Capital press. (Salem, OR) 19??-current, January 19, 2018, Page 5, Image 5

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January 19, 2018
Court approves killing barred
owls for spotted owl protection
Capital Press
Capital Press File
Cattle graze in Eastern Oregon. An Oregon ranching couple has not persuaded the U.S. Supreme
Court to review their lawsuit accusing the U.S. Bureau of Land Management of violating a deal that
traded water for grazing rights.
U.S. Supreme Court
declines appeal of
lawsuit against BLM
Capital Press
The U.S. Supreme Court
will not review a lawsuit
filed by an Oregon ranching
couple who claim the feder-
al government shortchanged
them in a water deal.
Jesse and Pamela White
originally filed a complaint
in 2014 accusing the U.S.
Bureau of Land Management
of violating an agreement by
reducing the number of their
cattle allowed to graze on
federal property in Oregon’s
Malheur County.
According to their law-
suit, the Whites were per-
mitted to graze an additional
1,400 “animal unit months”
— enough forage to sustain
a cow-calf pair for a month
— to compensate for 20 res-
ervoirs built by BLM that im-
peded their water rights.
After a dispute with the
agency, the couple tried to
enforce their water rights,
leading BLM to declare the
grazing agreement void.
However, the lawsuit
alleged the agency never
removed or retrofitted the
reservoir structures to ful-
ly restore the Whites’ water
rights, despite cutting their
grazing levels.
A federal judge dismissed
their complaint in 2015 and
that ruling was upheld last
year by the 9th U.S. Circuit
Court of Appeals, which
found that it can’t compel the
BLM to increase the AUMs
because it wasn’t an action re-
quired under federal law.
While the nation’s highest
court has now decided against
reviewing the case, it may not
mark the end of the dispute,
which originated in the 1960s
with the installation of BLM’s
If there are any next steps
in the case, they will likely in-
volve the enforcement of wa-
ter rights through the Oregon
Water Resources Department,
said Alan Schroeder, an attor-
ney representing the Whites.
With the Supreme Court
staying out of the case, it’s ef-
fectively precluded the resto-
ration of the 1,400 AUMs al-
lowed under the deal, he said.
Though federal courts
can’t enforce the wa-
ter-for-grazing deal, that
doesn’t stop the ranchers
from pursuing their state wa-
ter rights, Schroeder said.
The couple have long been
caught in the middle as BLM
and the OWRD have pointed
fingers at each other in the
dispute, he said.
Associate Press File
An appeals court has approved
the removal and study of barred
owls to make way for the spotted
owl, which is listed as threat-
ened under the Endangered
Species Act.
The plaintiffs are disap-
pointed by the ruling, which
sets a troubling precedent
not only for barred owls and
spotted owls but for other in-
ter-species conflicts, said Mi-
chael Harris, legal director for
Friends of Animals.
“We don’t really have a
structure to deal with this, and
it’s something we need to figure
out,” he said.
Private timber companies
have already shown that re-
moving barred owls will help
spotted owls, so the Fish and
Wildlife Service’s research is
unnecessary, Harris said.
“It’s about getting the public
to stomach the shooting of the
bird,” he said.
Also, if the agency were to
make killing barred owls an
official policy — rather than
calling it an experiment — it
would have a harder time pass-
ing muster under the Migratory
Bird Treaty Act, he said.
It’s not clear that spotted
owls would be declining due to
competition from barred owls
if the West hadn’t lost so much
old growth forest habitat due to
logging, Harris said.
The plaintiffs would prefer
the government concentrate on
preserving the threatened spe-
cies’ habitat rather than mak-
ing a scapegoat of the barred
owl, he said. “You’ve got to
let nature, at some point, work
itself out.”
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Killing barred owls to help
threatened spotted owls isn’t
prohibited by an international
treaty aimed at protecting mi-
gratory birds, according to a
federal appeals court.
Since 2013, the U.S. Fish
and Wildlife Service has shot
barred owls as part of an ongo-
ing study to see if their remov-
al will mitigate the decline of
spotted owls, which are smaller
and more sensitive to habitat
Friends of Animals and
Predator Defense, two animal
rights groups, filed a lawsuit
accusing the government of
violating the Migratory Bird
Treaty Act, which implements
international agreements to
prevent the extinction of bird
While that statute permits
the killing of migratory birds
for scientific purposes, the
plaintiffs argued that provision
only applies to studying birds
of the same species. Under the
law, the Fish and Wildlife Ser-
vice cannot kill barred owls
to study the effects on spotted
owls, since they’re different
species, according to the plain-
The 9th U.S. Circuit Court
of Appeals has rejected this the-
ory, ruling that the Migratory
Bird Treaty Act’s language and
intent is broad enough to en-
compass the barred owl remov-
al research.
The plaintiffs’ interpreta-
tion of the law would have a
“bizarre result” in which the
government could kill barred
owls “to display them in mu-
seums but could not take them
to prevent the extermination of
spotted owls, even though the
effect on the barred owl popu-
lation would be minimal,” the
9th Circuit said.
Spotted owls have long af-
fected the West’s timber indus-
try due to restrictions on log-
ging in areas occupied by the
bird, which is protected by the
Endangered Species Act.
Since the Fish and Wild-
life Service’s study began, the
agency has killed nearly 1,150
barred owls in Oregon’s Coast
Range and Klamath Basin, as
well as Washington’s Cle Elum
area and California’s Hoopa
Early analysis of the re-
movals hasn’t yielded any
statistically significant results,
said Robin Bown, a biologist
with the agency. However, the
amount of data collected is still
relatively small.
“The more years you have,
the more confident you get,”
Bown said.
Since the removals began, it
does appear more spotted owls
are “hanging on” in areas with-
out barred owls than in control
areas where they’re present, she
However, this correlation is
largely anecdotal at this point,
she said.
Studying the effect of barred
owl removal is time-consuming
because once adults are shot,
their children can soon re-in-
vade a site, so opening habi-
tat to spotted owls takes time,
Bown said.
Establishing a longer trend
line is necessary to isolate the
impacts of weather and prey
availability on spotted owl sur-
vival from the effects of barred
owl removal, she said.
The study aims to see if
spotted owls not only survive
but reproduce, Bown said.
The agency is also study-
ing the “recruitment” of new
spotted owl generations to sites
where barred owls have been
removed, she said. “That’s the
one that takes the longest.”
If the research confirms that
killing barred owls meaningful-
ly helps spotted owls, the agen-
cy will move on to form a long-
term strategy for managing the
more aggressive species, Bown
It’s not currently known
how this management plan will
look, but the current study will
provide a scientific foundation
for preserving spotted owls, she