California agencies charged with enforcing environmental laws have deep ties to timber interests. Recent decisions from California’s Board of Forestry including the adoption of the 2009 Spotted Owl Rules Package, make it clear that this relationship continues. Big Timber stands to gain the greatest benefit from the proposed NSO rules. These rules allow Cal Fire to accept NSO take avoidance analysis from industry representatives who designate themselves “Spotted Owl Experts.”
In 2008 California declined to fund US Fish and Wildlife Service’s program offering technical assistance to Cal Fire’s take avoidance determination program. The Service had assisted Cal Fire in determining whether logging plans near Northern Spotted Owl habitat constituted “take” under the Federal Endangered Species Act since 1999. The Board of Forestry said the lack of technical assistance was stalling timber planners, and changed the Forest Practice Rules (FPR) to facilitate another alternative. Now natural resource professionals from the industry can be certified as Spotted Owl Experts. The assistance provided by these ”experts” includes guidance to comply with a set of standards in the FPRs that are designed to facilitate “take avoidance” for the Northern Spotted Owl.
These rules are not only antiquated and not based on the best available science, but the US Fish and Wildlife Service found the rules insufficient to avoid take of NSO in many instances. For one thing, the rules do not provide for specific qualities of habitat to be retained in specific amounts. Rather, the rules rely on an aggregate total amount of habitat, which allows large industrial landowners to target the most valuable habitat and reduce it to marginal or non-habitat conditions. Furthermore, the way the FPRs define Northern Spotted Owl habitat do not represent what US Fish and Wildlife considers suitable owl habitat. The agency’s criterion requires that the habitat be capable of feeding, breeding, sheltering, reproduction, and dispersal for the Northern Spotted Owl.
EPIC has been addressing these issues, both through our Industrial Forestry Reform monitoring program and by joining the Center for Biological Diversity to challenge the bogus owl rules in court. Our lawsuit alleges that the “Northern Spotted Owl Take regulations violate the law in that they authorize the California Department of Forestry and Fire Protection (“Cal Fire”) to determine whether “take” of the Northern Spotted Owl will occur or be avoided, a determination that by law resides with the United States Fish and Wildlife Service.” EPIC’s Industrial Forestry Reform monitoring program has been successful in slowing down the approval of Timber Harvest Plans (THPs).
Since the Board of Forestry approved the new owl rules in September 2009, Cal Fire approved THPs that simply complied with the inadequate standards established in the state forest practice rules in 1992. However, in the last year, since EPIC has been monitoring and commenting on this process and individual logging plans, Cal Fire’s march to approve THPs that may affect northern spotted owls has slowed considerably.
For example, the Sierra Pacific Industry (SPI) THP called “Uncle Jesse” (THP 2-09-068SHA) has yet to be approved by Cal Fire. EPIC submitted detailed comments regarding the potential impacts of utilizing the FPRs to ensure “take avoidance” under this THP. These comments were submitted with the close of public comment in May of 2010. To date, Cal Fire has not moved to approve this THP. Meanwhile, the Cal Fire review team process for other THPs has come to a screeching halt. Numerous THPs have made it as far as the Cal Fire inter-agency review team meeting, only to have the process stall.
While it is abundantly clear that implementation of the inadequate state rules will not prevent “take” of Northern Spotted Owls, Cal Fire continues to evaluate “take” on the basis of these rules. In the face of substantial evidence to the contrary, Cal Fire still maintains that the FPRs can “avoid take” of Northern Spotted Owl habitat, if timber planners fully comply with the rules.
Evidence provided by the US Fish and Wildlife Service clearly shows that take of NSO has occurred at an alarming rate on private timberlands in California over the last twenty years, demonstrating the failure of the state rules to protect owls and their habitat. Sub-par habitat retention standards, sub-par definitions, sub-par analysis by plan submitters, and ultimately Cal Fire itself, have continued to ensure that take of Northern Spotted Owl will still occur under the Cal Fire take avoidance determination program.
Unfortunately the Northern Spotted Owl population continues its decline throughout much of its historic range. In California, the owls are at risk from logging operations that degrade and destroy suitable habitat and home ranges, resulting in loss of reproduction and site occupancy, and ultimately to direct and indirect “take” of Northern Spotted Owls in violation of the Endangered Species Act.