Circling the drain: The precautionary principle as it applies to the northern spotted owl

Background/Question/Methods: The precautionary principle is often evoked as a means to avoid harm to the public or environment by shifting the burden of proof of a particular action to its proponents that must show that the action is safe. The Endangered Species Act (ESA) is arguably a precautionary law, requiring that the benefit of the doubt be given to endangered species in cases where there is uncertainty about whether a particular action may threaten a species with extinction. The emblematic northern spotted owl presents a test case of the application of the precautionary principle in the context of burden of proof, risk taking, best available science, and the statutory requirements of the ESA. Both the recovery plan and critical habitat determination for the owl have been controversial and political, including presidential directives to include logging in owl critical habitat, rejection of the precautionary principle in favor of “active management” by federal agencies, and lack of best available science to guide recovery actions in owl habitat. Using the owl as a test case, we examine criteria that need to be included to comport with the precautionary mandate of the ESA when evaluating the effects of proposed actions on endangered species and we argue that the precautionary principle is appropriate in the case of the spotted owl given the considerable scientific uncertainties around proposed logging and potential harm to owl populations. Although logging of old-growth forests has been a primary factor in declines of the owl, and there are uncertainties regarding owl response to fires, both the U.S. Fish & Wildlife Service and U.S. Forest Service advocate for large-scale thinning as a primary means to save the owl from forest fires. We present a test of effects of thinning and fire on owls using a published habitat simulation study.

Results/Conclusions: Based on the literature of the precautionary principle and habitat simulation modeling, it is our contention that for many such logging projects, federal agencies have not met the burden of proof that such actions do more good than harm, or even to demonstrate a rationale connection between the likely effects of logging and the purported purpose of owl recovery--a requirement of two additional U.S. laws, the National Environmental Policy Act and Administrative Procedures Act.