Friends of Animals v. The United States Fish and Wildlife Service et al

Filing 57

OPINION AND ORDER: Plaintiff's Motion for Summary Judgment 55 is DENIED. Defendants' Cross Motion for Summary Judgment 56 is GRANTED. Accordingly, this case is DISMISSED. Signed on 1/15/2021 by Judge Ann L. Aiken. (ck)

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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 (“FOA”) brings this suit against defendants, Greg
Sheehan, in his official capacity, and the United States Fish and Wildlife Service

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(“FWS”) alleging that Permits and Safe Harbor Agreements (“SHAs) 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 Barred Owl removal and Northern Spotted Owl recovery.
Both parties have filed cross motions for summary judgment. Docs. 55 and 56.
For the reasons set forth herein, plaintiff's motion is DENIED, and defendants'
motion is GRANTED.
BACKROUND
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 Northwest over the past century. Barred 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 Northern 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

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consists of “large-scale control experiments to assess the effects of Barred Owl
removal on Spotted Owl site occupancy, reproduction, and survival.” AR 015636.
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 stateowned timber lots.
This litigation arose because FWS entered into SHAs” with nonfederal
landowners Roseburg Resources, Oxbow Timber I, Weyerhaeuser, and the Oregon
Department of Forestry (“ODF”) in order to conduct the experiment. The experiment
establishes designated removal areas, where FWS will actively remove Barred 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 “non-baseline” areas, where no resident Spotted Owls have

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been observed by FWS for at least three years, and Permits take in those areas.
However, the Permits prohibit practices in the non-baseline 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 ten years for
the timber companies and twelve years for ODF.
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 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 FOA v. Jewell, 2014 WL 3837233 (E.D. Cal. Aug. 1, 2014); FOA,
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 Court 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

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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 Court vacate the Permits and SHAs, order supplementation to
the NEPA documents, and enjoin the experiment.
This court dismissed Plaintiff's claim for lack of standing. (doc. 45). The Ninth
Circuit reversed in part, recognizing that Plaintiffs did, in fact, have standing and
remanded the case to this Court to decide the issue on the merits (doc. 51).
STANDARD OF REVIEW
I.

Motion for Summary Judgement
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 party 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. 2008). “The
filing of cross-motions for partial summary judgment or summary judgment does not
necessarily mean that the material facts are, indeed, undisputed.” Regents of Univ.
of Cal. v. Micro Therapeutics, Inc., 507 F. Supp. 2d 1074, 1077 (N.D. Cal. 2007).
“[W]hen simultaneous cross-motions for summary judgment on the same claim are
before the court, the court must consider the appropriate evidentiary material

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identified and submitted in support of both motions, and in opposition to both
motions, before ruling on each of them.” Fair Hous. Council of Riverside Cnty., Inc.
v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001).
II.

Administrative Procedural Act
The Administrative Procedural Act (“APA”) does not allow the court to

overturn an agency decision because it disagrees with the decision or with the
agency's conclusions about environmental impacts. Vt. Yankee Nuclear Power Corp.
v. Natural Res. Def. Council, Inc., 435 U.S. 519, 555, 98 S.Ct. 1197, 55 L.Ed.2d 460
(1978) (citing Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d
576 (1976)). An agency's decision may be set aside only if it is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
The standard is deferential. The court “may not substitute its judgment for that of
the agency concerning the wisdom or prudence of [the agency's] action.” Or. Envtl.
Council v. Kunzman, 817 F.2d 484, 492 (9th Cir.1987).
In conducting an APA review, the court must determine whether the agency's
decision is “founded on a rational connection between the facts found and the choices
made . . . and whether [the agency] has committed a clear error of judgment.” Ariz.
Cattle Growers' Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1243 (9th Cir. 2001).
“The [agency's] action . . . need only be a reasonable, not the best or most reasonable,
decision.” Nat'l Wildlife Fed. v. Burford, 871 F.2d 849, 855 (9th Cir.1989).
Plaintiff asserts that the SHAs and Permits the FWS issued to implement the
Barred Owl removal experiment are arbitrary and capricious under the APA because

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they violate the ESA and NEPA and their implementing regulations as well as the
FWS' own policy and guidance regarding SHAs and permit issuance.
DISCUSSION
I.

