Throughline - The Spotted Owl

Episode Date: November 26, 2020

The story of how the Endangered Species Act went from unanimous passage under a Republican president to becoming a deeply partisan wedge. The act was passed to protect big, beloved animals like bald eagles and blue whales; no one thought it would apply to a motley, reclusive owl. In this episode from Oregon Public Broadcasting's Timber Wars, a story about saving the last of America's old growth forests and the push to roll back environmental protections.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Support for this podcast and the following message come from Autograph Collection Hotels, with over 300 independent hotels around the world, each exactly like nothing else. Autograph Collection is part of the Marriott Bonvoy portfolio of hotel brands. Find the unforgettable at AutographCollection.com. Hey everyone, this week we're going to bring you something a little different. It's an episode from a podcast series we really liked called Timber Wars. It comes from Oregon Public Broadcasting and was one of a handful of projects that NPR picked to go through its Story Lab incubator, which is pretty cool.

It's the story of old growth forests, a motley, reclusive owl, environmentalists, and the logging industry, and how they all converged in the 1990s to make the Pacific Northwest a battleground. A hugely divisive political battleground. When we come back, how the spotted owl found itself the most controversial bird in the nation. And how that bird galvanized the fight between industry and those who wanted to protect the environment. the WISE app today or visit wise.com. T's and C's apply.

Just to set you up, in the previous episode, we learned about the complex ecological wonders that are old growth forests from one of the first scientists to study them, a guy named Jerry Franklin. By the time scientists like Jerry Franklin and Norm Johnson knew enough about old growth to make an argument that it shouldn't be cut down, they were almost out of time to make that argument. The Pacific Northwest was cutting about two square miles of old growth every week, and it was becoming clear that environmentalists could slow down logging, but they couldn't stop it. One of their few early victories was a lawsuit protecting old growth on steep slopes in the Mapleton Ranger District to prevent landslides.

Well, after we won the Mapleton case, I was sitting in my office about a month later, and my colleague walks and he says, okay, you've been sitting on your ass for a month. This is Andy Stahl, one of the architects of the Mapleton case for the National Wildlife Federation. What's next, Stahl? And I said, well, it's funny you ask that. We protected a ranger district. We could jump to protecting a whole national forest, or we could go region-wide. And I have some ideas about how we might do that. He said, tell me more. And I told him the spotted owl theory.

The spotted owl theory was the idea that you could save the trees by protecting an animal that depended on those trees, ideally something that needed every last acre of old growth left to survive. It was an idea that would eventually change everything, but not everyone wanted things to change. The timber industry, of course, hated this idea, but the environmental community was afraid of it. There were concerns that the spotted owl was a bridge too far and that it would bring down the whole Endangered Species Act and environmentalism writ, would die.

From Oregon Public Broadcasting, I'm Aaron Scott. And if you came into this series knowing anything about the Timber Wars, you probably knew about the spotted owl. Because it's either the hero of this story or the villain. The species that saved the trees or ruined rural economies. But the thing no one talks about is just how risky it was for environmentalists to put all their eggs in the spotted owl's nest. So today, we're going inside the long-shot strategy that maybe paid off, maybe didn't, but forever changed not just the Northwest forests, but the entire conservation movement.

At the time, did you want to go work for the Forest Service, or did you want to be a biologist, or did you know? I was kind of figuring it out at that point. I was going to school, and I was in the wildlife department at Oregon State University. The story of the spotted owl starts in the summer of 1969 when a college student named Eric Forsman was working at a Forest Service guard station east of

Eugene called Box Canyon. We drove up there so he could show me exactly where it all happened. This is the Box Canyon meadows here. His job at the time was to check on trailheads and hikers, keep tabs on loggers, and pick up trash at the campgrounds. A stench of fish guts in a garbage can.

Nothing worse. Worse than the porta-potties. Oh, yeah. A rotten garbage can full of rotten fish guts. This is horrible. Nobody here. Sweet home. We get out, and he walks me over to the wooden cabin he spent the summer in.

It's exactly as you'd imagine. Well, the guard station, I mean, it's pretty small. It's about 15 feet by 30 feet long. A little single-story guard station. It has a front porch with an overhang. In the evenings, Eric would sit on that porch and just listen to the forest. I was sitting here one evening, and I heard off over in this direction, down the road there, I heard this kind of cow, cow, cow, cow kind of call.

