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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
Washington Forest Law Center
Washington Forest Law Center
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)
Washington Forest Law Center
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.
Washington Forest Law Center
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.”
Washington Forest Law Center
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
Washington Forest Law Center
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
Washington Forest Law Center
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.
Washington Forest Law Center
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.
Washington Forest Law Center
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
Washington Forest Law Center
Recent Legal Work: Washington
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
Washington Forest Law Center
Recent Legal Work: 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.
Washington Forest Law Center
Recent Legal Work: Washington
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
Washington Forest Law Center
Recent Legal Work: Washington
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.
Washington Forest Law Center
Recent Legal Work: Washington
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.
Washington Forest Law Center
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
Washington Forest Law Center
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.
Washington Forest Law Center
Washington Forest Law Center