For such a tiny thing, the marbled murrelet packs a wallop. The timber industry has learned this the hard way. In late February it lost yet another lawsuit that it hoped would strip the robin-sized bird of its threatened-species status, opening the way for the clearcutting of old-growth coastal forests in California, Oregon, and Washington. The D.C. District Court of Appeals rejected the appeal, marking the loggers' fifth straight defeat at the hands -- well, really, webbed feet -- of the murrelet.
The pelagic bird's legal clout has depended on its unusual uniting of ocean and forest. Although murrelets spend most of their life swimming on, winging over, and fishing from the Pacific's cold waters, when it comes time to give birth they head for ancient hemlock and redwood, Sitka spruce, and Douglas fir. They only nest in these towering sentinels, laying a single egg in these trees' moss-covered branches, sites that can be as much as 50 miles inland from where waves crash on rocky shore. Grind these pine-scented forests into sawdust and the murrelet disappears from this part of its historic range.
It was a tree trimmer, aptly enough, who is credited with discovering the tight connection between the murrelet's nesting behavior and its arboreal home ground. One day in early August 1974, Hoyt Foster was scaling up a 212-foot Douglas fir in Big Basin Redwood State Park in the Santa Cruz Mountains. About 150 above the forest floor, as Foster was ready to plant his foot on a mossy branch, he looked down and spotted a murrelet chick. At least according to the scientific record, this was the first time that anyone had come upon a nesting site, thus clearing up a mystery of where and how murrelets gave birth that had baffled observers for nearly two centuries.
What these researchers realized quickly was that the canny seabird chose mature and old-growth trees because only these had branches wide enough to balance their eggs on; only these trees were tall enough to keep their young above predators -- natural predators, in any event. Humans posed another kind of threat, for the very species most suited to murrelet reproduction and species regeneration were the ones that loggers yearned to cut into board feet and truck to market.
But it is not the murrelet that is usually associated with the great timber wars that blew up in the Pacific Northwest in the 1970s and that continued until the mid-1990s. The Spotted owl and salmon -- which also depend on healthy old-growth forest ecosystems -- were at the center of that furious controversy. The number of lawsuits filed on these species' behalf, like the countless local, regional, and national organizations that sided with the endangered raptor and fish, were countered by a coalition of timber industry associations and mill workers, public representatives, and community officials.
This brawl only slowly died down after the Clinton administration's 1994 Northwest Forest Plan; it sharply reduced the use of clearcutting and the amount of wood harvested on the U.S. National Forests in the region. Noted Jack Ward Thomas, who would become the chief of the U.S. Forest Service as a result of his leading the interdisciplinary research team that established the scientific basis for its provisions: "President Clinton had, if nothing else, stepped into a vacuum and made a decision."
This act -- and the ecosystem-based management on which it was based -- immediately found favor in the federal court system. In the words of Judge William Dwyer in 1994: "Given the current state of the forests, there is no way that agencies can comply with environmental laws without planning on an ecosystem basis." The implications for spotted owl and salmon were clear. Their habitat must be protected as the default; management plans must revolve around their needs.
Though not mentioned in this decision, the murrelet benefited as a result of this contentious environment and the judicial decisions it produced. One reason for this emerged on the Siuslaw National Forest, located along the central Oregon coast. Since post-World War II, it had been one of, if not the, most productive forest in the national system -- if productivity is measured simply in terms of the amount of wood harvested. Timber management there "mirrored industrial forestry," its former supervisor, Jim Furnish, wrote in his just-published memoir, "Toward a Natural Forest" (full disclosure: I wrote the foreword to Furnish's book). As its managers liquidated old growth and replanted a monoculture of Douglas fir, as they sprayed herbicides and fertilizers, the "Siuslaw spent more money per acre than any other national forest because it generated the most wood and revenue per acre."
These economic benefits ran right into an interrelated set of ecological deficits for which Furnish and his peers along the northern Pacific coast had to account: steep declines in spotted-owl and salmon populations, as well as troubling data about timber harvesting's impact on the marbled murrelet. By the late 1990s, federal and state scientists assessing murrelet behavior ranging from the Santa Cruz Mountains north into Oregon had concluded that breeding murrelets exhibit site fidelity, that is, they return year after year to the same nesting area. As such, if a nesting stand is logged off, these particular birds may not breed again.
On the Siuslaw, for example, the data revealed that "nine out of ten mature timber stands had nesting owls and murrelets -- which meant no more timber harvest." What Furnish and his leadership team concluded was that "this incredibly productive landscape could not simultaneously maximize timber products and wildlife." Because these redwood, spruce, and fir forests were "the womb that sustained this natural abundance," and because by law this abundance itself must be sustained, "the remaining mature forest in the Coastal Range would stay standing."
In an effort to undo this principled reasoning, the timber industry has been trying to delist the marbled murrelet as a threatened species, stripping it of its protections and opening the way for a return of clearcutting. As Furnish wrote me in an email: "The timber industry continues to take the narrow, regressive view that the Endangered Species Act simply doesn't matter."
In this particular case, American Forest Research Council v. Ashe, the court was asked to determine whether marbled murrelet inhabiting California, Oregon, and Washington were a "distinct population segment" from the rest of the species living in Canada and Alaska; if the court found that the U.S. Fish and Wildlife Service had erred in identifying it as "discrete in relation to the remainder of its species," then it would have erred as well in listing it as threatened. The court concluded otherwise, offering evidence of the population's discreteness that is in fact quite damning of the renewed-harvesting ambitions that led to the timber industry's lawsuit:
(1) the murrelet population in the U.S. is one-third the size of that of Canada; (2) the productivity of murrelets is lower in the U.S. than Canada; (3) the loss of murrelet habitat (old-growth forest) in recent years has been more severe in the U.S. than Canada; and (4) the absolute amount of murrelet nesting habitat is smaller in the U.S. than Canada.
Given these distinctions, and in light other confirming evidence, the court shut down this latest attempt to undercut the marbled murrelet's life chances. In doing so, it also gave the coastal forests an opportunity to recover in tandem with the diminutive seabird they have long nurtured.