Spotted Owl Crisis Prompts First Legal Test of Canada's Species Law

VANCOUVER, British Columbia, Canada, December 7, 2005 (ENS) - Only 23 spotted owls remain in British Columbia, and Tuesday environmental groups filed the first legal action of its kind under Canada’s Species at Risk Act, seeking federal government intervention to protect the critically endangered bird.

Sierra Legal Defence Fund is representing the Western Canada Wilderness Committee, David Suzuki Foundation, ForestEthics and Environmental Defence in the application for judicial review before the Federal Court of Canada.

“We will not sit on the sidelines and watch the B.C. government log the spotted owl’s habitat until this creature disappears from Canada,” said Joe Foy of the Western Canada Wilderness Committee. “We are demanding Canada’s Minister of the Environment enforce the law to protect animals such as the spotted owl.”

In 2005, B.C. government biologists found only 23 owls, an 84 percent decline in the past decade. The main threat to the owls is the loss of their old-growth forest habitat. The British Columbia government, through its Timber Sales Program, is the largest logger in owl habitat.

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One of the few spotted owls remaining in British Columbia, the only place in Canada where the species is found. (Photo by Art Wolfe courtesy Sierra Legal Defence Fund and Western Canada Wilderness Committee)
Under the three year old Species at Risk Act, if a province does not take adequate action to protect species, the federal government can step in using an emergency provision. The legal action seeks to force Canadian Environment Minister Stephane Dion to use the emergency provisions of the law to protect the spotted owl in British Columbia.

“This is the first test of Canada’s Species at Risk Act. The federal government told Canadians that no endangered species would fall between the cracks. Today we are asking that this promise be kept,” said Sierra Legal Defence Fund lawyer Devon Page, who will argue the case in federal court. “If the spotted owl situation is not an emergency, then nothing is."

This move to the federal court comes after the Sierra Legal Defence Fund has exhausted all legal avenues in British Columbia’s Supreme Court and Court of Appeal. Although the legal cases started with a success – the first injunction in Canada halting logging in endangered species habitat – later court decisions found that B.C.’s laws were inadequate and provided the spotted owl with no protection.

Historically estimated at 500 pairs, spotted owls once thrived in southwestern British Columbia, the only place in Canada where they exist. The B.C. Spotted Owl Recovery Team predicted 10 years ago that the owls could go extinct by the year 2010 unless logging in their habitat was halted.

The issue is complicated by the fact that British Columbia is hosting the 2010 Winter Olympic Games and does not want negative publicity about spotted owl extinction to cloud its reputation while the world's attention is focused on the province.

Last week, B.C. Environment Minister Barry Penner claimed on BCTV that industrial logging can benefit the spotted owl because it opens up the forest letting more light in, which in turn increases the growth of plants and grasses that rodents and rabbits eat, and that the owls can then feed on these species.

The minister was responding to Foy of the Wilderness Committee, who had escorted a BCTV camera crew to a proposed logging operation in spotted owl habitat near the town of Hope.

"When I saw Mr. Penner’s comments on TV I was shocked," said Foy. "After all, this is the guy in charge of recovering the spotted owl. The ignorance he displayed was nothing short of spectacular. It’s tragic really. There is so little time left to act and our environment minister doesn’t have a clue about what is needed to protect this species."

Spotted owls do not depend on rabbits for prey and logging of their old-growth forest habitat is considered to be the biggest cause of their decline.

Conservationists are calling for an end to old-growth logging within the Canadian range of the owl bounded by Vancouver, Mission, Chilliwack, Hope, Lytton, Boston Bar, Lillooet, Pemberton, and Whistler.

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Logging slash left after timber company operations in Anderson River Valley. October 2003. (Photo courtesy Western Canada Wilderness Committee)
Logging in spotted owl habitat continues today. Page said logging has been approved by the B.C. government in shrinking owl habitat at Seaton Lake south of Lillooet, and approved for Anderson River Valley north of Hope - in the same place that was the subject of a court case two years ago. "We were able to reduce the area that was set aside for logging, but the court did give them some discretion, and now they went back in there," Page said.

The federal court case is the last legal avenue for defending the spotted owl. If won, the case may create sufficient pressure to bring about provincial or federal action to protect other species at risk. If lost, the case will at the very least expose British Columbia’s and Canada’s weak laws and shameful record in protecting its declining biodiversity, said the plaintiff groups in a report issued Tuesday concurrently with the announcement of legal action.

The report, "In Defence of Canada's Spotted Owl," details the provincial government's attitude towards spotted owl recovery.

