Court: Oregon Illegally Denied Marbled Murrelet Endangered Species Protections

EUGENE, Ore.— An Oregon judge has issued a decision concluding the Oregon Fish and Wildlife Commission violated Oregon law in denying a petition filed by five conservation groups demanding the commission uplist the murrelet from threatened to endangered under the Oregon Endangered Species Act.

Lane County Circuit Court Judge Lauren Holland concluded the Fish and Wildlife Commission illegally changed its decision after first voting to accept the petition to list the murrelet as endangered.

The groups petitioned the commission to uplist the marbled murrelet in 2016. The commission voted 4-2 in February to accept the petition to increase the seabird’s protections, concluding the marbled murrelet was likely to go extinct in the foreseeable future. The commission then instructed the wildlife agency’s staff to begin development of mandatory species survival guidelines as required under Oregon law.

But, after a change in its membership, the commission reversed itself without explanation, and voted 4-2 in June to deny the petition it had accepted just four months earlier.

“Oregon’s desperate struggle to avoid protections for the marbled murrelet ignored science, the law and ODFW’s mission to protect Oregon’s imperiled wildlife,” said Nick Cady, legal director at Cascadia Wildlands. “Our Governor needs to step up and meaningfully address her agencies’ cowering demeanors when it comes to regulating private industries in Oregon. This active neglect of duties towards imperiled species left the marbled murrelet on a path toward extinction in Oregon. It is a shame that we even need the court to address these issues.”

The marbled murrelet is a small seabird that nests in old-growth and mature forests and forages at sea. Its population has declined dramatically in recent decades due to extensive logging in Oregon’s coast range.

It was listed as threatened under the Oregon Endangered Species Act in 1995. However, Oregon has allowed intensive clearcut logging to continue in marbled murrelet habitat on lands owned and regulated by the state. Uplisting to endangered status would require the state to develop a management plan and survival guidelines, providing much-needed protections for the species.

“There can be no question the marbled murrelet is endangered in Oregon,” said Noah Greenwald, endangered species director at the Center for Biological Diversity. “Logging, warming seas and a host of other factors are all taking a toll on this far-flying seabird. We’re so glad the court rejected the Oregon Fish and Wildlife Commission’s wrongheaded reversal of its decision to uplist the murrelet to endangered.”

In 2017, responding to the petition from conservation organizations, ODFW conducted a status review to assess the murrelet’s condition. The review demonstrated that murrelets need increased protection under the Oregon Endangered Species Act, due largely to loss of nesting habitat from ongoing clearcut logging on lands managed by the state of Oregon.

“This decision is a win for marbled murrelets and for Oregonians who care about protecting biodiversity in the Pacific Northwest,” said Quinn Read, director of the Northwest program at Defenders of Wildlife. “The Commission’s attempt to deny protections for this imperiled species undermined fair and transparent public process and disregarded overwhelming science. The court is now holding the commission accountable to science and the urgent need to protect our native wildlife.”

The status review provided copious evidence from multiple peer-reviewed studies that murrelets are at serious risk in Oregon. The best available science predicts the extinction probability at 80 percent by 2060 along Oregon’s central and north coasts and 80 percent by 2100 along Oregon’s south coast. California and Washington have already classified murrelets as endangered.

“The ODFW Commission’s reversal of its decision to uplist the murrelet to endangered was outrageous and had no basis in either science or law,” said Bob Sallinger, conservation director for Portland Audubon. “It is time now for ODFW to do what they should have done more than a year ago and uplist the murrelet to endangered and put in place measures to reverse its decline toward extinction.”

Judge Holland concluded that after voting to accept the petition to uplist the marbled murrelet to endangered status under Oregon law – an officially stated agency position under the law – and then subsequently voting to deny the petition, the commission was required to explain the contradiction between the two decisions. Because the commission offered no explanation, the decision to deny the petition violated Oregon law. Holland concluded the commission failed to provide a written basis denying the uplisting petition.

“We are in the midst of a global extinction crisis. Oregon will not be able to confront that crisis and protect our native wildlife if our leaders are willing to ignore science, the public and even their own rules to appease the timber industry,” said Danielle Moser, wildlife program coordinator for Oregon Wild.

“The best available science tells us that murrelets in Oregon will go extinct in the near future unless we take immediate action to rectify the biggest threats to the murrelet’s survival. The uplisting petition was aimed at doing that,” said John Mellgren, wildlife director for the Western Environmental Law Center.

