marbled murrelets and the endangered species act€¦ · list species that are “threatened” or...

Marbled Murrelets and the Endangered Species Act

The Ongoing Battle to Preserve a Threatened Seabird

Paul Kampmeier, Staff Attorney

Washington Forest Law Center

October 4, 2013



Non-profit, public interest environmental law firm

Three lawyers, staff scientist, office staff

Advocacy focuses on natural environment on state/private

timberlands in Washington and Oregon

Litigate in state and federal court on behalf of non-profit

environmental organizations

www.wflc.org Washington Forest Law Center

Topics for Tonight

Brief summary of the Endangered Species Act

Status of legal work in Washington D.C., Oregon, and

Washington state

Next steps in Washington (why we need your help)


Part I: Overview of the ESA

Section 4 of the Act requires the Services to:

List species that are “threatened” or “endangered.”

Designate “critical habitat” for such species.

Complete recovery plans for such species.

Section 7 of the Act requires federal agencies to ensure that

their actions do not:

Jeopardize listed species or

Adversely modify or destroy designated critical habitat.


Overview of the ESA

Section 9 forbids any person from doing a number of harmful

things, including “taking” endangered species and some

threatened species.

The term “take” means to harass, harm, pursue, hunt, shoot, wound,

kill, trap, capture, or collect, or to attempt to engage in any such

conduct.

The Service’s “take” regulations specifically prohibit “significant

habitat modification or degradation where it actually kills or injures

wildlife by significantly impairing essential behavioral patterns,

including breeding, feeding or sheltering.”


Overview of the ESA

Section 10 authorizes the U.S. Fish and Wildlife Service to

permit the “incidental take” of threatened and endangered

species under certain conditions.

Applicant must submit a Habitat Conservation Plan

Subject to public notice and comment

Subject to review under the National Environmental Policy Act (NEPA)

Subject to review under ESA section 7

The Service must make certain findings before issuing the permits

Subject to judicial review


The ESA and Marbled Murrelets

Pursuant to those provisions, the Service:

Listed the “tri-state” population of marbled murrelets as a “threatened”

species in 1992, primarily because of impacts from logging.

(Per the Service’s regulations the Section 9 “take” prohibition applies to

threatened terrestrial species like marbled murrelets).

Designated critical habitat for the species in 1996.

Completed a recovery plan for the species in 1997.

But the work to ensure effective ESA protection for marbled

murrelets is most definitely ongoing


Part II: Recent Legal Work: WDC

American Forest Resource Council v. Ashe, Case No. 12-111 (D.D.C.).

Seven conservation intervenors including Seattle and Portland Audubon chapters

Industry challenge to murrelet listing and critical habitat designations.

AFRC and the Service sought approval of a proposed settlement that would

vacate the 1996 critical habitat designation and require the Service to

finalize a new designation by 2018.

The court refused to approve the settlement; denied the listing challenge;

and remanded but preserved the CH designation pending re-issue in 2016.

AFRC has appealed.


Recent Legal Work: Oregon

Cascadia Wildlands, Center for Biological Diversity, and Audubon Society

of Portland v. Kitzhaber, et al., Case No. 3:12-cv-00961 (Dist. of Oregon).

ESA citizen suit alleging that logging in Oregon state forests is taking

marbled murrelets in violation of ESA section 9.

November 2012 injunction prohibits Oregon from pursuing 11 timber sales

and from logging in any known occupied site in three state forests.

Oregon has since cancelled 17 other timber sales and revised its policies to

better comply with the Pacific Seabird Group survey protocol.

Case is ongoing.


Recent Legal Work: Washington

Focus is on the 1997 Washington Department of Natural

Resources Trust Lands Habitat Conservation Plan, which

governs logging on ~1.6 million acres of DNR-managed forest

lands in western Washington.