In October 2004, seven months before a provincial election, the BC Liberal government led by Premier Gordon Campbell created a Species at Risk Coordination Office (SARCO) to, they said, address mounting public concern for the future of three endangered species: spotted owl, mountain caribou and marbled murrelet. The government announced that the Office’s mandate included “collaborating across government to ensure B.C.’s approach to the management and, where appropriate, recovery of provincial species at risk is second to none.”

"Considered by conservationists to be a hollow gesture by a government wishing to 'green' itself before an election, SARCO was hamstrung at the outset by insufficient funding, a lack of expertise, and high-level political intransigence regarding species protection," the report states.

"Recovery of species at risk, far from being 'second to none,' now is second to furthering 'B.C.’s ability to attract and support investment' while providing 'one-stop shopping' for businesses concerned with accessing Crown lands," according to the report.

SARCO prioritizes species for recovery based on whether globally significant populations exist in or outside of British Columbia.

The conservation groups maintain that SARCO intends to apply its “global filter" to eliminate the provincial government's responsibility to protect species at risk because the vast majority of BC’s endangered species are on the periphery of their range or “not globally significant.”

For a provincial species at risk to be considered as a top priority for protection by SARCO it would need to be an endemic population that only existed in British Columbia.

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Barry Penner is minister of environment for British Columbia. He represents Chilliwack, part of the region where spotted owls were historically found. (Photo courtesy Office of the Minister)
The groups say this approach is "neither biologically defensible nor morally responsible." They say it contravenes the United Nations Convention on Biological Diversity, Canada’s ratification of which BC supported, as well as the Canadian Species at Risk Accord, which BC ratified, in which the provincial government promised to maintain healthy populations of wild and native plants and animals across their natural geographic range.

"This represents a radical shift from a rational, scientifically defensible conservation approach to a narrow economic approach, underscoring both the ideological limitations of SARCO and the government’s intention to ignore the basic biological requirements of British Columbia’s over 1,300 species at risk," the report states.

The prevention of further extinctions is a minimum expectation for Canada’s national endangered species law, says Dr. Rick Smith, executive director of Environmental Defence. “If the Species at Risk Act cannot prevent the spotted owl from being snuffed out in our country, it’s not worth the paper it’s printed on.”

"We want the minister of environment to make an emergency order under the Species At Risk Act to protect the owl," said Smith in an interview.

"The Spotted Owl Recovery Team in B.C. has developed an array of options for owl conservation. That report was released over 10 years ago, yet none of those options has been pursued," Smith said.

"As recently as 2003, the Spotted Owl Recovery Team recommended interim emergency measures including a limited moratorium," said Smith, "but the B.C. government did not adopt these measures."

Page says the federal court will not be ready to hear the application for at least six months, but the conservation groups field their legal action Tuesday because they "wanted a strong position out there" as they had heard the provincial government would discuss its options on the spotted owl conservation issue today.

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Old-growth forest is the only habitat that supports spotted owls in British Columbia. (Photo courtesy University of Northern British Columbia)
On October 3, environmental organizations met with representatives from the Species at Risk Coordination Office to discuss recovery strategies for the spotted owl. At the meeting, SARCO presented four options they were considering to address the spotted owl crisis.

The options ranged from protection and recruitment of habitat, complemented by population augmentation (such as captive breeding), to deferring or eliminating additional habitat protection and relying almost solely on captive breeding.

Conservationists pointed out that to recover the spotted owl to a sustainable population of 125 pairs, habitat protection, combined with population augmentation, is "the only scientifically credible option."

The environmental groups say their application for judicial review is a far-reaching action. “This is about more than 23 spotted owls,” said Panos Grames of the David Suzuki Foundation. “Hundreds of other endangered and threatened plant and animal species all across Canada can fall through this same loophole if it is not closed.”

In the United States, the Seattle and Kittitas Audubon societies have launched a similar lawsuit and will join forces with the Canadian efforts. On November 3, the Washington groups sent a 60 day notice of legal action to the Washington State Department of Natural Resources, the U.S. Department of the Interior, the U.S. Fish and Wildlife Service, and officials of U.S. Timberlands Company, which is logging in owl habitat.

The Audubon groups are asking that the timber company and the state agency "immediately enter into discussions with them to review the adequacy of state forest practice regulations to prevent harm to owls."

If discussions do not occur or do not appear to be leading toward successful revisions of the current spotted owl management scheme, Audubon says it intends to ask the U.S. District Court to enjoin logging activities and the permitting of logging activities that cause take of owls in the state.

In British Columbia, the government is not living up to its obligations under the national accord for species at risk that commited all provinces and the federal government to work together to conserve endangered species, said Smith. "This issue the most simple imaginable - is the government of Canada going to the let the species go extinct or not?"