ESA Claims
Plaintiffs assert FWS violated the ESA by (1) issuing a permit that fails to

achieve a “net conservation benefit,” (2) failing to use the best biological and habitat
information in forming baseline conditions, and (3) failing to analyze the SHA's effect
on critical habitat.
A.

Auer Deference
To answer some of these legal questions, the Court considers the authorizing

statute, implementing regulations, SHA Policy's definition of “net conservation
benefit,” and overall regulatory framework to determine whether the FWS'
interpretation is entitled to deference under Auer v. Robbins, 519 U.S. 452, 117 S.Ct.
905, 137 L.Ed.2d 79 (1997).
The Court agrees with Defendant that Auer deference is appropriate because
the regulation at issue is ambiguous and that the FWS' determination was not plainly
erroneous or inconsistent under the statute. Def.’s Mot. Summ. J. 26.
In determining the appropriate level of deference afforded to the agency, this
Court addresses the statutory text of the ESA, the agencies' regulations construing
it, and the FWS' SHA policy interpreting the regulations. See Coeur Alaska, Inc. v.
Se. Alaska Conservation Council, 557 U.S. 261, 283, 129 S. Ct. 2458, 2472, 174 L. Ed.
2d 193 (2009).

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Section 10(a)(1)(A) of the ESA authorizes the FWS Secretary to permit take of
a listed species “for scientific purposes or to enhance the propagation or survival of
the affected species[.] 16 U.S.C.A. § 1539. Under this authority, FWS provides Safe
Harbor assurances to nonfederal property owners that voluntarily conserve
threatened and endangered species through issuance of an Enhancement of Survival
Permit, which shields the nonfederal property owners from liability arising from take
that is incidental to an otherwise lawful activity. Announcement of Final Safe Harbor
Policy, 64 Fed. Reg., 32,717, 32,718 (Jun. 17, 1999) (“[T]he Services have determined
that the section 10(a)(1)(A) ‘enhancement of survival’ permit provisions provide the
best mechanism to carry out a permanent Safe Harbor policy.”)
To issue a permit authorizing incidental take in accordance with a SHA, the
agreement must meet the following criteria:
i.
ii.

iii.
iv.
v.
vi.

The take will be incidental to an otherwise lawful activity and will
be in accordance with the terms of the Safe Harbor Agreement;
The implementation of the terms of the Safe Harbor Agreement
is reasonably expected to provide a net conservation benefit to the
affected listed species by contributing to the recovery of listed
species included in the permit, and the Safe Harbor Agreement
otherwise complies with the Safe Harbor policy available from the
Service.
The probable direct and indirect effects of any authorized take
will not appreciably reduce the likelihood of survival and recovery
in the wild of any listed species;
Implementation of the terms of the Safe Harbor Agreement is
consistent with applicable Federal, State, and Tribal laws and
regulations;
Implementation of the terms of the Safe Harbor Agreement will
not be in conflict with any ongoing conservation or recovery
programs for listed species covered by the permit; and
he applicant has shown capability for and commitment to
implementing all of the terms of the Safe Harbor Agreement.

