Cascadia Wildlands et al v. Thrailkill et al

Filing 23

ORDER: Denying Motion for a Preliminary Injunction 13 . Signed on 9/23/2014 by Magistrate Judge Thomas M. Coffin. (plb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CASCADIA WILDLANDS, OREGON WILD,
and CENTER FOR BIOLOGICAL
DIVERSITY,
Plaintiffs,

Civil No.

v.

6: 14-1236-TC

0 R D E R

JIM THRAILKILL, Field Supervisor,)
Roseburg Field Office, in his
)
capacity, UNITED STATES FISH AND )
WILDLIFE SERVICE, an agency
)
within the United States
)
Department of Interior,
)
et al.,
)
Defendants, )
)
ROUGH & READY LUMBER LLC,
)
SWANSON GROUP MFG. LLC, and
)
BOISE CASCADE WOOD PRODUCTS LLC, )
)
----~D~e~f~e~n~d~a~n~t_-=I~n~t~e=r~v~e~n=o~r~s~.______ )
COFFIN, Magistrate Judge:
Plaintiffs bring this action pursuant
Procedures Act,

5 U.S.C.

§§ 701 et

~·

to the Administrative
They seek to enjoin a

federal action allowing logging activities in an area affected by
fire.
Presently before the court is

plaintiffs' motion (#13)

for a preliminary injunction. Plaintiffs make numerous arguments in
support of multiple claims and counts, but ultimately the arguments
are not persuasive and,
for a

for the reasons stated below, the motion

preliminary injunction is denied.

Factual Background & Legal Background

The Douglas Fire Complex and the Douglas Fire Complex Recovery
Project
The Douglas Fire Complex burned approximately 48,000 acres of
federal

and non-federally managed

land in

the

southern

Oregon

Klamath Mountains.
In response to the Douglas Fire Complex, the Medford District
of the Bureau of Land Management

(BLM)

prepared the Douglas Fire

Complex Recovery Project. The BLM issued the Douglas Fire Complex
Recovery Project Environmental Assessment (EA) for public comment
on May 7,

2014,

and took public

comment

until

July 22,

2011.

Plaintiffs provided timely comments on the Douglas Fire Complex
Recovery Project EA. The BLM issued a Decision Record and Finding
of No Significant
Complex Recovery

2 - ORDER

Impact
Project

( DR/FONSI)
on June

26,

approving the
2014.

The

Douglas

BLM' s

Fire

DR/FONSI

authorizes

salvage logging on approximately 1, 276 acres of BLM

land, and includes hazard tree removal along roads (to which
Plaintiffs do not object), as well as logging of interior forests
for economic recovery.

The BLM submitted a Biological Assessment

)

(BA) to FWS on April 28, 2014, determining the project "may affect
and is likely to adversely affect"

(LAA)

spotted owls and their

critical habitat. FWS subsequently issued the challenged BiOp. The
Douglas Fire Complex Salvage Timber Sales include the Rogue Cow,
Burnt Rattler, and Rock Star Timber Sales. The sales are located in
the Grants Pass Resource Area of the ELM's Medford District, and
logging operations are currently underway.

FWS Biologic Opinion for the Douglas Fire Complex Recovery Project
on June 25,

2014,

in response to ELM's submission of its

biological assessment, the FWS issued a Biological Opinion (BiOp)
of the Douglas Fire Complex Recovery Project.
Service

concludes

the

proposed

Project

is

"the

likely

to

incidentally take 14 adult and up to 10 young spotted owls 1 ,

at

seven sites.

that

In the BiOp,

The take is in the form of harm caused by habitat

destruction or degradation via timber harvest of up to 33 acres of

1

The authorization of the take of the ten young spotted owls is
based on a prediction of the offspring from these 7 sites.
3 - ORDER

NRF 2 habitat and 1, 04 9 acres of PFF 3 habitat that is likely to
significantly

disrupt

the

breeding,

feeding,

and

sheltering

behavior of these spotted owls to an extent that causes injury or
death.

BiOp,

59.

The BiOp also concludes that the Douglas Fire

Complex Recovery Project "is not likely to result in jeopardy to
the

species or destruction or adverse modification of critical

habitat." BiOp, 59.

The Endangered Species Act
Congress enacted the ESA with the purpose to "provide a means
whereby the ecosystems upon which endangered species and threatened
species depend may be conserved," and to "provide a program for the
conservation of such endangered species and threatened species." 16
U.S.C.

§

1531(b). An Endangered Species is "any species which is in

danger of extinction throughout all or a significant portion of its
range." 16 U.S.C.

§

1522(6); 50 C.F.R.

§

424.02(e).

A Threatened

Species is "any species which is likely to become an endangered
species

within

the

foreseeable

future

throughout

significant portion of its range. 16 U.S.C.
§

424.02(m).

§

all

or

a

1532(19); 50 C.F.R.

The northern spotted owl is a threatened species.

Section 7 of the ESA requires federal agencies to conserve

2

The acronym for "nesting, roosting,

3

The acronym for "post-fire foraging."

4 - ORDER

, foraging."

species

listed as

endangered or threatened under

the

ESA,

and

whenever a federal action may affect an ESA-listed species,
the agency undertaking such an action must consult the Service
having jurisdiction over the relevant listed species.

16 U.S. C.

1536 (a) (3). The United States Fish and Wildlife Service (FWS)
is

responsible

for

administering

the

ESA

with

respect

to

terrestrial wildlife. 50 C.F.R. §402.01(b). FWS, as the consulting
agency for terrestrial wildlife, evaluates the effects of the
proposed federal action on the survival and recovery of Endangered
or Threatened species and any potential destruction or adverse
modification of critical habitat in a biological opinion. 16
U.S.C. § 1536(a) (2).
A biological opinion

is the heart of the ESA Section 7

consultation process, which requires federal agencies to "insure
that

any

action

authorized,

funded,

or

carried

out

by

such

agency ... is not likely to jeopardize the continued existence of any
endangered species or threatened species." 16 U.S.C. § 1536(a) (2).
The biological opinion must be based on "the best scientific and
commercial

data available

or which can be

obtained during

the

consultation for an adequate review of the effects that an action
may have upon listed species or critical habitat." 16 U.S.C.

