Conservation Congress v. United States Forest Service et al

Filing 53

ORDER signed by Judge Lawrence K. Karlton on 6/19/2012 ORDERING 43 Motion for Preliminary Injunction is DENIED. (Waggoner, D)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CONSERVATION CONGRESS and
KLAMATH FOREST ALLIANCE,
NO. CIV. S-11-2605 LKK/EFB

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Plaintiffs,
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v.

O R D E R

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UNITED STATES FOREST
SERVICE,

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Defendant,

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and

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SIERRA PACIFIC INDUSTRIES,
Proposed Defendant
Intervenor.

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/
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Plaintiff Conservation Congress brings this action against

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Defendants United States Forest Service and United States Fish and

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Wildlife Service (collectively, “Federal Defendants”), concerning

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Federal Defendants’ approval of a timber sale, known as the Mudflow

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Vegetation Management Project, and its effect upon the habitat of
the northern spotted owl.

Plaintiff’s action arises under the

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Endangered Species Act (“ESA”), the National Environmental Policy

2

Act

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Declaratory Judgment Act (“DJA”), and the Equal Access to Justice

4

Act (“EAJA”).

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(“NEPA”),

Pending

the

before

Administrative

the

injunction,

court

6

preliminary

7

Federal

9

Industries (“SPI”) oppose.

is

Plaintiff’s claims under the ESA.

8

Defendants

10

Opp’n, ECF No. 47.

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brought

and

Procedure

Act

Plaintiff’s

specifically

(“APA”),

motion

in

the

for

relation

a
to

Pl’s Amend. Mot., ECF No. 44.

Defendant-Intervenor

Sierra

Pacific

Fed. Defs’ Opp’n, ECF No. 46; Def. SPI

For the reasons provided below, Plaintiff’s

motion is denied.

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I. BACKGROUND
A. Statutory Background
The

Endangered

Species

Act

(“ESA”)

requires

that

the

15

Secretaries of the Interior and Commerce promulgate regulations

16

listing

“endangered”

by

17

extinction and to designate critical habitat for such species.

16

18

U.S.C. § 1533; Bennett v. Spear, 520 U.S. 154, 157-58, 117 S.Ct.

19

1154, 137 L.Ed.2d 281 (1997).

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areas which have “physical or biological features (I) essential to

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the conservation of the species and (II) which may require special

22

management considerations or protection.” 16 U.S.C. § 1532(5)(A).

plant

and

animal

species

that

are

Critical habitat consists of those

23
24

Section 9 of the ESA establishes a blanket prohibition on the

25

“taking” of any member of a listed endangered species.

26

§ 1538(a)(1)(B); Oregon Natural Resources Council v. Allen, 476
2

16 U.S.C.

1

F.3d 1031, 1033 (9th Cir. 2007).

To “take” is defined as “to

2

harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or

3

collect, or to attempt to engage in any such conduct.”

4

§ 1532(19); Oregon Natural Resources Council, 476 F.3d at 1033 n.1.

16 U.S.C.

5
6

Section 7 of the ESA allows statutorily-defined “applicants,”

7

including Federal agencies, to carve out limited exceptions to

8

Section 9's blanket prohibition under certain circumstances.

9

U.S.C. § 1536(a)-(c), (o).

16

Under Section 7, each federal agency

10

must “insure that any action authorized, funded, or carried out by

11

such agency is not likely to jeopardize the continued existence of

12

any endangered species or threatened species or result in the

13

destruction or adverse modification of habitat of such species

14

which is determined by the Secretary . . . to be critical.”

15

U.S.C. § 1536(a)(2). The applicable regulations define an “action”

16

to include “actions directly or indirectly causing modifications

17

to the land, water, or air.”

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50 C.F.R. § 402.02.

18

In addition to the ESA’s substantive obligations to conserve

19

and not jeopardize protected species, Section 7(a)(2) imposes a

20

procedural obligation on federal agencies. See Nat’l Ass’n of Home

21

Builders v. Defenders of Wildlife, 551 U.S. 644, 667, 127 S.Ct.

22

2518, 168 L.Ed.2d 467 (2007); New Mexico ex rel. Richardson v.

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Bureau of Land Mgmt., 565 F.3d 683, 700 (10th Cir. 2009).

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agency’s decision whether to take a discretionary action that may

25

jeopardize endangered or threatened species is strictly governed

26

by ESA-mandated inter-agency consultation procedures.”
3

“An

Forest

1

Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir. 2006).

The

2

procedural obligation ensures that the agency proposing the action,

3

in this case the United States Forest Service (“USFS”), consults

4

with the United States Fish and Wildlife Service (“FWS”) to

5

determine the effects of its action on endangered species and their

6

critical habitat.1

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1138 (11th Cir. 2008).

See Fla. Key Deer v. Paulison, 522 F.3d 1133,

8

To meet its procedural obligation, the agency action must

9

first determine whether its proposed discretionary action may

10

affect a listed species or a critical habitat.

11

402.14(a).

12

critical species or habitats, formal consultation is ordinarily

13

mandated.

14

1118, 1126 (9th Cir. 1998) (citing Thomas v. Peterson, 753 F.2d

15

754,

16

consultation is excused only where (1) an agency determines that

17

its action is unlikely to adversely affect the protected species

18

or habitat, and (2) the relevant Service (FWS or NMFS) concurs with

19

that determination.

20

Rivers Council v. Thomas, 30 F.3d 1050, 1054, n.8 (9th Cir. 1994)).

21

////

22

////

763

50 C.F.R. §

If an agency determines that an action “may affect”

Natural Resources Defense Council v. Houston, 146 F.3d

(9th

Cir.

1985);

50

C.F.R.

§

402.14(a)).

Formal

Id. (citing 50 C.F.R. § 402.14(b); Pacific

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1

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The FWS and the National Marine Fisheries Service administer
the ESA. 50 C.F.R. § 402.01(b). The “FWS has jurisdiction over
freshwater and terrestrial species while the National Marine
Fisheries Service is responsible for anadromous and marine
species.”
Johanns, 450 F.3d at 457 n.1 (citing 50 C.F.R. §
402.01(b)).
4

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If it appears from informal consultation2 that a protected

2

species may be present in the area of a federal agency’s “major

3

construction activity,” then the agency must prepare a “biological

4

assessment.” 50 C.F.R. § 402.12(b). The purpose of the biological

5

assessment is to “evaluate the potential effects of the action on

6

listed and proposed species and designated and proposed critical

7

habitat and determine whether any such species or habitat are

8

likely to be adversely affected by the action and is used in

9

determining

whether

10

necessary.”

