Congress enacted the Migratory Bird Treaty Act (MBTA) and the Endangered Species Act (ESA) to ensure species are protected and habitats are preserved. In 2008, the U.S. Fish and Wildlife Service (the Service) sought permits for an experimental removal of Barred Owls, an invasive species protected under the MBTA that is contributing to the decline of the Northern Spotted Owl, a threatened species protected under the ESA and the MBTA. In Friends of Animals v. U.S. Fish & Wildlife Service, the Ninth Circuit upheld the Service’s proposed action and found that birds protected under the MBTA may be removed for scientific use. Additionally, the Court found that removing a protected species, known as “take,” does not have to benefit the species being
taken (harmed, harassed, or killed). This ruling allows Barred Owls to be removed for the benefit of Northern Spotted Owls. The court rejected the “same-species theory,” which required take of a species protected by the MBTA be for the benefit of that same species. This decision provides the Service with flexibility to experimentally remove protected invasive species for the benefit of
other species experiencing population declines. This In Brief will examine the potential ramifications of these interventions going forward.