§

1536(a) (2); 50 C.F.R. § 402.14 (d). In the biological opinion, the
FWS

evaluates:

1)

the current

status

of the

listed species or

critical habitat; 2) the effects of the action; and 3) the

5 - ORDER

cumulative

effects

jeopardize

the

402.14(g)(2),

to

determine

existence

of

the

if

the

listed

proposed
species.

action
50

will

C. F. R.

§§

(g)(3).

If the biological opinion concludes that jeopardy is not
likely and that there will not be adverse modification of critical
habitat, or that there is a "reasonable and prudent alternative" to
the agency action that avoids jeopardy and adverse modification and
that the "incidental taking" of endangered or threatened species
will not violate section 7(a) (2), the consulting agency can
issue

an

Incidental

Take

Statement

(ITS)

which,

if

followed,

exempts the action agency from the prohibition on takings found in
Section 9 of the ESA. Section 9 of the ESA makes it unlawful
for

any

person

to

take

an

ESA-listed

species.

16

U.S.C.

§

1538 (a) (1). 4
Section 4 of the ESA states that
implement

plans ... referred

to

as

FWS "shall develop and

'recovery

plans'

for

conservation and recovery" of species listed under the Act.

the
16

U.S.C. §1533(f). "Conservation" refers to "the use of all methods
and procedures which are necessary to bring any endangered species
or threatened species to the point at which the measures provided

4

Take is defined as to "harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture or collect, or attempt to engage in such conduct."
16 U.S.C. § 1532(19). Harm is defined to include significant habitat
modification or degradation that results in death or injury to a
listed species by significantly impairing essential behavioral
patterns, including breeding, feeding, or sheltering.
50 C.F.R.
§17.3.
6 - ORDER

pursuant to this Act are no longer necessary," and "conservation"
is synonymous with the "recovery" of a species in the ESA context.
16 U.S.C.

§

1532(3). Congress expects FWS to proactively utilize

the conservation measures contained in recovery plans to remove the
species

from

the

protection

the

of

ESA.

u.s.c.

16

§§

1533 (f) (1) (B) (i)- (iii)

Administrative Procedures Act
The APA confers a right of judicial review on any person that
is

adversely

affected by agency

action.

5

U.S. C.

§

7 02.

Upon

review, the court shall "hold unlawful and set aside agency actions
... found to be arbitrary ,

capricious,

an abuse of discretion or

otherwise not in accordance with the law."

5 U.S.C.

§

706(2) (A).

A decision is arbitrary and capricious if the agency has
"relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the
evidence in front of

the agency,

or is so implausible that it

could not be ascribed to a difference in view or the product of
agency expertise."

Motor Vehicle Mfrs. Ass'n. v. State farm Mut.

Auto. Ins. Co., 463 U.S. 29,

7 - ORDER

43 (1983).

Standards for Preliminary Injunction
In the landmark case of Winter v.
Defense Council,

the

obtain an injunction,
likely

to

succeed

on

Supreme Court

Natural Resources

clarified that

in order to

a plaintiff must establish that
the

merits,

( 2)

it

is

irreparable harm in the absence of injunctive
balance of the equities tips in its favor 6 ,

likely
relief,

and (4)

(1)
to
5

it is
suffer

(

3)

the

an injunction

5

A plaintiff must show that absent an injunction, irreparable
harm is not only possible, but likely. Winter, 555 U.S. at 22. In
Bozeman, the Montana District Court developed what has become known
as the Bozeman burden-shifting framework as a practical means to guide
its analysis of irreparable harm in light of two divergent lines of
Ninth Circuit cases articulating the plaintiff's burden in ESA cases.
First, "a plaintiff must substantiate its claim by alleging a specific
irreparable harm resulting from the ESA violation" so that the court
may "tailor an injunction to remedy that harm." Bozeman, 950 F.Supp.2d
1196, 1202 (D. Mont. 2013). At the outset, "the plaintiff must allege
that, as a result of the ESA violation, a project will jeopardize the
continued existence of a specific endangered or threatened species or
will destroy or adversely modify its critical habitat." Id. (relying
on Burlington Northern, 23 F. 3d 1508, 1511 (9th Cir. 1994)) . If the
plaintiff satisfactorily alleges specific harm, the court presumes the
harm to be irreparable and the burden shifts to the agency, "which
must show that the action will not jeopardize the species or destroy
or adversely modify its critical habitat.~~ Id
(citing Wash. Toxics
Coal. v. EPA, 413 F. 3d 1024, 1035 (9th Cir. 2005)). If the agency
presents sufficient evidence, the plaintiff must produce its own
evidence of irreparable harm in order for an injunction to issue. Id.
at 1203 (relying on Burlington Northern and National Marine Fisheries
Service, 422 F. 3d 782 (9th Cir. 2005)).
6

In ESA claims, the balance of the hardships always tips sharply
in favor of the endangered or threatened species. Wash. Toxics, 413
F.3d at 1035; see also Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073
(9th Cir.1996) ("Congress has determined that under the ESA the
balance of hardships always tips sharply in favor of endangered or
threatened species") .
8 - ORDER

is

in the pub 1 i c

interest .

5 55 U . S .

7,

20 ,

12 9 S . Ct .

3 65 ,

172

L.Ed.2d 249 (2008)
In order to secure an injunction, a plaintiff must satisfy all
four Winter prongs. Alliance for the Wild Rockies v. Cottrell, 632
F.3d 1127, 1135 (9th Cir.2011).
As to likelihood of success on the merits, the long-entrenched
but

lesser

"serious

questions"

standard

remains

viable

after

Winter. Cottrell, 632 F.3d at 1134-35. In Cottrell, the Court held
that serious questions going to the merits and a hardship balance
that tips sharply toward the plaintiff can support issuance of an
injunction, assuming the other two elements of the Winter test are
also met.

Id.

at

1132.

Cottrell clarifies that district courts

retain discretion to employ a sliding scale, and that plaintiffs
are

entitled

to

judicial

application

of

the

lesser

"serious

questions" test upon satisfactory showing on the other three Winter
prongs.

Id.

at

1135

("Because

it

did

not

employ the

'serious

questions' test, the district court made an error of law in denying
the preliminary injunction sought by AWR. We conclude that AWR has
shown that there is a likelihood of irreparable harm; that there
are at least serious questions on the merits
of

hardships

tips

sharply

in

its

favor;

interest favors a preliminary injunction").

