Full opinion text
OPINION FRYE, Judge: The matters before the court are the cross-motions for summary judgment filed by the plaintiffs (# 149) and the defendant, Manuel Lujan, Jr., in his official capacity as Secretary, United States Department of Interior, hereinafter referred to as Bureau of Land Management (BLM) (# 161). INTRODUCTION Plaintiffs, Portland Audubon Society, Headwaters, Lane County Audubon Society, Oregon Natural Resources Council, The Wilderness Society, Sierra Club, Inc., Siski-you Audubon Society, Central Oregon Audubon Society, Kalmiopsis Audubon Society, Umpqua Valley Audubon Society, and Natural Resources Defense Council (hereinafter referred to as Portland Audubon Society), are environmental groups seeking to protect the habitat of the northern spotted owl in the States of Oregon and Washington. The natural habitat of the spotted owl is old-growth timber. Manual Lujan, in his capacity as Secretary of the United States Department of the Interior, heads the BLM which manages 2,386,500 acres of federal lands in five districts in western Oregon. The director of the BLM for the State of Oregon is in the process of selling for harvesting tracts of old-growth timber located in seven management districts within the State of Oregon. The Northwest Forest Resources Council, eight counties within the State of Oregon, and various individual contractors were allowed to intervene. The Portland Audubon Society filed this action seeking declaratory and injunctive relief. It asks the court to declare that the BLM’s sales of old-growth timber in natural spotted owl habitat without examining, inter alia, new information on the spotted owl in a supplemental EIS violates the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA), and 40 C.F.R. § 1502.9(c); that defendant’s Forest Resources Policy Statement is contrary to the Oregon and California Lands Act and the Federal Lands Policy and Management Act; that defendant’s sales of old-growth timber which result in the death of spotted owls violate the Migratory Bird Treaty Act; that defendant’s actions are not in accordance with law, contrary to 5 U.S.C. § 706(2)(A); and that defendant’s actions are not in compliance with the procedures required by law, contrary to 5 U.S.C. § 706(2)(D). The Portland Audubon Society asks the court to enjoin the BLM from offering the old-growth sales and from offering any additional old-growth sales within a 2.1 mile radius of known habitat sites of the spotted owl until the BLM complies with the law. The Portland Audubon Society also seeks an award of reasonable attorney fees and costs. After a hearing, the court entered a preliminary injunction pending the resolution of these motions for summary judgment. FACTS During the late 1970’s and early 1980’s, the BLM conducted an intensive planning effort for its districts in western Oregon. As part of that planning effort, each district prepared one or more Environmental Impact Statement(s) pursuant to NEPA, 42 U.S.C. § 4332. From 1978 through 1983, an Environmental Impact Statement was prepared pursuant to the Timber Management Plan for each of the following districts: Josephine: October, 1978 Jackson-Klamath: November, 1979 South Coast Curry: May, 1981 Westside Salem: January, 1982 Eastside Salem: May, 1983 Eugene: May, 1983 Roseburg: May, 1983 Each Environmental Impact Statement contains an evaluation of the environmental impact that is predicted from the implementation of each Timber Management Plan. Each Environmental Impact Statement sets an annual allowable timber harvest for the district or sub-district expressed in terms of millions of cubic and board feet. The annual allowable timber harvest for each district or sub-district was determined by the constraints identified in each proposed decision. Alternatives in each Environmental Impact Statement were developed to emphasize one or several management values. For example, the five management values emphasized in the Jackson-Klamath Final Timber Management Environmental Statement were: 1. No Control of Competing Vegetation; 2. Limited Investment in Timber Production; 3. Utilization of Surplus Inventory; 4. Forestry Program for the State of Oregon; and 5. No Action. The Jackson-Klamath Final Timber Management Environmental Statement, which includes hundreds of pages, contains, among others, the following chapters: 1. Description of the Proposed Action; 2. Description of the Environment; 3. Impacts of the Proposed Action; 4. Mitigating Measures not Included in the Proposed Action; 5. Adverse Impacts that Cannot be Avoided; 6. The Relationship Between Local Short-Term Uses of Man’s Environment and Long-Term Enhancement of Productivity; 7. Irreversible and Irretrievable Commitment; 8. Alternatives; and 9. Consultation and Coordination. In Chapter 2, under the “Description of the Environment,” the Jackson-Klamath Final Timber Management Environmental Statement contains the statement that the spotted owl, listed by the State of Oregon as a threatened species, is a permanent resident of the planning area. The Jackson-Kla-math Final Timber Management Environmental Statement also indicates known nests of spotted owl in a map of the area. As to “Impacts of the Proposed Action,” the Jackson-Klamath Final Timber Management Environmental Statement notes as follows: The northern spotted owl is dependent on old-growth, closed canopy forests. Pursuant to the Oregon Endangered Species Task Force recommendations, a joint agreement with the State of Oregon, U.S. Forest Service and the U.S. Fish and Wildlife Service was signed, and BLM has agreed to protect 14 pairs of owls in the Medford District. Eight of these have been assigned to the JKSYUs [Jackson and Klamath Sustained Yield Units]. The management plan calls for total protection of 300 acres of old-growth core area (if available) and an additional 900 acres to be managed to provide at least 50 percent of the acreage in stands of 30+ year-old forests. The eight pairs receiving protection may change occasionally as new pairs are located or new timber replacement stands become available. Additional northern spotted owls in excess of the eight pairs may have their habitat reduced or eliminated if it is in a sale area. The results of this action are unknown. However, if it is assumed that all lands are at carrying capacity, then it is likely these owls would be eliminated. Two nest trees are within the boundaries of Sales 81-21 and 82-18. Five nest trees in Sales 80-22, 80-23, 81-4 and 82-20 are within one-third mile of areas scheduled for shelterwood harvest in the first 3 years. It is possible that the owls occupying these nest trees would be eliminated due to removal of their habitat. Jackson-Klamath Final Timber Management Environmental Statement, p. 3-41. The report concludes: Seven known nest trees are within one-third mile of proposed sale areas and individual spotted owls may be adversely impacted by clearcutting, shelterwood harvest and overstory removal. By following recommendations of the inter-agency management committee, the species as a whole would be only moderately affected. Id. In the final Record of Decision, Alternative 3b was chosen for implementation. The Jackson-Klamath Final Timber Management Environmental Statement describes the effect of Alternative 3b on the spotted owl as follows: About 35 percent of the old growth currently existing on the high intensity lands of the JKSYUs would be harvested during the