At first, it sounded almost like a dog barking. I thought, what the hell is that? So he started imitating the call, and it answered. The owl talked back to him. So he kept hooting over the next couple of nights, and eventually a pair of birds flew down and landed in the front yard of his little cabin, just sort of checking them out. It wasn't the first time a scientist had seen a spotted owl, but it was close. What at the time did we know about them? Almost nothing. In Oregon,

in 1970 or 69, when I first found these birds, there were only like 25 historic records of spotted owls in Oregon. There had never been a nest found. They had seen young at one site, but essentially nothing known about their abundance or very little known about their diet. Eric was still just an undergrad, but he knew enough to know that this was a rare species. And studying it would be a chance to make a real contribution to science. So he and a friend started driving around old logging roads at random, hooting into the night, trying to figure out where these owls lived. Where could he find them consistently? Eventually, the project became his graduate thesis at Oregon State University.

I spent two years, almost three years, running all over western Oregon trying to find as many spotted owls as I could. Studying the spotted owl was groundbreaking work. Not only because so little was known about them, but at the time, no one else would even bother to study owls comprehensively. Up to then, wildlife biologists had mostly been interested in the resources a forest could offer, like they were trying to survive on the Oregon Trail. And I know that sounds like a joke, but in 1969, we were only 100 years removed from covered wagons. Hunting and fishing were still a common way to feed the family. So scientists studied deer and elk and other game animals that you could shoot and eat. Eric, on the other hand, was gathering basic information about the owl's habitat, range, diet, and mating habits just to gather it. It was the dawn of a new era of biology. What we found was, totally surprised to us, these owls were

unlike anything else that had been studied up to that point. The owls apparently had no fear of humans. Not only would they come if you hooted, which turns out was actually a territorial thing, but if Eric gave them a mouse, they would take it and fly directly back to their nest, making them very easy to track and study. Particularly the young ones, they'll follow you around like a dog. I mean, they just, they see this thing that they've never seen before, and they'll actually follow you through the woods, just, you know, looking at you and bobbing their head. So they were friendly and cute.

The first time Eric found a nest, one of the chicks looked sick, so he took it home with him. And so she imprinted on humans, which screws them up for life, basically. So Eric had found a bird that came when you called for it, led you straight to its nest, and was a pretty good ambassador for the forest if it happened to imprint on humans.

Like, I took her to, I don't know how many grade schools to talk to little kids, you know, and I'd hold her and they'd get to walk by and touch the owl so I could take her, turn her loose let her fly around the room, you know, and people could get to see a spotted owl up

close. I think it was a it was a great thing in terms of introducing people to the species that otherwise never would have seen one. For his dissertation, Eric moved into a trailer at the Andrews Experimental Forest, and he started fitting the owls with tiny harnesses that contained radio transmitters.

After tracking them for a year, he discovered that there was a place that he could reliably find spotted owls. They lived, almost exclusively, in old-growth forests in the Pacific Northwest. He was the first to associate spotted owls with old forests. And that brings us back to Andy Stahl, the guy with the spotted owl legal theory. Where Eric's skills then became inadequate to answer the bigger question was statistical modeling, mathematical demography, the sorts of things that were later brought to the table that could take Eric's natural history information and turn it into models that predict population changes. Where Eric had harnessed owls to gather data,

Andy wanted to harness data to protect owls and the trees they lived in. His formula for doing that had two ingredients. First was an in-depth understanding of science. And second was an in-depth understanding of the law. And if we combine those two things together, we could move the world. But it wasn't clear at first that the spotted owl was the right animal to move the world. At the time, the Forest Service was saying that you only needed 500 nesting pairs to maintain genetic diversity. And each pair needed 1,000 acres.

So do the math, and you were going to protect, at most, 500,000 acres. Which wasn't a lot. And that left Andy with a question. What was the basis for saying that 500 pairs of spotted owls were sufficient to maintain a sustainable population. Did I read it was based on a study of fruit flies? Yeah, well, the 500 was. It was remarkable. A government document, a Forest Service document, said 500. Parentheses. Personal communication, M. Soule, the person's name.

And that was it. That was the authoritative citation for saying 500. Well, I didn't know who M. Soule was. And this was almost, this was before Google. So I looked around. It turned out it was a guy named Michael Soule at the University of California at Santa Cruz. So I called him up. I said, you've been cited as the authority behind protecting 500 pairs of spotted owls,

which would be a substantial reduction from the current number. He said, I have? I never said that. Well, what did you say, Michael? Well, the Forest Service called me up and we talked a bit and I told them that they should go look at a paper that a colleague of mine wrote in which he studied fruit fly mating in a jar and found that if you have 500 fruit flies, they are randomly mating in the jar, and that's a sufficiently large population to prevent a particular bristle hair mutation from becoming fixed in the population and taking over. Oh, I asked Michael, what does that have to do with spotted owls? He said nothing at all.

