A federal judge has dismissed a third lawsuit challenging the U.S. Fish and Wildlife Service’s experiment with killing barred owls to protect threatened spotted owls.

U.S. District Judge Ann Aiken has ruled that Friends of Animals, a nonprofit group, lacked the legal standing to file the complaint in federal court.

Barred owls are blamed for displacing the smaller and less aggressive spotted owls in their habitat and occasionally attacking them, contributing to the species’ population decline.

While protections for the spotted owl under the Endangered Species Act have greatly restricted logging in federal forests, the bird has nonetheless continued to struggle.

In 2013, the U.S. Fish and Wildlife approved a controversial plan to experiment with shooting barred owls to see if their removal will aid the spotted owl’s survival.

Friends of Animals has opposed the experiments, but Aiken has found that the group and its members have not demonstrated sufficient “injury-in-fact” or “cognizable injury” to give them standing to legally challenge the federal action.

Jennifer Best, an attorney for the organization, said Friends of Animals plans to appeal the decision.

The ruling sets the bar for standing too high and bars interested members of the public from the federal government’s decision-making process and the ability to challenge its actions, she said.

“We’re disappointed in the ruling, especially the fact it didn’t even get to the merits of our case,” Best said.

In its original lawsuit, Friends of Animals claimed the barred owl removal experiment violated the Migratory Bird Treaty Act, which aims to prevent the extinction of bird species. That case was dismissed in 2014 due to lack of standing.

The group’s second lawsuit was dismissed earlier this year, when the 9th U.S. Circuit Court of Appeals ruled that the Migratory Bird Treaty Act is broad enough to allow for such experiments, particularly since the impact to barred owl populations is minimal.

In the third lawsuit, the nonprofit group challenged the “safe harbor agreements” provided to private landowners who allowed the Fish and Wildlife Service to enter their property to kill barred owls.

Under the agreements, the landowners will be shielded from enhanced Endangered Species Act restrictions if spotted owls return to the areas from which their competitors were removed.

Friends of Animals claimed the safe harbor agreements would allow for unlawful “take,” or harm, to the spotted owl and the loss of its habitat.

In dismissing the case, Aiken ruled that the organization won’t suffer an “actual or imminent injury” because its claim involves “theoretical spotted owls” returning to areas that aren’t currently occupied by the species.

Best, the group’s attorney, said the ruling too narrowly focused on its interest in spotted owls, when it’s also interested in the welfare of the barred owls.

That’s disappointing because the government’s scientists have determined the experiment has had “little measurable effect” on spotted owl recovery, Best said, citing a 2017 report.

“One of our concerns all along is there is no purpose to this,” she said.

The group’s characterization of the Fish and Wildlife Service’s data is inaccurate if taken in context, said Robin Bown, a biologist with the agency.

“We’re not expecting to prove it works yet,” she said.

Only one of the four sites where barred owls are being removed had enough data to run an analysis, and since it was the smallest portion of the experiment, the agency wasn’t surprised the results weren’t strongly conclusive, Bown said.

“It was really a test to see if the methodology worked,” she said.

In January, the Fish and Wildlife Service will have enough data collected from two other sites to begin running the analysis, which should be complete by mid-2019, Bown said.

Though there hasn’t yet been enough data to show a definite positive impact on spotted owl populations, the experiment has markedly reduced populations of barred owls, she said.

Since the experiment began, the agency has removed 2,086 barred owls through the end of 2018, up from 1,148 at this point last year, she said.

I've been working at Capital Press since 2006 and I primarily cover legislative, regulatory and legal issues.

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