A month ago, the U.S. Fish and Wildlife Service determined that the Northern Spotted Owl, a reclusive, inky-eyed inhabitant of old-growth forests in the Pacific Northwest, meets the definition of an endangered species. The bird has lost more than 70 percent of its population since the FWS listed it as threatened in 1990. It faces a real threat of extinction.
Nonetheless, the agency said it would not elevate the bird’s listing to endangered because doing so “is precluded by higher priority actions.” That decision angered conservation groups, who accused the FWS of shirking its duty.
Now those groups say the Trump administration is rubbing salt in the wound with a final rule published on Wednesday that removes nearly 3.5 million acres from the Northern Spotted Owl’s designated critical habitat, an Endangered Species Act term for areas deemed essential for a species to recover. Further fueling the outcry is the new rule’s dramatic expansion of a much more modest 200,000-acre cut proposed in August—a change made at the discretion of Interior Secretary David Bernhardt with no chance for the public to comment.
“The owl should be endangered because it’s in danger of going extinct in the near term, and yet we have this decision from the Fish and Wildlife Service, driven by political appointees, that says: Nope, we’re gonna get rid of protected habitat,” says Susan Jane Brown, a staff attorney for the Western Environmental Law Center. “It’s really heartbreaking, frankly. This kind of callous action is just offensive.”
Endangered Species Act expert Patrick Parenteau, a Vermont Law School professor, said in an email, “I've never seen that dramatic a cut in critical habitat and never for a species that warrants up listing from threatened to endangered.”
The Northern Spotted Owl is the largest of three subspecies—along with the California Spotted Owl and the federally threatened Mexican Spotted Owl—and lives in Northern California, Oregon, Washington, and British Columbia, though only one known breeding pair remains in the Canadian province. Habitat loss driven primarily by timber harvesting led to the bird’s threatened listing and put it at the center of intense fights in the 1990s that pitted loggers against environmentalists in the Pacific Northwest. Today the bird faces additional threats from increasingly devastating wildfires in its forest habitat and competition from Barred Owls, an eastern species that has expanded its range into the Northern Spotted Owl’s home turf. Safeguarding its habitat is vital to helping it evade and survive these threats, experts say.
Timber companies, chafing at restrictions on logging, have repeatedly challenged critical habitat designations for the owl, including a 2012 rule that set aside 9.5 million acres of forest. That lawsuit remained tied up in the courts until last April, when the FWS reached a settlement with the American Forest Resource Council, a trade association for the timber industry, requiring it to re-evaluate designated habitat.
The outcome of that process was a FWS proposal in August to remove some 200,000 acres of critical habitat in Oregon. But timber companies said the proposal didn’t go far enough. In formal comments on the plan, the American Forest Resource Council argued that the FWS should remove a total of 2.7 million acres.
The new rule goes further still, stripping more than one-third of the Northern Spotted Owl’s critical habitat in California, Oregon, and Washington. Brown says she’s heard from multiple contacts in federal agencies that the increase from 200,000 acres to 3.5 million acres came at the direction of Bernhardt and another Interior official, who “put the screws” to agency staff to give timber companies greater access. She says government biologists have described to her the reduction in protected habitat as an “extinction action” for the bird.
The massive reduction in protected acreage is “quite a dramatic place to find ourselves without scientific or economic analyses to back it up,” says Trina Bayard, director of bird conservation for Audubon Washington. “It’s profoundly disturbing to see this reckless decision being made by the administration that will very likely put additional pressure on the species.” Protections for the Northern Spotted Owl also preserve its old-growth forest home’s ability to soak up climate-warming carbon, Bayard notes, and benefit forest birds that share its habitat, such as Varied Thrush, Pacific Slope Flycatcher, and Hermit Warbler.
The FWS declined to answer questions about concerns that the new rule could push the Northern Spotted Owl toward extinction and instead sent Audubon a statement from FWS Director Aurelia Skipwith: “The Trump Administration and the Service are committed to recovering all imperiled species, and the northern spotted owl is no exception. These commonsense revisions ensure we are continuing to recover the northern spotted owl while being a good neighbor to rural communities within the critical habitat.”
To explain the more than 15-fold increase in removed acreage, the rule refers to the Interior secretary’s authority, via the Endangered Species Act, to exclude areas from critical habitat if the benefits of doing so outweigh the benefits of including it. But that discretion has limits; the law prohibits exclusions if they will cause the extinction of a species and requires that they be rooted in the best available science. “This decision blows past those limits like few decisions I have seen from this administration, which is saying something,” Brown says. “Saying, ‘I have the discretion to push it into extinction’ does not pass the laugh test.”
Brown says she doesn’t see how a judge would allow such a sweeping action by the secretary without public comment, and her group will sue to reverse it. The incoming Biden administration is also likely to scrap the rule since it doesn’t take effect for 60 days, she says. But doing so will require the FWS to write a replacement rule, which takes time—something of which the Northern Spotted Owl has little to spare.