Endangered Species Law & Policy

In a recent decision, the U.S. Court of Appeals for the Ninth Circuit affirmed (pdf) that the U.S. Fish and Wildlife Service’s (Service) permit allowing take of the barred owl (Strix varia) to protect the threatened Northern spotted owl (Strix occidentalis caurina) did not violate the Migratory Bird Treaty Act (MBTA).  The U.S. District Court for the District of Oregon held that nothing in the MBTA limits take of a species for scientific purposes to only those situations where the research is aimed at conservation of the species taken.

The case arose from the Service’s 2008 Recovery Plan for the Northern spotted owl, a threatened species under the Endangered Species Act.  While the Recovery Plan recognized loss of old-growth forest habitats as the principal reason for the spotted owl’s decline, it included a component for the design and implementation of experiments in key northern spotted owl territories to assess the effects of barred owl removal on spotted owl recovery.

For the study proposed by the Recovery Plan, the Service proposed an experiment that would involve both the lethal and non-lethal take of approximately 3,600 barred owls over a four year period.  Friends of Animals and Predator Defense (Friends) filed suit, alleging that the scientific experimental take permit violated the MBTA.  Friends asserted that, under the MBTA, a permit for take for a scientific purpose was allowed only where the action was intended to advance the conservation of the species likely to be taken.  Because the Service issued the permit to allow take of barred owls for the purpose spotted owl recovery, Friends claimed the Service failed to satisfy the scientific purpose requirements.

The Ninth Circuit disagreed.  It held that the MBTA itself actually imposed few substantive conditions.  Instead, the MBTA delegated broad authority to the Secretary of the Interior to implement its mandates.  The Ninth Circuit panel held that the used for scientific purposes exception permitted under international conventions addressing take of migratory birds, which the MBTA implements, includes taking of birds for study.  The Ninth Circuit further found that the exception applies regardless of whether the birds taken for scientific study benefited conservation efforts related to another protected bird species.