Basis for “incidental take permits” issued pursuant to ESA section 10

Includes five-step interim murrelet strategy that requires DNR to protect

all higher-quality marbled murrelet habitat in southwest Washington

until certain conditions are met

Required DNR to adopt long-term marbled murrelet conservation

strategies by about 2003



In 2004 DNR convened a state/federal Science Team to

develop the long-term conservation strategies.

In 2008 the Science Team published its conservation recommendations

for only four of the six land management units subject to the HCP

For southwest Washington the team proposed “Marbled Murrelet

Management Areas”—large blocks of land with occupied habitat that

would be “blocked up” to reduce edge effects and promote conservation

MMMAs deemed essential to murrelet conservation in southwest

Washington



Still without long-term strategies in 2011, the Service and many

conservation groups were growing frustrated with DNR’s delay.

At the same time, DNR was under increasing pressure to log non-habitat

within proposed MMMAs, something the interim strategy allows.

Olympic Forest Coalition began appealing and stopping timber sales in

those areas, while OFCO, Seattle Audubon, and Sierra Club sought a

resolution with DNR and the U.S. Fish and Wildlife Service.

In June 2011 the Service wrote DNR a letter stating that the delay was

potentially a violation of the HCP and that DNR needed to mitigate

resulting harm and preserve options for the LTCS.



In May 2012 DNR proposed, and the Service approved, a

“minor amendment” to the HCP, opening to logging nearly

12,000 acres of previously-protected, higher-quality marbled

murrelet habitat in southwest Washington.

~60% of the higher-quality marbled murrelet habitat in southwest WA

DNR made a “determination of non-significance” under Washington’s

State Environmental Policy Act!

The Service issued a four-sentence approval letter and failed to

complete any ESA or NEPA review or provide any opportunity for

public review and comment



Seattle Audubon Society and Olympic Forest Coalition sue in

state court, challenging DNR’s determination that logging

12,000 acres of marbled murrelet habitat would not have any

significant environmental impact.

Seattle Audubon Society and Olympic Forest Coalition v. Washington

Board of Natural Resources, Case No. 12-2-19053-4 SEA (King

County Superior Court).

The King County Superior Court ruled for plaintiffs on July 11, 2013.

Case is currently on appeal.



Sierra Club and Olympic Forest Coalition also challenged

federal approval of the amendment in U.S. District Court.

Sierra Club and Olympic Forest Coalition v. Salazar, Case No. 3:12-

cv-05669 RBL (W.D. Wash.).

Alleges defendants violated federal law by approving the amendment

without ESA review, NEPA review, or public notice and comment

Defendants’ motion to dismiss denied July 22, 2013.

Case is ongoing.


Part III: Next Steps in Washington

DNR is now finally working on developing the long-term

marbled murrelet conservation strategies required by its HCP.

The strategies must cover all six DNR land management areas in

western Washington and make a contribution to recovery of the species

There are very significant concerns: inadequate habitat studies; old and

inaccurate survey data; interim strategy abandoned in two units; delay

The hope is that DNR will adopt strong conservation strategies before

CPL Goldmark leaves office—by the end of 2016 at the very latest

Hopefully no appeals necessary Washington Forest Law Center

What You Can Do To Help?

Invite your members to view these presentations.

wa.audubon.org

Organize field trips to view and learn about marbled murrelets.

Educate your friends, neighbors, colleagues, family, etc.

Be prepared to join the upcoming public processes.

Organize all the chapters

Attend public hearings when scheduled

Sign on to comments drafted by WFLC, SAS, OFCO, and the Club

File your own comments


What You Can Do To Help?

Contact long-term strategy organizers and join the effort!

Marieke Stientjes Rack, Seattle Audubon Society, (206) 523-8243 x 12.

Graham Taylor, Sierra Club, (206) 378-0114 x 328.

They can coordinate communications with DNR, the U.S. Fish

and Wildlife Service, and others.

They can alert you and your members to the many, many

upcoming opportunities to help.


marbled murrelets and the endangered species act€¦ · list species that are “threatened” or...

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