Case 3:20-cv-08657 Document 1 Filed 12/08/20 Page 1 of 55
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`TOM WHEELER (CSBA #304191)
`ENVIRONMENTAL PROTECTION INFORMATION CENTER
`145 G Street #A
`Arcata, California 95521
`(707) 822-7711
`tom@wildcalifornia.org
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`LOCAL COUNSEL
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`SUSAN JANE M. BROWN (OSBA #054607) Pro Hac Vice Application Pending
`WESTERN ENVIRONMENTAL LAW CENTER
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
`brown@westernlaw.org
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`LEAD COUNSEL
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`Attorneys for Plaintiffs
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NORTHERN CALIFORNIA
`EUREKA DIVISION
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`ENVIRONMENTAL PROTECTION
`INFORMATION CENTER, CASCADIA
`WILDLANDS, CONSERVATION
`NORTHWEST, KLAMATH FOREST
`ALLIANCE, KLAMATH-SISKIYOU
`WILDLANDS CENTER, OREGON WILD,
`and AUDUBON SOCIETY OF PORTLAND,
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` Case No. ________
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
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`(Endangered Species Act of 1973, 16
`U.S.C. § 1531 et seq.)
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`Plaintiffs,
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`UNITED STATES FISH AND WILDLIFE
`SERVICE, an agency in the Department of
`Interior,
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`Defendants.
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 1 -
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`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
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`

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`Case 3:20-cv-08657 Document 1 Filed 12/08/20 Page 2 of 55
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`INTRODUCTION
`Plaintiffs Environmental Protection Information Center, Cascadia Wildlands,
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`Conservation Northwest, Klamath Forest Alliance, Klamath-Siskiyou Wildlands Center, and
`Portland Audubon Society (“Plaintiffs”) bring this action for declaratory and injunctive relief
`against the above-named Defendant (“FWS”) for failure to meet mandatory statutory deadlines
`under 16 U.S.C. § 1533(c)(2) and 16 U.S.C. § 1533(b)(3)(B) of the Endangered Species Act
`(“ESA”).
`The ESA mandates deadlines for certain agency actions regarding threatened and
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`endangered species. The northern spotted owl is a species that has been listed as threatened since
`1990.
`FWS has failed to complete a five-year review for the northern spotted owl as required by
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`16 U.S.C. § 1533(c)(2). FWS has also failed to complete a 12-month finding for the northern
`spotted owl as required by 16 U.S.C. § 1533(b)(3)(B).
`JURISDICTION AND VENUE
`This court has jurisdiction pursuant to 16 U.S.C. § 1540(g)(1) (ESA) and 28 U.S.C. §
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`1331 (Federal Question).
`Plaintiffs provided defendants with 60 days’ written notice of intent to sue on January 31,
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`2020, as required by 16 U.S.C. § 1540(g)(2).
`The relief sought is authorized by 16 U.S.C. § 1540(g) (ESA), 28 U.S.C. § 2201
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`(Declaratory Judgment), and 28 U.S.C. § 2202 (Injunctive Relief).
`Venue is proper in this District pursuant to 28 U.S.C. § 1391(e) because a substantial part
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`of the ESA violations alleged in this complaint occurred in this District and a significant portion
`of the remaining northern spotted owl population impacted by the FWS’s unlawful conduct are
`located in this District.
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`INTRADISTRICT ASSIGNMENT
`This case is properly assigned to the Eureka Division under Civil L.R. 3-2(c) because
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 2 -
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`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
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`Case 3:20-cv-08657 Document 1 Filed 12/08/20 Page 3 of 55
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`several of the Plaintiffs and their members are located in counties within that district. Plaintiffs
`EPIC and Klamath Forest Alliance both have offices in Humboldt County, California. The
`habitat of the northern spotted owl, the species at issue in this dispute, is located on lands in Del
`Norte, Humboldt, Lake, and Mendocino Counties, California. FWS’s failure to act, as alleged in
`this complaint, has impacted northern spotted owl populations in those counties.
