Environmental Law Case Studies - The Spotted Owl by Pat Pitsula B.A. B.Ed. LLB.
The major ideas explored in this case include the following:
- The relationship between protecting endangered species and the economy
- Using the law as a tool for social change
At the end of this learning experience, students should be able to:
- Explain what it means when a species becomes endangered
- Consider economic positions of opposing parties
- Review government policies relative to the environment
- Appreciate the adversarial role of the court system
What follows is a description of a case recently heard in the British Columbia Supreme Court. It is suggested that you review the information provided and summarize the story about the spotted owl and tell it to your class at a level that is appropriate for your students. If the class has access to computers they can be given the list of websites provided to research the details for themselves. Otherwise, you may wish to print the appropriate web pages and distribute them to class according to the needs of the suggested activities.
This case study is based on the court decisions that are listed under this heading. This is not a case brief of the type that you would find in the textbooks of law students studying in a law school. Rather, it is a narrative based on the key legal and social issues raised in the court decisions and in the underlying conflict itself. You can access the report of the current decision at http://www.courts.gov.bc.ca/jdb-txt/sc/02/12/2002bcsc1260.htm
Western Canada Wilderness Committee vs. Gerald Kennah in his capacity as District Manager of the Chilliwack Forest District of the Ministry of Forests and Cattermole Lumber (No. L01706 Vancouver Registry)
Western Canada Wilderness Committee vs. Cindy Stern in her capacity as District Manager of the South Island Forest District of the Ministry of Forests and Cattermole Lumber (No. L013620 Vancouver Registry)
The Two Sides
The petitioner in a lawsuit is an individual or a group that is looking for specific assistance through the court system. In these cases, the petitioner was the Western Canada Wilderness Committee, which isCanada’s largest privately- funded wilderness preservation organization.
The respondent in a lawsuit is some one or some group that is responding and defending themselves in a legal action brought by a petitioner. In these cases, there are three defendants - two District Managers of the Chilliwack Forest District District and the South Island Forest District of the Ministry of Forests; and Cattermole Timber which is a forest products company in British Columbia.
History of the Case
British Columbia is rich in natural resources, particularly its forests. Many people earn a living from the forest industry – loggers, truck drivers, and factory workers who turn forest products into paper and other paper products, to name a few. Forests in this province are also home to wild animals and birds, and unique environmental areas such as old growth forests. Conflicts regarding the use of the forests have often arisen in this province. In the early 90’s, the media sometimes referred to these conflicts as “The War of the Woods.”
This case study centers on one such conflict. On one side is an environmental group that is concerned that a species of owl faces extinction, and on the other side is a logging company that wishes to carry on with its business.
The Northern Spotted Owl
The Northern Spotted Owl is at the heart of the controversy. This owl is chocolate brown, medium sized with round to elliptical spots on the body feathers, white horizontal bars on the chest and tail, and dark eyes surrounded by tawny facial disks. The bird is found only in forests from British Columbia south to California. The entire Canadian distribution of the owls occurs within the southwestern mainland of British Columbia where it is considered a rare, but local resident species. Only 25 or fewer pairs are thought to exist in all of Canada. This represents a 45% reduction in numbers during the past 10 years. (For more information about the spotted owl go to www.animalsoftherainforest.com/spottedowl.htm
For pictures and maps related to the northern spotted owl in British Columbia go to http://www.wildernesscommittee.org/what_we_do/safeguarding_wildlife/spot....
What do we do in Canada when it appears that a species may face extinction? The answer to that is not entirely clear, and many would also say the answer is “Not enough”. One response has been to put a label on the animal or bird in question. So, in Canada, the northern spotted owl was labeled as “endangered” in 1986. It is important to note that although the label or naming was important, no legal protection went along with the label. (For background information related to the extinction of the spotted owl go to http://www.ecojustice.ca/publications/reports/logging-to-extinction/?sea...
Efforts to Protect the Owl Out of Court
The federal government, in co-operation with the government in British Columbia, formed a committee in 1990, the Canadian Spotted Owl Recovery Team also referred to as SORT. SORT was given a mandate to examine the current status of spotted owls in Canada and to develop a national recovery plan for the species. However, this committee was simply unable to reach agreement on a plan – and the seeds of the conflict were sown. To offer complete protection for the spotted owl would have meant a no logging policy in old growth forests where these owls lived. This was not acceptable to the forestry industry in British Columbia. The committee tried to find common ground but by 1995, no plan had been produced. In that year, new instructions were given to the committee in order to try to break the impasse and come up with some kind of plan.
The committee was instructed to come up with a forestry management plan that protected the population of the northern spotted owl – but within very defined limits. So, the committee no longer had what could be called an environmental focus. Remember, it had been originally called a Spotted Owl Recovery Team and its focus had been to protect the population of northern spotted owls. Now, the committee was to focus its efforts on coming up with a political compromise – a forestry management solution to the conflict.
In order to understand what was ultimately decided, you need to know that, every year, the government issues to forestry companies what are called “ Annual Allowable Cuts.” That is, government advises forestry companies on how much land can be cut or harvested for timber in a given year, and where the forests can be harvested. The 1995 instructions from the government to the committee were to come up with a protection plan for the owl, which would not have the effect of reducing more than 10% of a forest company’s Annual Allowable Cut.
