[co-author: Loren Snow, Law Clerk]
At its February 9, 2018 meeting, the Oregon Fish and Wildlife Commission (the “Commission”) voted to “uplist” the marbled murrelet’s status from a threatened to an endangered species by a 4-2 margin. The marbled murrelet is a diving seabird that nests in forests along the coast from Alaska to Northern California, traveling up to 50 miles inland from the sea to nest. The murrelet’s nesting sites are thought to be extremely elusive, and marbled murrelets have been described by one Oregon Department of Fish and Wildlife (“ODFW”) official as the “enigma of the Pacific.” In deciding to reclassify the marbled murrelet as endangered, Oregon joins Washington and California, each of which have decided to similarly reclassify the species in recent years.
Proponents of the uplisting proposal cited loss of habitat due to timber operations in coastal forests as a key factor in the need to classify the species as endangered. However, opponents of the uplisting advocated further study before putting in place stringent regulations, citing an ongoing 10-year study by Oregon State University and the fact that recent data shows that the murrelet’s population has been stable from 2002 to 2015. Researchers have determined that murrelets also face challenges unrelated to logging, including warming ocean waters, ocean acidification, oil spills, and loss of habitat from wildfires. The uplist proposal was originally deadlocked at 3-3, but Commissioner Bob Webber switched his vote from no to yes later in the meeting, stating that his “least favorite option would be to do nothing.”
Impacts to the Forest Products Industry.
The Oregon Endangered Species Act only applies to property owned, leased or managed by the State of Oregon, which means the uplist decision will have the most immediate impact on timber operations on state lands. ODFW is in the process of creating survival guidelines for the murrelet, to be presented at the Commission’s June 7-8, 2018 meeting in Baker City. The guidelines will serve as interim protections until applicable state agencies develop and adopt permanent management plans.
The uplisting decision will likely result in regulations on private timberlands as well. Currently, under the Oregon Forest Practices Act, the Oregon Department of Forestry (the “ODF”) uses written plans to restrict timber operations on private lands where there are identified murrelet nests. Since 2016, ODF has also been working on rules to protect the murrelet. ODF has expressly stated that this rulemaking will incorporate ongoing work by other state agencies, including ODFW’s species review and the ongoing Oregon State University research. Timberland owners can take some comfort in the fact that the timetable for ODF’s rulemaking will be much longer than ODFW’s—as of an April 2017 meeting, the next step in the rulemaking process is to complete a technical report, which is estimated at the time to take 18-24 months. An expert review of the technical report will follow, and any rulemaking decision will not occur until after the expert review is finished.
