Owl See You in Court

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And as for Greg Smith's contention that there is not much commercial logging in the Southwest--if that were true, why then is there such an uproar about the federal court injunction against logging here?

U.S. District Judge Carl Muecke's August 1995 injunction, which stopped all logging in Arizona and New Mexico until the Forest Service publishes a valid biological opinion on the effects of logging on the Mexican spotted owl, has been painted as an example of the federal court's overreaching power. Muecke and two of the New Mexico environmentalists that are party to the suit, Sam Hitt and John Talberth, have been hanged in effigy. And last October, 400 angry loggers in semitrucks converged on the State Capitol in Phoenix to hear Congressman J.D. Hayworth and other speakers talk about jobs and freedom and owls.

In fact, the injunction came in response to magical thinking by the Forest Service and an inexplicable refusal by the federal government to follow the law.

The Southwest Center's role in the matter dates to August of 1993, when Peter Galvin, Robin Silver and the attorney Mark Hughes from Earthlaw met with U.S. Fish and Wildlife Service officials to talk about two endangered fish species, the spikedace and the loach minnow. The conversation turned to Mexican spotted owls, whose habitat includes the steep slopes of ponderosa pine forest.

Robin Silver's name, of course, is synonymous with the Mexican spotted owl, and Peter and Kieran had been skirmishing over owl territories since their owl-spotting days. Once, while in Forest Service regional headquarters in Albuquerque, a Forest Service employee showed them the maps that pinpointed about 900 spotted owl territories in every forest in the Southwest. Then with a wink, the employee told them he was going out to lunch and he left them in the room with the maps.

Peter and Kieran quickly hustled the maps over to the nearest Kinko's and made copies of them.

"We've used them very extensively," Kieran says, "because every time there is a timber sale proposed, we're able to look at our maps and tell where the owls are. And that is important because the Forest Service routinely lies and says there are no owls, when there are."

When it analyzes the biological impacts of any particular timber sale, the Forest Service biologists tend to look at those few acres being logged rather than looking at the habitat as a whole. In other words, they may leave a suitable amount of territory right around an owl nest, but not leave enough forest for the nestlings' offspring to build nests of their own, making it difficult for the species to rise above its threatened status. And the Forest Service was not considering the effects of backing one sale up to another on the forest as a whole.

"If you're looking at a species that lives in a three-acre pond, that might be sufficient," Hughes, the lawyer, recalls. "But we're talking about an owl that ranges over a wide amount of area. We were very concerned that they were missing the cumulative impacts of their actions overall."

The Fish and Wildlife Service is the federal agency charged with protecting endangered species. Yet, Hughes continues, "I was sitting there listening as Fish and Wildlife biologists were describing the nature of the problem to us and saying there was nothing they could do about it under their regulations."

"It became clear to me that the problem was that they hadn't consulted [with the Forest Service] on their forest plans. The more I looked at the regulations, the more I realized it was illegal."

If the agencies were not putting their heads together on the matter, the cutting would continue without knowing whether or not it further endangered the owls' survival.

Hughes mentioned the lack of consultation between the two agencies up to a Justice Department solicitor and to Interior Department staffers in Washington, with the flawed assumption that Clinton administration appointees would be more eco-friendly than Bush and Reagan appointees had been. And although the solicitor told him that the federal agencies indeed had to consult under the rules of the Endangered Species Act, nothing happened.

Using Freedom of Information requests, Peter and Kieran began researching the levels of consultation between the agencies, started looking for expert witnesses and drew in the other environmental groups, among them, Forest Conservation Council, and Forest Guardians and the Maricopa Audubon Society.

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Michael Kiefer