50 C.F.R. § 402.12(a).

11

not required if, as a result of informal consultation, the “Federal

12

agency determines with the written concurrence of the Director [of

13

the Fish and Wildlife Service], that the proposed action is not

14

likely to adversely affect any listed species or critical habitat.”

15

Sierra Club v. Van Antwerp, 661 F.3d 1147, 1155 (D.C. Cir. 2011)

16

(citing 50 C.F.R. § 402.14(b)).

formal

consultation

or

a

conference

is

Again, formal consultation is

17

To determine a project’s effects, agencies are required to

18

understand the existing conditions of the species or critical

19

habitat at issue, before they consider the effects of a proposed

20

action on those conditions.

21

Section 7 consultation purposes is defined as follows:

The “environmental baseline” for

The environmental baseline includes the past and
present impacts of all Federal, State, or private
actions and other human activities in the action

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2

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Informal consultation merely means “all discussions,
correspondence, etc., between the Service and the Federal agency,”
designed to assist the action agency (USFS) in determining whether
formal consultation will be necessary. 50 C.F.R. § 402.13(a).
5

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area, the anticipated impacts of all proposed
Federal projects in the action area that have
already undergone formal or early section 7
consultation, and the impact of State or private
actions which are contemporaneous with the
consultation in process.

2
3
4
5

50 C.F.R. § 402.02 (definition of “environmental baseline” is

6

included within the definition of “effects of the action”).

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Section 7 consultation purposes, the “effects” of a proposed action

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include not only “direct” effects, but also “indirect effects,”

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which is defined to include any effects caused or induced by the

10

action that are “reasonably certain to occur.” 50 C.F.R. § 402.02.

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Additionally, in meeting the Section 7 consultation requirements,

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agencies must utilize the best scientific and commercial data

13

available and agencies that fail to consult properly run the risk

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that

15

1536(a)(2); see also, e.g., Pacific Rivers Council v. Robertson,

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854 F. Supp. 713, 724 (D. Or. 1993) (holding that procedural

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violations of the ESA, such as not initiating Section 7(a)(2)

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consultation when required, mandate that the underlying action be

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enjoined), aff’d in part, rev’d in part sub nom., Pacific Rivers

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Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994).

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B. Factual Background

their

activities

will

be

enjoined.

See

16

For

U.S.C.

§

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The northern spotted owl has been listed as a threatened

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species by the U.S. Fish and Wildlife Service (“FWS”). See Shasta-

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Trinity National Forest, Biological Assessment Mudflow Vegetation

25

Management

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(“Biological Assessment”).

Project,

MAR002558-2580,

at

8

(Feb.

15,

2008)

Critical habitat for the northern
6

1

spotted owl was proposed within the Federal Register on May 6,

2

1991, and a Final Rule was published on January 15, 1992.

Id.

3

(citing 56 Fed. Reg. 20816-21016; 57 Fed. Reg. 1796-1838).

On

4

September 12, 2008, a Final Revised Critical Habitat Rule for the

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northern spotted owl became effective.

6

Service, Second Letter of Concurrence, FWS AR 001317-1331, at 1-2

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(Feb. 10, 2012) (“2nd LOC”) (citing 73 Fed. Reg. 47326-47522).

8

Mudflow Project area contains 888 acres within the 2008 Critical

9

Habitat

10

designation

subunit

C-70

Critical Habitat subunit C-72.

and

See Fish & Wildlife

3,392

acres

within

The

the

Id. at 2.

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The area encompassing the Mudflow Project has been surveyed

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for northern spotted owls “annually to protocol” starting in 2004

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through 2007.

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Biological Assessment for the Mudflow Project, which was based on

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the 1992 Final Critical Habitat Rule, the nearest known owl nests

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(ST-211 and ST-213) are located approximately .6 miles to the east

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and 1 mile to the west, respectively.

18

mile radius owl home ranges are within the project assessment area.

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Id.

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most years at both nest sites. Id. Owls in ST-211 were last known

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to nest in 1992.

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of this nest core in 2006.

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breed in 1992 and a single male was last heard in 1994.

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2005, a single male northern spotted owl was heard approximately

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1 mile to the northeast of the nest core on Forest Service land

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during surveys conducted by a private landowner, but the owl was

Biological Assessment, at 9.

Id.

According to the

Portions of both 1.3

Starting in 1992, annual historical checks have occurred in

Id.

A single male was located in the vicinity
Id.

Owls in ST-213 were last known to

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Id.

In

1

not relocated by Forest Service personnel on subsequent surveys.

2

Id.

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1.3 miles of the Mudflow Project.

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There are no known owl locations on private ownership within

The

proposed

area

for

Id.

the

Mudflow

Project

encompasses

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approximately 10,430 acres of Forest Service land and 3,400 acres

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of private land.

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suitable nesting/roosting habitat and 5,125 acres of foraging

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habitat.

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the known nest cores of ST-213 and ST-211.

Id.

Id.

The project area contains 510 acres of

There are no activities proposed within 1/4 mile of
Id. at 10.

Protocol

10

surveys conducted during 2004, 2005, 2006, and 2007 in all areas

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of potential nesting, roosting, or foraging habitat in the Mudflow

12

Project did not detect any additional owls.

Id.

13

According to the Biological Assessment, the Mudflow Project

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will “degrade” 1,719 acres of foraging habitat for the northern

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spotted owl overall, 215 acres of which are within the owl’s “home

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range” (1.3 mile radius) and 18 acres of which are within the owl’s

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“territory” (.7 mile radius).

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as a reduction in some habitat components, but the habitat would

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still function at the current habitat level.

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Biological Assessment indicates that none of the Mudflow Project

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area will be “downgraded” or “removed.”

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term of art which “indicates that there is a temporary reduction

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(approximately 30 years) in nesting/roosting or foraging habitat.”

24

Id.

25

would

26

habitat.”

Id. at 11.

“Degraded” is defined

Id.

T

Id.

h

e

“Downgraded” is a

“Removed” is a term of art which “indicates that the habitat
not

longer
Id.

function
The

as

nesting/roosting

Biological
8

Assessment

or

foraging”

concludes

with

a

1

determination that the proposed Mudflow Project “[m]ay affect, but

2

is not likely to adversely affect” the northern spotted owl.

3

at 15.

4

Id.

The FWS issued an initial letter of concurrence with the

5

Biological Assessment for the Mudlfow Project on April 28, 2008.

