Appeals court says spotted owl protection violated

PORTLAND, Ore.

A federal appeals court ruled Friday that the U.S. Fish and Wildlife Service violated the Endangered Species Act when it approved a 22,000-acre federal logging project that affects northern spotted owl habitat in southern Oregon.

In a case dating from 2001, the 9th U.S. Circuit Court of Appeals overturned a lower court ruling that would allow logging based on an "incidental take" statement estimating how many owls might be killed.

Any landowners, companies, state or local governments with projects that might incidentally harm -- or "take" -- wildlife that is listed as endangered or threatened must first obtain an incidental take permit from the Fish and Wildlife Service.

But the appeals court found the statement supporting the permit for about 75 proposed timber sales in the Rogue River Basin had no scientific foundation, lacked a specific estimate of how many owls would be killed by the logging, and had no "trigger" for keeping track of whether too many owls were being killed.

"We conclude that the incidental take statement at issue in this case is arbitrary and capricious on several counts," a three-judge panel of the court in Portland said in an opinion by Judge A. Wallace Tashima.

A spokeswoman for the Fish and Wildlife Service said Friday that the agency does not comment on pending litigation.

But Chris West, vice president of the American Forest Resource Council, a timber industry group that filed a friend of the court brief, estimated the ruling could delay the harvest from nine months to two years -- not including any more potential lawsuits.

"What they have to do is reanalyze the impact to the owls that these projects have," West said. "Our reading is they have to come up with numbers of owls and thresholds to cover the deficiencies mentioned by the court."

The ruling was welcomed by Kristen Boyles, a Seattle attorney for Earthjustice who handled the lawsuit for the environmental groups, which included the Oregon Natural Resources Council and the Klamath Siskiyou Wildlands Center.

"They have to do something to keep track," Boyles said. "But what's really clear, and what we've been saying all along is that, in this race to log the forest, they're skipping over these vital steps. And when you skip those vital steps you don't know the impact on the forest, or the owls, or the water, and everything else that is affected."

The proposed harvest is in an area of the state where conservation groups are trying to expand federal wild and scenic river protection.

"Southwest Oregon is considered a really important place for owl recovery," Boyles said. "Even though the focus is on the owl in this particular case, the larger picture is the integrity and health of the forest."

West said much of the proposed harvest would help achieve that goal. "Ironically, many of the projects that will be halted due to this ruling were focused on improving forest health," he said.

West noted the legal battle has taken so long that figures on the threatened spotted owl population are likely out of date.

"The bottom line is that the spotted owl was listed 16 years ago on the assumption that habitat was being harvested," West said.

"From the beginning of the determination it was habitat, habitat, habitat," West said. "But today's ruling says owl numbers, owl numbers, owl numbers. That's easily said when you have species that is static. But we're talking about dynamic ecosystems and a critter that moves 40 to 50 or even 100 miles."