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50 C.F.R. § 17.32(c)(2) (emphasis added).
“[W]here an agency interprets its own regulation, even if through an informal
process,

its

interpretation

of

an

ambiguous

regulation

is

controlling

under Auer unless ‘plainly erroneous or inconsistent with the regulation.’” Bassiri v.
Xerox Corp., 463 F.3d 927, 930 (9th Cir. 2006) (quoting Auer, 519 U.S. at 461, 117
S.Ct. 905). However, a court should not review an agency's interpretation under Auer
deference unless the regulation is genuinely ambiguous. Amazon.com, Inc. v. Comm'r
of Internal Revenue, 934 F.3d 976, 992 (9th Cir. 2019). To determine whether the
regulation is genuinely ambiguous, a “court must make a conscientious effort to
determine, based on indicia like text, structure, history, and purpose, whether the
regulation really has more than one reasonable meaning.” Kisor v. Wilkie, 139 S. Ct.
2400, 2423–24, 204 L. Ed. 2d 841 (2019).
The regulatory section governing SHAs requires that they comply with the
requirements of the Safe Harbor policy. 50 C.F.R. § 17.32 (c)(1)(i). Accordingly,
plaintiff contends that the Safe Harbor policy resolves the ambiguous net
conservation benefit requirement by defining the term in its policy. However, the Safe
Harbor policy is an interpretive document that does not carry the force of law. The
Ninth Circuit established a two-part test for determining when agency
pronouncements have the force and effect of law:
To have the force and effect of law, enforceable against an agency in
federal court, the agency pronouncement must (1) prescribe substantive
rules—not interpretive rules, general statements of policy or rules of
agency organization, procedure or practice—and (2) conform to certain
procedural requirements.

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River Runners for Wilderness v. Martin, 593 F.3d 1064, 1071 (9th Cir. 2010)
(quoting United States v. Fifty–Three (53) Eclectus Parrots, 685 F.2d 1131 (9th
Cir.1982)).
In determining whether the policy prescribes substantive, rather than
interpretive rules, courts consider the text of the policy and whether it creates
substantive rights against third parties. Id. at 1071-72.
Here, the text of the Safe Harbor Policy prescribes interpretive rules.
Specifically, the policy expressly states that “the purpose of this policy is to ensure
consistency in the development of [SHAs],” implying the purpose of the document is
to aid in interpretation and implementation. 64 Fed. Reg. at 32,706, 32,707 (June 17,
1999). The Safe Harbor Policy also does not impose substantive rights against third
parties.

Though the SHA imposes certain requirements, such as “provid[ing] a

mechanism to allow landowners to terminate their voluntary Agreements before the
expiration date,” “establish[ing] specific public review periods,” and how the FWS will
“address neighboring property owners to non-Federal property owners who receive
Safe Harbor assurances,” these are considerations that merely provide internal
guidance to the agency on provisions to incorporate in each SHA. 64 Fed. Reg. at
32,719, 32,721. Thus, the policy establishes provisions that should be incorporated
in SHAs to ensure consistency—not substantive rights against third parties.
Thus, because the policy does not carry the force of law, it does not resolve the
regulation's ambiguities. Accordingly, where the regulation is ambiguous, the FWS'
determinations are controlling unless they are plainly erroneous or inconsistent with
the regulation. Though the Safe Harbor policy does not carry the force of law, neither

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party argues the policy is “plainly erroneous or inconsistent with the regulation,” and
the Court accepts it as correct. See Coeur Alaska, Inc., 557 U.S. at 278. To that end,
the Safe Harbor policy is instructive in determining whether the FWS’ is consistent
with the overall regulatory framework and implementation.
B.

The Permits and SHAs Can Be Reasonably Expected to Provide a “Net
Conservation Benefit.”
Plaintiff asserts that FWS violated the ESA and its implementing regulations

because the SHAs and Permits at issue are not reasonably expected to provide a “net
conservation benefit,” as required by regulatory issuance criteria. 50 C.F.R. 17.32
(c)(2)(ii); Compl. ¶ 9; Pl.’s Mot. Summ. J. 15. In its argument, plaintiff contends that
the SHAs violate the ESA because (1) an “informational benefit” is a conservation
benefit that cannot result in a net conservation benefit, (2) the permittees are not
undertaking any “management activities,” and the (3) “SHAs will not result in an
increase in the Spotted Owl population over the term of the SHAs,” Pl.’s Mot. Summ.
J. 16-17. Essentially, the issue rests on whether obtaining access to private owner’s
land and survey data to further an experiment in exchange for authorization of
incidental take can be reasonably expected to provide a net conservation benefit
under the permit’s regulatory criteria.
As an initial matter, FOA asserts that the value of a potential contribution to
long-term Barred Owl management through gathering information for experimental
research in exchange for permitting incidental take cannot result in a net
conservation benefit” Compl. ¶ 8-9. Because the net conservation benefit criterion is
ambiguous, the FWS' determination that the value of an “informational benefit” in

