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some time and that relationship has been mixed. At times, they 

 have taken our advice. At times, they have operated directly in op- 

 position to our advice. The hsirvests that took place in 1992 and 

 some of those that are proposed in the future do create a question 

 as to the continued viability of the murrelet. 



Mr. Hamburg. Is the Fish and Wildlife Service — to what degree 

 is the Fish and Wildlife Service concerned that additional harvest 

 of these old-growth forests will result in take under the Endan- 

 gered Species Act? 



Mr. Detrich. Well, take is a difficult concept when it comes to 

 habitat modification. We don't know a lot about how this bird re- 

 sponds to timber harvest. Our goals for the conservation of the spe- 

 cies are to stabilize the population and then if possible increase it. 

 We don't believe that continued harvest in habitat of this quality 

 is in the interests of stabilizing the population in the short term. 



Mr. Hamburg. Isn't it true that prior to the November 1992 har- 

 vesting in the Owl Creek area that you — ^you, the Fish and Wildlife 

 Service — pretty clearly stated that to the company. 



Mr. Detrich. Yes. Biology staff" suggested to the company that 

 we had concerns that the actions they were proposing might result 

 in take. 



Mr. Hamburg. And the company determined that they should go 

 ahead anyway? 



Mr. Detrich. That is right. 



Mr. Hamburg. Currently there is an approved THP, approved by 

 the State board of forestry which was enjoined in court. I under- 

 stand that that is preventing any further harvesting in Owl Creek. 

 Is the Fish and Wildlife Service taking a position on any further 

 harvest in Owl Creek that is any more aggressive than the position 

 you have taken in the past? 



Mr. Detrich. I have been assured by the Assistant Secretary for 

 Fish and Wildlife and Parks that we will take enforcement seri- 

 ously in this case. We also participate 



Mr. Hamburg. What does that mean, Mr. Detrich? I would as- 

 sume that the Fish and Wildlife Service would always take their 

 enforcement responsibilities seriously. 



Mr. Detrich. That is correct, we do take our enforcement re- 

 sponsibilities seriously. However, when we come to a matter of 

 interpretation 



Mr. Hamburg. Where is that matter of interpretation? 



Mr. Detrich. The matter of interpretation is the difference be- 

 tween what a biologist might interpret as a take, that is, a signifi- 

 cant impairment of essential behavior patterns, and the interpreta- 

 tions of the law enforcement division, the Department of the Inte- 

 rior, Solicitor, and the Department of Justice as to whether there 

 is a case there that can be prosecuted. 



Mr. Hamburg. My understanding is that the test in determining 

 whether take has occurred in the past has been finding dead bodies 

 on the ground and the murrelet has not met the dead body test. 



Mr. Detrich. Well, kill is a portion of the definition of take. Also 

 harm and harass, harm relating to habitat modifications, so there 

 is some latitude in the regulation for pursuing take according to 

 habitat modification. That has been difficult for the Service to pur- 

 sue in the past. Case law is limited. 



