Forest Service must disclose spotted owl nest maps

COLORADO–The U.S. Forest Service must disclose maps of the nesting sites of Mexican spotted owls in New Mexico and Arizona to a local Audubon Society chapter despite the federal agency’s vigorous claims that the sites should remain secret in order to protect the owls, a panel of the U.S. Court of Appeals in Denver (10th Cir.) ruled in early January.

Dr. Robin Silver of the Maricopa County (Ariz.) Audubon Society sought maps and other records on the bird in 1994, hoping to make an independent analysis of timber harvests on its habitat.

In affirming an August 1995 decision by a federal District Court in Albuquerque, the appeals panel gave a narrow reading to Exemption 2 of the federal Freedom of Information Act, which allows agencies to withhold information “related solely to the internal personnel rules and practices of an agency.” The panel ruled that the exemption only applies to “personnel” rules and practices, not to habitat matters.

Federal agencies generally invoke Exemption 2 to protect routine administrative matters (referred to as a “low 2” use) and to prevent attempts by companies or individuals to circumvent the law (a “high 2” use). A Forest Service regulation, designed to help the agency carry out the Endangered and Threatened Species Act, prohibits disclosure of habitat information to anyone without a permit to carry out “legitimate studies.” The agency claimed that making the habitat public could lead to harm and so “high 2” applied.

The appeals panel also noted that the federal District Court had no authority to order the Maricopa Audubon Society to enter a confidentiality agreement concerning the maps. However, the Audubon Society had not objected to that agreement. (The Audubon Society v. U.S. Forest Service; Counsel: Matthew Kenna, Durango)