Animal Habitats in Harm's Way
Dill, Starla K., Environmental Law
Timber harvest and ecosystem preservation are at the center of the dispute in Sweet Home Chapter of Communities for a Great Oregon v. Babbitt (Sweet Home III).(1) Environmentalists who seek protection and preservation of the northern spotted owl represent one side of the conflict, while logging community associations who seek economic security represent the other side.
The ancient forests of the Pacific Northwest contain giant conifers(2) that are both an economic resource and an invaluable ecological asset. These trees are a valuable resource for timber harvest, which supports part of the State of Oregon's economy.(3) By 1978, several analysts had anticipated a shortage in timber supplies from public lands in the Pacific Northwest.(4) The analysts attributed the projected shortage to the exhaustion of ancient forests.(5) At least one study also expected a decline in timber supply from private lands.(6) The listing of the northern spotted owl(7) in 1990 under the Endangered Species Act (ESA)(8) exacerbated the growing concerns about timber shortages because it was expected to restrict timber harvests.
The trees also maintain forest ecosystems that are rich in biodiversity.(9) Some scientists believe that the largest threat to spotted owl survival is the elimination of habitat.(10) Northern spotted owls generally occupy old-growth or mixed old-growth/mature forests(11) because older forests tend to have the structural attributes that owls need for nesting.(12) Owls prefer to forage for food in older forests and often avoid crossing clearcuts.(13) The owls instead fly through corridors of pristine forested land in order to reach areas that are suitable for foraging.(14) In response to the threat of habitat destruction, the scientific committee that developed the conservation strategy for the northern spotted owl called for preservation of large blocks of ancient forest habitat.(15)
Logging communities, however, have competing concerns about harvesting the remaining ancient forest areas. Private forest landowners, businesses, and logging communities are concerned about "jobs.... a viable tax base to support community services, and the equity of life that goes along with economic well-being."(16) In response to these concerns, many small logging communities banded together in associations to offer each other support during difficult economic times.(17) One such organization is the Sweet Home Chapter of Communities for a Great Oregon, which is one of the plaintiffs who challenged the Fish and Wildlife Service (FWS) regulation at issue in Sweet Home III.(18)
This Note explores the conflict between ecology and economy in the context of the current split among the circuits regarding the FWS regulation that defines "harm" under the ESA.(19) In the Palila cases,(20) the Ninth Circuit decided that habitat modification that indirectly injures or kills wildlife falls within the ESA's definition of "harm," and thus is a prohibited taking.(21) The Ninth Circuit therefore supported the definition of "harm" as defined in the FWS regulation. In Sweet Home III, however, the D.C. Circuit invalidated the regulation.(22) The U.S. Supreme Court recently granted certiorari(23) to hear Sweet Home III, so will soon resolve the split between the circuits.
The remainder of Section I explores the background to the legal controversy in Sweet Home III. It provides a brief overview of the ESA,(24) examines the Ninth Circuit's position in Palila with respect to the FWS definition of harm,(25) and outlines the procedural facts of the Sweet Home cases.(26) Section II then examines the D.C. Circuit's legal arguments in Sweet Home III and analyzes the majority's use, or rather lack of use, of Chevron U.S.A. v. Natural Resources Defense Council27 in resolving the case.(28) This Note concludes that the majority in Sweet Home III misapplied Chevron, and that the Supreme Court should uphold the FWS regulation as a reasonable interpretation of the ESA. …