Friends of Animals v. The United States Fish and Wildlife Service et al
Filing
45
OPINION AND ORDER: Plaintiff's Motion for Summary Judgment 39 is DENIED. Defendants' Cross Motion for Summary Judgment 42 is GRANTED. Accordingly, this case is dismissed. Signed on 12/11/2018 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
FRIENDS OF ANIMALS,
Case No. 6:17-cv-00860-AA
OPINION AND ORDER
Plaintiff,
v.
GREG SHEEHAN, in his official capacity
as the Acting Director of the United States
Fish and Wildlife Service, and THE UNITED
STATES FISH AND WILDLIFE SERVICE,
an agency of the United States,
Defendants.
AIKEN, District Judge:
Plaintiff Friends of Animals brings this suit against defendants, Greg Sheehan, in his
official capacity, and The United States Fish and Wildlife Service ("FWS") alleging that permits
and agreements made by FWS violate the Endangered Species Act ("ESA") and National
Environmental Policy Act ("NEPA"). The contested FWS actions are part of an experiment to
gain data on the relationship between Baned Owl removal and Northern Spotted Owl recovery.
Both parties have filed cross motions for summary judgment. (docs. 39 and 42) For the reasons
set fmth herein, plaintiff's motion is denied, and defendants' motion is granted.
Page 1 - OPINION AND ORDER
•
BACKGROUND
The Northern Spotted Owl is a threatened species that is reliant on the old growth and
mature forests of the Pacific Northwest for its continued survival. The Spotted Owl was listed
under the ESA in 1990, following decades of wide-scale industrial logging in the region. FWS
designated critical habitat for the Spotted Owl in 1992, encompassing nearly 6.9 million forested
acres in Oregon, Washington, and Northern California.
The Barred Owl is native to eastern North America but expanded its range into the
Pacific Nmihwest over the past century. Baned Owls now outnumber Spotted Owls in many
portions of their range. Barred Owls are not a threatened species and are invasive to the region.
They compete with Spotted Owls for territory, and can even attack them, displacing Spotted
Owls from their prime habitat.
The 2011 Recovery Plan for the No1ihern Spotted Owl determined that competition from
Barred Owls for niche habitat was one of three primary threats to Spotted Owls and required
immediate consideration.
Action 29 of the Recovery Plan consists of "large-scale control
experiments to assess the effects of Barred Owl removal on Spotted Owl site occupancy,
reproduction, and survival."
AR 023927.
FWS issued its Final Environmental Impact
Statement ("FEIS") for implementation of Recovery Action 29 in July 2013, and a Record of
Decision ("ROD") in September 2013. The FEIS noted that all study areas under the preferred
alternative contained nonfederal land, as much of the forest land in the region has a
"checkerboard" ownership pattern, interspersing federal lands with privately held parcels and
state-owned timber lots.
This litigation arose because FWS entered into Safe Harbor Agreements ("SHAs") with
nonfederal landowners Roseburg Resources, Oxbow Timber I, Weyerhaeuser, and the Oregon
Page 2 - OPINION AND ORDER
Depatiment of Forestry ("ODF") in order to conduct the experiment. The experiment establishes
designated removal areas, where FWS will actively remove Baned Owls from the habitat and
observe if (or how many) Spotted Owls recolonize the area-as well as control areas, where
FWS will merely monitor the populations of both species without intervention. The SHAs allow
FWS to access these private landholder's properties for the purposes of data collection, as well as
the lethal removal of Barred Owls, while shielding the landowners from increased ESA
obligations if Spotted Owl populations rise as a result of Barred Owl removal.
FWS issued Enhancement of Survival Permits ("permits") to the landowners. These
permits designate "baseline" areas, where resident Spotted Owls have been detected by FWS in
the last three years, and do not allow any take in those areas. The permits also define "nonbaseline" areas, where no resident Spotted Owls have been observed by FWS for at least three
years, and permits take in those areas. However, the permits prohibit practices in the nonbaseline areas that could threaten a nesting pair of Spotted Owls with viable young during the
nesting the fledging season. These restrictions and take allowances will remain in force for 10
years for the timber companies, and 12 years for ODF. 1
Between December 2015 and November 2016 the FWS issued a Biological Opinion
("Bi Op") for each SHA and permit in accordance with Section 7 of the ESA. FWS determined
that these actions would not put the Spotted Owl in jeopardy because the potential habitat loss in
the non-baseline areas was small in comparison with the Spotted Owl's total habitat. FWS noted
1
The ODF permit was made effective 9/23/2016-8/31/2028. AR_001352. Permit to
Weyerhaeuser was issued effective 6/9/2016-8/31/2025. AR_002755. Permit to Roseburg
Resources for the Coast Ranges study area was issued effective 09/01/2015-8/31/2025.