`PARTIES
`Plaintiff ENVIRONMENTAL PROTECTION INFORMATION CENTER (“EPIC”) is a
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`nonprofit public benefit corporation organized under the laws of California. Since 1977, EPIC
`has defended the wildlife and wild places of the Klamath Mountains and North Coast Range.
`EPIC’s mission is the science-based protection and restoration of northwest California’s forests
`and seeks to ensure that a connected landscape exists for species survival and climate adaption.
`EPIC’s advocacy utilizes community organizing, public education, collaboration, and litigation
`and submits substantive comments on projects that would negatively impact public and private
`forestlands. EPIC maintains an office in Arcata, California. Most of EPIC’s 15,000 members and
`supporters live in northern California. EPIC’s members and staff use, enjoy, and recreate on
`public lands within the range of the northern spotted owl.
`Ken Hoffman is a member of plaintiff organization EPIC. Mr. Hoffman began working in
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`northern spotted owl habitat for the Forest Service in 1980 as a timber sale planner on the
`Orleans Ranger District of the Six Rivers National Forest in California. Between 1982 and 1988,
`Mr. Hoffman was responsible for planning timber sales that clearcut millions of board feet of
`old-growth Douglas fir, prime northern spotted owl habitat. In 1989, because the northern
`spotted owl was under consideration for listing under the Endangered Species Act, the Forest
`Service began to survey for owls on the Six Rivers National Forest. That year, Mr. Hoffman
`began surveying for spotted owls as part of his timber sale planning duties, and saw his first
`northern spotted owl in the summer of 1989. Before that experience, he viewed trees in terms of
`timber volume, but afterwards, saw trees as habitat, and was stunned to realize that he was part
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 3 -
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`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
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`Case 3:20-cv-08657 Document 1 Filed 12/08/20 Page 4 of 55
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`of a timber sale program that had no plans to either protect any of this habitat or to allow it to
`regrow.
`In 1994, Mr. Hoffman took a position with the U.S. Fish and Wildlife Service to work
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`with the Forest Service on implementation of the Northwest Forest Plan. As a Fish and Wildlife
`Service employee and as part of his duties, Mr. Hoffman utilized survey data, demographic
`studies, and reports that showed that there were fewer owls and less owl habitat every year. This
`deeply alarms Mr. Hoffman, because demographic trends indicate that the owl is likely to go
`extinct within the lifetime of his children unless additional habitat and management actions are
`not taken to conserve the northern spotted owl. Mr. Hoffman retired from the Fish and Wildlife
`Service in 2010, but remains interested and committed to furthering northern spotted owl
`conservation and recovery as well as helping private landowners to sustainably manage their
`forests in a way that would benefit owl recovery. He regularly visits forests that are home to the
`northern spotted owl, in the hopes of catching sight of one of these disappearing birds. His last
`sighting was a few years ago in the City of Arcata’s Community Forest; although they have
`become much more rare, Mr. Hoffman derives great joy knowing that they are likely out there,
`even when he does not see them.
`12. Mr. Hoffman is harmed by FWS’ failure to perform its 5-year review and consider
`uplisting the northern spotted owl. Since 1994, when he first began familiar with demographic
`studies of the owl, he has been aware that the owl’s population is in sharp decline, and has spent
`countless hours working to help prevent the extinction of the northern spotted owl. That the
`federal defendant has failed to uphold its obligation to conduct a five-year status review and
`respond to the uplisting petition harms Mr. Hoffman because it demonstrates that the federal
`defendant is not trying to prevent the extinction of the owl. His work to protect the owl is
`directly threatened by federal defendant’s refusal to comply with its statutory duties.
`Plaintiff CASCADIA WILDLANDS is an Oregon non-profit organization based in
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`Eugene, Oregon and with additional offices in Roseburg, Oregon and Cordova, Alaska.
