ESA, Spotted Owls, and the Role of Science in Lawmaking, Politics and Litigation

1. November 2, 2006 By D. Eric Harlow ESA, Spotted Owls, and the Role of Science in Lawmaking, Politics and Litigation

2. Talk Outline • Introductions • Spotted Owl Wars I • Spotted Owl Wars II- The Return of the Litigant • Current situation and things to come • Role of Science in Lawmaking, Policy, and Litigation

3. Introduction- who am I Education, work experience, advocacy, projects Working at the nexus of policy, law, and science Who are you? Scientists? Advocates? Policy Makers? Business Majors? Other? Motivations Effectiveness Introductions

4. Spotted Owl Wars IA brief history • 1988 State listed as endangered • Did you know we have a state ESA law? • Requires development of an unenforceable plan within certain timelines • 1990 Federally listed as threatened • Result of multiple rounds of litigation • 1990 USFWS recommended the following strategies to “avoid or reduce the risk of incidental take” • Avoid any harvest activity that results in less than 70 acres of the best available suitable Owl habitat encompassing the nest site; • Avoid any harvest activity which results in less than 500 acres of suitable habitat within a 0.7 mile radius (1,000 acres) of a nest site; • Avoid any harvest activity that results in less than 40 percent coverage of suitable Owl habitat within the median home range circle. • Immediately challenged and rescinded

5. Politics • 1992 Critical Habitat Designation- • Draft proposal included private lands • Final reduced designation by 4.7 million acres and included no private, state, or tribal land • “George Weyerhaeuser, president and chief executive officer of timber giant Weyerhaeuser Co., went to Washington, D.C., in late July of 1991 and met with members of the Northwest delegation and top officials in the administration of George H.W. Bush. Critical habitat designation, he said, would shut down logging on 190,000 acres out of the 2.9 million acres the company owned in Oregon and Washington. Two weeks later, the Service dropped all private timberland, all Indian reservation land and some state land — 3.4 million acres in all — from consideration. The final rule, published in January 1992, whittled critical habitat protection to 6.9 million acres. • Agency economists at the time predicted that critical habitat protection would cost only about 2,500 more jobs than an owl conservation plan already in effect. The estimate might well have been accurate, but we’ll never know, because critical habitat was never actually implemented.” • Source: High Country News Article “Spotted Owl or red herring” March 20, 2006

6. Spotted Owl Wars IA brief history • 1992 Draft (and only so far) Recovery Plan- • Based on 1990 interagency (ISC) report that set up reserve system • Recognized importance of non-federal land in the recovery of the owl • 1992 State “500-acre” rule • 1993-1994 FEMAT and NW Forest Plan

7. What’s so special about the NWFP • Clinton gathered up best scientists and locked them in a room and asked for options • Results- • Science based approach (paradigm shift) - ecosystem management, watershed analysis, survey and manage, riparian buffers, aquatic conservation strategy • Ended the liquidation of federal old-growth • One of the greatest conservation victories • Fierce backlash from industry and grassroots (locked out of the room) • It may not save the owl • Biggest breakthrough for the NWFP- don’t manage on a species by species basis

8. Private Lands:Get out of ESA free cards • ESA section 4(d): • This rule prohibits anyone from taking a listed species except in cases where the take is associated with an approved program. • ESA section 10- Habitat Conservation Plans (Incidental Take Permit) • Lack of enforcement

9. Spotted Owl Wars IA brief history • 1995-1996 Development of 4(d) rule for NSO • Weyerhaeuser & DNR promise to do HCPs in SW Washington • NEVER FINALIZED • 1996 State Forest Practice Rules regarding the NSO and MM (current) • 1997 DNR HCP for management of state lands- state permitted to incidentally “take” owls in exchange for having some habitat over the next 70 years

11. Overview of Washington FPRs • Inside Spotted Owl Special Emphasis Areas (SOSEAs) vs Outside SOSEAs • SOSEA goal: compliment owl protections on federal lands • Protections approximate federal take avoidance guidelines • Outside of SOSEAs • Maintain 70 acres of highest quality habitat between March 1 and September 31 • Allows destruction of these sites • Assumed 4(d) rule

12. Southwest Washington • Identified as important for connectivity and to maintain distribution of the species • Weyerhaeuser and DNR promised HCPs • 4(d) rule excluded it from protection • DNR HCP and state rules dropped protections based on proposed 4(d) rule • Lobbying by Weyerhaeuser • Promise to do an HCP

