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.