New approach to Northern Spotted Owl critical habitat designations invites litigation risk, but may also gain judicial deference
Earlier today, President Obama issued a new memorandum entitled: Proposed Revised Habitat for the Spotted Owl: Minimizing Regulatory Burdens. The document sets forth the public process and criteria to be used in revising the designated critical habitat for the threatened owl species. See also, Department of Interior announcement.
As the memorandum admits, the administration is being responsive to the litigation realities of the Endangered Species Act. While protection of the Northern Spotted Owl will remain an essential aspect of any future decision -- as it must -- the memorandum also acknowledges two other important policy considerations: (1) "pragmatism" (or, in other words, "regulatory approaches that reduce burdens and maintain flexibility and freedom of choice") and also (2) "approaches that maximize net benefits." This policy approach seems fully consistent with the Endangered Species Act. After all, in the arena of critical habitat designations, the ESA explicitly allows for economic considerations. "The Secretary shall designate critical habitat . . . on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat..." 16 U.S.C. 1533(b). Nevertheless, the federal official who decides to consider economic impacts, to respect flexibility, or to achieve net benefits will face an adversarial process where courts remain empowered to reverse those decisions.
Indeed, the memorandum practically invites those legal challenges. For example, it suggests that the benefits of excluding private and State lands may be greater than the benefits of including those areas in critical habitat. While this approach could quickly eliminate much of the opposition to critical habitat designations, preservation minded environmental advocates would surely disagree with a wholesale exclusion of private lands. Other preservationists will disagree with the memorandum's embrace of active management and logging as a path to ecosystem diversity and forest resilience. And animal rights advocates will cringe at the notion of experimental removal of barred owls, using "both lethal and non-lethal" means, in an effort to reduce the inter-species competition. See U.S. Fish & Wildlife Service Fact Sheet. Anyone doubting the inevitability of future litigation should read today's headline from Science Insider: "U.S. Proposes to Save Spotted Owl With Chainsaws and Shotguns."
Still, the proposal offers new thinking, and may yield substantial benefits. If nothing else, the final rule will be well-vetted by a public process, and the reasoning behind the ultimate decisions reached by the U.S. Fish & Wildlife Service will be fully transparent. As a result, the judge (or judges) who review the future legal challenges may be more likely to give deference to the agency. For an agency besieged by litigation anyway, a new approach is warranted. And, in the end, the final rule might even benefit the Northern Spotted Owl, too.
As explained by Smithsonian Magazine, "an epic battle between environmentalists and loggers left much of the spotted owl's habitat protected. Now the celebrity species faces a new threat — a tougher owl." Image of Northern Spotted Owl, above, from Wikipedia. Image of barred owl, below, from Wikipedia
Keith W. Rizzardi, teaches administrative law at St. Thomas University, serves as Special Counsel to Jones Foster Johnston & Stubbs, P.A., and "tweets" about the Endangered Species Act @ESAlawyer.