first decade. This could mean a 35 percent reduction of old-growth dependent species such as the northern spotted owl, redback vole and pileated woodpecker on these lands. Old growth would be eliminated on the high intensity lands of the JKSYUs by the year 2018 if this alternative were implemented. Id. at 8-24. The seven Environmental Impact Statements prepared for each of the seven districts provided the bases for adoption by the BLM of a Management Framework Plan and a Timber Management Plan for each district or sub-district. The Timber Management Plans were adopted and approved by the state director of the BLM in Records of Decision dating from 1979 through 1983. Each Record of Decision describes the nature of the Timber Management Plan that was adopted in terms of the annual allowable harvest and in terms of allocation of acreages to different types of forest. The timber resources of the BLM in western Oregon are currently managed under these seven Timber Management Plans. Timber sales which the BLM undertakes in the seven districts of western Oregon are evaluated with reference to the applicable Environmental Impact Statement. Environmental Assessments are prepared to analyze proposed timber sales. Each Environmental Assessment is “tiered” to the pertinent Environmental Impact Statement for each Timber Management Plan. The Timber Management Plans adopted by the BLM from 1979 through 1983 were intended to remain in effect for periods of ten years. In 1986, the Oregon director of the BLM decided to replace these plans with coordinated and simultaneous plans that would govern management of all of the resources on BLM lands in western Oregon. Preparation of new Resource Management Plans was announced by the state director in a brochure dated May 30, 1986. This process is continuing and is expected to produce new Environmental Impact Statements and new Timber Management Plans by the end of the decade. On September 26,1983, the BLM and the Oregon Department of Fish and Wildlife (ODFW) entered into an agreement entitled “BLM — ODFW AGREEMENT For Spotted Owl Habitat Management on BLM Lands in Western Oregon,” which provides in part as follows: 2. The parties agree that BLM will, for the next five years, manage the habitat to maintain a population of 90 pairs of spotted owls, with appropriate distribution of pairs, as a contribution to maintaining a minimum viable population in western Oregon. The parties will work cooperatively in developing habitat management plans for each of the western Oregon BLM districts to carry out the intent of the agreement. The parties will work cooperatively in allocating habitat-protected pairs between districts. Annual timber harvest plans will be reviewed by the parties to assure that the intent of this agreement is maintained. 3. No later than October 1, 1988 the parties will review any new scientific information and current conditions of spotted owl pairs and habitat to determine at that time what actions are necessary for the protection of spotted owls. This agreement shall become effective when signed by the parties hereto and shall continue in force until termination by either party upon thirty days notice in writing to the other of its intention to terminate upon a date indicated. The BLM has continued to collect data concerning the spotted owl throughout the early 1980's and to the present. These efforts include the inventory of spotted owls, the monitoring of spotted owls, the mapping of spotted owl habitat, and research aimed at evaluating the habitat requirements of the spotted owl. In response to requests by environmental groups, including the Portland Audubon Society, to prepare Supplemental Environmental Impact Statements on the spotted owl, the BLM decided to prepare an Environmental Assessment to allow it to determine whether the Environmental Impact Statements prepared for the Timber Management Plans should be supplemented. The state director of the BLM issued a memorandum on November 7, 1986 to district managers providing for interim protection of spotted owls pending the completion of the Environmental Assessment. The Environmental Assessment was completed and published on February 3, 1987. The conclusion of the BLM in the Environmental Assessment was that the new information about the spotted owl, which the Portland Audubon Society had provided as a basis for supplementing the Environmental Impact Statements, was too preliminary in nature to support a decision. The Environmental Assessment included a review of the anticipated impacts from implementation of the timber sales that were planned through 1990. The conclusion in the Environmental Assessment was that new information about the spotted owl that had been acquired since the adoption of the Timber Management Plans would not cause the impacts to the spotted owl of the planned timber sales to be worse than originally predicted in the Environmental Impact Statements for each Timber Management Plan. The state director of the BLM reviewed the Environmental Assessment and decided on April 10,1987 not to supplement any of the seven Timber Management Plans or Environmental Impact Statements. In his Decision Record, the state director of the BLM states: In summary, for five of the seven EIS areas, the EA concluded that more owl habitat sites would remain by October 1990 than was predicted to remain if the current plan continued in effect, under the most pessimistic conclusion reached in BLM analysis at the time the current plan decisions were made. For the other two EIS areas (Westside Salem and Eugene), the EA concluded that less owl habitat sites may remain today than were predicted to remain in the previous EISs, but that timber sales planned from now through FY 1990 would not reduce these lower numbers further. Decision Record, p. 2. The Portland Audubon Society filed an administrative appeal to the Interior Board of Land Appeals from the state director’s decision requesting immediate stays of all sales by the BLM of timber older than 200 years within a 2.1 mile radius of 289 spotted owl habitat sites. Portland Audubon Society’s statement included the statement that it would regard no response to its request within thirty days as a denial of the request and an exhaustion of its administrative remedies. On July 1, 1987, the Interior Board of Land Appeals denied the request for a stay for failure by the Portland Aubudon Society to identify the timber sales it wished to have stayed. On September 4, 1987, the Portland Audubon Society renewed its request for a stay, filing an affidavit identifying the timber sales it wished to have stayed. In this application, the Portland Audubon Society stated that it would view a failure to act on this renewed request within twenty days as a denial of its request. The Interior Board of Land Appeals issued an order on October 13, 1987 allowing intervention in the administrative appeal by the Northwest Forest Resources Council and the Association of 0 & C Counties and denying motions to dismiss the appeal. The Interior Board of Land Appeals did not rule on the Portland Audubon Society’s motion to stay or the motion of the Association of 0 & C Counties for an extension of time to file a brief in response to the Portland Audubon Society’s renewed request for a stay. On October 19, 1987, the Portland Audubon Society filed this action alleging that the decision not to prepare a supplemental Environmental Impact Statement is