13. Federal Guidelines (sort of) Avoid any harvest activity that results in less than 70 acres of the best available suitable Owl habitat encompassing the nest site; Avoid any harvest activity which results in less than 500 acres of suitable habitat within a 0.7 mile radius (1,000 acres) of a nest site; Avoid any harvest activity that results in less than 40 percent coverage of suitable Owl habitat within the median home range circle. State regulations for areas outside of SOSEAs Seventy acres of highest quality suitable Owl habitat surrounding the site center should be maintained during nesting season The big problem with state regulations…

14. Summary of DNR HCP(From the Biological Opinion) • 1.6 million acres, 70 year contract • Required mitigation over term of contract: • 101,000 acres NRF habitat (6%) • 100,000 acres dispersal habitat (6%) • OESF (managed for 20% YFM and 20% older): • 54,000 acres young forest marginal (3%), • 54,000 acres older forest (3%) • Between 165,000 and 329,000 acres of suitable habitat were made available for harvest (DNR policies in addition to the HCP reduced harvestable habitat) • “The demographic support provided by these NRF Management Areas may be limited in the first 30 years while habitat is developing” • Expected to operate as a population “sink”

16. DNR HCP Take expectations • Includes unknown owls and projected take • Short term (0-10 years): 179 owl pairs • Long term (10-70 years): 72 owl pairs plus unknown numbers in the OESF • Projected take based on estimated population decline of 0.6% per year over next 50 years • Take reduced in first 10 years of HCP through voluntary agreement with DNR, and now, to a lesser extent, by a settlement agreement

17. Spotted Owl Wars IIMore recent developments • 2002 Industry sues USFWS • USFWS announces 5-year ESA status review of NSO and MM in response to forest industry lawsuit. • Industry was hoping to delist species • Included a review of critical habitat • Mismatch between CH and NWFP • 2003 Washington Forest Law Center issues 60-day letter on behalf of the Seattle and Kittitas chapters of the Audubon Society alleging that actions by the DNR and UST are illegal under the ESA • Begin Spotted Owl Wars II

18. Spotted Owl Wars IIMore recent developments • 2004 Range-wide “meta-analysis” of NSO population trends • Populations declining 4.5% across range, 7.3% in Washington • 2004 USFWS maintains NSO as ‘threatened’ • Starts delisting process for Marbled Murrelet- no DPS • “Habitat necessary but may not be sufficient” Photo from Scott Gremel’s presentation to 5-yr review panel

19. Spotted Owl Wars IIMore recent developments • 200510 year review of NWFP completed • Lower than predicted logging and habitat loss • 2005 Washington state FPB reviews NSO rule • Results of two studies show the rules are not working as intended and habitat has been lost • Decides to take very limited action • 2005 USFWS Announces intention to do NSO recovery plan as part of settlement with industry (and after we sued)

20. Spotted Owl Wars IIMore recent developments • 2006 New 60-day notice issued to Washington DNR and Weyerhaeuser • 2006 Recovery Planning process underway • First draft based on old plan rejected by DC

21. Spotted Owl Wars IIThe Future? • Section 9 Take case against WDNR, Weyco • WOPR process • Western Oregon Plan Revision • BLM pulls out of NWFP • Recovery Plan sets new benchmark • Develop alternatives to reserve system • Use “new science” • Allow changes to forest plans if they get section 7 ‘no jeopardy’ calls • Undermining of NWFP

22. NWFP Today • Won the battle, but losing the war • “Since 1990, 130,000 timber industry jobs have been lost”, but according to Fed economic analysis, only 1 in 5 of those jobs was lost due to the NWFP • Myth that Enviros are ‘sue-happy’- industry sues all the time too, but since it is protecting the status quo, it is not as newsworthy • Industry pushes hard for ‘stakeholder’ processes, where they sit at the policy table and guide the process- recovery team, Forest and Fish • Regulatory rollbacks- survey and manage, aquatic conservation strategy, Marbled Murrelet delisting,

23. Changes in NFMA • “In place of the viability requirement, the regulations simply provide an “overall goal” to “provide a framework to contribute to sustaining native ecological systems by providing ecological conditions to support diversity of native plant and animal species in the plan area” • Eliminate NEPA review of forest plans • Roll of science in decisionmaking under NFMA changed from ‘consistent with BAS’ to ‘When making decisions, the Responsible Official also considers public input, competing use demands, budget projections, and many other factors as well as science.’ (Federal Register, vol 70, No. 3, pg 1027)