6

See 2nd LOC, at 1.

7

account both the 2008 Final Revised Critical Habitat Rule for the

8

Northern Spotted Owl and the 2011 Revised Recovery Plan for the

9

Northern Spotted Owl (“Recovery Plan”), the FWS issued a second

On February 10, 2012, in order to take into

10

letter of concurrence.

Id. at 1-2.

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C. Plaintiff’s Complaint

12

Plaintiff Conservation Congress filed its original complaint

13

on October 3, 2011, and its first supplemental complaint on March

14

22, 2012.

15

No. 40.

16

inter alia, the following assertions:

Pl’s Compl., ECF No. 1; Pl’s First Suppl. Compl., ECF
In its first supplemental complaint, Plaintiff makes,

17

The 2011 Recovery Plan for the northern spotted owl notes that

18

“past habitat loss, current habitat loss and competition from

19

Barred Owls” were “the most pressing threats to [northern] spotted

20

owl persistence,” and that active management projects should

21

explicitly evaluate the short-term impacts to the Northern Spotted

22

Owl

23

benefits of such projects.

and

its

prey

while

considering

the

long-term

ecological

Id. (citing 76 Fed. Reg. 38575).

24

According to Plaintiff, the most recent scientific evidence

25

analyzing northern spotted owl population and demographic trends

26

indicate that, despite over 20 years of legal protection under the
9

1

ESA, the species’ population is declining by 3%-4% each year.

2

Id.

at 13-14.

3

The Mudflow Project is only one of many projects that involve

4

tree cutting on lands managed by the Shasta-Trinity National Forest

5

that are designated as critical habitat for the northern spotted

6

owl.

7

projects that also involve tree cutting in northern spotted owl

8

habitat including the Algoma, Pilgrim, Moosehead and East McCloud

9

projects.

10

Id. at 15.

USFS has analyzed and/or approved several

Id.

FWS has conducted no surveys for northern spotted owl’s in the

11

Mudflow Project area since 2007.

Id.

Seventeen percent of the

12

existing foraging habitat within the home range of a spotted owl

13

pair, designated as ST-211, will be degraded in the Mudflow

14

Project. Id. Despite this level of degradation, in its Biological

15

Assessment, USFS did not evaluate the spatial relationship of its

16

proposed logging to the existing habitat features of this area,

17

even though spatial patterns of logging units vis-a-vis existing

18

habitat, are considered by experts to be important to the survival

19

of Owls post-logging.

Id.

20

Based on the 2008 critical habitat rule, the Mudflow Project

21

area contains 888 acres of designated critical habitat in unit “C-

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70" and 3,392 acres in unit “C-72,” for a total of 4,280 acres of

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critical habitat.

Pl’s Reply, ECF No. 49, at 3.3

The Project will

24
3

25
26

Initially, Plaintiff alleged calculations for the Mudflow
Project’s effects on northern spotted owl critical habitat using
the 1992 critical habitat rule. Following briefing by the parties
in support of the instant motion, Plaintiff offers recalculations
10

1

encompass 19% of the total critical habitat in unit C-70 and 11%

2

of the total critical habitat in unit C-72.

3

that USFS and FWS propose to treat are comprised of 408 acres of

4

foraging habitat, 128 acres of dispersal habitat, and 8 acres of

5

non-capable habitat.

6

acres

7

sanitation, and 46 acres of shaded fuelbreak.

8

alleges that these treatments “appear to be targeted at all the

9

foraging habitat, the highest quality remaining habitat[] included

10

of

natural

in the Project.”

Id.

stand

Id.

The 544 acres

USFS’s proposed treatments include 340
thinning,

22

acres

of

thinning
Id.

with

Plaintiff

Id. at 3-4.

11

Plaintiff asserts that, in its Second Letter of Concurrence,

12

FWS fails to consider: the 2011 Revised Recovery Plan for the

13

Northern Spotted Owl; or FWS’s Biological Opinion on USFS’s Algoma

14

Project.

15

asserts that FWS conducted no surveys in the Mudflow Project area

16

since 2007, even though FWS revised its survey protocol in 2011 to

17

better detect both Barred Owls (a competitor species to the

18

Northern Spotted Owl) and northern spotted owls.

Pl’s Am. Compl., ECF No. 40, at 20.

Plaintiff further

Id.

19

Plaintiff brings two claims under the ESA alleging: (1)

20

inadequate biological assessment on the part of USFS, in violation

21

of 16 U.S.C. § 1536 and 50 C.F.R. § 402.12(a); and (2) arbitrary

22

concurrence letters on the part of FWS, in violation of 16 U.S.C.

23

§ 1536(a)(2) and 50 C.F.R. § 402.14(a).

24

On April 5, 2012, Federal Defendants filed an answer to

25
26

Id. at 22-25.

based on the 2008 critical habitat rule.
11

1

Plaintiff’s supplemental complaint, see Fed. Defs’ Answer, ECF No.

2

41, as did Defendant-Intervenor Sierra Pacific Industries, see Def-

3

Intervenor’s Answer, ECF No. 42.

4

D. Plaintiff’s Motion for Preliminary Injunction

5
6

On April 9, 2012, Plaintiff filed the pending motion for a
preliminary injunction.

Pl’s Amend. Mot., ECF No. 44.

7

On April 30, 2012, Federal Defendants and Defendant-Intervenor

8

Sierra Pacific Industries filed oppositions to Plaintiff’s motion

9

for a preliminary injunction.

10

See Fed. Defs’ Opp’n, ECF No. 46,

Def-Int’s Opp’n, ECF No. 47.

11

II. STANDARD OF REVIEW FOR A PRELIMINARY INJUNCTION UNDER THE

12

ENDANGERED SPECIES ACT
Fed. R. Civ. P. 65 provides authority to issue preliminary

13
14

injunctions.

15

remedy."

16

22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (internal citation

17

omitted).

18

preliminary injunction, it traditionally balances "the competing

19

claims of injury, . . . the effect on each party of the granting

20

or

21

consequences in employing the extraordinary remedy of injunction,"

22

and plaintiff's likelihood of success.

23

Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94

24

L.Ed.2d 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305,

25

312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982)).

26

preliminary

injunction

is

an

"extraordinary

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,

When a court considers whether to grant a motion for a

withholding

Under

A

the

of

the

requested

traditional

relief,

approach,
12

.

.