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exchange for permitting incidental take is controlling unless it is plainly erroneous
or inconsistent with the regulation.
The implementing regulations requiring SHAs to “reasonably be expected to
achieve a net conservation benefit” is ambiguous by itself. But, the Court finds the
SHA policy instructive in determining whether an “informational benefit” in
exchange for permitting incidental is plainly erroneous or inconsistent with the
regulatory requirement to achieve a net conservation benefit.

The SHA policy

expressly lists the “establishment of areas to test and develop new and innovative
conservation strategies” as an example of a potential conservation benefit. 64 Fed.
Reg. at 32,723. This language clearly contemplates the use of SHAs with private
landowners for the purpose of establishing testing areas and developing new and
innovative conservation strategies.
Plaintiff maintains that the SHA “cannot be said to create an area for testing
and implementing a new conservation strategy because the barred owl removal
experiment is designed to ‘gather information regarding the effects of barred owls on
spotted owl . . . through experimental removal’” while allowing incidental take. Pl.’s
Mot. Summ. J. 19.

The Court fails to see how gathering information on the

effectiveness of a conservation strategy differs from testing and developing new
conservation strategies.
Moreover, the entire purpose of the SHAs is to provide an incentive for
property owners to participate in conservation and management activities by
shielding the landowner from liability if the owner causes take of a listed species that

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was incidental to an otherwise lawful activity. 64 Fed. Reg. at 32,717-18 (“This final
Safe Harbor policy encourages property owners to voluntarily conserve threatened
and endangered species without the risk of further restrictions pursuant to section 9
of the Act.”). Thus, the Court finds plaintiff's arguments unpersuasive and holds an
“informational benefit” can be sufficient to attain a “net conservation benefit” for
purposes of meeting the SHA’s and Permit’s regulatory criteria.
In addition to Permit issuance criteria, the regulatory section requires a permit
applicant to provide “a description of how incidental take of the covered species
pursuant to the [SHA] is likely to occur, both as a result of management activities and
as a result of the return to baseline.” 50 C.F.R. § 17.32(c)(1)(ii) (emphasis added).
However, the regulatory section provides no guidance as to what constitutes a
“management activity,” rending the regulatory meaning ambiguous.
The Safe Harbor Policy reiterates this requirement and defines “management
activities” as “voluntary conservation actions to be undertaken by a property owner
that the Services believe will benefit the covered species.” 64 Fed. Reg. at 32,722-23.
Plaintiff also argues that landowner’s merely granting access to their land and
survey data does not constitute a “management activity.” Plaintiff’s arguments are
unpersuasive. Here, the property owners are voluntarily allowing access to their
property and providing survey data to the FWS.

Though the voluntary action

indirectly benefits conservation, the Safe Harbor policy includes “indirect benefits”
that may contribute to the conservation of a species as sufficient to constitute a
conservation benefit. 64 Fed. Reg. at 32,720.

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Further, and as previously discussed, an “informational benefit” can constitute
a net conservation benefit.