Has nothing to do with spotted owls. So 500 pairs came from a leap of logic straight out of eighth grade biology. It was junk. But Andy couldn't halt logging until he had a better number. And no one had done that science. Andy would have to find someone and put them on the case. A cross-country search eventually led him to the evolutionary biologist Russell Landy in Maine. I remember sitting in a lobster shack on the coast of Maine, and Russ says, I've been thinking about your owl question. And he grabs a butter-soaked paper napkin

and starts writing formulas on it, which is all Greek to me. And he says, you know, this is how I'll go about solving it. And he starts explaining it to me. It goes right over my head. I say, good, whatever, write it up. And it was really quite elegant what he'd done. What Russell Landy had done was build on the math that one of his professors had developed for the Farm Bureau to help eliminate pests. Basically, his professor had modeled how many

bugs you had to kill to wipe out an infestation, such that the bug population couldn't recover and recolonize the crop. What Russ did was he took that mathematics and flipped it on its head. But if you ran the numbers the other direction, you could figure out how many owls you needed to keep alive in order to ensure that they recovered and recolonized the forest. All the variables were basically the same. You needed to know how far an animal will travel to mate, and recolonize the forest. All the variables were basically the same. You needed to know how far an animal will travel to mate,

their odds of finding each other, and their reproduction and survival rates. Plug that into the equation, and you can figure out how much forest you need to be confident that every time an owl dies, a new one is born. Landy's math showed that owls as a whole couldn't survive in a landscape unless about a quarter of it was mature

old forest. And that meant if we wanted to keep the owl alive, we'd have to stop cutting old growth almost immediately. And so first thing that I did was got it peer-reviewed. His peers agreed. In fact,

Landy won a MacArthur Genius Grant for the work. So now Andy had the science. And according to his move-the-world formula, the next step was to marry it with the law. And what that really meant was showing the government was breaking the law. That's next, after the break. Support for this podcast and the following message come from the NPR Wine Club, which has generated over $1.75 million to support NPR programming. Whether buying a few bottles or joining the club,

you can learn more at nprwineclub.org slash podcast. Must be 21 or older to purchase. In the years following Eric's fateful encounter, the spotted owl became one of the most studied animals in America. And as the research grew confirming that the reclusive bird depended on old growth, so too did pressure from the timber industry to minimize any protections for it. Everyone felt it. Politicians, land managers, scientists, even the National Wildlife Federation, where Andy worked.

The Weyerhaeuser company had threatened to close all of its lands to hunters and fishermen nationwide. So that was somewhat persuasive, because the National Wildlife Federation at that time was mostly hunters and fishermen. Andy's bosses wanted him to drop the spotted owl so bad, they fired him. Well, then they fired me on Friday. They rehired me the following Monday. And only told me on Monday, by the way, we fired you on Friday. But the CEOs had a change of heart,

and you've been rehired, subject to the following constraints. You are to make no outgoing phone calls. You are to sign no correspondence. You are to attend no meetings. We'll continue to pay you to do nothing at all. The reasons environmentalists were afraid of going after the owl were complicated. First off, they were worried that they'd lose, and then they wouldn't have any leverage, even if it was just

the threat of going to court. But in many ways, winning was an even bigger fear, especially if they used the Endangered Species Act. Because while the act was passed almost unanimously, the perception was that it was designed to protect big, beloved animals. Bald eagles and blue whales and things like that. The fear among leading conservationists was that stretching it to apply to things like tiny fish and reclusive birds might get them what they want in the short term, but the backlash could lead to the death of the law. And in fact, I had always been a little averse, for tactical reasons, to having the owl listed under the Endangered Species Act. But Andy thought he saw a way to protect the owl without putting a target on the act. And there are two things you need to understand about Andy Stahl.

First, he's not some flower garland tree hugger. Before joining the National Wildlife Federation, he'd worked as a lobbyist for timber companies. And so if the timber industry had just paid you more, it could be that this whole thing wouldn't have happened? Yep. Second, he is extraordinarily competitive. I like to win. When I'm hired as an advocate, I figure it's my ethical duty to provide that client with the best possible representation that I can. And I like to win.

So rather than embrace his do-nothing job and work on a novel or something, he called up an organization called the Sierra Club Legal Defense Fund. We know it now as Earthjustice. They were opening a new office in Seattle. For Northwest environmentalists, the Sierra Club Legal Defense Fund

was like the cavalry coming to town. And I heard about that through a friend of mine and called up the vice president of that organization and said, I see you're advertising for two lawyers and a paralegal. How about you give me the two lawyers? I'm no paralegal, but you know who I am. And he said, great idea. So Andy changed teams again to one that wasn't afraid to use spotted owls to protect trees. But they also decided not to push to get the owl on the endangered species list. The plan was to use other, more obscure laws.