.

the

public

Id. at 20, 24 (quoting

a

plaintiff

seeking

a

1

preliminary injunction must demonstrate that he is “likely to

2

succeed on the merits, that he is likely to suffer irreparable harm

3

in the absence of preliminary relief, that the balance of equities

4

tips in his favor, and that an injunction is in the public

5

interest.”

6

F.3d 1046, 1052 (9th Cir. 2009) (citing Winter, 555 U.S. at 20).

7

Alternatively, “‘serious questions going to the merits’ [rather

8

than a likeliness of success on the merits] and a hardship balance

9

that tips sharply toward the plaintiff can support issuance of an

10

injunction, assuming the other two elements of the Winter test are

11

also met.”

12

1127, 1132 (9th Cir. 2011).

13

Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559

Alliance For The Wild Rockies v. Cottrell, 632 F.3d

By enacting the ESA, Congress altered the normal standards for

14

injunctions under Federal Rule of Civil Procedure 65.

15

Circuit has consistently held that “[t]he traditional preliminary

16

injunction analysis does not apply to injunctions issued pursuant

17

to the ESA.”

Nat'l Wildlife Fed'n v. NMFS, 422 F.3d 782, 793 (9th

18

Cir. 2005).

The Supreme Court explained that in enacting the ESA

19

“Congress has spoken in the plainest of words, making it abundantly

20

clear that the balance has been struck in favor of affording

21

endangered species the highest of priorities.” Tenn. Valley Auth.

22

v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978).

23

“Accordingly, courts may not use equity's scales to strike a

24

different

25

(internal quotation omitted). “ T h e

26

violations of the ESA consultation requirements is an injunction

balance.”

Nat'l

Wildlife

13

Fed'n,

422

The Ninth

F.3d

at

794

appropriate remedy for

1

pending compliance with the ESA.”

2

Environmental Protection Agency, 413 F.3d 1024, 1035 (9th Cir.

3

2005) (upholding an injunction prohibiting the EPA from authorizing

4

the use of certain pesticides within proscribed distances of

5

salmon-bearing waters until it had fulfilled its consultation

6

obligations under § 7(a)(2) of the ESA).

7

Wash. Toxics Coalition v.

III. ANALYSIS

8

Plaintiff asserts a procedural violation of the ESA due to

9

Federal Defendants’ failure to engage in the formal consultation

10
11

required by Section 7(a)(2).
The

Tenth

Circuit

has

indicated

that,

to

challenge

the

12

agency’s failure to undertake formal consultation, a plaintiff may

13

utilize

14

1540(g)(1)(A). Rio Grande Silvery Minnow v. Bureau of Reclamation,

15

601 F.3d 1096, 1106 n.3 (10th Cir. 2010).

16

“any person may commence a civil suit . . . to enjoin any person,

17

including

18

instrumentality or agency . . . who is alleged to be in violation

19

of any provision of [the ESA] or regulation issued under the

20

authority [of the ESA]; . . . .”

21

However, to challenge discretionary final agency actions of the FWS

22

and other federal agencies under the ESA, plaintiffs must utilize

23

the Administrative Procedure Act (“APA”).

24

Bennett v. Spear, 520 U.S. 154, 174-75, 117 S.Ct. 1154, 137 L.Ed.2d

25

281 (1997).

26

the

the

ESA’s

citizen-suit

United

States

provision,

and

any

16

U.S.C.

§

Under this provision,

other

governmental

16 U.S.C. § 1540(g)(1)(A).

See 5 U.S.C. § 706(2);

Plaintiff and Federal Defendants dispute whether Plaintiff’s
14

1

claims against the USFS and the FWS arise under the ESA citizen

2

suit provision or the APA. Because the APA governs judicial review

3

of agency action challenged through the ESA citizen-suit provision,

4

see 5 U.S.C. § 706; Friends of Endangered Species, Inc. v. Jantzen,

5

760 F.2d 976, 981–82 (9th Cir. 1985); Rio Grande Silvery Minnow,

6

601 F.3d at 1106 n.3 (citing Coal. for Sustainable Res., Inc. V.

7

U.S. Forest Serv., 259 F.3d 1244, 1249 (10th Cir. 2001)), the APA

8

will provide the standard of review for both of Plaintiff’s

9

relevant claims, regardless of the statutory authority under which

10

the claims arise.

At this stage in the proceedings, the court

11

therefore declines to analyze whether Plaintiffs claims against the

12

USFS and FWS arise under the ESA Section 11(g) citizen suit

13

provision or the APA.4

14
4

15
16
17
18
19
20
21
22
23
24
25
26

The court must note, however, the ESA Section 11(g) citizensuit requirement that 60-day written notice be provided to the
appropriate Secretary and to any alleged violator intended to be
a defendant in the lawsuit. See 16 U.S.C. § 1540(g)(2)(A), (B),
and (C). A proper 60-day notice of intent must sufficiently alert
the recipient of the actual alleged violation, so that the
recipient may attempt to abate the violation. Southwest Ctr. for
Biological Diversity v. Bureau of Reclamation, 143 F.3d 515, 521
(9th Cir. 1998). The Ninth Circuit considers this requirement
jurisdictional. Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1072
(9th Cir. 1996).
Here, the administrative record indicates that a 60-day notice
of intent to sue, from Plaintiff Conservation Congress was received
by Sharon Heywood, the Forest Supervisor for the Shasta-Trinity
National Forest of the USFS, on July 13, 2011--over 60 days before
Plaintiff’s filing of its original complaint in this action.
See Letter from Denise Boggs, Conservation Congress, Sixty-Day
Notice of Intent to Sue (Jul. 13, 2011). The letter was also
addressed to Ken Salazar, Secretary of the Interior, for the U.S.
Department of the Interior. Id. at 1. In addition to being filed
in a timely manner, the letter is explicitly identified as a 60-day
notice of intent to sue under ESA Section 11(g), see id. at 1; it
clearly provides notice of the violation upon which Plaintiff sued,
see, e.g., id. at 2 (“the USFS and USFWS have contravened the
15

1

A. Likelihood of Success on the Merits

2

i. Standard of Review

3

Under the APA, a court may disturb an agency's final action

4

only if that final action is “arbitrary, capricious, an abuse of

5

discretion, or otherwise not in accordance with law.”

6

706(2)(A). This standard is “highly deferential, presuming agency

7

action to be valid and affirming the agency action if a reasonable

8

basis exists for its decision.”

9

California, 204 F.3d 1247, 1251 (9th Cir. 2000). A reviewing court
not

“substitute

Independent Acceptance Co. v.

