06/27/2008

By JEFF BARNARD  / Associated Press

Timber industry efforts to get a small sea bird off the threatened species list were denied in two court rulings.

A federal judge in Washington, D.C., and the 9th U.S Circuit Court of Appeals turned down actions Thursday stemming from the long-running battle over whether the marbled murrelet deserves Endangered Species Act protection.

Like the spotted owl, the marbled murrelet depends on old growth forests for nesting, and habitat protection has meant less logging in Oregon, Washington and Northern California, as well as lower federal timber revenues shared with timber counties.

The American Forest Resource Council and Coos County had tried to force the bird off the list after a finding that West Coast birds were not a distinct population from birds in Canada and Alaska.

A Fish and Wildlife document obtained by The Associated Press indicates agency staff originally found the Northwest population was distinct, but were reversed by the Bush administration.

The service left the birds on the threatened list while it looks at the entire population, which a U.S. Geological Service survey has indicated is declining from Alaska to California.

U.S. District Judge John D. Bates had ruled that Fish and Wildlife did not have to delist the bird, and when the timber industry pressed him to reconsider, ruled that they had had plenty of time to raise their arguments in the original case.

The 9th Circuit made a similar finding in a case from Coos County commissioners.

"The timber industry has had its sights on this poor little bird for a decade," said Kristen Boyles, attorney for Earthjustice, a public interest conservation law firm in Seattle that intervened in the case on the side of Fish and Wildlife. "I don't think it's over."

Removing protections for the marbled murrelet are critical to a U.S. Bureau of Land Management proposal to increase old growth logging in Western Oregon as part of their Western Oregon Plan Revision. The project has also run into problems with protections for the northern spotted owl, a threatened species.

Tom Partin, president of the American Forest Resource Council, a timber industry group in Portland, said they were not surprised by the rulings, and a month ago petitioned Fish and Wildlife to take a whole new look at whether the bird deserves protection.

"If the species doesn't merit listing, we feel it shouldn't be listed," he said.

Fish and Wildlife spokeswoman Amy J. Gaskill said the agency was working on a response to the timber industry petition.

Coos County Commissioner John Griffith said the marbled murrelet illustrated the failings of the Endangered Species Act.