Owls, more owls and federal land grabbers


In response to a 2013 lawsuit by WildEarth Guardians on behalf of the Mexican spotted owl, a federal judge in Arizona has ordered a halt to timber operations on all New Mexico forests and one forest in Arizona (about 12 million acres). WildEarth Guardians Executive Director John Horning said, “With this decision, the agencies will finally be held accountable for ensuring that all forest management practices help, not hinder, owl recovery.” The attorney for the organization on this case explained that “certain timber projects will be paused in light of the judge’s decision.”

Since this has the potential to affect many things, including forest-thinning projects designed to limit wildfires, let’s take a closer look at what the judge actually ruled.

This should be prefaced with a little background. On March 16, 1993 the Fish and Wildlife Service (FWS) listed the Mexican Spotted Owl (MSO) as a “threatened” species. At the time of the listing, the FWS acknowledged that no historic or current MSO population data existed due to the “secretive” nature of the species. In 1995 a Recovery Plan was developed, and in 1996 a region-wide Forest Plan Amendment was adopted that included the prescriptions of the Recovery Plan. In 2005 a “no-jeopardy” Biological Opinion was issued, that admitted “no long-term monitoring has been initiated pursuant to the MSO recovery plan.” In 2012 more “no-jeopardy” Biological Opinions were issued. However, this time they were issued on a forest-by-forest basis rather than a regional approach. And finally, in 2012, a revised Recovery Plan was issued that reiterated there were few population studies currently available.

With that quick review, let’s delve into the judge’s ruling.

Among other things, the enviros alleged the shift from one region-wide Biological Opinion to eleven different Biological Opinions was inexplicable, with no reasoned analysis, and therefore arbitrary and capricious. And they lost, with the judge accepting the government’s explanation for the change.

The enviros challenged the government’s position that “wildfire was the greatest threat to the MSO in the action area.” And they lost, with the judge ruling the government’s position was based on the best available data.

The enviros alleged there was insufficient analysis of the impact of climate change on the habitat of the MSO, and that if done properly, would result in additional habitat being set aside. And they lost, with the judge accepting the counter arguments of the government.

The enviros alleged the Forest Service had violated its duty to avoid jeopardy by relying upon invalid Biological Opinions, and they won, with the judge ruling irreparable harm could occur to the MSO which renders the Biological Opinions invalid, and the proper remedy was to halt all timber management actions until the Forest Service had corrected the problems identified. The judge wrote, “So by [the Forest Service’s] own admission, delisting and therefore recovery is wholly dependent upon accurate range-wide population data, and no reliable data exists.”

That is a lot to absorb, but since there are over 2,300 endangered or threatened species, and the instance and intensity of wildfire seems to increase every year, and climate change appears to be injected into every natural resource issue, I thought it appropriate to walk you through this particular case.

This brings to mind the Northern Spotted Owl. In the 1980s enviros drove spikes into trees, wore tree costumes, and crawled into tree platforms, all to disrupt the logging of old-growth forests. Lawsuits were filed and this subspecies of the owl was listed, and a 1991 federal court decision closed much of the northwest woods to logging. Timber harvests declined by ninety percent on twenty-four million acres of federal land, as local communities were decimated. This was one of the largest demonstrations of the power of the Endangered Species Act and the way it can change the way we use land.

Fast forward to today and the Northern Spotted Owl is more endangered than ever. All those millions of acres of protected habitat are now being taken over by the barred owl. A larger, more aggressive animal, the barred owl consumes almost anything, including spotted owls.

This type of foolishness will continue until Congress musters the fortitude to amend the Endangered Species Act. So far, they have only answered to the Call of the Mild.

Land grabbers

A recent GAO report and Congressional testimony by the federal land management agencies have shed some light on federal land acquisition.

--Since its inception, the Land and Water Conservation Fund (LWCF) has provided $18.9 billion dollars for land acquisition
--Since the inception of the LWCF, the Forest Service has acquired 6 million acres.
--From fiscal years 2014 through 2018 Congress has appropriated $1.9 billion to the LWCF
--In fiscal years 2013 through 2017, the four land management agencies (BLM, FWS, FS, NPS) acquired 850,000 acres using LWCF funds.

We also know that for fiscal year 2018, the four land management agencies had a combined deferred maintenance backlog of $19.8 billion. By agency, that is $11.92 billion, NPS; $5.2 billion, FS; $1.3 billion, FWS; and $0.96 billion, BLM. The Forest Service testified, for instance, this maintenance backlog included “over 370,000 miles of roads, 13,400 bridges and trails, dams and both administrative and wildfire facilities that impact every aspect of the Forest Service mission.”

After much clamor, Congress recently passed legislation to permanently authorize the Land and Water Conservation Fund. How did they address this maintenance backlog vs. new acquisitions question? They didn’t. They mandated the majority of these funds be used only for land acquisition.

The D.C. Deep Thinkers are saying that no matter what poor conditions prevail over our existing land areas, you must go out and acquire more. Do you follow their logic here? We have to acquire more so we can mess up more.

Until next time, be a nuisance to the devil and don’t forget to check that cinch.

Frank DuBois was the NM Secretary of Agriculture from 1988 to 2003, is the author of a blog: The Westerner (www.thewesterner.blogspot.com) and is the founder of The DuBois Rodeo Scholarship and The DuBois Western Heritage Foundation

This column originally appeared in the October editions of the New Mexico Stockman and the Livestock Market Digest.

Note: When this column was written all I had was the fresh-off-the-press decision. For more info on the recent modification of the decision and the impact on forest users go to this LINK.

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