in violation of NEPA, the Oregon & California Lands Act (OCLA), 43 U.S.C. § 1181, the Federal Lands Policy and Management Act (FLPMA), 43 U.S.C. §§ 1701 et seq., the Migratory Bird Treaty Act (MBTA), 16 U.S. C. §§ 703 et seq., and the Administrative Procedures Act (APA), 5 U.S.C. §§ 553 et seq. On October 27, 1987, the Interior Board of Land Appeals issued an order granting an extension of time to the Northwest Forest Resources Council and the Association of O & C Counties to file a response to the renewed request of the Portland Audubon Society for a stay until November 13, 1987. The BLM and the Northwest Forest Resources Council filed responses on that day, and the BLM also filed a request for reconsideration of the order of October 13, 1987, in which its motion to transfer the appeal for decision under the planning regulations was denied. On February 28, 1988, the Interior Board of Land Appeals issued a decision upholding the BLM’s decision not to supplement the Environmental Impact Statement. On April 20, 1988, this court entered judgment for the BLM having concluded that section 314 of the continuing budget resolution withdrew this court’s jurisdiction to consider the Portland Audubon Society’s claims. The Portland Audubon Society sought and obtained an injunction from the Ninth Circuit on May 18, 1988. On January 24, 1989, the Ninth Circuit Court of Appeals reversed this court’s judgment of dismissal and remanded the action for further proceedings. The Ninth Circuit concluded that this court had improperly dismissed the action pursuant to Fed.R.Civ.P. 12(b)(1) under Section 314 based upon the allegations of the complaint. The Ninth Circuit stated: When looking at the complaint as a whole it is difficult to avoid the conclusion that it challenges particular sales (activities) on grounds that remain available under the express terms of the very statute upon which the defendants rely. Accordingly, we must hold that the Section 314 savings clauses require the district court to decide how to apply the law to particular sales. At a trial, both sides may be able to show that owl habitat degradation was known before or after the plan was adopted. Such proof would shed light on the “new information” problem. However, that would not answer the last “provided however” clause of the section. That clause forces the decision maker to decide whether the challenge is to the plan or to particular activities. That decision must be made in the first instance by the trial court. Portland Audubon Society v. Hodel, 866 F.2d 302 at 307-08 (9th Cir.1989). The Portland Audubon Society thereafter moved this court for an injunction substantially identical to that entered and vacated by the Ninth Circuit Court of Appeals. The court granted the injunction until the court could hear and decide the motions for summary judgment. The parties have filed extensive affidavits and memoranda in support of their positions, and oral argument has been heard. The Portland Audubon Society contends that information concerning the habitat requirements of the spotted owl shows that the spotted owl is in danger of becoming extinct due to the destruction by logging of old-growth ecosystems as dictated by existing timber management plans; that this information obligates the BLM to address the danger of extinction in a supplemental Environmental Impact Statement; and that the continued destruction of old-growth ecosystems by logging destroys the habitat of the spotted owl foreseeably resulting in the death of birds in violation of the MBTA. The BLM and the defendant-intervenors argue that the information relied upon by the Portland Audubon Society is neither significant nor accurate and does not require the BLM to supplement the existing Environmental Impact Statements. Further, the BLM and the defendant-inter-venors argue that all claims, other than the NEPA claim, are not properly before the court. THE NEW INFORMATION The Portland Audubon Society points to a number of scientific studies that have been released since the time that the BLM completed the Environmental Impact Statements for its seven western districts, including: 1. a status review of the spotted owl by the United States Fish and Wildlife Service (1982); 2. a draft of a supplemental Environmental Impact Statement prepared by the United States Forest Service analyzing the habitat requirements of the spotted owl (1986); 3. a study of the spotted owl undertaken by a Blue Ribbon panel of respected scientists for the National Audubon Society (1986); 4. an analysis of the population demographics of the spotted owl by Dr. Russell Lande (1985 and 1987); and 5. an analysis of the spotted owl prepared by a team of BLM’s biologists (May 8, 1986 and January 16, 1987). 1. A status review of the spotted owl by the United States Fish and Wildlife Service (1982) The report by the United States Fish and Wildlife Service states, in part: Although numbers [of Spotted Owls] have declined, there is still a substantial population of Spotted Owls distributed throught [sic] a broad geographical area. The species situation does not meet the Endangered Species Act of 1973 definitions of either Threatened (likely to soon be endangered throughout a significant portion of its range) or Endangered (in immediate danger of extinction). Nevertheless, the owls’ dependence on large areas of old-growth coniferous forest make them extremely vulnerable. If current trends in old-growth timber harvest continue, the Northern Spotted Owl could become endangered in a relatively short time. The plight of the Northern Spotted Owl is becoming well known, [and] some action has been taken to control further loss of habitat and maintain viable populations. For example, in Oregon the Forest Service and Bureau of Land Management have been participating in the development of a Spotted Owl management plan. This plan, as originally conceived, provided for: 1. 400 pairs of Spotted Owls in the state; 2. each provided with a home range of 300 acres of old-growth surrounded by 1,200 acres of other forest, 50% of which [was] over 30 years old; 3. habitat sufficient for 3 to 6 owls to be maintained as block management area; and 4. management areas to be located within 8 to 12 miles of one another. Based on recent findings of more intensive research, the Oregon-Washington Interagency Wildlife Committee, a group with representation from most government entities in the two-state area, has since recommended that at least 1,000 acres of old-growth be maintained within 1.5 miles of each Spotted Owl nest site. Efforts such as those outlined above are vital to the preservation of the Northern Spotted Owl. However, their development is hampered by lack of precise or conclusive information on certain aspects of Spotted Owl population dynamics and habitat needs. We need much better data on such subjects as breeding site tenacity, dispersal of immatures, intras-pecific competition, integration of new breeders into the population, and mortality/longevity, if maintenance of viable populations through management is to be assured. The number of pairs necessary to maintain a long-term viable population is also a question yet to be adequately answered. B. RECOMMENDATIONS 1. Continue to investigate the biology, population dynamics, and habitat requirements of the Northern Spotted Owl, with particular emphasis on the conditions which promote the maintenance of a viable population. Pairs and populations currently being impacted by timber harvest or other habitat modifications are particularly good candidates for in-depth studies with important management implications. 