9 - ORDER

•

•

•

and

I

that the balance
that

the

public

As

discussed

in more

adequately established that

detail

they are

below,

plaintiff

likely to

has

not

succeed on the

merits.
A likelihood of success for plaintiffs
in this action,
merits.

is simply not present

nor are there "serious questions" going to the

Further, there is a lack of the likelihood of irreparable

harm to the spebies.

I find the "serious questions" test is not

applicable, but even if it were, defendants would prevail due to,
as discussed below: the lack of
to

the

species

and the

the likelihood. of irreparable harm

public's

interest

in

the

economic

and

environmental benefits of the project including providing jobs and
retaining

infrastructure

for

them,

fuel

reduction

decrease the intensity and severity of future fires,

benefits

to

and avoiding

insect buildup that can threaten adjoining trees.

Discussion

I. The Effect of Barred Owls'on Spotted Owl Detectability
Plaintiffs argue that when barred owls are present, spotted
owls are less likely to respond to calls.
FWS did not take this possibility into

Plaintiffs assert that

account and may thus have

underestimated the number of spotted owl sites by relying on false
"no occupancy" determinations.

10 - ORDER

Plaintiffs argue that

the FWS "entirely failed to consider an

important aspect of the problem" or " offered an explanation that
runs counter to the evidence before the agency or is so implausible
that

it

product

could not be
of

conclusion
McNair,
that

agency
in the

ascribed to

expertise"
Douglas

FWS

has

not

when

difference
it

reached

Fire Complex BiOp.

629 F.3d 1070, 1074

since

a

(9th Cir. 2010).

"considered

the

in view or the
its

No

Lands

Jeopardy

Council v.

Plaintiffs contend

relevant

factors

and

articulated a rational connection between the facts found and the
choices made,"

its biological opinion authorizing the proposed

action is arbitrary,

capricious,

and not in accordance with the

Arrington v. Daniels, 516 F. 3d 1106, 1112 (9th Cir. 2008); 5 U.S.C.
§

706(2) (A); 16 U.S.C.
I

§

disagree.

1536(a) (2); 16 U.S.C.

§

1536(b) (4).

FWS did acknowledge and account

potential impact of barred owls on detectability.

for

the

FWS noted that

barred owls have been "detected in almost half of the known .spotted
owl

sites"

and

barred

detectabili ty. BiOp

owl

presence

may

reduce

spotted

owl

at 18, 23, 92; see also id. at 93 ("Monitoring

and management of northern spotted owls has become more complicated
due to their possible reduced detectability when barred owls are
present.")
host

of

FWS used the best available scientific information-a

long

Area-which

term

largely

and

consistent

overlaps

the

BLM

action

surveys
area-to

for

the

Study

determine

the

locations of spotted owls in the action area. BiOp at 20; BA, App.

11 - ORDER

"D". FWS noted that the Study Area has been subject to a constant
survey effort.

Id.

at 21;

see also 12/5/13 Post Fire Treatment/

Sideboards Meeting Memorandum at 4 ("There is a lot of great survey
data

in this

fire
to

area

the

since most of it

long

term and

is within the

consistent

nature

of

[Study

Area]").

Due

those

surveys,

surveyors are aware of site locations and spotted owl

movement patterns and are particularly efficient in finding hard to
detect spotted owls in the action area. Notably, plaintiffs do not
claim that FWS failed to rely on the best available scientific
information in counting potentially affected sites.

Nor do they

cite any alternative site occupancy data other than the surveys on
which FWS relied.

Kandra v. United States,

145 F. Supp. 2d 1192,

1208 (D. Or. 2001) (agencies
have wide latitude to determine what is the best scientific and
commercial data available and courts presume that agencies have
used the best scientific and commercial data available unless
those challenging the agency actions can identify relevant data not
considered) .
Additionally,
continue

surveys

as

during

a

precaution,
the

upcoming

FWS

recommended that

survey

season,

so

as

BLM
to

continue to inform salvage project planning· as needed to further

12.- ORDER

reduce impacts to spotted owls. BiOp at 60;

see also BiOp at 41

(BLM "is conducting surveys for spotted owls in 2014 and if spotted
owls are found occupying these sites, the Level 1 Team will need to
discuss appropriate ESA measures.") "[I]f new spotted owl sites are
located during surveys, biologists will review [the project design
criteria]

and

the

[BiOp]

to

confirm the

ESA

analysis

remains

valid." BA at 18. As such, the record demonstrates that FWS used
the best available scientific information to identify the location
of

spotted owls

in the

action area.

(courts need only ensure that

McNair,

FWS did not

629

fail

important aspect of the problem); cf. 16 U.S.C.

§

F.3d at

1074

to consider an
1536(a) (2)

("In

fulfilling [its obligation to consult to ensure that agency actions
do not jeopardize ESA listed species],

each agency shall use the

best scientific and commercial data available."); Oceana, Inc. v.
Evans, 384 F. Supp. 2d 203, 214-221 (D.D.C. 2005)

("[a]n agency's

use of a model is arbitrary [only] if that model 'bears no rational
relationship to the reality it purports to represent.'

");

see

generally Oceana Inc. , at 214-21.
The court finds that the government's action is not arbitrary,
capricious, an abuse of discretion or otherwise not in accordance
with the law.

13 - ORDER

II.

The Effect of Wildfire on Spotted Owl Habitat Use
Plaintiffs also argue that the best scientific information

indicates that spotted owls expand their core areas and home ranges
in post-fire environments in order to satisfy life cycle needs
including roosting and foraging.
Plaintiffs
disregarding the

argue

[allegedly]

FWS

has

provided

no

rationale

for

undisputed best scientific evidence

on spotted owl use of habitat post-fire in its jeopardy analysis,
indicating that it has "entirely failed to consider an important
aspect

of

the

problem"

and

"offered

an

explanation

that

runs

counter to the evidence before the agency or is so implausible that
it could not be ascribed to a difference in view or the product of
agency

expertise,"

McNair,

629

F.3d

at

1074,

and

thus,

the

agency's conclusions are arbitrary, capricious , not based on the
best available scientific information, and not in accordance with
the ESA.

5 U.S.C. §706(2) (A); 16 U.S.C. §1436 (a) (2); 16 U.S.C.

§ 1536 (b) (4).
The record before me, however, does not support plaintiffs'
contention.

