Northern Spotted Owl Extinction Watch: May 2017 Update

According to the USFWS, the Northern Spotted Owl (NSO) population has declined 52% since 1992.  At its current rate of decline, another 25% will be lost in the next 20 years even though the amount of suitable habitat is expected to increase significantly.  The cause of the NSO decline is the invasion of the barred owl whose population has exploded since 1990 and continues to increase.  Even though the USFWS only recently formally listed the barred owl as a threat to the NSO, their potential impact has been recognized for almost 40 years.

The barred owl was first detected within the range of the NSO in the 1970’s.  In the 1980’s, researchers started to become concerned about the impacts the barred owl would have on the NSO.  In 1990 when the NSO was listed as threatened, the USFWS acknowledged that the expansion of the barred owl population was of “considerable concern.”

By 2004, the preponderance of evidence led the team conducting a 5‐year status review to conclude “that the barred owl is a significantly greater threat to the spotted owl than originally estimated at the time of listing.”  By this time, the overall NSO population had declined by 30% from its 1992 level.

In 2008, the USFWS released the NSO Recovery Plan that identified competition from barred owls as a main threat to the spotted owl. Roughly a third of recovery actions address the barred owl threat, including consideration of measures relating to a barred owl removal experiment.  By this time, another 8% of the NSO population was lost.

In February 2009, a Barred Owl Stakeholders Group was formed as part of the scoping process for the barred owl removal experiment.  The final EIS and ROD for this experiment was signed September 2013.  By this time another 9% of the NSO population was lost bringing the NSO population down to 54% of its 1992 level. There is no firm schedule for conducting this experiment only that “(R)emoval activities will end when data are sufficient to meet the purpose and need.”  A maximum duration of 10 years of barred owl removal was stated for the experiment.  At the end of this 10 years, another 13% of the NSO population will be lost.

The experimental design called for a total of 3,603 barred owls to be removed from four study areas.  After four years, only 978 have been removed.  At the current rate, it will take an additional 5 years from what was originally planned where another 7% of the population will be lost.

After the experiment is completed (sometime after 2027), if they find that removing barred owls leads to an increase in NSO’s which is likely, the USFWS will then have to go through a lengthy regulatory and legal process to develop a barred owl removal plan.  This could take yet another 10 years at which time the NSO population will only be at about 25% of its 1992 level and perhaps will be extirpated from major portions of its range.

The adoption of a plan, however, 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.

In the meantime, the USFWS is focusing on maintaining and increasing suitable NSO habitat claiming that since the NSO population is declining so rapidly “habitat is more important than ever.”  The fallacy of this concept is that there are already hundreds of thousands of suitable NSO habitat that is devoid of any NSO’s because of the presence of barred owls.  Any new habitat that is created will be occupied by barred owls and therefore of no use to the NSO.  The result of this fixation on “habitat” as opposed to addressing the real problem is that the much needed fuels reduction and restoration work needed on our federal lands is being thwarted by the USFWS insistence on maintaining all of the existing nesting habitat and major reluctance to allow treatment of foraging and dispersal habitat.

It is understandable that the USFWS is reluctant to address the real threat to the NSO as killing barred owls at the level that would make a difference to the NSO will be met with major resistance from environmental groups and Congress is not likely to continually fund a multi-million dollar removal effort.

It should be obvious that to only practical solution to ensuring that the NSO will continue to exist in the wild is to identify refuges across its range that could be maintained through barred owl removal at a level acceptable to the public and Congress.  A captive breeding program should also be started to ensure there sufficient genetic diversity is maintained if NSO’s need to be reintroduced where they have been totally displaced by the barred owl.  These efforts should begin now rather than waiting another 30 years at which time the NSO will be extinct in much of its range. -Ross Mickey

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

Reconciling Forest Needs in SW Oregon

Managing forest stands to put them on a trajectory that will increase their resiliency to wildfire, insect & disease, and climate change seems to be at the forefront of both the Forest Service’s (USFS) and Bureau of Land Management’s (BLM) priorities over the past few years.  This concept is often characterized as “forest restoration” by both agencies.  The importance and validity of this priority is illustrated well in the current state of the federal forests of southwest Oregon.  A century of fire suppression in the region has resulted in a level of fuel accumulation that puts these forests at the risk of wildfires that would burn at unnatural levels of intensity.  The remedy to these issues is simple but often controversial: removing the in-growth; essentially cutting and removing the trees that have grown due to a century of fire suppression.  In fact, a paper titled A new approach to evaluate forest structure restoration needs across Oregon and Washington, USA published in Forest Ecology and Management in 2014 by the Nature Conservancy and others, describes these conditions and remedies for southwest Oregon.  Here, the authors describe much of the lands in southwest Oregon as having “moderate to high active restoration needs”.  The authors of this paper determined that these “forest restoration needs were dominated by the need for thinning” and that “disturbance alone cannot restore forest structure”.