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 4 -
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`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
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`Case 3:20-cv-08657 Document 1 Filed 12/08/20 Page 5 of 55
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`Representing over 6,000 members and supporters, Cascadia Wildlands is devoted to the
`conservation of the Cascadia Bioregion, which extends from northern California to southeastern
`Alaska. Cascadia Wildlands uses a combination of education, organizing, outreach, litigation,
`advocacy, and collaboration to defend wild places and promote sustainable, restoration-based
`forestry. Cascadia Wildlands’ members use the range of the northern spotted owl for a variety of
`professional and personal pursuits including viewing threatened and endangered species.
`Rebecca White, a member of Cascadia Wildlands, is a resident of Oregon and has served
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`as a biological science technician on the Klamath National Forest. She supports Cascadia
`Wildlands in part because of its advocacy for strong protection for the northern spotted owl. Ms.
`White carried out northern spotted owl surveys on the Goosenest District and the Happy
`Camp/Oak Knoll Ranger District of the Klamath National Forest in 2005. Ms. White vividly
`remembers when she first saw a northern spotted owl in the wild, which was a life-altering
`interaction for her. A northern spotted owl responded to her survey call and then took a bait
`mouse to his partner on their nest. The stand of old-growth trees where the nest was located had
`sheltered generations of owl pairs across several decades, but to Ms. White’s understanding, has
`since been destroyed by wildfires. When Ms. White was working on the Klamath National
`Forest, she was told that surveyors had begun noting an increase in barred owl appearances and a
`decrease in northern spotted owl appearances.
`15. Ms. White enjoys exploring the native forests of the Northwest and has hiked the
`backcountry of northwestern California, the Klamath-Siskiyou Crest, the Coast Range, the
`Olympic Peninsula, and the Cascade Range in Oregon and Washington. She values those areas
`because of their mature and old-growth forests which the northern spotted owl calls home and
`depends on for survival. Ms. White has concrete future plans to backpack and hike throughout
`the range of the northern spotted owl, particularly in mature and old-growth forests that are well-
`suited owl habitat, as soon as she is able given social distancing requirements related to the
`global pandemic. It is her hope that she will encounter a northern spotted owl during one of those
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 5 -
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`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
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`Case 3:20-cv-08657 Document 1 Filed 12/08/20 Page 6 of 55
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`future visits. However, Ms. White has not observed a northern spotted owl in the wild since
`2005. She has seen several barred owls. To Ms. White, the northern spotted owl is a symbol of
`untamed wilderness, spiritual renewal, and a livable planet. Ms. White believes that the
`continued decline and possible extinction of the northern spotted owl would be an incalculable
`loss to her personally and to the planet as a whole, and believes that federal defendant has
`shirked its legal obligation to ensure against the extinction of the species.
`Plaintiff CONSERVATION NORTHWEST is a non-profit regional conservation
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`organization founded in 1989, based in Seattle, Washington, with a mission to protect and
`connect habitat, and restore imperiled wildlife from the Pacific Coast to the Canadian Rockies.
`Conservation Northwest has over 17,000 members and supporters, and engages in science-based
`advocacy through collaboration on projects that protect wildlife habitat and restore forest and
`watershed ecological resilience. Conservation Northwest is an active voice strongly advocating
`for imperiled species such as the northern spotted owl, marbled murrelet, Canada lynx, grizzly
`bear, wolf, wolverine, sage grouse, pygmy rabbit, and woodland caribou. Conservation
`Northwest and its members use, enjoy, recreate and other pursuits on public lands within the
`range of the northern spotted owl.
`Plaintiff KLAMATH FOREST ALLIANCE (“KFA”) is a non-profit community
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`organization founded in 1989, based in Orleans, California. Its mission is to promote sustainable
`ecosystems and sustainable communities of the Klamath-Siskiyou Mountain region. KFA
`participates in forest planning through agency engagement, substantive comments and
`collaboration and uses law, science, place-based knowledge and conservation advocacy to
`defend the biodiversity, wildlife, waters and mature forests of the Klamath-Siskiyou bioregion.