2. Old-growth forest, the principal need of the Northern Spotted Owl, is essentially irreplaceable, and the precise characteristics of a “viable population” of Spotted Owls are unknown. Therefore, all habitat modification should be undertaken cautiously, with attention given to preserving as many management options as possible. For example, timber harvest at the perimeter of a large forest area would likely be more favorable to the Spotted Owl than would be cuts of similar volume that left smaller isolated forest tracts. The Northern Spotted Owl is a vulnerable species. Its need for a habitat that also has a high immediate commercial value complicates its perpetuation. Nevertheless, it is a species that has been identified as needing attention before it has been reduced to levels that are unmanageable. To prevent the endangerment or extinction of the Northern Spotted Owl, we are challenged to make comprehensive plans that will guarantee the wise and proper use of a variety of both commercial and esthetic [sic] natural resources. The Northern Spotted Owl, A Status Review, pp. 24-25. 2. A draft of a supplemental Environmental Impact Statement prepared by the United States Forest Service analyzing the habitat requirements of the spotted owl (1986) In July, 1986, the United States Forest Service prepared a lengthy two-volume document entitled “Draft Supplement to the Environmental Impact Statement for an Amendment to the Pacific Northwest Regional Guide.” The draft supplement summarized current available information on the spotted owl, described the environmental relationships between the spotted owl and other resource, economic and social factors, and discussed the potential consequences of implementing either the proposed action or other alternatives. The draft supplement states, in part, as to spotted owl viability: The implementing regulations for the National Forest Management Act of 1976, require the Forest Service to plan the management of wildlife habitats to “maintain viable populations of existing native and desired non-native vertebrate species in the planning area.” A viable population, as defined in the regulations (36 CFR 219.19), is “one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area.” Viability of any species is best expressed as a relative term, rather than an absolute one. This is because species and their environments are always subject to change. This dynamic situation does not allow a 100 percent assurance that any species will exist indefinitely. Further, there is no single, fixed size of a population above which a species is viable and below which it will become extinct. The assessment of the viability for the northern spotted owl population within the Pacific Northwest Region was based on a synthesis of existing data and the use of several analysis techniques. Steps in the analysis included: 1. Predictions of the amount and distribution of suitable habitat over time; 2. Estimates of the ability of habitat to support breeding pairs of owls; and 3. Analysis of genetic and demographic risks to the owls. The purpose of the analysis was to understand the implication of alternatives on northern spotted owls for this planning period (ten to 15 years) and further to assess the likelihood that owl populations would persist up to specified periods in the future. It should be recognized that changes in management will occur based on monitoring and research. The total habitat available for the northern spotted owl has been declining and will continue to decline as mature and old-growth forest stands are harvested. As the amount of habitat declines, it also becomes more fragmented, making it more difficult for owls to move from one patch of habitat to another. This increases the risk that one part of the owl population will become isolated from another. The decline in the amount of habitat and the increase in fragmentation make the owl more vulnerable to other threats to viability. Three major categories of these potential threats to spotted owls were analyzed. These categories were: 1. The variability of birth and death rates through time. 2. Loss of genetic variation. 3. Random catastrophes. Draft Supplement to the Environmental Impact Statement for an Amendment to the Pacific Northwest Regional Guide, Volume 1, pp. S-4 — S-5. The Record of Decision of the United States Forest Service that was issued on December 8, 1988 as to the Final Supplement to the Final Environmental Impact Statement contains the following rationale of the decision to implement Alternative F: Available information (Final Supplement, Appendix B) on spotted owl biology, habitats, and populations can be characterized by: (1) what is known with certainty, and (2) what remains unclear because interpretations are variable or research is still in progress. This decision involves natural resources, namely mature and old-growth forests, that have high values for many uses, including spotted owl habitat. Prudence dictates that my decision favor the use of information that is known with certainty. It is appropriate and necessary, however, when knowledge is incomplete to use certain information to help shape a decision and to judge the possible risks or costs of those decisions. Our analysis used all available information to estimate long-term effects of changes that would occur during the 10 to 15 year life of a Forest Plan under each alternative on spotted owl habitats and populations, and timber supplies. Models and statistical inference were used to predict these future conditions. I realize that the results of any analysis are influenced by the characteristics and assumptions of models and methods as well as by the validity of their basic data. Further, the conclusions of analyses that weigh heavily in decisions of this sort, eventually require field verification. We cannot wait for complete field verification of all the information used in this decision. Therefore, we had to use professional judgment to interpret the relative veracity and certainty of all sources of information. In this I was most influenced by the judgment of professional biologists who have extensive field knowledge of spotted owls and their various environments. We know a lot about spotted owls. In Oregon and Washington probably fewer than 2,000 breeding pairs of spotted owls exist, and they depend on mature and old-growth forests for survival and reproduction. The breeding pairs require large amounts of habitat within their home ranges, more in northern Washington than in southern Oregon. Young spotted owls have limited abilities to disperse from one habitat to another. Spotted owl habitats are becoming increasingly fragmented and, in some areas, isolated from the main population. And continued- existence of a well-distributed population depends on a population number and distribution that provides security from factors that can eliminate a species from an area, such as local catastrophes, inbreeding, and random variations in births and deaths. These factors increase in importance as populations become smaller and as individuals in those populations become more isolated from one another. Field data and our analy-ses show that, without protection of spotted owl habitats outside of reserved areas during the plan period of the next 