10

must

11

concerning the proposed action. Citizens to Preserve Overton Park

12

v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

13

Rather, a court must determine whether the decision was “based on

14

a consideration of relevant factors” and whether “the agency has

15

taken a ‘hard look’ at the environmental consequences of its

16

proposed

17

Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998).

18

agency must state a rational connection between the facts found and

19

the decision made.

20

Wildlife Serv., 378 F.3d 1059, 1065 (9th Cir. 2004).

action.”

its

5 U.S.C. §

Blue

judgment

Mountains

for

that

of

Biodiversity

the

agency”

Project

v.

That is, the

Gifford Pinchot Task Force v. U.S. Fish and
The standard

21
22
23
24
25
26

requirements of the ESA by . . . failing to initiate formal
consultation with the USFWS”); and it appears to have been served
upon the relevant Secretary (the Secretary of the Interior) as well
as the alleged ESA violator (the USFS). This letter was therefore
sufficient to satisfy the jurisdictional requirement of notice
under 16 U.S.C. § 1540(g)(2)(A)(i). To the extent that Plaintiff
asserts an ESA claim against the USFS, brought pursuant to the ESA
citizen suit provision of 16 U.S.C. § 1540(g)(1)(A), this court has
jurisdiction to hear that claim.
16

1

does not shield the agency from a “thorough, probing, in-depth

2

review.”

3

(W.D. Wash. 1992) (quoting Citizens to Preserve Overton Park, 401

4

U.S. at 415, 91 S.Ct. 814).

Seattle Audubon Soc'y v. Moseley, 798 F.Supp. 1473, 1476

5

In reviewing environmental actions, in particular, the Ninth

6

Circuit has explicitly provided that the “highest deference is owed

7

to the Forest Service's technical analyses and judgments within its

8

area of expertise.” League Of Wilderness Defenders Blue Mountains

9

Biodiversity Project v. Allen, 615 F.3d 1122, 1131 (9th Cir. 2010)

10

(citing Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008),

11

overruled on other grounds by American Trucking Ass’ns Inc. v. City

12

of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)).

13

Circuit

14

deference

15

regulations, including forest plans, and that, under the APA, the

16

court's

17

conflicting expert opinions or to consider whether the agency

18

employed the best methods, but instead, when an agency's particular

19

technical expertise is involved, to guard the agency's discretion.

20

See Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097,

21

1099 (9th Cir. 2003); Friends of Endangered Species, Inc. v.

22

Jantzen, 760 F.2d 976, 986 (9th Cir. 1985); Marsh v. Or. Natural

23

Res. Council, 490 U.S. 360, 376-77, 109 S.Ct. 1851, 104 L.Ed.2d 377

24

(1980).

has

further

relative

role

in

provided
to

The Ninth

that agencies are entitled to

their

interpretation

of their own

reviewing agency actions is not to weigh

25

ii. Analysis

26

Underlying the test for injunctive relief is the requirement
17

1

that Plaintiff demonstrate at least some probability of success on

2

the merits. See Sports Form, Inc. v. United Press Int'l, Inc., 686

3

F.2d 750, 753 (9th Cir. 1982) (citing Benda v. Grand Lodge of

4

International Association of Machinists & Aerospace Workers, 584

5

F.2d 308, 315 (9th Cir. 1978), cert. dismissed, 441 U.S. 937, 99

6

S.Ct. 2065, 60 L.Ed.2d 667 (1979)).

7

below, the court determines that Plaintiff has not established a

8

probability of success on the merits of its claims.

9

the court denies Plaintiff's request for injunctive relief.

For the reasons explained

Accordingly,

10

Plaintiff claims that the USFS and the FWS were arbitrary and

11

capricious in their determination that the Mudflow Project was not

12

likely to adversely affect the Northern Spotted Owl and that formal

13

consultation, therefore, should have been required. A plaintiff’s

14

burden in establishing a procedural violation of the ESA is to show

15

that the circumstances triggering the procedural requirement exist

16

(i.e.,

17

determining that the Mudflow Project is not likely to adversely

18

affect the Northern Spotted Owl), and that the required procedures

19

have not been followed (i.e., the USFS and the FWS did not engage

20

in formal consultation). See Thomas v. Peterson, 753 F.2d 754, 765

21

(9th Cir. 1985).

22

not engage in formal consultation. Nonetheless, Plaintiff has not

23

met its burden of establishing that the agencies were arbitrary and

24

capricious in determining that Mudflow Project is not likely to

25

adversely affect the Northern Spotted Owl.

26

////

that

the

agencies

were

arbitrary

and

capricious

in

It is uncontested that the USFS and the FWS did

18

1

a.

Short-Term Impacts of the Mudflow Project on the

2

Northern Spotted Owl and its Prey

3

Plaintiff argues that the USFS’s biological assessment and the

4

FWS’s second letter of concurrence failed to consider the short-

5

term impacts to the Northern Spotted Owl and its prey in reaching

6

their

7

ecological benefits.

conclusions

that

the

Mudflow

Project

offers

long-term

Pl’s Am. Mot., ECF No. 44, at 23-24.

8

It appears to the court, however, that the USFS considered the

9

short-term impacts to the species when it determined that “[n]o

10

activities are proposed within 1/4 mile of” the “nearest known owl

11

nests (ST-11 and ST-213),” which are located .6 miles to the east

12

of the Mudflow Project and 1 mile to the west, respectively, and

13

when the USFS further provided that “[s]hould an owl nest be

14

located in the project area, a limited operating period . . . will

15

be required to avoid direct effects to spotted owls during the

16

breeding season.”

17

seems to have explicitly taken into account short-term impacts on

18

the prey of the Northern Spotted Owl when analyzing the effects of

19

the Mudflow Project on the Northern Spotted Owl’s foraging habitat.

20

See Biological Assessment, at 11-14.

Biological Assessment, at 9-10.

The USFS also

21

Furthermore, the FWS clearly considered the short-term effects

22

of the Mudflow Project on both the Northern Spotted Owl and its

23

prey when it determined that:

24
25
26

1) limited detections in both historical activity
centers [ST-211 and ST-213] since 1992 indicate a
low likelihood of occupancy by NSO [Northern
Spotted Owls] within the project area, 2)
treatments are not proposed within nesting/roosting
19

1
2
3
4

habitat or high-quality foraging habitat, within
the NSO core areas, 3) treatments proposed for 171
acres of foraging habitat within the two home
ranges have been designed to retain the function of
foraging habitat and, 4) a seasonal restriction
will be placed on project activities during the
breeding season.