Finally, in 1997, the government released the committee’s “Spotted Owl Management Plan” which represented the political compromise described above. The plan was not law nor was it a recovery plan for the owl - but rather a set of policy guidelines.
See You in Court
It is also fair to say that the compromise did not make either side of the growing conflict particularly happy. Those who wanted to protect endangered species, including the northern spotted owl, were becoming increasingly frustrated with their attempts to work with government representatives. At the end of the day, there still was no basic legal protection for endangered species. Their perspective was that animals and birds could not stand up to the government and defend themselves in court. Somebody had to speak up for them.
Those in the forest sector were also becoming increasingly frustrated with the efforts to do business in British Columbia, and having to face objections from environmental groups. The forest industry in the province has had to compete against global competitors in a demanding market place. Unemployment in the forest sector in British Columbia has been growing. From their perspective, the province was big enough and rich enough in natural resources to accommodate everybody, including the forest sector, which in many ways has been the backbone of the provincial economy – and, therefore, benefits everyone if that sector was booming.
Activity - Breaking up the Logjam
Divide the class into three groups. One group will represent the logging company, Cattermole Lumber. The second group will be the environmental group, Western Canada Wilderness Committee. The third group will be government representatives.
Have the logging group and the environmental group make a list of what they want, and then they present a summary of their lists to the government representatives. The government representatives debate the matter and offer suggestions for a solution.
Logging Must Stop...Except for One Area!
On June 26, 2001, SLDF was granted an injunction. Cattermole Lumber had to stop logging immediately, and the Ministry of Forests had to review their decision to grant logging permits in the Siwash Creek area This represented the first time ever that an injunction had been granted to protect endangered species habitat in Canada!
On September 4, 2001, the provincial government agreed that logging must stop and could not take place in three of the four areas where protection was sought. However, the government did give permission for logging to take place in one area near Siwash Creek where the forest was less than 120 years old. It is also interesting to note that at this time, the provincial government also eliminated funding for monitoring the spotted owl.
The court battle continued. The parties went back to court on May 7, 2002 – SLDF asked the court to rule that logging must stop in all four areas in question.
Question for Class Discussion
What problems are created when no decision is made?
In many ways the May 2002 case is the “tip of the iceberg” of a conflict that has been carried on at some level for over 15 years. What is described under this heading are the technical arguments being made by the petitioner and the respondents. Of equal importance, and worth keeping at the back of your mind as you read this material, is the underlying difference in “world views” of the two sides to this dispute. In many ways, the arguments that have taken place among individuals in the various committee meetings that were held over the past several years – have now been transferred to a court of law. Each side wants justice to be done, and each side has a different view of what justice should look like in a small area north of Hope.
The respondents argue that Cattermole Lumber was “just doing what it was told.” After all, the Ministry of Forests had initially approved logging permits based on the 1997 Spotted Owl Management Plan. Now, the Ministry of Forests said that they believed that they had the authority to log in the contentious fourth area, which had forest, which was less than 120 years old. Their scientific studies indicated that not only would the northern spotted owl not suffer or die as a result of that type of area being logged, but it might also promote their habitat.
Although you would think that scientific studies could be used to solve a disagreement, that is not always the case. SLDF had its own scientific studies and experts who were willing to swear affidavits on the issues. SLDF, on behalf of the petitioner, produced evidence designed to show that Cattermole’s argument that spotted owl habitat could possibly be enhanced in areas of forest less than 120 years was in their words, “ a scientific absurdity”.
The decision of the court was released on August 29th, 2002. To read the full text of the judge’s decision go to www.courts.gov.bc.ca/supreme_court.
The Sierra Legal Defense Fund has launched an appeal of this decision.
Question for Class Discussion
The court has in effect said that it is up to the legislators to amend the Forest Practices Code by adding a law that prohibits logging when an animal species would be endangered. Who do you think should make such a law, the politicians or the courts? Divide the class into groups representing the two sides of this issue and have them make a list of the reasons they think the court should have acted to protect the spotted owl or why it was right to require this kind of law to come from the government.
Late Breaking News
The Company decides to move forward with logging the area now recognized as the last viable habitat of the Northern Spotted Owl and the protests grow. After a Vancouver Sun reported that a young Northern Spotted Owl had been captured from the area in order to save it from devastation [See Vancouver Sun article in Resources at the end of the Case Study] and placed it in a refuge on Grouse Mountain near Vancouver. A week later it was reported in the Vancouver Sun that the Company had decided to “back away from this and give the government the time it needs.' We thought it was the prudent thing to do so we are not sticking out there as a lightning rod for controversy." [For the full article, see Resources]
Questions for Discussion
- What do you think are the most important issues in this case?
- Should British Columbians who are not members of the Western Canada Wilderness Committee care about the protection of endangered species? Should British Columbians who are not employed by Cattermole Lumber care about the protection of the rights of forest companies? Does either of these issues affect you?
