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Friends of Animals v. FWS

ELR Citation: 48 ELR 20007
Nos. 15-35639, (9th Cir., 01/10/2018)

The Ninth Circuit held that FWS did not violate the Migratory Bird Treaty Act (MBTA) when it authorized the taking of the barred owl to help the recovery of the spotted owl. The spotted owl was listed as endangered under the ESA in 1990, and it was later determined that one of the factors affecting the species' survival was the intrusion of the more aggressive barred owl. In 2008, FWS authorized large-scale control experiments in key spotted owl areas to assess the effects of barred owl removal on spotted owl site occupancy, reproduction, and survival. An updated recovery plan issued in 2011 retained this experimental action item. The Service adopted an experimental design that would involve taking about 3,600 barred owls over four years, which was later lowered to 1,600. An environmental group challenged the recovery plan under the MBTA, arguing that FWS did not have the authority to authorize the taking of one species to save another. The court disagreed, finding that the MBTA delegated wide discretion to FWS for scientific purposes of the recovery plan. The case was dismissed.