Richard Sieg

August 25, 2007

On August 1, a federal judge issued a preliminary injunction preventing Weyerhaeuser Company from logging in southwestern Washington State spotted owl habitat. The order protects the suitable habitat for this endangered species in four special emphasis areas covering approximately 56,000 acres of private lands within Washington State but the judge refused to prohibit logging in other suitable spotted owl habitat outside of these special emphasis areas.

In 1996, Washington State adopted enhanced forest practice rules to protect the spotted owl. According to the Seattle Audubon Society and Kittitas Audubon Society ("the Audubons"), the rules "exempted vast areas of the state from owl protection." The exempted areas include southwestern Washington, areas on the eastside of the Cascades, and private lands north of Olympic National Park. The Audubons argue that the state issued permits (and will continue to issue permits) for logging within exempted areas resulting in the potential destruction of spotted owl habitat in violation of the Endangered Species Act. In a subsequent modification of the rules, the state declined to add land excluded by the original 1996 rules.

According to the court order, "[o]nly a few pairs and single spotted owls remain in Southwest Washington . . ." and "Weyerhaeuser intends to harvest suitable spotted owl habitat within the [four special emphasis areas]." Dr. Gordon Orions, an expert for the Audubons, testified that the spotted owl is under a very real threat of "extirpation" (a total loss of population) in Southwest Washington. The Environmental Impact Statement generated for the rule change acknowledged that the likely result of a lack of special emphasis areas for the spotted owl would be a reduction of population or extirpation itself. The Audubons claim that four owls are known to exist on the Weyerhaeuser property. With respect to the four special emphasis areas, the court concluded that the Audubons demonstrated a reasonable likelihood of a take ("to harass, harm . . . kill . . ., or to attempt to engage in any such conduct") and that the resulting harm would be irreparable.

However, the court refused to grant an injunction against the State to protect suitable owl habitat outside of these special emphasis areas. The judge found that the Audubons failed to demonstrate that such an action is necessary to prevent a reasonable likelihood of harm to the spotted owls. The judge found that the Audubons did not demonstrate the presence of the protected species in these other areas, and that without a demonstration of presence, there was no demonstration of a reasonable likelihood of harm. In addition to this evidentiary deficiency, the judge found that the Audubons failed to show the specific amount of suitable owl habitat in these other areas. The judge held that without this information, she could not determine whether any further loss of habitat would result in harm to the owls.

The trial is expected to conclude sometime next year.

Sources:

Endangered Species Act of 1973 §§ 1 to 18, 16 U.S.C.A. §§ 1531 to 1544.

Craig Welch, Owl ruling halts logging on 56,000 acres of private land, Seattle Times, Aug. 2, 2007, http://archives.seattletimes.nwsource.com/cgi-bin/texis.cgi/web/vortex/display?slug=owls02m&date=20070802&query=56%2C000+acres+owl+ruling.

Environmental Law Institute, Logging, Spotted Owl, Preliminary Injunction, ELR Update Vol. 37, No. 23, Aug. 13, 2007, at http://www.elr.info/index.cfm (on file with author).

Seattle Audubon Soc'y v. Sutherland, No. C06-1608MJP, slip op. (W.D. Wash. Aug. 1, 2007).

Washington Forest Law Center, Protecting the environment by providing legal services for forest cases of statewide significance, Seattle Audubon Society v. Sutherland, at http://www.wflc.org/cases/activecases/seattleaudubonvsutherland.

Donna Gordon Blankinship, Judge Halts Logging in Owl Habitat, Foxnews.com, at http://www.foxnews.com/wires/2007Aug01/0,4670,SpottedOwl,00.html (Aug. 1, 2007).