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
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