Thus, property owners’ voluntary actions, providing

Spotted Owl survey data and access to their land for Barred Owl removal, are actions
the Service believes will benefit the covered species by providing an “informational
benefit.” Accordingly, the property owners’ actions undertaken in each SHA are
sufficient to constitute a “management activity.”
Nevertheless, plaintiff attempts to draw from other language in the policy to
create an inference that the SHA and Permits are arbitrary and capricious.
Specifically, plaintiff asserts that the conservation benefit of the SHA and permit do
not provide a net conservation benefit because the benefit is speculative, depending
on the experiment's success, and will occur in the future rather during the SHA's
term. Pl.’s Mot. Summ. J. 19. FOA relies on language in the policy stating that a
“‘net conservation benefit’ means the cumulative benefits of the management
activities identified in a [SHA] that provide for an increase in a species’ population
and/or the enhancement, restoration, or maintenance of covered species’ suitable
habitat within the enrolled property.” 64 Fed. Reg. at 32,722; Pl.’s Mot. Summ. J. 11.
Plaintiff maintains the potential future conservation benefit does not satisfy the
SHAs definition because it neither provides an increase in species’ population nor
enhances, restores, or maintains Spotted Owl habitat. Pl.’s Mot. Summ. J. 11.
The Court rejects plaintiff’s reliance on policy language requiring the
agreement to identify where and when the benefits would be achieved as an inference
that the conservation benefit must be effective during the SHA and not afterward.

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Pl.’s Mot. Summ. J. 18-19. Permitting incidental take in exchange for the benefit of
establishing test areas and developing new and innovative conservation strategies
fits squarely with the policy and purpose of the regulatory scheme, despite the benefit
potentially accruing after the SHA’s terms. Accordingly, a net conservation benefit
arising from establishing areas to test and develop new and innovative conservation
strategies through Barred Owl removal, in exchange for authorizing incidental take,
is not plainly inconsistent or erroneous with the regulation.
For the reasons discussed, the FWS was not plainly erroneous or inconsistent
with the regulatory scheme in finding the SHAs and Permits at issue are reasonably
expected to provide a net conservation benefit.
C.

FWS Sufficiently Described the Baseline Conditions of Properties Subject to the
SHAs.
The regulatory issuance criteria for the SHA provides no mandates or guidance

on establishing baseline conditions. Accordingly, the FWS' decision is reviewed under
Auer deference and refers to the Safe Harbor Policy for guidance in determining
whether the FWS's calculation of the baseline sites was “plainly erroneous or
inconsistent” with the regulation.
According to the Safe Harbor Policy, baseline conditions are “population
estimates and distribution and/or habitat characteristics and determined area of the
enrolled property that sustain seasonal or permanent use by the covered species at
the time the [SHA] is executed between the Services and the property owner.” 64
Fed. Reg. at 32,722. The purpose of establishing baseline conditions is to “determine
the degree of occupancy of the enrolled lands by covered species.” 64 Fed. Reg. at

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32,724. Once baseline conditions are established, the FWS provides assurances that
authorize the property owner to use the property in any manner, even if it results in
incidental take of a listed species, as long as the landowner acts in compliance with
SHA provisions and the enrolled property does not fall below baseline conditions. 64
Fed. Reg. at 32,724.
The policy provides little guidance on how baseline conditions should be
determined. Besides general mandates that require the FWS to use population
numbers of listed species or occupied habitat acreage or both, the SHA policy does not
require particular methodologies or survey techniques in calculating its baseline. 64
Fed. Reg. at 32,724.
The policy does, however, emphasize that the parties to the SHA must “identify
and agree on the degree to which the enrolled property is inhabited, permanently or
seasonally, by the covered species.” 64 Fed. Reg. at 32,723. It then discusses a degree
of flexibility, allowing the FWS to either “review and concur” with the property
owner’s determination and “if necessary, conduct on-site visits,” or “incorporate
information provided by the property owner” when formulating baseline conditions.
64 Fed. Reg. at 32723. Also, as plaintff points out, it requires the estimate to be based
on “best available techniques and information,” and discusses “on-site inspections,
maps, aerial photographs, remote sensing, or other similar means” as appropriate
methods for determining baseline conditions. 64 Fed. Reg. at 32,723.
In the SHAs at issue, FWS delineated “baseline” and “non-baseline” conditions,
establishing sites as non-baseline if no residential territorial breeding pairs had been