But, of course, there are things that you can never control. And one of them is high school students doing a home study project on the spotted owl. And a couple of brothers in California decided as part of their home study, they were being homeschooled by some very bright parents who had gone back to the land off the grid. And they decided that they would petition, which anybody can, to list the spotted owl as an endangered species. Andy flew down there and spent a weekend

talking them out of it. But then somebody else had the same idea. And at that point, we realized, okay, we're just going to be putting out brush fires one after the other. We should make sure that there's a credible, bona fide petition. But here's where things get interesting. Because once environmentalists finally did file a petition, it was denied by the agency in charge of endangered species. The Fish and Wildlife Service knew full well that the owl warranted listing.

The agency's own scientists argued for it. But the political masters in the White House were against it. And so the agency scurried around looking for some justification to ignore all of the science and found it in a study done by a University of Wyoming biologist. What they had was a paper that said, what if, just as field mice make more babies when their populations drop, owls do too? So he did this thought piece, this hypothetical paper.

The timber industry sent it to the Fish and Wildlife Service, and the Fish and Wildlife Service said, see, there's a scientist who says the spotted owl will be fine. So now instead of fruit flies, this time the government was pinning its argument on field mice. It's the 1980s version of making a point on social media when you read a headline but didn't actually click on the article. Except this was a government agency that just didn't like the science. So it pointed to different science that was just plausible enough to be confusing. Andy being Andy, he called up the biologist in Wyoming.

And I said, do you realize that your paper is the only reason the Fish and Wildlife Service cites for not protecting the spotted owl? He went, what? Oh my God, that's outrageous. I never said that. And he said, what can I do about this? Andy suggested that he write a letter explaining that Fish and Wildlife had misapplied his study. He did. And they submitted it with a few other documents. But it was really all they needed. And that was exhibit one and only in our lawsuit against the Fish and Wildlife Service. When we come back, the ruling that would change everything.

Although, it's not the one that you think. After several years of dragging its feet, the U.S. Fish and Wildlife Service finally listed the northern spotted owl as threatened on June 22, 1990. The Fish and Wildlife Service says there is absolutely no question the spotted owl is a threatened species. Though there's no law to protect the old growth itself, the Endangered Species Act can be used to stop logging if logging endangers a threatened species.

Hanging in the balance are vast forests and thousands of jobs. The Interior Department said protecting them may cause the elimination of 28,000 logging jobs in the Northwest over the next decade. But despite all the out-of-breath news reports, it didn't actually mean anything. At least, not right away. The agency didn't designate critical habitat or issue a recovery plan for the owl. That would take another court order and several more years. No, to really protect the forest,

the strategy that Andy, his lawyers, and the Seattle Audubon Society arrived at was to go straight at the agency that had total power over most of the remaining old growth. So in 1989, they filed an injunction against the U.S. Forest Service. I walked up the hill, downtown Seattle, to the federal district courthouse, walked into the clerk's office, and presented it to her. She looked at the caption, and she said, Ah, I've been expecting this. She grabs the next folder, brings it down, opens it up, and looks at me and I say, who'd we get? And big grin, you got Bill Dwyer.

Dwyer was the judge you wanted if you filed a lawsuit in Seattle. He was a judge's judge, principled, respected, nominated to the bench by two Republicans and a Democrat. He was the most respected judge on the bench, far and away. Young lawyers, young judges, newly nominated judges at every level would go to his courthouse and go to his courtroom and listen and watch and learn how you conduct a trial from Judge Dwyer. And that was good, because this was a complicated lawsuit. On its face, it was about spotted owls. But it was really about old growth.

But it was really, really about finding out whether the government was breaking the law or the law itself was broken. The first law in question was NEPA, the National Environmental Policy Act. Its main requirement is that the government tell the truth and disclose the consequences of its decisions. After that, the government can do whatever it wants. Team Andy's contention was that by underplaying the spotted owl's population requirements, by sticking to the number 500, it wasn't telling the truth.

The other half of the lawsuit was based on another law, the National Forest Management Act. And it says the plan that you adopt for managing these forests has to protect the survival, the viability of all native vertebrate species. The core of their argument hung on just this one sentence. But it gave all the power to scientists, not politicians or timber executives, to determine what constitutes a viable population. And basically it meant you can't knowingly drive an animal to extinction.

