Ninth Circuit Approves U.S. Fish and Wildlife Service’s Barred Owls vs. Spotted Owls Experiment

On March 4, 2022, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of the U.S. Fish and Wildlife Service (FWS) in Friends of Animals v. U.S. Fish and Wildlife Service and FWS’ experimental plan that authorizes certain individuals to kill barred owls, a species of owls that has encroached on the northern spotted owls’ habitat. Primarily in the Pacific Northwest, the northern spotted owl has been listed as a threatened species under the Endangered Species Act (ESA) since June 26, 1990. 55 Fed. Reg. 26114. On December 15, 2020, FWS released its 12-month finding for the northern spotted owl that precluded reclassifying the species from threatened to endangered.

The barred owl, an abundant species native to eastern North America, has expanded west, moving into the northern spotted owls’ habitat. In an effort to prevent the continued decline of the northern spotted owl and stop the barred owls’ competition with the northern spotted owls, FWS introduced a “barred owl removal experiment” and issued permits to four nonfederal landowners authorizing the lethal removal of the barred owls from the northern spotted owls’ habitat.

Friends of Animals sued FWS and challenged the permits on the grounds that the experiment violates the ESA and the National Environmental Policy Act (NEPA). Specifically, Friends of Animals argued that the ESA prohibits FWS from taking action that may incidentally harm the spotted owls unless the experiment can guarantee a “net conservation benefit” for the spotted owls. In a unanimous decision, the Ninth Circuit affirmed the lower court’s decision to toss the case. The judges found that the experiment would produce a “net conservation benefit” under the ESA’s plain language as the ESA allows the FWS to obtain critical information to craft a policy to protect threatened or endangered species. The court also found that FWS did not have to conduct a supplemental environmental impact statement under NEPA because FWS had “adequately contemplated” the experiment in its earlier analysis.

It remains to be seen whether Friends of Animals will continue to press the case and whether FWS’ experiment will actually help mitigate the northern spotted owls’ decline.

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