5

2nd LOC, at 9.

6

Northern Spotted Owls to the Mudflow Project area, the effects of

7

the Mudflow Project upon the any nesting/roosting habitat or high-

8

quality foraging habitat of the Owls, and the impacts that the

9

Mudflow Project might have upon the Owls’ breeding season, the FWS

10

appears to have overtly considered the short-term effects that the

11

Project would have upon the species.

Indeed, in determining the proximity of any

12

Contrary to Plaintiff’s assertion, Federal Defendants took

13

into account the short-term impacts of the Mudflow Project on both

14

the Northern Spotted Owl and its prey.

15

to establish that Federal Defendants’ conclusions were arbitrary

16

and capricious in this regard.

17
18

b.

Plaintiff therefore fails

Characterization of the Forest Areas

Plaintiff

further

asserts

that

the

Federal

Defendants

19

incorrectly characterized the Mudflow Project area as 65 to 85 year

20

old “second growth” forests, and thus, not high quality Northern

21

Spotted Owl habitat, when the habitat actually includes old growth

22

trees hundreds of years old. Pl’s Am. Mot., ECF No. 44, at 24-25.

23
24
25

Plaintiff cites the declaration of Monica Bond, a “wildlife
biologist

with

expertise

in

wildlife

26
20

biology,

ecology,

and

Bond Decl., ECF No. 43, Att. 2.5

1

behavior.”

2

“was dumbfounded when [she] saw the large size of the trees

3

proposed for logging within Northern Spotted Owl Critical Habitat.”

4

Id. at 6, ¶ 14.

5

the trees, Bond submits a series of photographs of a person

6

standing beside marked tree trunks. Bond Photos, ECF No. 43, Atts.

7

3-5, 7, 9-11.

8

Boggs,

9

Congress,” who asserts that many of the trees marked for cutting

“the

Bond asserts that she

In support of her testimony regarding the size of

Plaintiff also cites the declaration of Denise

Executive

Director

and

a

member

of

Conservation

10

“are large, old trees.”

Boggs Decl., ECF No. 43, Att. 12, at 2,

11

¶ 4.

12

up to 43 inches in diameter at breast height. . . .

13

are not 60-80 year old ‘second growth’ forest,” but instead “are

Boggs further states, “We measured trees marked for cutting
These trees

14
5

15
16
17
18
19
20
21
22
23
24
25
26

A court may consider evidence outside the administrative
record for the limited purposes of reviewing a plaintiff’s ESA
claim. Western Watersheds Project v. Kraayenbrink, 632 F.3d 472,
497 (9th Cir. 2011), cert. denied, 132 S.Ct. 366 (2011). Thus, to
the extent that Plaintiff’s claims are brought under the ESA’s
citizen suit provision, the court considers the Boggs and Bond
declarations and attachments.
When reviewing a claim under the APA standard of review,
however, an agency action must typically be judged on the rationale
and record that led to the decision. See, e.g., Beno v. Shalala,
30 F.3d 1057, 1073-74 (9th Cir. 1994). However, a court is “not
straightjacketed to the original record in trying to make sense of
complex technical testimony,” but may consider evidence not
included in the administrative record to “clarif[y] a dispute that
. . . was less than clear from the original record.” Bunker Hill
Co. v. Envtl. Prot. Agency, 572 F.2d 1286, 1292 (9th Cir. 1977).
Here, Plaintiff’s submitted evidence is clearly meant to support
its assertion that the Federal Defendants’ findings are belied by
“simple observation.” See Pl’s Am. Mot., ECF No. 44, at 25. To
the extent that Plaintiff’s claims are brought pursuant to the APA,
the court considers the Boggs and Bond declaration and attachments
to ascertain whether the Federal Defendants considered the evident
size of the Mudflow Project area trees when making its habitat
determination.
21

1

old growth trees hundreds of years old.”

Id.

2

Plaintiff’s submitted evidence does not establish that the

3

Federal Defendants made an arbitrary and capricious assessment of

4

habitat quality.

5

submitted photographs appear to be large as compared to the person

6

in the photograph and therefore also appear to be old, that

7

agreement does not call into question the complex and technical

8

analyses and judgments of the USFS and the FWS in their assessment

9

of the characteristics of the habitat affected by the Mudflow

Even if the court agrees that the trees in the

10

Project.

The court declines to disturb the Forest Service’s

11

discretion in making technical analyses and judgments of the

12

Mudflow Project habitat–-a subject clearly within the agency’s area

13

of expertise.

14

Biodiversity Project v. Allen, 615 F.3d 1122, 1131 (9th Cir.

15

2010).6

See League Of Wilderness Defenders Blue Mountains

16

Thus, the court finds that the Plaintiff fails to establish

17

that the Federal Defendants’ assessment of habitat quality was

18

arbitrary and capricious.
c.

19

Threat of Barred Owls

20

Plaintiff argues that the USFS’s biological assessment fails

21

to discuss the Mudflow Project’s potential to facilitate the

22

invasion of Barred Owls, and FWS’s Second Letter of Concurrence

23

inappropriately minimizes the threat of Barred Owls and fails to

24
25
26

6

While the photos are opaque, the affidavit says that certain
trees were measured. Although troubling, the deference the court
owes the agency’s technical evaluation disposes of the issue.
22

1

use the best available science.

2

26.

3

Although

Plaintiff

bases

Pl’s Am. Mot., ECF No. 44, at 25-

its

argument,

in

part,

on

the

4

assertion that “FWS has conducted no surveys for Spotted Owl[]s in

5

the Mudflow Project area since 2007,” Pl’s Am. Mot., ECF No. 44,

6

at 26, the FWS 2nd Letter of Concurrence, in fact, indicates that

7

“[t]he Mudflow [P]roject area has been surveyed annually for NSOs

8

from 2004 to 2011,” FWS 2nd LOC, at 6.

9

Furthermore, the FWS’s 2nd Letter of Concurrence explicitly

10

discusses the threat of Barred Owls to Northern Spotted Owls in

11

relation to the Mudflow Project and references the FWS’s analysis

12

of recovery planning for the Northern Spotted Owl, which is based

13

upon the 2011 Revised Recovery Plan for the Northern Spotted Owl.

14

See FWS 2nd LOC, at 7, 12.

15

Recovery Plan for the Northern Spotted Owl represents the “best

16

available science.”