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sighted in the area in the last three years to five years (with length of sighting time
varying in each SHA). AR 001366-69 (ODF); AR 003295-97 (RRC/Oxbow); AR 000019
(RRC); AR 002771-73 (Weyerhaeuser). In contrast, sites were considered baseline
sites if survey data showed presence of Spotted Owls in the last three to five years.
Id.
In effect, the Permits at issue go beyond the Safe Harbor Policy's recommended
protections, which expressly permits incidental take to the extent the take would not
dip the population or habitat below baseline conditions. 64 Fed. Reg. at 32,723 (“[The
SHA] assurances allow the property owner to alter or modify enrolled property, even
if such alteration or modification results in the incidental take of a listed species to
such an extent that it returned the species back to the originally agreed upon baseline
conditions.”).
Here, rather than permitting incidental take of Spotted Owls to the extent that
would return the property to baseline conditions in sites where Spotted Owls have
been surveyed, the permit's incidental take authorization is more restrictive because
it only authorizes incidental take in non-baseline sites. AR 001350 (ODF) (“Once all
issuance requirements are met, ODF would receive a permit that authorizes
incidental take of spotted owls that reoccupy currently unoccupied sites (defined
below) as a result of the removal of barred owls under the experiment, should such
take be likely to occur through future planned forest management activities during
the permit term.”); AR 003286 (RRC/Oxbow) (“RRC and Oxbow will receive a permit
that authorizes incidental take of any spotted owls that reoccupy currently

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unoccupied sites as a result of the removal of barred owls under the experiment.”);
AR 000009 (RRC) (“RRC will receive a permit that authorizes incidental take of any
spotted owls that reoccupy currently unoccupied (non-baseline) sites as a result of the
removal of barred owls under the Experiment.”);

AR 002762 (Weyerhaeuser)

(“Weyerhaeuser will receive a permit that authorizes incidental take of any spotted
owls that reoccupy currently unoccupied sites as a result of the removal of barred
owls under the experiment.”).

Thus, property owners are only authorized to

incidentally take Spotted Owls on sites that have not shown the presence of the listed
species for the length of time established in each SHA.
Plaintff asserts the FWS violated the ESA in calculating its baseline conditions
because it (1) knowingly based its determination of baseline sites on landowner's selfsurveys, which it claims were absent or spotty, (2) failed to account for the seasonal,
foraging, and dispersal use of habitat in in establishing baseline sites, and (3)
disregarded the agency's own guidance and policy in determining whether Spotted
Owls occupied the site. Pl.’s Mot. Summ. J. 22.
The Court agrees with defendants that the FWS used the best techniques and
information available. Def’s Mot. Summ. J. 33. Plaintiff asserts that FWS relied on
“absent or spotty” survey data and “unreliable” and “inaccurate” mapping data. Pl.’s
Mot. Summ. J. 22-23. Specifically, FOA takes issue with the fact the FWS are not
able to survey Spotted Owls on private timber land and identifies one site that had
no survey data. Pl.’s Mot. Summ. J. 23.
As an initial matter, some of these arguments misconstrue the record. The

