Specifically, the court found FWS's Incidental Take Statement -- a permit that allows federal agencies to kill or harm otherwise protected species -- illegal, in part because the Incidental Take Statement provided no way to monitor impacts to the owl from the logging.
The court held:
"The Incidental Take Statement and [Biological Opinion] are rendered tautological, they both define and limit the level of take using the parameters of the project. . . . Authorizing the take of 'all spotted owls,' without any additional limit, is inadequate because it prevents the action agencies from fulfilling the monitoring function the ESA and its implementing regulations clearly contemplate. The FWS' interpretation of the function of an Incidental Take Statement reads out of the statute the possibility of a revived consultation, rendering the monitoring and reinitiation provisions of the regulations meaningless."
FWS listed the northern spotted owl as a threatened species under the Endangered Species Act in 1990, primarily based on the widespread destruction of its old-growth forest home. In 1992, FWS designated critical habitat for the owl in Washington, Oregon, and northern California, noting that the protected habitat would be a valuable tool to recover owl populations. Since then, however, the federal government has allowed thousands of acres of owl habitat to be logged.
"In the race to log, FWS allowed logging to go forward without knowing the impacts on old-growth forests and the animals that live there," said Kristen Boyles, an attorney with Earthjustice. "The law demands that FWS provide a meaningful check on such impacts, and the agency failed to do that."
The court also found that FWS had failed to minimize the harmful impacts of the logging, instead urging the Forest Service and BLM to provide owl habitat across the landscape. The court noted that this requirement was nonsensical. "We are unable to extract any meaning from this sentence; neither the Forest Service, the Bureau of Land Management, nor the prospective loggers, will be able magically to 'provide' habitat for the spotted owls."
"It's time to move away from logging as if there's no tomorrow and instead log with tomorrow firmly in sight," said Boyles. "We can have healthy forests with strong wildlife populations and some sustainable logging if we apply balance and common sense."
Earthjustice represented the Oregon Natural Resources Council, Klamath Siskiyou Wildlands Center, Cascadia Wildlands Project, Siskiyou Regional Education Project, Headwaters, and Friends of Living Oregon Waters.
Kristen Boyles, Earthjustice, (206) 343-7340, ext. 33