10 years, environmental conditions could result in loss of spotted owls from significant parts of the species’ current distribution. Therefore, based on the known biology and environmental situation, and to maintain a high level of population viability for spotted owls, I am directing that special measures be taken to protect spotted owl habitats and populations outside of reserved areas. Unfortunately, there remains much information about spotted owls and their habitats that is unclear. This adds uncertainty to the decision. For example, we know only generally how much habitat is required by each owl pair in different parts of the planning area, how far and through what kinds of habitats young will disperse, and the long-term consequences of various combinations of population number and distribution on viability. Most of the information on these items is inferred from incomplete inventories and research, theories, models, and the professional judgment of scientists who have examined only parts of the entire situation for which policy is required. Because of this and the high value of the mature and old-growth forest resources at stake I am making this an interim decision of no more than 5 year’s duration, and directly tying it to the accelerated program of management, inventory, monitoring, and research on spotted owl habitats and populations. This decision will be reviewed at any time the Spotted Owl Research, Development, and Application Program provides sufficient information, but not later than 5 years from the date of this decision. Public response to the Final Supplement shows there is considerable debate about options that will remain to protect additional habitat at the end of 5 years under this direction. It is my judgment, based on the best available field information analyzed in the Final Supplement, that sufficient options will remain at the end of the 5 year period of this decision. This information shows there are currently 4,145,000 acres of spotted owl habitat in the National Forests of Oregon and Washington. At the end of 5 years, under this planning direction, there will still be about 3,965,000 acres of habitat, a net reduction of about 4.5 percent. Further, planned timber harvest will not so fragment the habitat as to preclude options to increase the long-term level of protection provided in future years should new information show that is necessary. Record of Decision, USDA Forest Service, pp. 3-4. 3. A study of the spotted owl undertaken by a blue ribbon panel of respected scientists for the National Audubon Society (1986) The National Audubon Society asked a blue ribbon panel of renowned experts on wildlife to assess the status and prospects of the spotted owl insofar as the current information allows, to specify priorities for future research, and to identify management strategies that would assure maintenance of a viable population over the long term. The panel included both ecologists and ornithologists, none of whom had taken part in the controversy over the spotted owl in the Pacific Northwest. The panel considered published as well as unpublished information, conducted a series of hearings, met with United States Forest Service representatives, and reviewed the relevant parts of the general literature concerning population genetics, demography, and the biology of extinct, threatened and endangered species. The published report was directed to prominent concerns and needs regarding the spotted owl over its range in Washington, Oregon, northwest California, and the Sierra Nevada, rather than dealing with the status of the spotted owl only in a particular administrative jurisdiction of any single agency. The report offers the following population estimates: Because the Spotted Owl is a secretive animal that inhabits relatively inaccessible sites, its precise number is not known. As concern over the owl’s viability mounted and research efforts increased, previous estimates were found to be asymptotic and there is no reason to expect previously undetected owls to boost the current figure substantially. E.D. Forsman (pers. comm.) testified that there are approximately 1500 Spotted Owl sites in Oregon, of which about half currently are definitely occupied by pairs; of the remaining half, some fraction is occupied. L.W. Brewer and H.L. Allen (pers. comm.; USDA Forest Service 1986) estimated 500-600 pairs in Washington. G.I. Gould, Jr., testified that there are about 1460 known sites (where a pair of owls has been observed, young have been found between May and September, or a vocal defense of the area has been heard or solicited) of both subspecies in California (the majority of which are in the range of the Northern Spotted Owl), and that there might well be about 2100 such sites in total. By no means all of these are inhabited; for the known sites, pairs have been seen recently in 41%. The Ministry of Environment in British Columbia detected just four sites occupied by Northern Spotted Owls in 1984 (USDA Forest Service 1986). Thus, it is likely that there are between 4000 and 6000 individuals in the Pacific states. Report of the Advisory Panel on the Spotted Owl, pp. 15-16. The report offers, in part, the following comments on extinction: One might argue that species composed of few individuals can persist over time and that several hundred pairs of Spotted Owls should be sufficient to preserve the species in the area dealt with in this report: Oregon, Washington, northwest California, and the Sierra Nevada. The Whooping Crane, Snail Kite, and, possibly, Kirtland’s Warbler ... might be regarded as cases supporting this viewpoint. However, such a conclusion would be spurious. Although numbers of cranes and kites have increased dramatically on a percentage basis over the past few years, their ranges remain so restricted and/or their habitats so specialized that a single catastrophic event could exterminate them. Similarly, the Kirtland’s Warbler continues to be extremely susceptible to an unpredictable event, either on its breeding or wintering grounds. Despite concentrated major efforts on its behalf, this species has not increased in numbers over the past 15 years. In short, the increased or stabilized numbers of these three populations probably should be viewed as no more than minor interludes on a time-numbers chart; the birds are almost as vulnerable to environmental perturbation as when their respective numbers were at their lowest. 