17
18
19
20
21
22
23
24
25
26

All parties agree that the 2011 Revised

The FWS 2nd Letter of Concurrence states:

Barred owls are recognized as a significant threat
to the recovery of the NSO (USFWS 2011). Although
barred owls have not been detected in the project
area, given the local presence of barred owls and
their current rate of spread, it is likely that
barred owls could move into the project area in the
foreseeable future. Results of a recent study . .
. suggest that in environments where the two
species compete directly for resources, maintaining
larger amounts of older forest (nesting/roosting)
may help NSOs to persist, at least in the short
term.
Our evaluation of the Mudflow Project
therefore focused on whether proposed treatments
could potentially act to exacerbate competitive
interactions between the two species by reducing
the availability of high-quality habitat (see
Recovery Planning for NSO section . . . ).
As
described below, the treatments prescribed by the
Mudflow
project
are
not
proposed
for
23

1

nesting/roosting and other high-quality habitat,
and therefore, it is unlikely that the Mudflow
project will exacerbate competitive interactions
between the two species.
In addition, because
survey results suggest that neither barred owls nor
territorial NSO currently occupy the treatment
areas, the direct influence of barred owls was not
a factor in determining the effects of this project
on NSO.

2
3
4
5
6

FWS 2nd LOC, at 7 (italics included).

7

to establish that the FWS arbitrarily and capriciously minimized

8

the threat of Barred Owls in its analysis.

9

the FWS explicitly references its “Recovery Planning for NSO

10

section,” which relies upon the 2011 Revised Recovery Plan for the

11

Northern Spotted Owl, the FWS analysis appears to be using the

12

“best available science.”

Plaintiff’s arguments fail

Additionally, because

13

Although the USFS’s Biological Assessment does not explicitly

14

discuss any potential invasion of Barred Owls--a threat which was

15

identified in the 2011 Revised Recovery Plan for the Northern

16

Spotted Owl--the USFS’s Biological Assessment was published in

17

2008, years before the 2011 Revised Recovery Plan for the Northern

18

Spotted Owl was issued, and an updated memorandum to the Biological

19

Assessment was made in May 3, 2011, over a month before the 2011

20

Revised

21

Vegetation

22

MAR002420 (May 3, 2011); 2011 Revised Recovery Plan for the

23

Northern Spotted Owl, FWS AR 002765. Absent evidence that the USFS

24

was aware of the potential threat of Barred Owl invasion due to the

25

Mudflow Project at the time that its Biological Assessments were

26

conducted, yet failed to take that evidence into account, the court

Recovery

Plan

Management

was

See

Memorandum:

Mudflow

Biological

Assessment

Update,

released.

Project

24

1

cannot

2

scientific data available to it at the time.

3

the court that the fact that the FWS’s 2nd Letter of Concurrence

4

later discussed the Barred Owl threat in some detail in concurring

5

with

6

Assessment’s failure to consider the Barred Owl threat before the

7

release of the 2011 Revised Recovery Plan.

8
9

determine

the

USFS’s

that

the

Biological

USFS

failed

Assessment

to

consider

the

best

It also appears to

cures

the

Biological

Furthermore, the contents of a Biological Assessment are
discretionary.

The applicable regulations state that “[t]he

10

contents of a biological assessment are at the discretion of the

11

[action] agency and will depend on the nature of the Federal

12

action.”

13

F. Supp. 581, 594 (D. Mass. 1997) (citing Bays’ Legal Fund v.

14

Browner, 828 F. Supp. 102, 110 (D. Mass. 1993) (“there are no

15

strict requirements for what the biological assessment should

16

include; its contents are discretionary within the agency preparing

17

it.”)).7

18

USFS was aware of any potential invasion of Barred Owls due to the

19

Mudflow Project in 2008, the court cannot find that the USFS abused

50 C.F.R. § 402.12(f).

See also Strahan v. Linnon, 967

As explained above, without evidence indicating that the

20
21
22
23
24
25
26

7

The regulation does list certain criteria that the agency
may consider. These include: (1) the results of an on-site
inspection of the area affected by the action to determine if
listed or proposed species are present or occur seasonally; (2) the
views of recognized experts on the species at issue; (3) a review
of the literature and other information; (4) an analysis of the
effects of the action on the species and habitat, including
consideration of cumulative effects, and the results of any related
studies; and (5) an analysis of alternative actions considered by
the Federal agency for the proposed action. 50 C.F.R. § 402.12(f).
25

1

its discretion in failing to address that threat in its Biological

2

Assessment.

3

Plaintiff therefore fails to demonstrate that the USFS and FWS

4

were arbitrary and capricious in their consideration, or failure

5

to explicitly consider (in the case of the USFS), any threats of

6

invasion by Barred Owls due to the Mudflow Project.

7

d.

Effects of “Landing” Construction

8

Plaintiff argues that the FWS failed to address the adverse

9

modification and destruction of critical habitat that will likely

10

result from “landing” construction.

11

26-27.

12
13
14
15
16
17
18
19
20
21
22
23
24

Pl’s Am. Mot., ECF No. 44, at

In discussing the Mudflow Project’s landing construction, the
FWS’s 2nd Letter of Concurrence states that:
Within the project area there are approximately 73
existing landings that would be reused, along with
an estimated 55 new landings proposed for
construction. All existing and proposed landings
are located within existing treatment units and are
often directly adjacent to roads.
Landing size
will vary between 0.25 and 0.5 acres depending on
unit volume. Existing landings and openings will
be used when available, and Forest biologists will
work with the Sale Administrator to encourage
placing landings outside of high quality foraging
habitat, where possible.
A conservatively high
estimate of 10 acres of foraging habitat would be
affected due to landing construction. Landings are
not proposed within nesting/roosting habitat,
Riparian Reserves, or NSO core areas. Due to their
small size and placement outside of high-quality
habitat, the effects of landing construction are
considered negligible in the scope of the Project.
FWS 2nd LOC, at 6.

25

Plaintiff has produced no evidence to indicate that, contrary

26

to the FWS’s assessment, the proposed landings will adversely
26

1

affect critical habitat for the Northern Spotted Owl.

2

argues

3

destruction of Owl habitat,” and “[a]t a minimum it must be

4

considered adverse modification,” but cites no evidence in support

5

of those assertions.

that

“[l]anding

construction

results

in

the

Plaintiff
complete

See Pl’s Am. Mot., ECF No. 44, at 27.

6
7

The Ninth Circuit has provided that “an adverse modification

8

occurs only when there is a direct or indirect alteration that

9

appreciably diminishes the value of critical habitat,” and that

10

“[a]n area of a species’ critical habitat can be destroyed without

11

appreciably diminishing the value of a critical habitat for the

12

species’ survival or recovery.”

