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Court Orders Revisions to Owl Habitat TUCSON, Arizona, January 27, 2003 (ENS) - A federal judge has chastised the U.S. Fish and Wildlife Service (USFWS) for excluding 8.9 million acres of forest in Arizona and New Mexico from the designated critical habitat area of the Mexican spotted owl. On January 14, Tucson Federal Judge David Bury issued a blistering 31 page ruling denouncing the agency for slashing the amount of critical habitat designated for the owl. Bury also ruled that the USFWS illegally withheld critical information from the public and peer reviewers, and refused to consider protecting essential, but currently unoccupied, owl habitat. Bury ordered the USFWS to issue a new critical habitat proposal in three months and finalize it within six months. The order came in response to a 2001 lawsuit by the Center for Biological Diversity, Navajo environmental group Dine CARE, and the Center for Native Ecosystems.
The Endangered Species Act requires the designation and protection of specific critical habitat zones for all threatened and endangered species. The zone must include "all areas essential to the conservation" of the species, and be managed to ensure the species recovers from endangerment. It is illegal to "adversely modify" critical habitat areas. Critical habitat designation is opposed by industry groups because is establishes clear definitions of what areas must be protected and what standard of protection must be implemented. Other aspects of the Endangered Species Act rely on agency discretion and are more susceptible to political pressure and less susceptible to citizen review and legal challenge. Reform of grazing, mining, development, and road construction policies in New Mexico, Arizona and California have shown critical habitat to be a powerful habitat protection and policy reform tool, supporters argue. The Clinton Administration issued a proposal to designate 13.5 million acres of critical habitat in Arizona, New Mexico, Utah and Colorado for the threatened Mexican spotted owl on July 21, 2000. Overriding the recommendation of USFWS biologists, the Bush Administration issued a final designation on February 1, 2001 deleting 8.9 million acres, including all 11 national forests in Arizona and New Mexico. The vast majority of owls, owl habitat, and logging occur on the excluded forests. The final critical habitat designation focused on National Park Service and Bureau of Land Management lands where no logging occurs. Judge Bury called this designation strategy "nonsensical." Bury rejected the Bush administration's claim that the Arizona and New Mexico national forests should be excluded because they are being managed under the federal Mexican Spotted Owl Recovery Plan. Bury noted that the U.S. Forest Service had agreed to implement only part of the plan, that it had violated even the part that it agreed to, and that, in principle, a management plan is not a substitute for critical habitat. "Forest Service's Forest Plans are not adequate and are, in fact legally insufficient," Bury ruled. "The Forest Service's delay and extreme reluctance in complying with not only the ESA but numerous court orders, as well, raises serious doubts about the Forest Service's commitment to protecting the Mexican spotted owl and its habitat. Indeed, the Forest Service made affirmative efforts to block the listing of the owl as a threatened species. Therefore, the adequacy of the Forest Service's protection of the Forest Service's protection of the owl is inherently suspect." The case could have ramifications for dozens of other cases in which the final critical habitat designation has eliminated thousands or millions of acres of proposed critical habitat. Citing the importance of habitat loss to the majority of endangered species, Bury declared that "Formal designation of critical habitat is a key protection to endangered and threatened species." Copyright Environment News Service (ENS) 2002. All rights reserved. |
A Mexican spotted owl.
(Photo courtesy USFWS)