The nice thing about such a remedy is that it addresses multiple resource objectives.  It restores forest stands to a more resilient condition while also providing timber products to the local industry.  Unfortunately, these types of forest treatments are often unimplementable.  The obstacles appear to be the management plans and regulatory guidance that direct the actions of the very agencies (USFS & BLM) that aim to prioritize such treatments.

In a recent environmental assessment published by the Medford BLM district the agency stated:  due to competing management objectives, some stands proposed for treatment (approximately 23% of the proposed treatment acres) would not meet the long-term objectives of shifting the trajectory of stands to more optimal growth and resiliency.  How is it that the objectives of the management plan of an agency whose priority is to increase forest resiliency conflict with actions that would increase forest resiliency?

One of these objectives is the recovery of the northern spotted owl (NSO), which is a species listed as threatened under the endangered species act.  BLM vegetation management projects, and subsequent timber sales, must always consider the effects of said project to the NSO and its habitat.  These effects are often measured by the level of forest canopy retained after any vegetation management is applied due to the NSO’s need for some closed canopy conditions.  However, in southwest Oregon where current closed canopies are unnaturally high due to the aforementioned fire suppression, the presumed habitat needs of the NSO conflict with the treatments necessary to meet the needs of forest resiliency.  The same environmental assessment referenced above goes on to state: retaining canopy cover in select stands would not allow for forest health objectives to be met. 

A rational mind would think that a native species of fauna would thrive in a setting composed of native levels of flora.  In other words, if the “natural” condition of forested stands in southwest Oregon is one of lower forest canopy density, shouldn’t those species of wildlife dependent on them thrive under such conditions?  The answer, according to vegetation management projects like the one referenced above, seems to be no.  Reconciliation of this strange relationship would be a neat trick. -Andy Geissler

“Taking” Northern Spotted Owls

The Endangered Species Act (ESA) prohibits the “take” of any species listed as “endangered” but provides more latitude to species listed as “threatened”.  The Northern Spotted Owl (NSO) is listed as a threatened species and therefore should not be subject to the take prohibition.  The USFWS, however, has arbitrarily decided to extend the prohibition of take to all threatened species.  This decision is currently being challenged in court.  Until this issue is resolved, it is unlawful for anyone to take a NSO unless such take has been authorized by the USFWS via an incidental take permit or Habitat Conservation Plan.  So what constitute a take?

Take is defined in the ESA as any activity that “harass, harm, pursue, hunt, shoot, wound” or “kill” a member of the listed species. The “harm” form of take includes land-use activities that indirectly affect listed species such that a “significant habitat modification or degradation … actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”  The courts have further clarified what constitutes harm. To demonstrate harm to wildlife one must prove (i) there is or will be death or actual injury (ii) to an identifiable member of a listed wildlife species (iii) that is proximately caused by the action in question.  Sadly, these three criteria are not being used by the USFWS when determining if any NSO’s will be taken on land managed by the USFS and BLM.

Since the early 1990’s, the USFWS has relied on two very simple standards to assess if take may occur.  These are if the amount of “suitable” habitat falls below 50% of the acres in the immediate 1,000 acres around an “activity center” or below 40% within the home range which varies in size across its range.  The USFS and BLM use these guidelines when designing projects and avoid doing anything that would reduce the amount of suitable habitat below these amounts.

One of the main problems with this one-size-fits-all criteria is that it doesn’t take into account the variation in habitat use within the different geographical areas and ecosystems that the NSO is found. These range from the dense Douglas-fir regions of Washington and NW Oregon, to the drier mixed conifer forests of SW Oregon and northern California to the lush redwood forests of coastal California.  These criteria are especially problematic for the drier mixed conifer regions of SW Oregon and northern California.  In this region, the natural forest conditions where over 90% of the historic NSO’s have lived do not contain the amount of habitat required to avoid “take”.  According to the guidelines the owls that have lived there for many, many years should be dead.

This leads to a very bizarre scenario.  Due to lack of management, much of the federal land in this region has become overgrown such that the likelihood of a catastrophic, uncharacteristic wildfires occurring is extremely high.  The agencies need to reduce the amount of vegetation on these lands to a more historic level but in areas where NSO’s have ever been detected they are ham strung from doing so because these areas do not have enough habitat to meet the no-take standards.  If the agencies pursue obtaining an incidental take permit so they can thin these forests (something the BLM is not allowed to do under its new RMP’s), one pair of owls can be “taken” thousands of times since every time habitat is removed (i.e. one tree is cut) from an area where the habitat is already below the guideline level, the USFWS considers that a take has occurred.

It would be refreshing if the USFWS, USFS and BLM utilized the standards set forth in the ESA and clarified by the courts when deciding if an activity will take a NSO by determining that there is or will be death or actual injury to an identifiable NSO that is caused by the removal of habitat instead of relying on their one-size-fits-all criteria.  It would also be nice if the general public and judges realized that the USFWS is not using this criteria and that when they issue an incidental take permit to allow the take of NSO’s that the number of NSO’s that will be there after completing the project will be the same as were in the area prior to the action and the same NSO can be taken thousands of times.

-Ross Mickey