4. General lessons What general lessons do species such as the Ivory-billed Woodpecker and/or Kirtland’s Warbler provide? (1) Species with specialized habitat requirements often are incapable of altering this behavior. (2) Habitat loss thus leads inevitably to decreased numbers. (3) The decreased numbers are likely to be accompanied by fragmentation into small populations. Once the small populations start being extinguished, recolonization of their sites is so infrequent that geographic range contracts. (4) Restriction of geographic range to one or a few sites leaves a species particularly vulnerable to extinction from environmental stochasticity. (5) Thus, once a severe decline in numbers owing to habitat loss begins, it can accelerate and quickly lead to extinction. (6) Low numbers of specialized individuals are highly vulnerable to new ecological factors, and such factors are often unpredictable. Who would have thought the Brown-headed Cowbird eventually would threaten the Kirtland's Warbler with extinction, or that the Barred Owl would expand its range sufficiently to overlap that of the Spotted Owl? (7) Once a species is reduced in numbers to some low point, its continued existence becomes increasingly precarious and large scale human intervention, often expensive, is required to prevent extinction (e.g., Kirtland’s Warbler, Whooping Crane). Even so, such programs may be unsuccessful (e.g., Heath Hen, California Condor). Although all of the species’ scenarios we have discussed above have points in common with and points in which they differ from the case of the Spotted Owl, the two species that stand out as the most instructive are the Ivory-billed and Red-cockaded Woodpeckers. In each case the bird has (or had) a broad geographic range but is (or was) restricted to old-growth forest. Such forest was originally widespread throughout the bird’s range, but was reduced in extent, becoming increasingly patchy. The Ivory-billed Woodpecker was eventually reduced to just one restricted population and the elimination of that population constituted extinction. The Red-cockad-ed Woodpecker is in the process of being reduced to small and increasingly isolated populations. Little imagination is required to see either the Red-cockaded Woodpecker or the Spotted Owl’s [sic] following a tragic trajectory similar to that of the Ivory-billed Woodpecker. Because this owl seems so highly dependent on old-growth forest in most of the area with which this report is concerned, because its reproductive rates are so low and variable, and because established adults are extremely sedentary, the possibility of its extinction as its habitat is further reduced must be taken seriously. The range of the Spotted Owl is still large, a circumstance making it appear that this bird is immune to the sort of catastrophe that ultimately befell the Heath Hen. But the Heath Hen, and, more analogously, the Ivory-billed Woodpecker once had large, continuous ranges and each of these was eventually' eroded to a point where only a single, narrowly distributed population remained. With these concerns founded on the fates of several North American bird species in mind, we urge conservatism and additional research (see VI.B) in development of management schemes for the Spotted Owl. The key point to be gained by review of the fates of other specialized North American bird species is that a conservative approach is essential. Currently available options must not be foreclosed. In particular, if the number of owls is reduced below some as yet undetermined minimum, extinction might ensue so quickly that no action could stop it. Id. at 24-25. The report offers the following recommendations: Most of the remaining habitat suitable for Spotted Owls in Oregon, Washington, northwest California, and the Sierra Nevada is on public land administered by several agencies, primarily the Forest Service. The management plan being developed by this agency will inevitably involve a reduction in habitat available for these owls as timber harvesting proceeds. The specialized habitat requirements of the Spotted Owl, which extensively involve old-growth Douglas-fir in northwest California and the Pacific Northwest, will undoubtedly make a decline in the population of this bird a prominent consequence of this reduction. Depending on the management alternative adopted, this could involve over half of the Spotted Owls currently living in this area. Such a conscious decision for population reduction to a critical level in a non pest species must surely be unique in the history of wildlife management. The current population of Spotted Owls in California, Oregon, and Washington already is as low or lower than some of the species or subspecies considered by the USFWS to be endangered. Historically, population declines and/or extinctions of North American birds precipitated by human actions have been based on ignorance of one sort or another. However, in this case a considered judgment of a federal agency could begin or accelerate an irreversible decline in the Spotted Owl in northern California, Oregon, and Washington. We caution that more may be involved here than the maintenance of a viable population of a single species of vertebrate. The role of the Spotted Owl as an indicator of the condition and extent of old-growth Douglas-fir forest inevitably links its status with that of some basic relationships concerning energy capture and nutrient recycling within old-growth that are probably of inestimable functional importance to the overall ecology of the Pacific Northwest. The Advisory Panel has attempted to be as risk-averse as possible in the development of its recommendations for Spotted Owls over the area of Washington, Oregon, northwest California, and the Sierra Nevada. While no recommendations can be risk-free, we do believe that ours give a reasonable chance of protecting the birds in the near term, as well as avoiding the foreclosure of options that may be needed as further information is obtained. The best prospect is the maintenance of a sufficient number of Spotted Owls over a broad enough area and it is this combination our recommendations are designed to provide. The crucial parts of our recommendations, of course, deal with the number and distribution of Spotted Owls that we judge to provide a reasonable prospect for maintaining a viable population in Oregon, Washington, northwest California, and the Sierra Nevada. Nonetheless, it is vital that we also offer guidelines concerning implementation of any management plan and the research needed to put management of the owls on the firmest basis possible. We therefore put forward our recommendations organized into three categories reflecting these conditions. B. Recommendations Concerning Numbers, Home Ranges, and Distribution of Spotted Owls (1) The management program for Spotted Owls in Oregon, Washington, northwest California, and the Sierra Nevada should be directed to maintenance of a minimum total of 1500 pairs of these birds (see III.C-E). This number is based on recent surveys indicating a confirmed population for this overall area of approximately 2000 pairs of Spotted Owls. The Advisory Panel believes that 1500 pairs is an absolute minimum for providing any prospect for long-term survival of the Spotted Owl in northwest California, the Sierra Nevada, and the Pacific Northwest. We are marginally comfortable with this number (which is similar to those characterizing several of the birds listed in Table III.l) only because the Spotted Owl has a widespread and relatively uniform distribution over this area, in contrast to the restricted distributions characterizing most birds currently regarded as endangered. Our numerical recommendation is thus predicated on the maintenance of this broad distribution. To put the minimum number of 1500 pairs in perspective, we must point out that it represents a decline of 25% from the presently confirmed level of 2000 pairs for the area to which our recommendation pertains. We believe that management proposals involving any smaller numbers of Spotted Owls are unrealistic and incapable of ensuring viability, especially in the absence of firm data concerning important aspects of the owl’s population dynamics. Regarding implementation of this recommendation, we assume that responsibility for maintenance and monitoring of the local populations of Spotted Owls must involve a broad spectrum of federal, state, and