First,

FWS

fully

considered

the

possibility that

spotted owls may have shifted their core use areas and home ranges
post-fire.

BiOp at

32,

33-34,

40

(shifts

possible

in

8

of

14

sites); 131 (studies concerning effect of fire inconclusive), 133.
Plaintiffs have provided no evidence that any home ranges have
expanded. FWS cautioned that "[r]esponses such as shifts in home

14 - ORDER

ranges

in

some

cases

can be

difficult

to

predict"

but

nevertheless identified eight sites that may have shifted. BiOp at
40, 131. In short, contrary to plaintiffs' allegations,

FWS used

the abundant data available from the Study Area to identify, to the
extent practicable, those sites where spotted owls may have shifted
post-fire.
Second, the one study plaintiffs cite, "Clark 2007", does not
support the plaintiffs. Clark 2007 ultimately did not find profound
differences

between

core-use

outside of fire boundaries.
ranges

were

larger

areas

~'

See,

following

or

wildfire

home

ranges

inside

Clark 2007 at 83
in

my

study,

and

("Home

but

high

severity wildfire and salvage logging were not important variables
influencing home ranges as initially predicted."). Moreover,
home

ranges

and

core-use

areas

used

in

the

Clark

study

actually smaller than those used by FWS. Clark 2007 at 75

the
were

(Table

showing the Clark used a 618 hectare (1527 acres) Mean (All Owls)
home range size, versus FWS's 1.3 mile (3,398 acre) home range, and
Clark used a 50 hectare (123 acres) Mean (All Owls) core-use area
size, versus FWS's 0.5 mile

(500 acres)

core-use area circle.

In

other words, FWS used home range circles that were twice as large,
and core-use area circles that were four times larger than those
used by
provides

Clark
an

conditions

15 - ORDER

in

his

2007

appropriate
for

study.

basis

potential

upon

shifts

FWS' s
which
by

methodology
to

spotted

therefore

evaluate
owls.

habitat
Notably,

plaintiffs do not propose any alternative home range or core-use
area circle size that they believe FWS should have used. FWS's use
of

a

1.3

reasonable.

mile

Oceana,

(D.D.C. 2005)
that

model

home

range

Inc.

v.

and
Evans,

0.5

mile

384 F.

core-use

Supp.

area

2d 203,

was

214-221

("[a]n agency's use of a model is arbitrary [only] if
'bears

no

rational

relationship

to

the

reality

it

purports to represent' ".)
Nor do the two other documents that plaintiffs cite help them.
The first, a June 2014 email from Robin Snider, a BLM official, to
two FWS officials, Jim Thrailkill and Cindy Donegan, is irrelevant.
It suggests that a single spotted owl movement from one site to
another due to the presence of a barred owl-not the Douglas fires.
The email is not evidence that any spotted owls are expanding or
shifting their core-use areas or home ranges as a result of the
Douglas Complex fires.

In any event, FWS tracked the owl that Ms.

Snider was referring to and was aware of and accounted for its
movement. The second, a December 5, 2013, internal FWS memorandum,
makes the unremarkable suggestion that some owls may move due to
new

conditions

created

Memorandum at 3-4

by

the

Douglas

Complex

fires.

12/5/13

(located in the "Other" folder of the partial

AR). FWS anticipated and took such potential shifts into account.
First,

FWS did so by using a 1.3 mile radius home range and 0.5

mile core-use area size estimates, as discussed above. Second, as
mentioned above,

16 - ORDER

the action area has been subject to long term,

intensive spotted owl demographic study. FWS was therefore able to
evaluate previous spotted owl response and movement areas along
with remaining habitat post-fire to consider potential shifts. BiOp
at

39

(showing

ability

of

FWS

to

track

color

banded

owls

at

numerous sites). Indeed, using this intensive data, FWS was able to
specifically identify spotted owls at 8 of 14 sites that could
potentially shift. BiOp at 40
see also BA at 23

(shifts possible in 8 of 14 sites);

("These shifts are especially evident in this

project area because individual owls have been banded with unique
color combinations. In many cases, the survey crew has been able to
identify the same pair of owls using multiple nest locations in
alternate

years

and

therefore

establishing

the

potential

territory.")
Accordingly, the record demonstrates that FWS adequately and
lawfully accounted for the effect of wildfire on spotted owl site
locations,

and that

the

government's

action is not arbitrary

,

capricious, an abuse of discretion or otherwise not in accordance
with the law.

III.

The Assessment of the Effects of All Potentially Affected

Owl Sites
Plaintiffs argue that the FWS failed to comply with the ESA
when it: 1)did not assess the effects of the proposed action on 6
known spotted owl sites that overlap the planning area, but do not

17 - ORDER

overlap the salvage units;

2)

did not explain why it used two

different methods for assessing effects to the species;

and 3)

inconsistently applied its effects analysis methodologies to the
facts before it.
Plaintiffs
methodologies

to

contend that while

assess

the

effects

FWS
to

is permitted to use

listed

species

from

a

proposed action, the agency must employ those methodologies in a
reasoned and not arbitrary manner. Plaintiffs argue that the FWS,
however,

has

fallacious

used

the

conclusions

NLAA
about

and

LAA

the

unequally,

effects

of

arriving

the

Douglas

Complex project that are simply not supported by the facts.
Ninth

Circuit

in

McNair

held,

a

decision

is

at
Fire

As the

arbitrary

and

capricious if the agency "offered an explanation that runs counter
to the evidence before the agency or is so implausible that it
could not be ascribed to a difference in view or the product of
agency expertise." McNair, 629 F.3d at 1074.

Plaintiffs conclude

that the FWS Douglas Fire Complex BiOp is therefore arbitrary,
capricious,

and

not

§706(2)(A);

16 U.S.C.

in

accordance

§1436

(a)(2);

with

the

50 C.F.R.

ESA.

5

U.S.C.

§402.14(1);

16

U.S.C. §§1536(a) (2), 1536(b) (4).
Again,

I

reject plaintiffs'

consultation is

required when a

listed species.

50 C.F.R.

review its actions

18 - ORDER

arguments.

federal

§ 402.14

Under the ESA,

action "may affect" a

("Each Federal agency shall

at the earliest possible time to determine

whether any action may affect

listed species

").