- In 1995, the government asked for a range of options for protecting the spotted owl – from no protection (which would allow total freedom of logging) to complete protection (no logging in areas inhabited by spotted owls). It decided on an option that did not cost the public much to protect the owls. Do you think people in BC would be willing to pay for the protection of approximately 50 owls? How much do you think they would be willing to pay? Who should decide this?
- You be the judge - What are the key arguments for each side? Which arguments have the greatest merit, in your view? What decision would you make?
- Do you think that going to court solves problems? What do you see as the good points and bad points of this way of solving problems? Can you suggest other ways?
- Explore the number of ways that students can “think globally but act locally”. Numerous examples are given on the Jane Goodall Institute website. At http://www.janegoodall.org/
- Explore the number of ways that the forest industry has acted to responsibly protect the environment in this province. Check out the Forest Alliance of British Columbia website.
- What other species are endangered in this province? What are people doing about it? What could you do about it? Check out the website for the Western Canada Wilderness Committee at http://www.wildernesscommittee.org/what_we_do/safeguarding_wildlife/spot...
- In June 2002, the Canadian government passed legislation to protect endangered species. How effective do you think this legislation will be in our country?
The Whistle Blower
As is often the case, when people feel bogged down in a conflict, the response is “See you in court.” The Sierra Legal Defense Fund (SLDF) is a non-profit environmental law organization that provides free legal services to the environmental community in Canada. SLDF has offices in Vancouver and Toronto. In 2001, SLDF agreed to represent the Western Canada Wilderness Committee in a court action to prevent the elimination of the northern spotted owl in British Columbia.
Early in 2001, a provincial environmental biologist went to the SLDF offices. This biologist, an employee of the Ministry of Forests, knew that a company by the name of Cattermole Lumber had been given permission to log in Siwash Creek, which is an area north of Hope. This official said that she was willing to state in writing and swear an oath (called swearing an affidavit) that in the area where logging had already begun, she knew that a female spotted owl was in residence. She also stated that if logging continued, the spotted owl could face extinction. This was a particularly serious matter because this official said that she had raised her concerns with her employers, the Ministry of Forests, and they had ignored her. Without their knowledge, she went to the offices of SLDF and sought their help.
The legal remedy that SLDF decided to pursue was to obtain from a judge what is known as an injunction. That is, they wanted a judge to order Cattermole Lumber to immediately stop logging in the Siwash area.
In the meantime, the Ministry of Forests found out what their employee had done. The government legal team contacted SLDF and told them that their lawyers could no longer speak to the employee in question and that the employee could not swear the affidavit. The employee was told that she could face suspension from her job if she did swear the affidavit. However, the employee was a member of a union and they also had a legal team. The union’s lawyer advised SLDF that they were willing to protect this employee and to protect her actions under a section of the Forest Practices Code, which is commonly known as the “Whistle Blower Provision.” This means that if an employee sees something that he or she feels is “wrong” and their employer will not respond to the situation, the employee can “blow the whistle” and go obtain help from some one else – without being fired!
Finding Evidence to Back up the Whistle
So, SLDF had the sworn statement of a government employee that logging had been approved and was taking place in an area where an endangered species was apparently living. But, how could this be proven? The defendants could simply have their own affidavits sworn by their own employees that they had not seen any spotted owls. How could the truth of the situation be established in order for a judge to make some kind of decision? An SLDF staff scientist decided to travel to the Siwash Creek Valley, and he actually videotaped a female spotted owl roosting only metres from advanced logging. This was quite the stroke of luck for any of you who know how hard it is to actually go out into the wilderness and take pictures of wild animals or birds! Within a week, SLDF lawyers were before the BC Supreme Court asking the judge to deal with the conflict immediately.
Question For Discussion
Have the class break into the three groups from the above activity, and prepare a response to the following question: When do you think it is acceptable to tell a secret? Discuss their responses with the full class.
Article from the Vancouver Sun
Friday, October 04, 2002
In a desperate attempt to help save B.C.'s disappearing northern spotted owl population, the provincial ministry of water, land and air protection has captured a juvenile bird and placed it in captivity on Grouse Mountain.
It is the first time the ministry has gone to such lengths to save an individual member of what is the most endangered bird species in Canada.
Brian Clark, the ministry's regional manager for environmental stewardship in Surrey, said research this summer showed that as few as four new spotted owl chicks may have been hatched in the entire province this year, far fewer than is necessary to sustain a viable population.
Two of the four have already died, Clark said, so the ministry decided to capture the other two to ensure their survival over the winter. However, as of Thursday, efforts to capture the sibling of the owl now in captivity were abandoned. That means that of the four chicks born this year, the ministry can be confident that only one will survive. In the wild, young spotted owls have only a 25-per-cent chance of surviving their first winter, Clark said.
The captured bird, thought to be female, will be held out of public view at Grouse Mountain's Refuge for Endangered Wildlife until next spring when it will be released into the area between Pemberton and Lillooet, where it was captured two weeks ago.
The young owl, whose sex will be determined by DNA testing, is living in an undisclosed area away from public view on the mountain. Only refuge and ministry staff will be permitted to see it during the time it remains in captivity.