AR_003279. Permit to Oxbow Timber I was issued effective 09/01/2015-8/21/2025. Permit to
Roseburg Resources for the Klamath/My1ile study area was issued December 6, 2016 but the
effective dates were left blank. AR 000002.
Page 3 - OPINION AND ORDER
that the ODF permit would allow removal of critical habitat, but FWS determined this removal
would not amount to adverse modification.
Plaintiff has challenged this program previously. It brought two unsuccessful lawsuits
seeking to halt the Barred Owl removal experiment under the Migratory Bird Treaty Act. See
Friends of Animals v. Jewell, 2014 WL 3837233 (E.D. Cal. Aug. I, 2014); Friends ofAnimals,
2015 WL 4429147 (D. Or. July 16, 2015), aff'd, 879 F.3d 1000 (9th Cir. 2018), cert denied, No.
17-1426 (June 11, 2018). There, plaintiff's primary objection was to the killing of the Barred
Owls.
The background of this matter is also extensively covered in the previous opinions
dismissing those cases.
Plaintiff filed the present complaint before this Comt on June 2, 2017, on the theory that
the SHAs and permits are unlawful under the ESA because the potential threat of critical habitat
loss and Spotted Owl take in non-baseline areas outweighs any conservation benefit realized by
the experiment. Plaintiff also alleges the NEPA analysis for these permits and agreements was
insufficient and did not adequately consider the impacts of the critical habitat losses authorized
by these permits.
Thus, plaintiff requests this Comt vacate the permits and SHAs, order
supplementation to the NEPA documents, and enjoin the experiment.
LEGAL STANDARD
Summary judgment is appropriate if "there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving
patty has the burden of establishing the absence of a genuine issue of material fact. Id.; Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is inappropriate if a rational trier
of fact, drawing all inferences in favor of the nonmoving patty, could return a verdict in the
nonmoving parties favor. Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir.
Page 4 - OPINION AND ORDER
2008). "The filing of cross-motions for partial swnmary judgment or summary judgment does
not necessarily mean that the material facts are, indeed, undisputed." Regents, 507 F. Supp. 2d at
1077. "[W]hen simultaneous cross-motions for summary judgment on the same claim are before
the court, the court must consider the appropriate evidentiary material identified and submitted in
support of both motions, and in opposition to both motions, before ruling on each of them." Fair
Hous. Council ofRiverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir.2001 ).
DISCUSSION
Before the merits can be reached in this motion, I must examine proper jurisdiction to
hear the case under Article III. "A threshold question in every federal case is ... whether at least
one plaintiff has standing." Thomas v. Mundell, 572 F.3d 756, 760 (9th Cir. 2009) (citation and
quotation marks omitted). To demonstrate standing, a plaintiff must show that (1) she suffered
an injury in fact that is concrete, particularized, and actual or imminent; (2) that injury is fairly
traceable to the defendant's challenged conduct; and (3) the injury is likely to be redressed by a
favorable comt decision.
Ltyan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
An
organization has standing to bring suit on behalf of its members when "(a) its members would
otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane
to the organization's purposes; and (c) neither the claim asse1ted nor the relief requested requires
the participation of individual members in the lawsuit." Friends o(Animals v. Jewell, 2014 WL
3837233, at *4 (citing Ecological Rights Found v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th
Cir.2000))
To survive defendant's cross motion for summary judgment, a plaintiff must support each
element of the standing test "with the manner and degree of evidence required at the successive
stages of the litigation." Id. at 561. In responding to a motion for summary judgment, a plaintiff
Page 5 - OPINION AND ORDER
can no longer rest on "'mere allegations,' but must 'set forth' by affidavit or other evidence
'specific facts,' Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion
will be taken to be true." Id
The first prong of the standing analysis is injury in fact, which has three sub-requisites:
the injury must be concrete, particularized, and actual or imminent. Lujan, 504 U.S. at 560. A
plaintiff cannot demonstrate injury in fact by merely alleging injury to the environment; there
must be an allegation that the challenged conduct is harming (or imminently will harm) the
plaintiff. Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (I'OC), Inc., 528 U.S. 167, 181
(2000).