For

management activities potentially impacting territorial organisms
such as spotted owls,

FWS analyzes an area corresponding to the

movements and activity patterns of individual spotted owls
occupying a given territory. BiOp at 26-28. To evaluate spotted owl
use of an area and habitat and human impacts,

FWS conducts its

assessment at the two areas around the spotted owl nest:
the

home

range

and

core

use

areas.

Id.

at

26.

Here,

BLM

appropriately defined the action area to encompass all lands within
any provincial home ranges of known spotted owl sites that could be
directly,
action.

indirectly

BA at 18.

or

cumulatively

impacted

by

the

proposed

BLM explained that of the 45 historical nest

sites located within the action area, only 39 would be subject to
any salvage treatment or road or landing construction within their
home ranges. BA at 37. In other words, while the home ranges
of six sites overlapped with portions of the action area, none of
them

could

possibly

be

affected

by

the

habitat

modifications

planned as part of the Project. BA at 37; BiOp at 36, 41; cf. 50
C.F.R.

§

402.02 (Action Area defined as "all areas to be affected

directly or indirectly by the federal action and not merely the
immediate area involved in the action"). Plaintiffs do not suggest
otherwise.

In sum, FWS reasonably and appropriately analyzed all

39 spotted owl nest sites that the Project "may" effect and there
was no need for any further analysis.

19 - ORDER

50 C.F.R.

§

402.14.

Plaintiffs claim that the BiOp incorrectly determined that
owl site numbers 2016A, 2080A/C, 39280, and 4690A/C would exhibit
40% NRF coverage at the home range and 50% NRF coverage at the
core-use area scale.

Plaintiffs therefore assert that the BiOp

inappropriately concluded that the timber operations would not
adversely affect these sites. However, Plaintiffs' assertions are
premised on incorrect readings of the facts and the law.
Plaintiffs seek to convert what are essentially

guidelines

into non-existent "thresholds." FWS commonly evaluates projects
with the potential to modify habitat on the basis,

among other

things, of how much habitat lies within a spotted owl home range
and core-use area. The evaluation is "generally" based on whether
a home range has 40 percent NRF habitat and a core-use area has 50
percent NRF habitat. BiOp at 26-30. The 40- 50% figures, however,
represent mere estimates. BA at 36 (local conditions and possibly
pair experience, contribute to large variance in actual amounts of
older forest within the core-use area necessary for reproduction
and survival for

individual owls) ;

BiOp at 32

("best available

information suggests that a single threshold value for determining
post-fire occupancy of burned areas by spotted owls is difficult to
ascertain"); id. at 42 (BiOp stating that post-project NRF habitat
levels are "generally" near 40 and 50 percent at the home range and
core-use

20 - ORDER

scales,

respectively).

FWS

uses

these

estimates

to

evaluate potential adverse effects and take. Plaintiffs' argument
is thus based on a misreading of FWS's methodology.
Plaintiffs also err in failing to consider the larger context
of FWS's analysis. FWS takes a host of other site-specific factors
into account beyond the amount of NRF habitat remaining at a given
site. BiOp at 26-30, 35-36. Spotted owl habitat use is driven by a
complex mix of habitat conditions. BiOp at 30 (FWS recognizing that
"many different combinations of forest habitat structure and amount
at various spatial scales may support viable owl territories . . . )
Pertinent

site

specific

circumstances

included

the

post-fire

condition of NRF habitat, the amount of PFF habitat remaining or
planned for removal and its proximity to NRF habitat, spotted owl
site occupancy in the action area, and abiotic factors such as the
slope position of proposed harvest units. BiOp at 132. In addition,
FWS assesses an area's relative habitat suitability ("RHS") to help
inform the likelihood of spotted owl occupancy and/or potential use
of an area. BiOp at 37; USDI FWS 2011 Revised Northern Spotted Owl
Recovery

Plan,

App.

"C"

at

C42,

C56.

In

some

areas,

RHS

was

determined to be low for certain areas pre-fire. BA at 49-52 (Table
16) .

Spotted

owls

typically

avoid

such

areas

during

breeding

periods. 2011 Revised Northern Spotted Owl Recovery Plan at 56. FWS
carefully and appropriately deployed this methodology here.

For

example, the core-use area for site 2016A is relatively intact. BA
at 26. The pre- and post-fire core use percentages of NRF habitat

21 - ORDER

were above 50%, at 65%. BA at 26. In the BLM Medford District more
generally, BLM has observed high occupancy and reproduction rates
when only 35 percent NRF habitat exists in core-use areas. BA at
24.
FWS correctly determined that the large amount of core use
area

habitat

relatively

available

higher

level

at

this

site

would

of

site

occupancy

likely

and

support

a

habitat-fitness

potential. Id.; see also Dugger et al. 2005; FWS 2009; Olson et al.
2004;

Bart and Forsman 1992.

This also diminished the relative

importance of the home range condition.

Id.

Separately,

BLM had

proposed no NRF or PFF for removal at the core-use area scale. BA
at 50. Additionally, the post-fire home range area will remain at
30% NRF coverage. BA at 50. It declined only 2% post-fire. BA at
26. And, while BLM proposed some PFF harvest within the home range,
that

treatment

would

perimeter. BA at 50;

take

place

BiOp at 42.

near

the

home

range's

outer

The areas proposed for salvage

treatment were of a low relative habitat suitability pre-fire. BA
at 50; BiOp at 42. Taking these factors into account, FWS logically
determined that the Project is not likely to adversely affect Site
2016A.
Similarly,

in the aggregate,

approximately 45 percent

core-use

Site Number 2080A/C contains
area NRF habitat.

BA at

Intact and contiguous habitat is still present in the core-use

22 - ORDER

2 6.

area. Id. About one acre of PFF habitat is proposed for removal in
the

core-use area and represents

less

than one percent of the

available NRF and PFF habitat available in the core-use area. BA at
51.

At the home range

habitat is

avail~ble.

scale,

in the aggregate,

BA at 26.

34 percent NRF

23 acres of PFF is proposed for

harvest in the core and home range scale, but this represents less
than two percent of available NRF and PFF habitat at this site. Id.
at 51. In short, the record fully supports FWS's concurrence with
BLM's

~not

likely to adversely affect" determination for this site.

