Wednesday, January 10, 2018

Friends of Animals v. U.S. Fish & Wildlife Svc. (9th Cir. - Jan. 10, 2018)

What Judge O'Scannlain says in today's opinion seems right to me.  The U.S. Fish & Wildlife Service decided that in order to protect one very critically threatened species -- the northern spotted owl -- it might make sense to reduce the population of another (fairly common) species, the barred owl.  Barred owls, as it turns out, are fairly aggressive, and have migrated from their usual range in the eastern United States to compete with northern spotted owls out here in the West.  To the substantial detriment of the latter.

Or so it seems.  The U.S. Fish & Wildlife Service decided that it'd go to particular areas and whack some barred owls to see if that helped out the northern spotted owls there.  Which, my sense is, it probably will:  "Barred owls’ diets can overlap with spotted owls’ by as much as 76%, and the more aggressive barred owl may displace spotted owls and may even physically attack them."

Judge O'Scannlain says there's nothing illegal about that.  Which seems right to me.

The only thing that sort of miffed me about the opinion was the language.  Throughout the opinion -- a couple dozen times or so -- the Ninth Circuit says that the issue is whether the U.S. Fish & Wildlife Service is permitted to "take" the barred owls.  Only in a footnote (or in isolated quotes) does the opinion say what we all know this really means.  As the footnote explains:  "“To ‘take,’ when applied to wild animals, means to reduce those animals, by killing or capturing, to human control.” Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 717 (1995). As the Service acknowledges, the “vast majority of take” at issue in this case consists of “intentional, lethal take of barred owls.”"

Look, I know the relevant statutes say "take", and it's nice that Judge O'Scannlain drops a note to recognize that he's aware what this really means.  But whereas Congress may prefer euphemisms, I prefer letting the reader know straight out what we're talking about.  Can we kill thousands of one type of owl to potentially help out another?

I think the answer is yes.  But I also wouldn't shy away from using the more meaningful word.

Because that's what's at stake.