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 (Bart, J and E.D. Forsman 1992)  The USFWS formally rescinded the take guidelines in October 1991 but has continued to use the 40% standard as ‘the best scientific information”.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 U.S. Forest Service and the "T" Word

As AFRC’s field forester in western Oregon I am responsible for reviewing vegetation management projects with a timber harvest component across four national forests.  All four of these Forests provide some level of timber products every year as a component of these projects.  I stress the word ‘component’ here as these are integrated projects, meaning that their objectives are numerous and diverse.  A garden-variety project may aim to improve wildlife habitat, expand recreation opportunities, and provide timber products.  A good project strives to strike a balance of these diverse objectives and offer up a sort of symbiotic relationship amongst them.  Naturally, the first step in achieving this symbiosis is to identify and acknowledge the various objectives.  For many years, the Forest Service took this first step in a straightforward and tacit manner: they knew what their objectives were and they listed them in no particular order.  Over the past few years I have noticed a change.  The change is simple: the omission of timber as an explicit objective alongside the other objectives.  Timber products are still being provided on these projects, they’re just not being acknowledged in the blueprints.  It’s almost as though the Forest Service is a bit ashamed of harvesting and selling logs.

Faced with this trending practice of veiling timber harvest from small-scale projects, I decided to turn to the forum where the agency is most visible and accessible at the large-scale: their website.  This is where most people would go if they were interested in what the Forest Service does and what its mission is.  Sure enough, the agency’s mission is identified clearly on the web:  The mission of the USDA Forest Service is to sustain the health, diversity, and productivity of the Nation’s forests and grasslands to meet the needs of present and future generations.  Like most mission statements, this one is a bit abstract.  What are these “needs” that our generation gets from our forests?  Fast-forwarding past my trudge through the agency’s webpage I came to the conclusion that our generation apparently does not need wood products; at least not according to the Forest Service, otherwise I would have been able to locate the word “wood” or “timber” somewhere on their website.  I read about other resources: air, water, soil, recreation, wildlife, etc.  In this regard, the Forest Service’s website mirrors those vegetation management projects that I review in western Oregon.  By that I mean they provide wood products to the American public, they just don’t like to boast about it.

I suppose in an age where it seems that image is everything and substance is an afterthought, the Forest Service’s policy of hiding the fact that they permit the cutting of trees to provide wood products to the American public shouldn’t come as a shock.  Although it does to me.  Why not take pride in the fact that they are providing a renewable resource that every member of the public uses every day?  Why not take pride in the fact that this provision comes via integrated projects that achieve a swath of other resource objectives?  These are loaded questions of course.  I’m not that naïve.  The cutting down of trees, regardless of the reason, makes most people at worst distraught and at best a bit uncomfortable.  This is fine.  What isn’t fine is that the lead government agency tasked with providing the nation with all of its needs from our national forests seems to be tailoring it’s messaging to assuage these sentiments rather than tailoring it to reflect what the nation’s needs actually are.  In other words, their website, and the messaging it contains, seems to be handling the public with kids gloves.  Not only is this approach disingenuous, and a bit insulting to their audience, but it’s also leading down a questionable path.  If the Forest Service treats their timber products resource with such shame, why shouldn’t the rest of the American public? -Andy Geissler