For example, a plaintiff may meet the injury in fact requirement by alleging the
challenged activity "impairs his or her economic interests or aesthetic and environmental wellbeing." Wash. Envt 'I Council v. Bellon, 732 F.3d 1131, 1140 (9th Cir. 2013) (quotation marks
omitted and alterations normalized).
Neither of plaintiff's declarants has adequately pied injury-in-fact regarding the
Klamath/Myrtle treatment area, so I dispose of that aspect of the claim at the outset.2 As to the
Coast Range study area and the permits and SHAs related to those private and state-owned lands
designated as treatment areas, I find both declarations fail to identify a concrete interest or
cognizable injury.
First, Marguery Lee Zucker, a resident of Eugene, Oregon, says in her sworn declaration
"I personally have visited the Archie Knowles, Whittaker Creek, and North Fork Siuslaw
Campgrounds, as well as smrnunding areas within the Oregon Coast Ranges Study Area. I plan
to visit one or more of these areas this summer, and expect that I will visit several of these
2
Ms. Zucker says only generally that her "numerous travels across Douglas County for
various camping and hiking expeditions have taken me through the Union/My1ile (Klamath)
Study Area as well, and I plan to return to these areas in Douglas County in the near future as
well," Deel. M. Zucker at ,i 6, which clearly fails the standing test of Lujan 504 U.S. at 560. Mr.
Harris makes no specific mention of the Klamath/My1ile area in either of his two declarations.
Page 6 - OPINION AND ORDER
campsites within the next ten years." Deel. M. Zucker at
,r 5.
Defendants argue Ms. Zucker has
no standing because she "never explicitly states that she has visited the SHA treatment areas"
and the campgrounds she mentions "are not within any of the treatment areas." D. Mot. For
Sum. J. at 20. Plaintiff counters that "the Archie Knowles campsite in which she [Zucker] has
camped is within one half mile of a non-baseline treatment site on state lands covered by these
SHAs (Brush Creek), and the Whittaker Creek campsite is approximately one mile from a
different non-baseline treatment site (Meadow Creek)." P. Reply in Supp. Of Sum. J. at 32.
Plaintiffs do not provide any additional detail about Ms. Zucker' s specific history or future plans
to view Spotted Owls in the treatment area of the study.
The second declarant is Michael Ray Harris, notably, plaintiffs lead litigator for this
case. 3 A resident of Colorado, Mr. Harris visits Eugene, Oregon on a near-annual basis for the
Public Interest Environmental Law conference, held at the University of Oregon School of Law.
Incidental to this business travel, he "spend[s] time in the old-growth forests of Oregon." Deel.
of M. Harris at
,r
6.
Specifically, Mr. Harris declares that he had plans to view parcels in
treatment area, visible from the Nelson Mountain Road, in 2017 before the litigation was filed.
Id. at
,r 7-8.
Although these plans did not materialize in 2017, he did drive on Nelson Mountain
road in March 2018, after the present complaint was filed, to look for Spotted Owls with his
young son, and plans to do this again in 2019. Id.
3
The Court has set aside lengthy analysis of the weighting of this declaration because the
entire action fails on standing. However, in the Ninth Circuit it is generally disfavored for a
litigation attorney to serve as a witness in a case where she also serves as counsel. See e.g., Lau
Ah Yew v. Dulles, 257 F.2d 744, 746-47 (9th Cir. 1958) ("It is usually inappropriate for an
attorney connected with the trial of a case to testify in behalf of his client. He should ordinarily
withdraw before becoming a witness ... an attorney who assumes the burden of a witness while
representing his client in a lawsuit does so at a very great detriment to the credibility of his
testimony.")