`KFA’s members and staff use, enjoy, and recreate on public lands within the range of the
`northern spotted owl.
`Kimberly Baker is the Executive Director of KFA and is also a member. In the twenty-
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`two years of working with the organization, Ms. Baker has commented on and monitored nearly
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 6 -
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`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
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`Case 3:20-cv-08657 Document 1 Filed 12/08/20 Page 7 of 55
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`every timber sale on the Klamath and Six Rivers National Forests, and for the past thirteen years
`on the Shasta-Trinity and Mendocino National Forests. Because of her years of research and on-
`the-ground monitoring, Ms. Baker has an intimate place-based knowledge of specific northern
`spotted owls, their nest sites, and their preferred habitat throughout Northern California. Ms.
`Baker has personally witnessed and reported on the “take” of spotted owls by the United States
`Forest Service, as authorized by the defendant. Further, Ms. Baker has witnessed thousands of
`acres of habitat removal and degradation and the abandonment of nests due to logging, wildfire,
`post-fire logging, and barred owl encroachment. Ms. Baker’s interests are harmed by federal
`defendant’s failure to comply with its statutory obligations to conserve and recover the northern
`spotted owl.
`Plaintiff KLAMATH-SISKIYOU WILDLANDS CENTER (“KS Wild”) is a domestic
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`non-profit corporation organized and existing under the laws of the State of Oregon. KS Wild’s
`main offices are in Ashland, Oregon. KS Wild has over 3,500 members and supporters in more
`than 10 states, with most members concentrated in southern Oregon and northern California. On
`behalf of its members, KS Wild advocates for the forests, wildlife, and waters of the Rogue and
`Klamath Basins and works to protect and restore the extraordinary biological diversity of the
`Klamath-Siskiyou region of southwest Oregon and northwest California. KS Wild uses
`environmental law, science, education, and collaboration to help build healthy ecosystems and
`sustainable communities. Through its campaign work, KS Wild strives to protect the last wild
`areas and vital biological diversity of the Klamath region. KS Wild is a leader in protecting
`public lands and routinely participates in commenting, monitoring, and litigation affecting public
`lands and the natural resources located there. KS Wild’s members and staff use, enjoy, and
`recreate on public lands within the range of the northern spotted owl.
`Plaintiff OREGON WILD is a non-profit corporation with approximately 7,000 members
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`and supporters throughout the state of Oregon and the Pacific Northwest. Oregon Wild and its
`members are dedicated to protecting and restoring Oregon’s lands, wildlife, and waters as an
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 7 -
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`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
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`Case 3:20-cv-08657 Document 1 Filed 12/08/20 Page 8 of 55
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`enduring legacy. Oregon Wild members use the range of the northern spotted owl for hiking,
`recreation, bird watching, nature appreciation, and other recreational and professional pursuits.
`Plaintiff AUDUBON SOCIETY OF PORTLAND (“Audubon”) is a non-profit
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`organization founded in 1902 based in Portland, Oregon, with 17,000 members in Oregon,
`sanctuaries in Portland, near Mt. Hood, and in the Oregon Coast Range. Audubon’s mission is to
`inspire all people to love and protect birds, wildlife, and the natural environment upon which life
`depends. Audubon works to protect northern spotted owls and other native wildlife through
`science-based advocacy and environmental education, Audubon has a long history of working to
`protect northern spotted owls including serving as petitioner on the original August 1987 petition
`to list the northern spotted owl under the Endangered Species Act. For more than three decades,
`Audubon has remained actively involved in conservation and recovery of the northern spotted
`owl, serving on multiple advisory committees, advocating for stronger protections, engaging and
`educating the public on issues related to northern spotted owls, rehabilitating northern spotted
`owls at our Wildlife Care Center, and periodically housing non-releasable northern spotted owls
`for use as federally licensed educational animals. Audubon members regularly use the range of
`the northern spotted owl for a variety of professional and personal pursuits including viewing
`threatened and endangered species.
