Lawsuit Challenges Oregon’s Denial of Full Protection for Marbled Murrelets

Five conservation groups filed a lawsuit today against the Oregon Department of Fish and Wildlife (ODFW) Commission for failing to uplist the marbled murrelet from threatened to endangered under the Oregon Endangered Species Act.

The groups petitioned the ODFW Commission to uplist the marbled murrelet in 2016. The Commission voted 4-2 in February to accept the petition to uplist the seabird and instructed ODFW staff to begin development of mandatory species survival guidelines as required under Oregon law.

But the Commission caved to intense pressure from the logging industry at a June meeting, voting 4-2 to deny the petition it had accepted just four months earlier.

“The Commission’s reversal of its decision to uplist the marbled murrelet just four months earlier ignored science, the law and ODFW’s mission to protect Oregon’s imperiled wildlife,” said Nick Cady, legal director at Cascadia Wildlands. “The reversal demonstrates this Commission’s active neglect of its duties towards imperiled species, and disappointingly, leaves the marbled murrelet on a path toward extinction in Oregon.”

The marbled murrelet is a small seabird that nests in old-growth and mature forests and forages at sea. Its population has declined dramatically over the decades because of 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.

“Imperiled species like the marbled murrelet will continue to slide toward extinction if we turn our back on them in favor of industry interests,” said Jared Margolis, a senior attorney at the Center for Biological Diversity. “Oregon needs to step up and protect the murrelet before it’s lost forever.”

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 clear-cut logging on lands managed by the state of Oregon.

“The ODFW Commission made exactly the right decision in February when it voted to uplist the marbled murrelet from threatened to endangered based on its own staff’s status report and hours of testimony from experts,” said Quinn Read, Northwest director at Defenders of Wildlife. “The law clearly requires the Commission to base its decision on science, but instead in June, the Commissioners continued a pattern of playing politics with the state’s most imperiled wildlife species.”

The status review provided copious evidence from multiple peer-reviewed studies that murrelets are in trouble 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, highlighting the bird’s dire status in those neighboring states.

“The science is clear and overwhelming,” said Joe Liebezeit, staff scientist at Audubon Society of Portland. “The June Commission decision unfortunately perpetuates an approach at ODFW that has spanned nearly three decades of the state turning its back on the murrelet and ignoring the science that shows that logging of our older coastal forests under the purview of the state of Oregon is a primary factor driving this species toward extinction.”

The lawsuit includes four claims. First, the ODFW Commission failed to base its decision upon documented and verifiable science. Second, the Commission failed to adequately explain its decision to reverse its prior decision to uplist. Next, the decision not to uplist is not supported by substantial evidence in the record. Finally, the Commission failed to provide adequate notice to the public or the petitioners to weigh in on its decision to reverse the uplisting in June.

The ODFW Commission will meet on Aug. 3 to consider survival guidelines for timber companies to help conserve marbled murrelets — guidelines that have no force of law and would be voluntary. Those guidelines would have been mandatory had the species been uplisted.

Trying to silence the public concerned about its surprise June decision, the Commission initially announced that it would accept no public testimony at the August hearing and turned down multiple request for public testimony. It only agreed to allow public testimony after conservation groups found an existing rule that requires the Commission to allow public testimony when at least 10 people or an organization representing at least 10 people request a hearing.

“This entire process has demonstrated a remarkable level of disrespect for the public and public process,” said Danielle Moser, Wildlife Program Coordinator for Oregon Wild. “The ODFW Commission failed to announce that it would be considering reversing its previous decision to uplist the murrelet, and instead, has done everything possible to squelch public input. It speaks to the urgent need for Governor Brown to appoint Commissioners who are committed to protecting Oregon’s native fish and wildlife, not beholden to special interest industries. This Friday, the ODFW Commission has a chance to fix the huge mistake it created in June by adopting mandatory survival guidelines. Oregon Wild and our members will be there, reminding the Commission of its mission to protect the state’s wildlife.”

The conservation groups in this case are represented by attorneys from Cascadia Wildlands and Center for Biological Diversity.