Page 7 - OPINION AND ORDER
Plaintiff offers these two declarations as evidence that it has concrete interests in the
FWS-issued permits and SHAs with the landowners of these parcels. Plaintiff further argues that
the declarants' history of recreating in this area, and plans for future use, paiticularize the injury.
See Ecological Rights Found v. Pac. Lumber Co., 230 F.3d 1141, 1149 (9th Cir. 2000)
("Repeated recreational use itself, accompanied by a credible allegation of desired future use,
can be sufficient, even if relatively infrequent, to demonstrate that environmental degradation of
the area is iajurious to that person.")
Plaintiff argues that the declarants' v1ewmg of the forests from public roads and
campsites aligns with this Comt' s recent holding that "interest in observing the forest and
wildlife on private land, from a publicly accessible vantage point, is sufficient to confer
standing," Cascadia Wild/ands v. Scott Timber Co., 190 F. Supp. 3d 1024, 1031 (D. Or. 2016),
(citing Cantrell v. City of Long Beach, 241 F.3d 674, 681 (9th Cir. 2001)) ("[W]e have never
required a plaintiff to show that he has a right of access to the site on which the challenged
activity is occurring, or that he has an absolute right to enjoy the aesthetic or recreational
activities that form the basis of his concrete interest. If an area can be observed and enjoyed from
adjacent land, plaintiffs need not physically enter the affected area to establish an injury in fact.")
Plaintiff misreads Cascasdia Wild/ands; the injuries alleged there are not the injuries
alleged here. Even if this Court were to read plaintiff's declarations generously, as evidence of a
concrete and particular interest in viewing Spotted Owls on the non-pubic lands covered by these
agreements and permits, the requirement of an actual and imminent injury to that interest is
simply not met. In Cascadia Wild/ands, a parcel in Oregon's Elliott State Forest was about to be
logged by a private timber company, and the tract was allegedly occupied by endangered
Marbled Murrelets. Plaintiffs accordingly sought and secured temporary injunctive relief
Page 8 - OPINION AND ORDER
pursuant to an ESA Section 9 citizen suit, because there was an imminent threat of unlawful take
by the defendant. Id. at 1029, 1037.
Here, plaintiff has a generalized grievance that the SHAs and permits will allow take of
theoretical Spotted Owls on the lands at issue at some future time. Lujan clearly requires an
injury that is not "conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S.Ct. 2130. An
injury that happens only when and if Spotted Owls occupy non-baseline areas - areas that, by
definition, the FWS has determined are not currently occupied by resident Spotted Owls - is not
an actual or imminent injury.
Plaintiff also fails on causation and has not demonstrated that any injury alleged is "fairly
traceable to the challenged action of the defendant and not the result of the independent action of
some third party not before the court." Lujan, 504 U.S. at 560 (citation and quotation marks
omitted). There is no imminent threat to Spotted Owls by the FWS; in fact, FWS has ensured
that ESA protections remain in force for the resident Spotted Owls in the baseline zones, and that
any pair of Spotted Owls that move into the non-baseline areas are protected while they nest and
fledge their owlets.
Plaintiff objects to lethal removal of the invasive Barred Owls and does not agree that
take permits for Spotted Owls are appropriate under these circumstances, but their action fails
the test of standing. Further, evidence in the record suggests to this Court that the conduct of
FWS is well within the bounds of ESA Section 10, undertaken pursuant to Action 29 in the
Northern Spotted Owl Recovery Plan, and that the NEPA analysis was lawfully executed by
FWS, and so the action would likely also fail on merits. Neve1iheless, the Comi need not reach
the merits as plaintiff has failed to establish standing to bring the present action.
defendants are entitled to summary judgment in their favor.
Page 9 - OPINION AND ORDER
Thus,
CONCLUSION
Plaintiffs Motion for Summary Judgment (doc. 39) is DENIED. Defendant's CrossMotion for Summary Judgment (doc. 42) is GRANTED. 4 Accordingly, this case is dismissed.
IT IS SO ORDERED.
Dated this//~ of December 2018.
Ann Aiken
United States District Judge
4
Because the Coutt has found the plaintiffs lack standing, even when accepting Mr.
Harris's declaration, the Comt need not address defendant's request to strike the declaration.
Page 10 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?