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Coming Soon: Return of the Owl?

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King County Bar Journal, January 2007; In Star Wars, the finale was "Return of the Jedi." In The Lord of the Rings, it was "The Return of the King." But, gosh, just when environmentalists are getting more and more media savvy, does their latest sequel have to be "Return of the Spotted Owl?"

http://www.kcba.org/scriptcontent/KCBA/barbulletin/archive/2007/07-01/article1.cfm

January, 2007

King County Bar Journal

By Peter Goldman

WASHINGTON FOREST LAW CENTER

In Star Wars, the finale was "Return of the Jedi." In The Lord of the Rings, it was "The Return of the King." But, gosh, just when environmentalists are getting more and more media savvy, does their latest sequel have to be "Return of the Spotted Owl?"

Yes, unapologetically, it does.

Media advisors repeatedly warn environmentalists to avoid "frames" such as northern spotted owls vs. jobs, spotted owls vs. use of public lands or the Endangered Species Act (ESA) vs. people. "Never mind those controversial, forest-loving birds," media advisors say. "Society wants to solve global warming, restore Puget Sound, tackle alternative energy and solve 'real' forest issues like keeping them from burning down or turning into housing developments."

Well, it just so happens that environmentalists ARE on the leading edge of all of these important issues, so I'm going to punch right though that smoke screen. We must proudly embrace our inner spotted owl.

Like it or not, this iconic old-growth bird matters a lot - if you care about protecting and restoring forest ecosystems. Ask any forest ecologist: Spotted owls are not an esoteric species that should be permitted to go the way of the dinosaur. They are a key indicator species of a flourishing forest.

And here's why you'll soon see "Return of the Owl" appearing on the marquee at a courthouse near you.

Part One: The Empire:
Whacks the Old Growth

By 1990, about 95 percent of Washington's old-growth forests on federal, state and private lands had been logged into oblivion during the preceding century. Scientists discovered in the late 1980s that this logging had a huge, immediate and continuing impact on old-growth-forest-dependent creatures like the spotted owl. In fact, the owls were going extinct.

The threatened extinction of the spotted owl led federal Judge William Dwyer to issue an injunction against federal timber sales in 1989. Following that injunction, and recognizing that "It's the Ecosystem, not the Owl, Stupid," President Bill Clinton held the Northwest Forest Summit in Portland. The summit led to the adoption in 1994 of the Northwest Forest Plan, a science-based plan for protecting, managing and restoring our important old-growth federal forests.

Some critics of the plan argued it was too weak to save the spotted owl because of the staggering magnitude of the loss of its old-growth habitat. But the federal scientists decided to wait and see if the plan would work and the court upheld the plan.

Part Two: Corporate Chainsaws
Strike Back on the Private Lands

It didn't work - spectacularly so. While logging on federal lands slowed to a crawl, trees on the private lands (all 8 million acres of them in Washington) turned to gold. Industrial forests, many owned by multi-national timber conglomerates and insurance companies, grew in value because they were not subject to the plan and because, all of a sudden, vast amounts of adjacent federal timber dried up. You know the Economics 101 lesson: price equals demand divided by supply.

Unlike their brethren on federal lands, however, private forests were barely subject to owl-based restrictions under Washington law. In fact, the State in 1996 only designated one-quarter of Washington's 8 million acres of private forest as "Spotted Owl Special Emphasis Areas" (SOSEA) targeted for enhanced owl-habitat protection. In the remaining three-quarters of the state's forests (including all of Southwest Washington and the area north of Olympic National Park), there were practically no rules protecting the spotted owl's habitat; even its nest-tree area could be logged a full six months of the year. The politically muscular Washington timber industry gerrymandered vast tracts of forest out of SOSEA even though state and federal scientists believed these forests were critical to maintaining a well-balanced population of spotted owls throughout the state.

The State's rules for logging private lands in the 2 million SOSEA acres also were riddled with loopholes. For example, owl protections were triggered only when the government positively knew where an owl lived. Yet timber companies weren't required to survey for owls (a nice twist on "Don't ask, don't tell") and many of these forests were posted "No Trespassing."