private organizations. The Forest Service manifestly will have to assume the lead role in these activities, by virtue of the extensive areas of habitat contained in the national forests. However, the Bureau of Land Management will also have a particularly vital role to play. Indeed, the completion of the habitat network critical to sustaining a proper distribution of the owls is heavily dependent on BLM lands in Oregon. (2) Current geographic distribution of the Spotted Owls in Oregon, Washington, northwest California, and the Sierra Nevada should be maintained through a habitat network system like that under development by the Forest Service and cooperating agencies (see III.D-E., IV., V.B., V.D.). As noted above, this recommendation is inseparable from that specifying the number of pairs of owls. All habitat management areas targeted for the network must have specific map locations that are readily identifiable by the public. The need is to provide immediately for a sufficient number of breeding pairs of owls. Because the present network system includes many habitat areas that are unoccupied by Spotted Owls, an equal number of “interim” home ranges with known breeding pairs should be added to the network until the areas originally included in the network plan are shown to contain breeding pairs. These interim home ranges should be compatible with the dispersal guidelines used to develop the network. To assure that the network is fully integrated, it is especially important that the segment of it on lands administered by the Bureau of Land Management between the Coast Range and the Cascades in Oregon be included. It is equally critical that all existing home ranges in the Shasta County, California, portions of the Shasta and Lassen National Forests be protected to sustain the linkage across State Highway 299 between the Sierran and northwest California segments of the Spotted Owl population with which we are concerned. Acquisition of private land containing active home ranges in this care could significantly contribute to maintenance of this linkage. (3) The view that an effective breeding population of500 always suffices to maintain sufficient genetic variability for subsequent evolution in a changing environment should be discarded from management formulations (see III.D). As we note in this report (III.D.1), the value of 500 for effective population size (Ne) rests on a poor model applied to one trait in fruit flies. No particular value of Ne can guarantee adequate genetic variability against all environmental contingencies. Moreover, one cannot specify the probability that sufficient genes will exist in a population of particular size without defining the magnitude and nature of the changes confronting it. Unfortunately, these changes cannot be forecast. Therefore all one can say is that the species may be endangered by insufficient genetic variability and that there are fewer alleles, other things being equal, in small populations than in large ones. The Advisory Panel believes that adverse developments for the Spotted Owl arising from demographic and environmental stochasticity are more immediate concerns than loss of heterozy-gosity and possible inbreeding depression. (4) Habitat areas that include 4500 acres (1823 ha) of old-growth forest should be retained for pairs of Spotted Owls in the Washington portion of the network. Habitat areas for accommodating pairs in Oregon and northwest California should provide 2500 acres (1013 ha) of old-growth. On the basis of preliminary information, we recommend that the figure for old-growth in the home ranges of pairs of Spotted Owls in the Sierra Nevada be 1400 acres (567 ha). (See IV.) Because certain home ranges with less than the prescribed area of old-growth forest are known to support breeding pairs of Spotted Owls, deviations from the prescription may be allowed, contingent on adequate documentation and approval of a standing committee of experts, the majority of which is drawn from neither the agency involved nor industry. Relaxation of these prescriptions concerning habitat areas should be permitted only if research establishes unquestionably the safety of such an action. Id. at 31-33 (emphasis in original). 4. An analysis of the population demographics of the spotted owl by Dr. Russell Lande (1985 and 1987) In 1985, Dr. Russell Lande released a scientific review of the population demographics of the spotted owl. Population demographics are important because they are the only means of looking at the species as a whole rather than looking at what happens to individual pairs of owls. Dr. Lande’s study in 1985 was specifically directed at owl populations on Forest Service lands. Dr. Lande’s report evaluated the likely effect of the Spotted Owl Management Plan proposed by the United States Forest Service for maintaining viable owl populations. Dr. Lande asserts in his report that the low juvenile survivor-ship of spotted owls may result in serious danger of extinction of the owls as a species in the near future. Dr. Lande explained that young spotted owls are fledged in the summer and disperse long distances in the fall (dozens of kilometers). Dr. Lande states that under primitive conditions, before historical settlement of the Pacific Northwest by white men, roughly sixty to seventy percent of the forest consisted of old-growth forests, with the remaining area in younger categories due to fire and other natural disasters. Dr. Lande notes that under the Forest Service Management Plan, described in the Regional Guide for the Pacific Northwest Region (1984), habitable territories for the spotted owl would comprise about six percent of the total forested area in the affected national forests. Dr. Lande concludes that it may not be easy for juvenile spotted owls to find habitable territory in such circumstances. Dr. Lande concludes: The Forest Service SOMP [Spotted Owl Management Plan] is based mainly on genetic considerations, which suggest that an effective population size of 500 is the minimum necessary to ensure the genetic variability required for adaptability and long-term survival of the population. However, as explained above, demographic analysis appears to be of primary importance for management of the northern spotted owl. For spotted owls the effective population size is about half the actual population size, mainly because of the large variance in reproductive success among individuals (Barrowclough and Coats, 1985). In planning for 500 SOMAs the Forest Service plan would meet the objective of an effective population size of 500, if every SOMA were always occupied by a breeding pair. However, a substantial fraction of habitable territories are now unoccupied. The SOMP fails to account for the expected decrease in the occupancy of habitable territories at demographic equilibrium caused by increasing the average distance between habitable territories. This increases the risk of death for dispersing juveniles, which should not be assumed to be perfectly capable of searching out and finding rare habitable territory. An effective population size of 500 is probably about the minimum necessary to ensure normal amounts of genetic variability in most characters, and adequate adaptability to changing environmental conditions, although it does not provide much of a safety factor (see Lande and Barrowclough, 1985). It should be stated that the documents from which the Forest Service drew this