In July of this year, Chancellor of Justice Ülle Madise approached the Ministry of Climate and the Environmental Board with concerns that the identification of habitats for protected species, such as the eagle owl, relied solely on alleged auditory data.

Specifically, Madise pointed to the establishment of a permanent habitat for the eagle owl in Kildemaa. She noted that no eagle owl nests have been found in the area, and the bird's habitat was registered in the environmental registry based on auditory points. In other words, a permanent habitat was designated in an area where the protected bird's calls were reportedly heard, but no nests were identified. Furthermore, there are no recordings to verify these calls, making it impossible to retrospectively confirm their occurrence.

Madise raised concerns about whether such a process ensures the protection of property rights and if the legality of the state's actions can be verified afterward.

"A property restriction can be imposed to protect natural values if those natural values actually exist on the person's land. If property is restricted without the state having appropriate, reliable and verifiable evidence of the natural value, and if the property owner or anyone else cannot verify the reason for the restriction, arbitrary and unfounded property restrictions cannot be ruled out," said the justice chancellor.

She added that arbitrary property restrictions are unconstitutional and recommended that verifiable evidence of natural values be collected when imposing restrictions.

This week, Climate Minister Yoko Alender responded to the justice chancellor, stating that to reduce conflicts and create transparency, monitoring measures need to be enhanced, with an analysis planned in cooperation with the Environment Agency to be completed this year. However, she did not see relying on auditory data as incorrect.

"Relying on auditory data is an internationally recognized and applicable methodology for identifying habitats and assessing their suitability, but it is sensible to develop and adopt various refining approaches for more effective monitoring where appropriate," said Alender.

She mentioned possible new measures, such as DNA analyses of materials collected from the area and location-determining recording technologies. Alender noted that recordings are currently made and preserved as evidence, although the monitoring methodology does not require this.

According to Alender, the Ministry of Climate disagrees with the chancellor's view that it must first be determined whether a protected species inhabits and operates in a specific area before establishing a permanent habitat. This, she argued, does not align with the necessary knowledge and experience for protecting species and habitats.

"The broader aim of the Nature Conservation Act is to ensure that species have the opportunity to improve their numbers, which requires preserving suitable habitats, including, if necessary, placing areas under protection," explained the climate minister.

She added that court practice has repeatedly confirmed that the law should not be interpreted to mean that a permanent habitat only exists if a protected species actively uses the area. It is also important to consider species characteristics, such as using multiple habitats alternately and reoccupying older habitats.

Alender highlighted that many species require both occupied and unoccupied suitable habitats, which need to be sufficient in number. If the population of a protected species is declining, it may not be possible for the species to occupy all habitats, but temporary non-occupation does not diminish the habitat's quality.

"How could the restoration of a species' population (achieving a favorable status) be possible if suitable habitats for it have not been preserved?" asked Alender. "Monitoring data confirms that even long-unoccupied habitats have been reoccupied, for example, by the flying squirrel, or nesting sites that had been unoccupied by the black stork for over ten years have been reoccupied. Therefore, it is essential to preserve and protect suitable habitats/nesting sites even if the target species is not currently present, but the potential for reoccupation is high."

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