The conservation groups in this case are represented by attorneys from Cascadia Wildlands, Western Environmental Law Center, and the Center for Biological Diversity.

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It has been nearly 20 months since Cascadia Wildlands, Oregon Wild and Center for Biological Diversity were granted an injunction against the state killing wolves in Oregon. Prior to filing the case, two things became clear: 1) the state of Oregon was becoming more comfortable killing endangered wolves, and 2) not enough was being done on the ground to prevent conflict between livestock and wolves. So we litigated and stopped the lethal control, protecting the approximately 14 wolves in Oregon at the time.

On May 23, Cascadia Wildlands and Oregon Wild settled the case after 17 months of significant negotiation with the Oregon Department of Fish and Wildlife, Governor John Kitzhaber’s office and the Oregon Cattlemen’s Association. This agreement will have positive and lasting implications for wolves and expedite their remarkable recovery back into Oregon.

The settlement agreement is profound for Oregon wolf recovery in a number of ways:

1) It incentivizes responsible livestock husbandry. In order for a livestock depredation to qualify toward the “chronic depredation” threshold, which can trigger lethal control, the new plan requires livestock producers to use pro-active and non-lethal techniques to reduce conflict between wolves and livestock. Examples include removing wolf attractants such carcass and bone piles, using electrified fencing, employing human presence while livestock grazes on the open range, and protecting herds at their most vulnerable times, like during birthing, and nursing. It also requires the creation of an area-specific conflict deterrence plan by the state and livestock producers that best fits the particular depredation situation. Prior to the injunction, there was not a clear action plan to be followed to reduce conflict.

2) It redefines “chronic depredation.” “Chronic depredation” is now defined as four depredations by the same wolf or wolves reasonably believed to be responsible for the incidents within a consecutive six-month period. Prior to the settlement, “chronic depredation” was defined as two livestock depredations over an unspecified period of time in an undefined area.

3) It requires public accountability.  Unlike prior to the injunction, the Oregon Department of Fish and Wildlife must now make information readily available to the public at least on its website, including maps of “areas of known wolf activity” and “areas of depredating wolves,” livestock depredation investigations, non-lethal and proactive techniques used by livestock producers in each incident, area-specific conflict reduction plans, and lethal control requests. Prior to the injunction, we were met with resistance trying to obtain this kind of critical information, and when public information requests were made, released information was incomplete.

In addition to these notable gains, the agreement sets the stage for gray wolf recovery in the rest of Oregon and the region because this new rule governs the western recovery zone of Oregon (west of Hwy 97/20/395) even after recovery objectives are met in the eastern recovery zone (east of Hwy 97/20/395). This transition from Phase I to Phase II of Oregon wolf recovery is expected by 2015 when we will likely have at least four breeding pairs of gray wolves for three consecutive years in the eastern zone. (Per the Oregon Wolf Plan, a breeding pair is defined as a pack with at least two pups that survive through the calendar year.) Having this new rule in place in the western recovery zone of Oregon will be critical to ensure wolves advance into the Cascades, Coast Range and Siskiyous, and ultimately, California.

Some will ask why we opted to lifted the stay on wolf killing and settle the case. The answer is fairly simple: It is our job to do what is best for wolf recovery in the state and region, and to do this, we keep as informed as possible, read the politics, and then make decisions. All indications pointed to legislation likely to pass into law in Salem that would moot the stay and reinstate the plan we originally challenged. This outcome would mean more dead wolves more often and take us back to square one. Instead, we leveraged the stay against killing wolves as much as reasonably possible in the negotiation to get an outcome that is profoundly better for wolf recovery. Moreover, the new agreement garnered buy-in from the livestock industry, and now all the stakeholders know exactly what is expected on the ground in order to get to the newly defined “chronic depredation” threshold.

Today, there are approximately 50 known wolves in Oregon across seven packs clustered in the northeast portion of the state. When this year’s crop of pups emerge from their natal dens in the next few weeks, this new historic agreement is expected to be locked into place and will likely provide a management template for other states who are beginning to see wolves return. As a consequence, we believe this agreement will help reduce conflict on the ground and predict the wolf population in Oregon will expand sooner into places like the John Day, Three Sisters, Crater Lake, Klamath Basin, Kalmiopsis and other famed landscapes that evolved with wolves for millennia.
 

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