24. What Now? • Assumptions of the NWFP are no longer valid • Worst-case- 1% decline over next 40 years • 4.5% decline (actual data at the time) would have ‘very serious consequences’ • Owls will continue to decline for next ~50 years until suitable habitat grows in, and then pops will increase- demographic transition period • Did not address barred owl, potential west nile virus, sudden oak death, global warming • Current rate of decline in Washington- 7.3% average per year • Owl conservation strategy on non-federal lands tiered to fed strategy- HCPs, etc. • DNR HCP is legally allowed to ‘take’ over 140 owl pairs in exchange for growing habitat over the next 70 years. • Ok, times have changed- what now? Time for a “Trainwreck?” • SHC suit • Recovery plan

25. Role of litigation • Recovery Plan lawsuit • 5-year review result of industry lawsuit • Most of the data reviewed result of NWFP • NWFP resulted from rounds of litigation • Critical habitat designation the result of litigation • The listing of the owl in 1990 the result of litigation • Many early management plans challenged and deemed legally insufficient

26. Shift Gears… • Role of Science in Lawmaking, Policy, and Litigation

27. Values Science Governance Economic System Mgt. Of Natural Resources (Rare species) Representation Laws Agencies/Institutions Regulation Litigation Free Markets Capitalism Corporations

28. Three Arenas • Laws- made by politicians (RCW- revised code of Washington) • Regulations- developed by agencies to implement laws (WACs- Washington Administrative Code) • Litigation • Interpret laws or regulations • Enjoin illegal activities, challenge decisions • Change policy (Judge Redden’s orders re: Columbia operations, Roe v. Wade)

29. 1- Science in Lawmaking • Laws • Result of crisis, lobbying, media & public pressure • Public generally not engaged in Natural Resource law unless there is a crisis (ANWR) • Science does not play much of a role • Testimony- but comes from all sides • Scientific reports- usually stakeholder product • Lobbyists are not scientists • Laws have to be compromises to pass • They tend to be vague- don’t make the difficult decision • Results in litigation to interpret what they mean • Vic Moon example (Senior NR analyst to state senate) • Industry lobbyists always present

30. 2- Science in Policy • Regulations • To avoid litigation and hassle, agencies often convene stakeholder groups • Stakeholders generally the ones being regulated with the occasional public or advocacy representative • Often long, resource intensive processes • Industry lobbyists always present • Example: TFW and FFR

31. Adaptive Management Under FFR POLICY SCIENCE Acronyms: AMPA: Adaptive Management Program Administrator FPB: Forest Practices Board FFPC: Forests and Fish Policy Committee SRC: Scientific Review Committee CMER: Cooperative Monitoring, Evaluation, and Research SAGs: Scientific Advisory Groups FPB SRC FFPC AMPA (DNR) CMER SAGs Adapted from: NWIFC Website Washington Forest Law Center

32. 3- Science in Litigation • Litigation • Asking a judge to interpret or enforce existing laws • Penalties for ‘frivolous lawsuits’; all sides use them • One of the best venues for using science • Technical cases evaluated on scientific merit • Politics set aside- decision over existing laws or regulations • Chance to evaluate whether best available science was used • One of the most difficult venues for using science • Need both legal and scientific aspect • Costly, difficult, resource intensive • Clash between science and law • Issues with the administrative record or expert testimony • “For every expert that you get to say that an owl needs a particular patch of habitat to survive, the industry will get three expert biologists who will say they have found owls living in abandoned cars.’’ Jack Ward Thomas, former Chief of the Forest Service

33. Scientific Standards Conformity to existing research & est. methods Transparency Sufficiency and quality of data Statistical tools- Type I & II errors, p=.05, confidence intervals, R2 values Peer review Acknowledgement of limitations Repeatability Legal Standards Clearly Erroneous Arbitrary and Capricious Burden of Proof Beyond Reasonable doubt (criminal law) Preponderance of evidence (51%) Substantial evidence Agency discretion Legislative Intent Expert opinion as fact Scientific vs Legal Standards

34. The Role of Science- Observations • Recent state-level owl rule negotiations: the role of science in developing a recovery plan- scientists or stakeholders? FFR- better than before, but it may not recover salmon • ‘Actual recovery’ vs. ‘call it recovery’ • Is society willing to pay? • Even ‘Best Available Science’ may not change opinions- • People look for facts to support their worldview • ‘If they only understood, they would agree with me.’ • Ex: ‘Can’t eat owls’, ‘Intelligent Design’, Egos in science • Science in the age of polarization- • Science used as a political tool- spin, political screens, media • No-win scenario- if you are not an advocate, politics will trump science, if you do advocate- you are ‘biased’ (e.g. I’m a leper) • Agency scientists and consultants muzzled by politics

35. The End...?