource Area without a major shift in management practices.  And really, this timeline is likely pretty similar on other BLM Resource Areas, give or take five years.

I for one was elated when I read this.  It’s a gloomy outlook, but at least it’s realistic.  It’s akin to the longtime addict finally accepting that they are indeed an addict: Until the BLM overcomes the state of denial and accepts that their past twenty-year thinning-only regime is ultimately unsustainable then the likelihood of altering the trend is grim.  It appears that the Cascades Resource Area is on the path to recovery.  Perhaps an intervention is warranted for other Resource Area’s, or the Forest Service for that matter.  –Andy Geissler