`Robert Sallinger is a “life” member of Audubon, and has worked at Portland Audubon
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`since 1992, currently serving as the Conservation Director. Mr. Sallinger has previously held the
`positions of Wildlife Care Center Director and Urban Conservation Director within the
`organization. He has a BA in biology from Reed College and a JD from Lewis and Clark Law
`School. Mr. Sallinger has personally been involved with spotted owls in a variety of personal and
`professional capacities, and consider the opportunity to see, and work with and on behalf of
`northern spotted owls among his most treasured experiences. As a lifelong birder, he considers
`the opportunities that he has had to see northern spotted owls in the wild as among his most
`valued birding experiences, and consider them to be too few and far in-between. Mr. Sallinger
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 8 -
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`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
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`Case 3:20-cv-08657 Document 1 Filed 12/08/20 Page 9 of 55
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`also highly values the ancient forest habitat of the northern spotted owl, and regularly camps,
`hikes, and birds in old growth forest habitat in Oregon and Washington that is home to spotted
`owls.
`In his roles as a wildlife rehabilitator, Wildlife Care Center Staffer, and Conservation
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`Director for Portland Audubon, Mr. Sallinger has both directly and indirectly overseen the
`rehabilitation for release back to the wild of several northern spotted owls at Audubon’s Wildlife
`Care Center under permits issues by the federal defendant and Oregon Department of Fish and
`Wildlife. He has also worked with non-releasable educational northern spotted owls held at
`Audubon, also under permits issued by the federal defendant. In particular, Mr. Sallinger worked
`with a northern spotted owl named Hazel who was held at Audubon from 2004-2016. Hazel was
`found on Mt. Hood with non-repairable injuries to her wing and eye, and was an incredible bird
`that allowed thousands of families to see a bird up close that they might never see in the wild and
`educate them about the challenges facing spotted owls. Currently, Mr. Sallinger is working with
`a non-releasable spotted owl that Audubon intends to transfer to a spotted owl breeding facility
`(for reintroduction to the wild) in British Columbia. As soon as permits are authorized by the
`federal defendant, Mr. Sallinger will drive this owl to the United States-Canadian border in order
`to place the bird into the breeding program in time for the spring 2021 breeding season.
`24. Mr. Sallinger’s interests, and those of Audubon, are irreparably harmed by the federal
`defendant’s failure to timely consider and respond to the petition to uplist the northern spotted
`owl from threatened to endangered under the Endangered Species Act. He believes the best
`available science clearly demonstrates that the northern spotted owl warrants uplisting under the
`Endangered Species Act and that the failure of federal defendant to meet mandatory statutory
`deadlines puts the northern spotted owl at risk of extinction in Oregon.
`Plaintiffs’ members and staff derive esthetic, educational, conservation, recreational,
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`educational, and scientific benefits from the northern spotted owl’s continued existence and
`preservation in the wild. Observing the owl in the wild and being aware of its presence there as
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 9 -
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`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
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`well as the health of its habitat offers benefits to Plaintiffs’ members and staff. Plaintiffs’
`members and staff have visited northern spotted owl habitat across the Northwest to witness the
`owl and the forests where it lives. The failure to complete actions mandated by the ESA has
`caused direct injury to Plaintiffs’ members and staff. Those injuries would be redressed by the
`relief requested in this complaint.
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`Defendant, UNITED STATES Fish and Wildlife Service (“FWS”) is a federal agency
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`within the Department of the Interior. FWS is responsible for administering the ESA with respect
`to wildlife and is responsible for completing 12-month findings and five-year status reviews of
`listed species like the northern spotted owl.