FWS consistently applied this same methodology to site number
4690A/O. At the core use area scale,

in the aggregate this site

exhibits 47% NRF habitat. BA at 26. No NRF or PFF is proposed for
removal in the core-use area of this site. BA at 51. At the home
range

scale,

habitat.

the

aggregate

NRF

coverage

approximates

BLM proposed to remove up to 34 acres of PFF.

40%

NRF

However,

this would take place near the outer perimeter of the site's home
range in low RHS habitat. FWS's NLAA conclusion for Site 46909A/O
was therefore entirely reasonable.
Finally, plaintiffs are simply incorrect in suggesting that
site 39280 does not exhibit 40% NRF coverage at the home range or
50% NRF coverage at the core-use area range.
that Site Number 39280 is

~deficient

(Plaintiffs claiming

in NRF habitat at the home

range, core, or both levels") . The record demonstrates this site is

23 - ORDER

at 59% home range and 69% core-use area NRF coverage, respectively.
BA at 26.
As such,

the

FWS' s

concurrence with BLM' s Not Likely to

Adversely Affect determination for

each of the

four

sites

was

appropriate.
Next, Plaintiffs claim that FWS inaccurately determined that
three sites-09190, 0377B and 1911C-are unoccupied by spotted owls.
Plaintiffs allege that in 2011 a single spotted owl was found at
site

09190,

arguments,

and a

spotted owl pair at

site 1911C.

Plaintiffs'

however, are not supported by the record. Site number

09190 has a

long history of surveys

showing the

site as being

unoccupied. BA at 50 ("site has not been occupied in 21 years. Last
pair was in 1983."); see also BA App. "C", Medford Douglas NSO RA
10 Site Priority Summary (documenting 21 years of surveys); BA App.
"D" at

11

(site unoccupied).

Additionally,

the

nest

patch and

core-use area of the site were severely burned in 2013 and
salvage logging occurred at a separate,

adjacent site.

BA at 26

(only 19% and 5% NRF habitat remains post-fire in home range and
core-use

area) .

Taking all

of these

factors

into account,

FWS

reasonably concluded that Site 09190 is unoccupied.
Similarly, Site Number 1911C was unoccupied in 2012 and 2013.
BA App. "D" at 6 (site unoccupied). Moreover, as with site 09190,
the nest patch, core-use area and home range

each experienced at

least a moderate to high severity burn in over 30 percent of its

24 - ORDER

acreage. BA at App.

~c,"

Burn Severity at NSO Sites by Home Range,

Core, and Nest Patch Scales. As a result, only 16 percent of NRF
habitat remains at the home range and core use areas.

BA at 26.

Taking all of these factors into account, FWS logically determined
that Site Number 1911C is unoccupied.

BiOp at 32

(FWS concluded

site would be a loss due to post-fire conditions having little NRF
at core and home range scales), 42

(same).

As to Site Number 0377B, Plaintiffs suggest that FWS made an
error in its reasoning for the NLAA determination for site 0377B.
The

BiOp,

however,

fully

explained

its

NLAA determination.

As

plaintiffs note, site 0377B was inadvertently listed twice in the
BiOp' s explanation of NLAA findings,
fourth factors.
under

the

under both the second and

They take issue with the fact that it was listed

second

factor,

but

do

not

contest

appropriately considered under the fourth factor.

that

it

was

BiOp at 42-43.

The fourth factor stated that an NLAA finding is appropriate where
the amount of PFF proposed for removal is minimal at the core use
area;

a

minor

perimeter

of

amount
the

of

home

PFF
range

removal
and

in

may

occur

relatively

in

the

low

outer

habitat

suitability areas. BiOp at 43. FWS's finding that effects to site
0337B are not

likely to adversely affect

the

species

is

fully

consistent with the record. The BA indicated that (a) only 0.1 acre
of PFF would be removed;

(b)

the area proposed for harvest is on

the outer edge of the home range and in a low RHS area; and (c) the

25 - ORDER

majority of the home range is outside of areas affected by the
fire.

BA at 50. The listing of site 0377B additionally under the

second factor may have.been the result of a typographical error. In
any event,
factor,

the BiOp .explains FWS' s reasoning based on the fourth

and

FWS's

concurrence

with

ELM's

NLAA

conclusion

is

supported by the record. Buschmann v. Schweiker, 676 F.2d 352, 358
(9th Cir. 1982)

(an error is harmless where mistake clearly had no

bearing on the substance of the decision reached). In short, FWS's
analysis of Site Numbers of 09190, 0377B, and 1911C was entirely
rational.
Plaintiffs next contend that, contrary to FWS's determinations,
three sites are occupied.
numbers 19130 and 46070,

First, plaintiffs contend that at site
respectively, a single owl was found in

2011 and a single or pair of owls were located in 2010. Dkt. 13 at
21, n.6 (nThese sites are: 19130 (2011 single owl)

.").As to

site number 19130, the record does not support plaintiffs' claim
that an owl was sighted in 2011.

BA at App.

argument misses the mark because in FWS' s

no". Mbreover,
expert

judgment,

this
the

relevant guideline was a lack of occupancy within the npast 2 or 3
years", i.e., since 2012, not 2011. BiOp at 42. Similarly, as
for site number 46070, the record clearly demonstrates that there
have been no sightings in the last six years. BA, App. nc": Medford
Douglas NSO RA 10 Site Priority Summary (noting nred lettering = no
resident owls in the last 6 years"); see also id. at 50 (noting for

26 - ORDER

site number 46070

~No

pair responses in 21 years and no responses

in last 6 years"); BA, App. "D": Medford Douglas Action Area - NSO
Site History, at 10.
Plaintiffs also allege that the Project will remove more than
"minimal" PFF at Site Numbers 4534A/O and 4575A/O and that FWS's
not

likely to adversely affect determination was arbitrary and

capricious.

The

because

amounts

it

court
to

rejects
a

plaintiffs'

request

that

argument,

the

court

however,
substitute

plaintiffs' definition of "minimal" for the one that FWS employed.
The Court instead defers to FWS's expert scientific judgment on
what amount of PFF removal is "minimal." Klamath-Siskiyou Wildlands
Ctr. v.

Bureau of Land Mgrnt.,

(" [C] ourts must

387 F.3d 989,

also be mindful

to defer

993
to

(9th Cir.