We said, look, these plants don't do it because spotted owls are not fruit flies. All the Forest Service had to do was articulate a counter-argument, another way of looking at the fruit flies in Landy's reproduction equations. But they couldn't. So what was the ruling? Yeah, the ruling was, yeah, preliminary injunction granted.

The ruling was like a bomb that exploded across the Northwest. The U.S. Forest Service has stopped all timber sales in 13 national forests in Oregon and Washington. The decision affects nearly 5 billion board feet of timber. And it wasn't just one injunction. Prior to suing the Forest Service, the Sierra Club Legal Defense Fund had filed lawsuits against the Bureau of Land Management and U.S. Fish and Wildlife. By the time they were done, all three agencies had to step up their owl protections. The injunctions were a declaration that our contract with the natural world was up for renegotiation.

And the rest of the world took notice. Set aside the spotted owl. The method Landy developed is used now for hundreds of wildlife species around the world. That in some ways, to me, is the most interesting part of this story. What started out as a quite provincial effort to protect big trees, old trees that people like in a little teeny corner of the world called the Pacific Northwest has had profound effects on wildlife species conservation everywhere in the world. Landy's method is now the accepted way of designing natural areas, national parks, species conservation programs. That's why he got the MacArthur Genius Award. When European settlers first came to North America,

they were concerned with conquering nature, then harnessing and optimizing it for profit. But now it was time for a whole new way of thinking. Because this lawsuit turned all that research from scientists like Eric Forsman, Jerry Franklin, and others into a weapon, one that threatened to destroy logging in the Northwest. You're looking at potential loss in the next year to 18 months of 250,000 jobs in the West. It's just, it's a disaster.

We're going to, they're going to shut the mills like this in Oregon and Washington down, period. We are not willing to negotiate and compromise while we have law of court-ordered injunctions shutting down our entire timber sale program. I guess it comes down to what's the most important, the survival of human beings or the survival of the spotted owl. I think that that really is what we're looking at. Eric Forsman had created a tool that could be used to dismantle an industry. And that was going to cause a lot of people a lot of pain. It's weighed on him ever since. But I also knew that doing that, you know, you were going to have an impact on people's jobs.

You couldn't avoid it. So, on the other hand, I always felt like there were plenty of people speaking for humans. There was no shortage of people out there advocating for humans, and somebody had to speak for the owls. That's kind of what I felt my job was. But those people who advocate for humans are the ones who have all the power. And they made sure that first court victory was short-lived. Well, of course, the cauldron boiled over. And notwithstanding our best efforts, the congressional delegation, especially Senior Senator Mark Hatfield said,

yeah, no, no, no, no, no, no, no, no, no. We're going to buy ourselves some time here. Hatfield was one of the most powerful and beloved senators in the Northwest. People called him Saint Mark. And he inserted an amendment into an appropriations bill that essentially overrode Judge Dwyer's ruling. Environmentalists branded it the rider from hell because it put thousands of acres of old growth back on the chopping block.

So Andy Stahl's big win turned into an even bigger loss. As an environmentalist, you've got to win in court, you've got to win in Congress, you've got to win in the media, you've got to win in Congress, you've got to win in the media, you've got to win with the people. As a timber industry, you only have to win one of those. And once the tree is cut, it's cut. Once you cut a 500-year-old tree, that's never coming back.

With their injunctions against almost all logging in national forests, environmentalists had stirred up a hornet's nest in Washington, D.C. Hornets with the power to change whole landscapes with the stroke of a pen. The lawsuits politicized the natural world. I mean, all of the laws that were used to protect the owl were passed almost unanimously under Republican presidents. The environment used to be something people basically agreed on. But by targeting an industry supported by conservative lawmakers

and rural voters, they'd taken what were bipartisan laws and turned them into political chess pieces. Now they could be captured and killed by their opponents. So what had been about protecting forests and animals was about to become class warfare, and it was going to get ugly. That's next time on Timber Wars. Timber Wars is reported and written by me, Aaron Scott,

with editing by Peter Frickwright, Robbie Carver, David Steeves, and Ed Yon. The series is produced by me and Peter and Robbie of 30 Minutes West. Laura Gibson composed and performed our music. Thank you. executive producer. Thanks to NPR, Katie Doggart, and Jenna Molster for the archival news tapes, and to the team at NPR StoryLab for all their expert advice. Timber Wars is a production of Oregon Public Broadcasting. It takes a lot of resources to make a show like this,

and we can only do it with member support. So a big thank you to our members. And if you're not one of them yet, now's your moment. Head on over to opb.org slash pod. You're the reason we can do this. Another way you can support the show is to review us and give us a rating wherever you get your podcasts. It really does help new folks find our show.

Thank you.