`BACKGROUND
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`The Endangered Species Act
`The ESA was enacted in 1973 based on Congressional findings that fish, wildlife, and
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`plants provide “esthetic, ecological, educational, historical, recreational, and scientific value to
`the Nation and its people,” that various species had already gone extinct due to “economic
`growth and development untempered by adequate concern and conservation,” and that other
`species’ numbers had dropped so low that they were “in danger of or threatened with extinction.”
`16 U.S.C. § 1531(a). Congress’s intent in enacting the ESA was to “halt and reverse the trend
`toward species extinction, whatever the cost.” Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184
`(1978).
`The purpose of the ESA is to “provide a program for the conservation of…endangered
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`species and threatened species” and to “provide a means whereby the ecosystems upon which
`endangered species and threatened species depend may be conserved.” 16 U.S.C. § 1531(b).
`As part of its conservation program, the ESA provides a method for a species to be listed
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`as either endangered or threatened. A list of all endangered species and a second list of all
`threatened species must be kept and published in the Federal Register. 16 U.S.C. § 1533(c)(1).
`The ESA defines an endangered species as “any species which is in danger of extinction
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 10 -
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`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
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`throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6).
`The ESA defines a threatened species as “any species which is likely to become an
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`endangered species within the foreseeable future throughout all or a significant portion of its
`range.” 16 U.S.C. § 1532(20).
`A species listed as endangered receives greater protection (for the species itself as well as
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`its habitat) than one listed as threatened, since it is closer to completely disappearing.
`Once a species is listed as endangered or threatened, the ESA sets mandatory deadlines
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`for certain federal agency actions. One of those deadlines requires a status review of all listed
`species “at least once every five years.” 16 U.S.C. § 1533(c)(2). The review is used to determine
`“whether any such species should (i) be removed from such list; (ii) be changed in status from an
`endangered species to a threatened species; or (iii) be changed in status from a threatened species
`to an endangered species.” Id. That periodic review is also reflected in the ESA’s implementing
`regulations at 50 C.F.R. § 424.21.
`The ESA permits interested parties to petition to add, remove, or reclassify a species from
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`listing as either endangered or threatened. 16 U.S.C. § 1533(b)(3)(A). The requirements and
`procedures for petitions are described in the ESA’s implementing regulations at 50 C.F.R. §
`424.14.
`The ESA and its implementing regulations mandate that, upon a finding that a petition
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`presents “substantial information indicating that the petitioned action may be warranted,” the
`Secretary of the Interior shall make a 12-month finding determining whether the action is
`warranted. 16 U.S.C. § 1533(b)(3)(B); 50 C.F.R. §§ 424.14(f), (h). If the action is warranted, the
`Secretary must also publish a “proposed regulation to implement such action” or an explanation
`as to why a timely regulation is precluded along with “a description and evaluation of the reasons
`and data on which the finding is based.” 16 U.S.C. § 1533(b)(3)(B).
`The ESA also provides that federal courts “shall have jurisdiction…to order the Secretary
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`to perform” acts or duties mandated by the ESA. 16 U.S.C. § 1540(g)(1)(C).
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 11 -
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`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
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`Case 3:20-cv-08657 Document 1 Filed 12/08/20 Page 12 of 55
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`The Northern Spotted Owl (Strix occidentalis caurina)
`The northern spotted owl is a medium-sized brown owl with dark eyes and whitish spots
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`on its head, neck, and breast. The owl inhabits structurally complex forests in the Pacific
`Northwest, from Washington State to Marin County, California. The owl prefers old-growth
`forests, which contain large trees that take at least 150 years to mature, and a multi-layered, high
`forest canopy. Because of their sensitivity and need for a particular type of habitat, northern
`spotted owls are referred to as an indicator species. Within an old-growth forest ecosystem, the
`presence of spotted owls is an indicator that the forest ecosystem is healthy.