number are all based on a paper by Franklin (1980) which is predicated on the (admittedly) unrealistic assumption that natural selection is absent. Franklin’s number was itself derived from limited data on the maintenance of genetic variability by spontaneous mutation compiled by Lande (1976), and Franklin, aware of the limited data base and the simplistic nature of his derivation, was duly cautious about suggesting it. Although more thorough analysis has confirmed Franklin’s number as being about the right order of magnitude (Lande and Barrowclough, 1985) it should be emphasized that there is still substantial scientific uncertainty in it. On genetic grounds alone it would be possible to argue that the effective population size necessary to ensure long-term viability is considerably larger than 500, due to scientific uncertainty regarding the various parameters entering into its derivation. In view of the substantial scientific uncertainties involved, the practice of managing rare populations down to the minimum size recommended by experts (without a substantial safety factor added) is probably dangerous to their survival, especially when, as in the present case, little allowance has been made for possible demographic problems. V. Conclusion From the available information on the life history and demographic characteristics of the northern spotted owl, I conclude that under current conditions the population of the spotted owl may already be declining and in danger of extinction within the next century. Further habitat alteration, as planned by the U.S. Forest Service, is very likely to cause the extinction of the spotted owl from the management area on a shorter time-scale. Report on the Demography and Survival of the Northern Spotted Owl, pp. 24-26. 5. An analysis of the spotted owl prepared by a team of BLM’s biologists (May 8, 1986 and January 16, 1987) On May 8, 1986, the BLM issued its own “Northern Spotted Owl Analysis.” This analysis reported, in part: The Bureau is harvesting 200 year old and greater forests at the average rate of 15,000 acres per year. At this rate the old-growth will be gone from the Salem, Eugene, and Coos Bay Districts in 20 years, the Roseburg District in 30 years, and Medford in 40 years. In California, at current harvest levels, it is estimated old-growth forests will be depleted in 20 years. Federal agencies manage 4,700,000 acres of old-growth forest land (95 percent). Therefore, any action taken by Federal land managers has a large impact on the spotted owl habitat. Conversely, private, state, and tribal actions have very little. In Oregon, Bureau interim protection measures resulted in identification and interim establishment of 90 spotted owl management areas (SOMAs). Seventy nine SOMAs are located in older forest retention and other set-aside areas, and the remaining 11 are temporarily being protected outside of ... these retention areas, without reducing allowable cuts. Based on Oregon Department of Fish and Wildlife analysis in 1985, of the 90 SOMAs, they found the average SOMA contains 800 acres of older forest type, and range in size from 24 to 1,311 acres of this type. B. Population The spotted owl currently remains widely distributed in suitable habitat throughout its recent historical range. The best population estimate is that 1,500 to 2,500 occupied spotted owl sites exist within the species range. Available evidence indicates that the population is declining throughout its present range in Washington, Oregon and California. No owl population trend data is available for British Columbia. Inventory and monitoring data suggest a range of one to four percent annual population decline that varies by state. However, the data is weak on this subject due to annual differences in inventory and monitoring efforts. The major factor in this decline is fragmentation of habitat due to timber harvesting.... There is no evidence that indicatefs] biological factors, i.e., disease, adult mortality or predation, are exhibiting any major unnatural impact on the survival of spotted owls. Cumulative inventory and monitoring records that have been compiled on the spotted owl population during the last 10 years may have left the false impression that the owl population is stable to increasing. However, several factors must be considered; (1) new owl sites are being found but no new habitat is being created, (2) owls often just shift to adjacent habitat or disappear after logging, (3) adult owls appear to have a low mortality rate, (4) sites where owls were once located often remain on monitoring records long after the habitat is removed, (5) adult owls may remain in their habitat area long after logging has eliminated suitable habitat (site tenacity). Data is lacking on the demography (life expectancy, reproductive age, sur-vivorship, age structure, longevity, population trend, age at first breeding) of spotted owls due to the short time frame which research has been directed at answering these questions. It is known that there is a high annual fluctuation in the percent of the population that breeds. In Oregon, a high percent of breeding failures were reported during the following years[:] 1982, 1984, and 1985. Documented nesting success of spotted owls has ranged from 16 to 89 percent in Oregon and 0 to 45 percent in California. It is suspected that prey abundance and availability may have an important relationship between spotted owl habitat selection and reproductive success. Ongoing research being conducted through the Old-Growth Forest Wildlife Habitat Program, Pacific Northwest Forest and Range Experiment Station may provide a better insight into the relationship between the fluctuations in spotted owl reproduction and prey availability. During the years 1982-1985 over 100 juvenile spotted owls have been tracked, using radio telemetry techniques in Oregon, Washington, and California, Juvenile owl mortality has approached 100 percent during the last three years of dispersal studies. It has not been determined if any of the young owls were recruited into the adult breeding population. Most of the owls died or were lost during the studies making it virtually impossible to document meaningful juvenile survival rates. However, it is estimated that current juvenile survivalship is below the level needed to maintain a stable population. The dispersal studies have contributed valuable information on juvenile dispersal. Research has shown that juvenile owl dispersal is random in direction and ranges up to 62 miles with the average distance in the 15 to 28 mile range. The research findings and other general observations of juvenile owls have shown that they frequently cross open habitats to reach blocks of mature and old-growth forests. The young owls do not seem to select any particular habitat types in these open areas for roosting and foraging and frequently succumb to predation and starvation. The open habitats may be effective barriers to dispersal and the owls’ use of these areas may contribute to the high mortality rate. There is speculation that radio transmitters placed on juvenile owls may be a cause of mortality. This subject needs further research. Mammals, and particularly flying squirrels, woodrats, red tree voles and deer mice, comprise the highest percentage of the spotted owls’ prey base. All the species were found to use old-growth Douglas-fir/western hemlock forests for optimum breeding and foraging habitat. Wo