2004)

agency expertise,

particularly with respect to scientific matters within the purview
of the agency").
Additionally, contrary to plaintiffs' contention, the role of
PFF habitat cannot be evaluated in isolation. Rather, PFF habitat
should be viewed in the context of,

inter alia,

its amount and

spatial relationship to remaining NRF habitat. For example, as to
Site 4334A,

the BA noted that a total of 44 acres of PFF acres

would be removed in the horne range, but that the areas impacted are
in low RHS habitat. BA at 51. Only 0.7 acre of the total PFF acres
would be removed at the core-use area, and only 0.1 acres at site
area 4534A,

27 - ORDER

"where the most recent activity has been" observed.

Id.; see also BA, App. "C": Habitat Treatment Acres by Home Range,
Core,

and Nest Patch and App.

NRF /PFF amounts

"C":

NSO Site Effects

and Post-Treatment NRF /PFF amounts)

(Post-Fire
(noting de

minimus reduction on PFF+NRF habitat post-treatment).
Similarly, for Site Number 4575A/O, the record shows that only
25.5 total PFF acres would be removed in the home range and none
would be removed in the core-use area.

BA at 51.

majority of treated areas are in low RHS,

Moreover,

the

and the core-use area

will remain intact with contiguous NRF. Id.
In sum, FWS correctly concluded that the proposed PFF removals
were "minimal" and that the Project was not likely to adversely
affect spotted owls at those sites.
Plaintiffs next contend that FWS inconsistently applied its
methodology for deciding when "take" had occurred at a given owl
site.

Plaintiffs argue that in one case, where six acres of NRF

habitat will be removed from site number 26640,

FWS made a "no

take" determination, but for site number 46040, where only 4 acres
of NRF habitat would be removed, FWS made a "take" determination.
However, as FWS explained, to determine if habitat removal likely
to

be

caused by

a

proposed

Federal

action

is

also

likely

to

significantly disrupt the breeding, feeding, or sheltering behavior
of the spotted owl to the extent that it actually injures or kills
affected spotted owls (i.e., "take" spotted owls), there must be a
reasonable certainty that the spotted owl occupies the affected

28 - ORDER

habitat area. BiOp at 40.

Plaintiffs neglect to mention that FWS

determined that owls are not likely to occupy Site 26640 because of
post-fire conditions, but were likely to occupy Site 46040. Id. FWS
clearly stated:
Four spotted owl sites (2664
are not
anticipated to be occupied post-fire because
2012
and
2013
surveys
and/or
long-term
pre-fire surveys indicate that these sites are
not occupied by spotted owls and/or as having
an overall low probability of occupancy.
Id.
Again, the government's action is not arbitrary, capricious,
an abuse of discretion or otherwise not in accordance with the law.

IV. Revised Recovery Plan for the Northern Spotted Owl
Plaintiffs also make several contentions regarding the 2011
Recovery Plan Actions 10 and 12.
In 2011,

FWS

Northern

Spotted

Province,

where

located,

completed the Revised Recovery Plan for
Owl

the

(NSO

Douglas

is designated as

populations

that

Recovery

inhabit

a
it.

Plan) .

Complex

Fire

Recovery Unit
NSO

Recovery

The

Oregon

Recovery
for

the

Plan,

the

Klamath

Project

is

spotted owl
III-1.

"The

intended function of this Recovery Unit is to support high quality
spotted owl NRF and dispersal habitats." BiOp,

24. According to

FWS, "'Recovery Actions' are near-term recommendations to guide the
activities needed to accomplish the recovery objectives and achieve

29 - ORDER

the recovery criteria," such that a species may be delisted from
ESA protection. NSO Recovery Plan, x.
Recovery Action 10

(RA 10)

directs

federal

agencies

to:

"Conserve spotted owl sites and high value spotted owl habitat to
provide

additional

population.
enhance

and

The

demographic

intent

develop

of this

habitat

support

to

the

recovery action is

in

the

quantity

and

spotted

owl

to protect,
distribution

necessary to provide for the long-term recovery of spotted owls."
NSO

Recovery

Plan,

III-44.

The NSO Recovery

Plan states

"this

recommendation includes currently occupied as well as historically
occupied sites (collectively "spotted owl sites," see Appendix G:
Glossary of Terms)." Id. at III-42. The NSO Recovery Plan defines
"spotted owl sites" as "an occupied spotted owl site or a spotted
owl site where spotted owls were documented to be
present in the past." Id. at G-2.
NSO Recovery Plan Recovery Action 12 (RA 12) directs: "In lands
where management is focused on development of spotted owl habitat,
post-fire silvicultural activities should concentrate on conserving
and restoring habitat elements that take a long time to develop
(e.g., large trees, medium and large snags, downed wood)." Id. at
III-49

(emphasis added).

Post-fire logging particularly targets

medium and large fire-killed trees

30 - ORDER

(snags) for removal. BiOp 11.

Action 10 suggests that, where possible 7 ,

spotted owl sites

and high value spotted owl habitat should be conserved. Action 12
urges

agencies

to focus

post-fire activities on conserving and

restoring habitat elements that take a long time to develop, e.g.,
large trees, medium and large snags, and downed wood.
As a threshold matter,

plaintiffs'

argument fails because

recovery plans do not have the force of law and plaintiffs conceded
such at oral argument. Friends of Blackwater v. Salazar ,691 F.3d
42 8,

4 32-3 4

535,

547

(D.C.

Cir.

(11th Cir.

2 012) ;

1996)

Fund for Animals v.

Rice,

8 5 F. 3d

("By providing general guidance as to

what is required in a recovery plan, the ESA 'breathes discretion
at every pore.' ")

(quoting Strickland v. Morton, 519 F. 2d 4 67, 4 69

(9th Cir. 1975)); see also California Native Plant Soc'y v. U.S.
E.P.A., No. 06-03604, 2007 WL 2021796, at *21 (N.D. Cal. July 10,
2007); Conservation Northwest v. Kempthorne, No. 04-1331, 2007 WL
1847143,

n.2

(W.O.

Wash.

June

25,

2007);

Biodiversity

Foundation v. Norton, 285 F. Supp. 2d 1, 14 (D.D.C. 2003)

Legal
("BLF")

(" [ t] he Court is generally persuaded by the Eleventh Circuit's
reasoning in [Rice], and agrees that the ... Recovery Plan was merely
a

guideline,

which

FWS

had

discretion

to

follow.") ;

National

Wildlife Fed'n v. National Park Service, 669 F. Supp. 384, 388 (D.
Wyo.