The rules' habitat protection provisions still allowed up to 60 percent of the home-range area around a nest-site (the "home range circle") to be completely clear-cut. The State's procedures allowed timber companies to decertify and erase owl protection areas when a specific owl died or left the nest. And timber companies holding federal habitat conservation plans logged their old growth up-front, leaving only promises to "grow" habitat in the future.

Warding off federal regulatory spotted owl protection on the private forests became a high priority for the timber industry. A Northwest timber executive reportedly met with then-President George H.W. Bush urging him to exempt his company's vast forests from the federal government's ESA critical habitat designations.

Industrial timber company chainsaws buzzed through owl habitat while pulling in record profits. An official 2005 Washington study found that between 1996 and 2004 private landowners (who do not hold federal habitat conservation plans) logged more than 30,000 acres of suitable owl habitat within the state. In Southwest Washington alone, an area important for the owl, companies logged 44 percent of suitable owl habitat on lands regulated by state law. Today, there may be only a few pairs of spotted owls left in all of Southwest Washington, the vast forested region west of I-5 and south of State Highway 12.

And still the timber industry stalled for time. One company promised state and federal wildlife agencies for over 10 years that it would prepare a federal habitat conservation plan to protect its remaining owls, but eventually reneged on the deal. Another, a private New York partnership, bought about 60,000 acres of critical central eastern Washington forests and speedily razed through the remaining owl habitat, even logging actual nest trees.

The Washington Department of Natural Resources entered into a federal habitat conservation plan to protect spotted owls and salmon, but recently sought to increase its statewide timber harvest by 30 percent over the next 10 years, much of which would come from owl habitat. And, buckling to pressure from timber industry lobbyists, the State Forest Practices Board rejected pleas to significantly improve the rules between 2003 and the present.

Part Three: Return of the Owl
[or at Least the Owl Lawsuit]

To no surprise for some scientists, the Northwest Forest Plan failed to stem the decline of the Washington population of spotted owls. And the failure to protect habitat on adjacent state and private lands made the path to extinction even steeper.

In a 2003 federal population study, scientists found that the population of Washington owls was down 50 percent in 10 years and could be extinct in our children's lifetime if these trends continue. Today, there may be only 500 pairs of owls left in Washington.

As if things couldn't get worse, the spotted owl now faces a new threat: a bully known as the barred owl. These larger and more aggressive owls act like orcs among hobbits: They move in on what's left of the spotted owl's habitat, they thrive in fragmented "industrial" forests and they displace and sometimes even attack spotted owls.

Stay Tuned

So who wins in the end? Unfortunately, the answer is, "Who knows?"

Many scientists and forest ecologists believe that restoring a proper old-growth forest ecosystem demands that we try to save and recover the spotted owl. The good news is that this is possible if government and private forest landowners get serious about protecting remaining older forest habitat on all lands and work toward a science-driven and politics-free federal recovery plan.

But, alas, just like back in the 1990s, conservation groups such as the Seattle and Kittitas chapters of the National Audubon Society have returned to court to enforce the most basic protections of the ESA. Frustratingly, the state and federal agencies - and private timber companies - refuse to take meaningful action to prevent the owl from going extinct.

In The Lord of the Rings, Treebeard and his fellow "ents" save the forests after seeing how the bad guys were rampantly cutting down trees to fuel their military takeover of Middle Earth. Here in Washington, the spotted owl needs Treebeard more than ever - and lots of lawyers, too.

_______________

Peter Goldman is the director and staff attorney at the Washington Forest Law Center. The Center's attorneys (Paul Kampmeier and Karl Forsgaard), and co-counsel John Arum of Ziontz, Chestnut, Varnell, Berley and Slonim, represent the Seattle and Kittitas County Chapters of the National Audubon Society in federal ESA Section 9 litigation against the State of Washington and the Weyerhaeuser Company. The case, No. 06-CV-01608, was filed in the U.S. District Court in Seattle in early November. The Court is scheduled to decide motions, including a preliminary injunction, in early spring.