`The owl prefers to occupy forest stands that have many large trees with cavities and
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`platforms for nesting. Adult owls reach maturity at two years of age. If two northern spotted owls
`form a mating pair, they remain paired for life. Owl pairs do not nest every year. When they do,
`the female adult lays an average of two eggs. The owl invests significant time into caring for its
`young. The male owl hunts and forages and brings the female food while she primarily cares for
`the young owlets.
`Nesting pairs require large amounts of land for hunting and nesting. The owl is primarily
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`nocturnal, subsisting on a diet mostly consisting of small mammals.
`In the past, researchers have noted that northern spotted owls are relatively unafraid of
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`humans. This lack of fear is due to the owl’s limited exposure to humans, since it lives deep in
`dense forests, far from human activity. Northern spotted owls are known to respond to humans
`mimicking or playing recordings of their calls by coming down from the canopy to get a closer
`look at forest visitors. This has occurred less frequently over time, likely due to the increasing
`presence of the competing barred owl and the continued decrease in northern spotted owl
`populations.
`There has been widespread loss of spotted owl habitat across its range as a result of
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`timber harvesting in the Northwest. Endangered and Threatened Wildlife and Plants; Designation
`of Rev. Critical Habitat for the Northern Spotted Owl, 77 Fed. Reg. 71,875 (Dec. 4, 2012). Loss
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 12 -
`
`
`
`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
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`Case 3:20-cv-08657 Document 1 Filed 12/08/20 Page 13 of 55
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`of habitat continues to be exacerbated by past logging, climate change, and its effects on
`wildfires, insect predation, and disease. Id.
`Those factors and others, like the increasingly frequent presence of the barred owl in the
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`northern spotted owl’s habitat, have led to sharp decreases in total population and increasingly
`isolated population segments, which are more vulnerable.
`In 1990, FWS listed the northern spotted owl as threatened throughout its range under the
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`ESA “due to loss and adverse modification of spotted owl habitat as a result of timber harvesting
`and exacerbated by catastrophic events such as fire, volcanic eruption, and wind storms.”
`Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the
`Northern Spotted Owl, 55 Fed. Reg. 26,114 (June 26, 1990).
`The listing notice stated that the owl faced low and declining populations, limited and
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`declining habitat, inadequate habitat and population distribution, isolated populations, predation
`and competition, lack of adequate conservation and regulatory measures, and vulnerability to
`natural disturbance. Id.
`Even after its listing, northern spotted owl populations have continued to decline. While
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`the level of timber harvest has been reduced since the time of the owl’s listing, timber harvest
`continues to occur on public and private land that constitutes suitable northern spotted owl
`habitat.
`Despite the continued decline of suitable northern spotted owl habitat, in August 2020
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`FWS initiated a rulemaking to revise the owl’s critical habitat by newly excluding over 200,000
`acres of its habitat in Washington and Oregon from protection. Endangered and Threatened
`Wildlife and Plants; Rev. Designation of Critical Habitat for the Northern Spotted Owl, 85 Fed.
`Reg. 48,487 (Aug. 11, 2020). The rulemaking was prompted by a settlement agreement with the
`timber industry. Stipulated Settlement Agreement and [Proposed Order], Carpenters Industrial
`Council v. Bernhardt, No. 13-cv-00361-RJL (D.D.C. Apr. 13, 2020) ECF No. 126; Order on
`Stipulated Settlement Agreement, Carpenters Industrial Council (D.D.C. Apr. 26, 2020), ECF
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 13 -
`
`
`
`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
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`No. 127.
`An increase of wildfires in both frequency and intensity also continues to cause habitat
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`loss and is a direct threat to the owl’s survival.
`In addition to habitat loss, there is also a second major threat to the northern spotted
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`owl’s continued survival: barred owls. Barred owls are not native to the Pacific Northwest but
`began arriving from the eastern United States approximately 70 years ago.
`49. More recently, barred owls have increasingly displaced spotted ow