1987)

7

("Plaintiffs

would

urge

upon

this

Court

that

the

The ESA describes the prototype recovery plan, subject to a
reasonableness standard of "the maximum extent practicable," in §
1533 (f) (1) (B).
31 - ORDER

language§ 1533(f) obligates the Secretary to develop and implement
a recovery plan, and that, once developed, all concerned agencies
must adhere to it .. The language does not so say."); but see S.W.
Center for Biological Diversity v. Bartel, 470 F. Supp. 2d 1118
(S.D. Cal. 2006). They are not binding on federal agencies.
Indeed, plaintiffs are attempting to compare apples to oranges.
Under the ESA, FWS's jeopardy analysis considers whether a specific
action is reasonably likely to appreciably reduce the likelihood of
both survival and recovery of a listed species. 50 C.F.R. § 402.02.
Recovery, on the other hand, is the "improvement in the status of
listed

species

the
."

appropriate
rangewide,

to

in

point

Id.

at

which

listing

is

no

longer

The jeopardy analysis-which FWS makes

Washington,

Oregon,

and

northern

California-is

concerned with whether a given federal action at the species level
would appreciably reduce the likelihood of recovery, not whether
that federal action would itself implement or bring about recovery.
The court rejects plaintiffs' invitation to blur the two separate
and distinct concepts of jeopardy and recovery.
In any event, the BiOp is consistent with Recovery Actions 10
and 12. Recovery Action 10 states agencies should attempt, where
possible, to "[c]onserve spotted owl sites and high value spotted
owl

habitat

to

provide

additional

spotted owl population." BiOp at 10,

32 - ORDER

demographic
14.

support

To do so,

to

the

BLM and FWS

ranked the 39 affected known spotted owl sites in the action area
using (a) the duration of spotted owl occupancy and successful
reproduction at each site and

(b)

post-fire habitat conditions.

BiOp at 47; see also id. at 10, 14, 24,

47. This ranking enabled

the agencies to identify up to 12 sites that warranted additional
consideration for conservation measures. BiOp at 14, 47, 60, App.
"C".

For

the

minimized

top

Project

tier

of

impacts

identified
by

sites,

excluding

BLM

over

800

avoided
acres

of

and
PFF

habitat from salvage activities in core-use areas and Known Spotted
Owl Centers.8 BiOp at 47. BLM also avoided and/or minimized road
and landing construction and other similar activities within the
high priority spotted owl site core-use areas.
proposed

salvage

harvest,

to

the

BiOp at 4 4 ("The

extent practical,

will

avoid

spotted owl nest patch and core-use areas.").
BLM

focused

its

salvage

efforts

on

spotted

owl

sites

with

demonstrated non-occupancy for several years prior to the fire. Id.
As a result,
owls

BLM minimized potential adverse effects to spotted

from the

proposed action.

Id.

All

of these

actions

were

consistent with Recovery Action 10.
Similarly, the BiOp is consistent with Recovery Action 12.
BiOp

at

14

Project.") .
management

33 - ORDER

("Recovery
Recovery
is

focused

Action

Action
on

12

12

is

states

development

also
that
of

applicable
" [ i] n

spotted

to

lands
owl

this
where

habitat,

post-fire silvicultural activities should concentrate on conserving
and restoring habitat elements that take a long time to develop
(e.g., large trees, medium and large snags, downed wood)." BiOp at
14.
FWS discussed and implemented this guideline. Within the fire
perimeter,

approximately 7 5 percent of fire

area burned at

low

severity. BLM excluded any the acres subject to low severity fire
in the

areas

subject

to

salvage

treatment.

This

left

a

large

portion of the action area landscape with both burned and green
legacy features

(e.g.,

snags,

down wood and a mosaic of habitat

features) important to the spotted owl now and for future stands of
NRF habitat.

On the other hand,

approximately 25 percent of the

area (approximately 5,000 acres) within the fire perimeter burned
at medium to high severity. Within this smaller area, only eight
percent (1,612 acres) are subject to harvest. Because a relatively
small portion of the area is proposed for harvest,
design criteria provide
areas,

for

snags

and project

and downwood in the

both green tree and burned legacy features

salvage

important to

spotted owls both in the short and long-term will be provided and
broadly distributed across the action area.
Moreover, FWS and BLM took special snag related precautions in
those

areas

Management

subject

Plan includes

legacy features

34 - ORDER

to

harvest.

The

applicable

snag retention

BLM

requirements

for spotted owls and in doing so,

Resource
to

retain

helps ensure

consistency with Recovery Action 12.
Medford

District

Resource

Management

Record of Decision for the
Plan

( "RMP")

at

21

("The

general forest management area and connectivity/diversity blocks
will be managed to retain late-successional forest legacies (e.g.,
) ") ,

snags,
within

a

species

timber
of

harvest

cavity

population levels.")

33,

39

unit

nesting

("Retain snags and green trees

at

birds

levels
at

sufficient

40

percent

of

to

support

potential

(found at BiOp App. Lit Cite A folder, Partial

AR) . While the RMP does not specify the number of snags that must
be required, it did require BLM to retain enough snags to support
cavity nesting birds at

40 percent of the potential population

levels. Id. at 39. This would equate to 0.2 hard snags per acre for
hard snag woodpecker users in Douglas-fir forests and 1 soft snag
for soft snag users.
For the Project, however,

BLM left 2-4 hard snags per acre on

the landscape - up to five times more than the amount required by
the RMP. BiOp at 47

("Project will provide for a higher retention

of

times more)

snags

(up

to

5

and coarse woody debris

within

spotted owl critical habitat and 0.5 mile core-use areas of high
priority

sites

as

compared

to

[BLM' s]

1995

RMP

standards

for

Matirix lands which is the underlying [land use allocation]' of the
area ) .

The Project is therefore consistent with Action 12.

35 - ORDER

As with the other issues presented by plaintiffs, I find the
government's action is not arbitrary

,

capricious,

an abuse of

discretion or otherwise not in accordance with the law.

CONCLUSION
For the reasons stated above, plaintiffs' motion (#13) for a
preliminary injunction is denied.
DATED this

strate Judge

36 - ORDER