Much of the controversy over the listing of the northern spotted owl has subsided, but the memory of what took place and the impact of the listing on many rural communities in the Pacific Northwest remains. Today, the spotted owl remains a poster child – both for the anti-logging groups, and for the targets of such groups - to remind us of the potential for environmental activists to use the Endangered Species Act (ESA) as an effective tool against the forest products industry.
Some now fear the potential for the northern long-eared bat (NLEB) to be used again as a surrogate species by green groups and to potentially have an even greater impact on the U.S. forest products industry than did the spotted owl.
Both the spotted owl and NLEB are now listed as threatened by the U.S. Fish & Wildlife Service (FWS). The owl was listed in 1990; the bat was listed in 2015.
FWS developed a Recovery Plan for the spotted owl in 2008, and revised it in 2011. The revised plan cited competition from barred owls and habitat loss as chief threats to the owl. Despite supposed “vast improvements” to owl habitat since listing, spotted owl numbers have continued to decline 3 percent annually due to barred owl encroachment.
In 2010, the Center for Biological Diversity (CBD) petitioned FWS to list the NLEB under the ESA and to define critical bat habitat. Initially, FWS proposed listing the bat as endangered, but reversed the decision in 2014. In 2015, FWS published a final rule listing the NLEB as threatened under the ESA. This was followed by a 4(d) rule in 2016, permitting logging activity in most areas, except for sites within 150 feet of maternity roost trees during pup season, or at any time within quarter mile of known hibernacula.
FWS determined that white nose syndrome (WNS) caused a precipitous drop in populations of NLEB. WNS (a fungal disease) was first identified in the state of New York in 2007 and has since spread to 31 states, frequently resulting in 90%-100% NLEB declines. WNS is expected to continue its spread to all 38 states where NLEB is found.
In the spring of 2016, CBD and several other green groups sued the FWS, arguing that they erred in issuing a “threatened” instead of “endangered” listing and that the 4(d) Rule should be withdrawn. FRA and other natural resource advocates are intervening in support of FWS in disputing CBD’s position. Briefs are now being submitted as this case proceeds through the courts.
Many feel it is likely NLEB and other bats will ultimately be listed as endangered under the ESA, possibly sooner than expected. Some are preparing for that eventuality. Michigan, Minnesota, and Wisconsin are currently developing the Lake States Forest Management Bat Habitat Conservation Plan (HCP). The process of developing the HCP is expected to take at least 5 years, but once approved, the states can apply for a federal permit which would allow incidental takes during normal forest management activities. This HCP is designed to be a framework for conserving bats and meeting federal requirements while providing the necessary flexibility for the states, and other non-federal public and private entities, to continue traditional forest management.
The Lake States Bat HCP development seems to be unique in scope and scale. That has some people worried. One concern is that very few are taking proactive steps to deal with NLEB being listed as “endangered” under the ESA. Some see the potential for the forest products industry to find itself scrambling to react to an endangered listing by FWS that could severely impact logging and forestry in 38 states, versus only 3 states being impacted by the spotted owl listing.
There is a slim chance the CBD’s court challenge of the 4(d) rule could succeed. But there is a much greater likelihood that FWS will ultimately declare the bat endangered, rendering the 4(d) rule useless. At this point, it doesn’t appear that many in our industry are preparing for either of these outcomes, as there are very few Forest Management Bat HCPs under construction.
We won’t know until it is too late if the Lake States Region is overreacting by developing the Bat HCP, or if others are underreacting. It may be wise for our industry to recall the spotted owl saga and start working to get Forest Management Bat HCPs in place across all affected regions to ensure that active forest management may continue without interruption.
It’s fair to say that that those who felt the northern spotted owl issue was much ado about nothing have been eating crow ever since…