13

U.S. Army Corps of Engineers, 620 F.3d 936, 948 (9th Cir. 2010)

14

(internal

15

Plaintiff’s assertion that “[l]anding construction results in

16

complete destruction of Owl habitat” is credited, according to the

17

Ninth Circuit, that destruction may not necessarily “appreciably

18

diminish[] the value of the critical habitat,” and thus, that

19

destruction does not necessarily rise to the level of an adverse

20

modification. Plaintiff’s argument, that the landing construction

21

itself requires the FWS to conclude that an adverse modification

22

will necessarily occur, therefore fails.

quotations

omitted)

Butte Environmental Council v.

(emphasis

omitted).

Even

if

23

Thus, Plaintiff has failed to show that the FWS abused its

24

discretion in determining that adverse affects on Northern Spotted

25

Owls are unlikely to occur.

26

////
27

1

e.

Cumulative Effects of Past Logging and USFS Projects

2

Plaintiff argues that the USFS and the FWS failed to analyze

3

the cumulative effects of past logging and USFS projects on the

4

Northern Spotted Owl when evaluating the Mudflow Project. Pl’s Am.

5

Mot., ECF No. 44, at 27-30.

6

Although agencies are required to evaluate the cumulative

7

effects on a listed species or critical habitat during formal

8

consultation, see 50 C.F.R. § 402.14(g)(3)-(4), no such requirement

9

binds

the

action

or

the

consulting

agency

during

informal

10

consultation, cf. 50 C.F.R. § 402.13.

11

the Biological Assessment, the USFS could have, but was not

12

required to include a consideration of cumulative effects.

13

C.F.R. § 402.12(f)(4).

14

of

15

unwilling to find that the USFS abused its discretion in failing

16

to consider a factor which it was not required to consider in the

17

first instance.

a

Biological

Furthermore, in completing

50

Because, as explained above, the contents

Assessment

are

discretionary,

the

court

is

18

It is particularly difficult for the court to find that the

19

USFS and the FWS abused their discretion in failing to consider

20

cumulative effects where, as here, Plaintiff’s argument hangs upon

21

its conflation of the technical and colloquial meanings of the word

22

“degrade.”

23

USFS and the FWS, “degradations” will occur to the critical

24

habitat, and that “a large amount of degradation from repetitive

25

timber sale projects, even if designed to benefit the Owl over the

26

long-term, simply must have some short-term impacts to the Owl and

In essence, Plaintiff argues that, according to the

28

1

are likely impeding its recovery.”

Pl’s Am. Mot., ECF No. 44, at

2

29.

3

argument loses its force in a regulatory world in which words are

4

not given their plain meanings.

Although Plaintiff’s argument appears facially valid, the

5

According to the Biological Assessment, “degraded” is defined

6

as “a reduction in some habitat components,” without a loss of

7

“function at the current habitat level.”

8

at 11. The FWS’s Second Letter of Concurrence stretches the common

9

understanding of the word “degrade” further by providing that:

10

Biological Assessment,

The term degraded signifies when treatments
influence the quality of habitat by the removal or
reduction of habitat elements but not to the degree
where existing habitat function is changed . . . .
this category includes activities that may be
neutral or beneficial to habitat function even
though habitat elements are being reduced.

11
12
13
14

FWS 2nd LOC, at 7 (emphasis included).

15

“degrade” that could mean “beneficial to habitat function,” and

16

absent further proof to the contrary, the court is unable to agree

17

with Plaintiff that a series of “degradations” will necessarily

18

have an adverse effect upon the Northern Spotted Owl critical

19

habitat.

20

In light of a definition of

Thus, Plaintiff has failed to demonstrate that the FWS and the

21

USFS

arbitrarily

and

capriciously

22

Northern Spotted Owl critical habitat will be “degraded” by the

23

Mudflow Project, such “degradation” does not rise to the level of

24

an “adverse modification.”

25

////

26

////
29

determined

that,

although

1

f.

Analyzing the Mudflow Project’s Effects Upon the

2

Recovery of the Northern Spotted Owl

3

Finally, Plaintiff argues that FWS and USFS improperly failed

4

to analyze the Mudflow Project’s effects upon the recovery, as

5

opposed to the mere survival, of the Northern Spotted Owl.

6

Am. Mot., ECF No. 44, at 30-31.

7

is Plaintiff’s unsupported assumption that “it appears clear that

8

‘degrading’ a species[’s] critical habitat may well set back its

9

recovery.” Id. at 31. However, as the court previously discussed,

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in light of the peculiar way that the agencies employ the term

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“degrade,” it is not at all clear to the court that “degrading” a

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species’ critical habitat would necessary adversely affect the

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recovery of the species.

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position, Plaintiff fails to demonstrate that the FWS and the USFS

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abused their discretion in this regard.8

Pl’s

Underlying Plaintiff’s argument

Without evidence to support Plaintiff’s

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Because Plaintiff has failed to produce evidence demonstrating

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that the Federal Defendants abused their discretion in determining

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that the Mudflow Project is not likely to adversely affect the

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Northern Spotted Owl, Plaintiff has not established a probability

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8

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23
24
25
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Moreover, the FWS’s Second Letter of Concurrence explicitly
states that it is based, in part, on the 2011 Revised Recovery
Plan. See FWS 2nd LOC, at 2. The 2011 Revised Recovery Plan for
the Northern Spotted Owl, in turn, explains that “[r]ecovery plans
describe reasonable actions and criteria that are considered
necessary to recover listed species.” U.S. Fish & Wildlife Serv.,
2011 Revised Recovery Plan for the Northern Spotted Owl, FWS AR
002766 (June 28, 2011). If the FWS’s Second Letter of Concurrence,
in fact, adheres to the recommendations and analyses of the 2011
Revised Recovery Plan, it stands to reason that the FWS’s Second
Letter of Concurrence takes into account the recovery, as opposed
to the mere survival, needs of the species.
30

1

of

succeeding

on

the

2

Defendants violated the ESA consultation requirements.

3

therefore denies Plaintiff’s motion for a preliminary injunction.

4

Plaintiff’s request that the court waive the bond requirement is

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moot.

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7
8
9
10

merits

of

its

claim

that

the

Federal

The court

IV. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for a preliminary
injunction, ECF No. 43, is DENIED.
IT IS SO ORDERED.
DATED: June 19, 2012.

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