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Court is not persuaded plaintiff’s assertion that a site was missing survey data. Pl.’s
Mot. Summ. J. 23. Plaintiff relies on an email from a FWS employee that states that
[t]here is a potential that one spotted owl site may not have 2015 data
due to revocation of access permission for spotted owl surveys from
another company. If that happens, then we will have to look closely at
the sites and the situation. We may not be able to include this in the
nonbaseline without this year’s surveys[.]
AR 004484 (emphasis added). This portion of the record merely indicates that if FWS
finds one Spotted Owl site is missing survey data, it may not be able to consider the
site as non-baseline, in which case, the permit holder would not receive incidental
take authorization for that site. The Court does not this as indication that FWS failed
to use “best available techniques and information.”
The Court also is unconvinced by plaintff’s contention that FWS's utilization
of Spotted Owl survey data from private landowners violates Safe Harbor Policy by
failing to use the best techniques and information available. Under the SHAs, the
FWS is granted access to the permittee's land to survey and remove Barred Owls.
See AR 003304 (RRC/Oxbow). However, to access data regarding Spotted Owl
presence, the SHA explains that
[c]urrently, most of the spotted owl surveys are conducted under the
Northwest Forest Plan and the FWS and USGS will access this data to
track conditions on each spotted owl site. If RRC or Oxbow conducts
surveys of spotted owls on the study area, FWS and USGS will have
access to these data.
AR 003304 (RRC/Oxbow).
As previously discussed, nowhere does the Safe Harbor Policy require FWS to
monitor the effects of the SHA itself. In fact, the policy specifically states that a SHA

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must “identify a schedule for monitoring and the responsible parties who will monitor
maintenance of baseline conditions . . . and any incidental take[.]” 64 Fed. Reg. at
32,723 (emphasis added). Thus, the policy requires the SHA to identify which party
is responsible for monitoring baseline conditions and incidental take. It does not
require the FWS to monitor and survey or prohibit another entity from supplying the
information to the FWS. Moreover, the SHA policy allows the formulation of baseline
conditions through incorporating information provided by the property owner,
indicating survey data provided by a property owner can be sufficient to provide “best
available techniques and information.” 64 Fed. Reg. at 32,723. Additionally, the
administrative record supports that surveys represent the best available technique
and information to make an informed decision. AR 003294-97 (RRC/Oxbow) (“[We]
have strong annual survey data for most of the area that may be included in the Safe
Harbor Agreement”); AR 002771-73 (Weyerhauser); AR 001366 (ODF); AR 003294-97
(RRC/Oxbow). Thus, the Court rejects plaintiff’s contention that the SHA’s provision
indicating that FWS will receive its monitoring data from private property owners,
USFS, and USFS results in the FWS’s failure to use the “best available techniques
and information.”

Accordingly, the SHA provision is not plainly erroneous or

inconsistent with the regulation.
Finally, FOA claims the FWS failed to incorporate sites into its baseline
designation despite the fact the stands met certain habitat criteria, indicating the
stands could provide suitable habitat to Spotted Owls and should therefore be
established as “baseline.” Pl.’s Mot. Summ. J. 22. The Safe Harbor Policy allows

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baseline conditions to be based on habitat or population or both. 64 Fed Reg at
32,719, 32,722.

Here, FWS specifically relied on demographic population surveys

and uses Thiessen polygons to delineate territories in order to “define spotted owl
sites within the treatment area.” AR 001366. Thus, the FWS primarily relied on
population estimates and distribution rather than habitat characteristics in
establishing baseline conditions. Accordingly, the FWS’s determination that a site
was “non-baseline,” despite it containing suitable habitat characteristics, is not
“plainly erroneous or inconsistent” with the regulatory scheme.
1.

FWS' Reliance on Resident Owl Populations, Rather than Seasonal, Foraging,
and Dispersal Use of Habitat, When Establishing Baseline Sites Is Not Plainly
Erroneous or Inconsistent with the Regulation.
The Court does not adopt plaintiff’s assertion that the FWS unlawfully failed

to account for seasonal, foraging, and dispersal use of habitat when determining the
baseline status of the sites. The FWS establishes a site as “baseline” if “at least one
resident spotted owl was detected.” AR 003294 (RRC/Oxbow); AR 001367 (ODF); AR
000019 (RRC); AR 002771 (Weyerhauser). However, if a Spotted Owl was observed
in a site, and after investigation, was found to be merely passing through or using
the site for seasonal, foraging, and dispersal, it was not included as an observation
for purposes of establishing a baseline site. AR 000254; AR 00462-64; AR 00160 (“If
we have a single bird respond, particularly on a site that has been ‘vacant”’to the best
of our ability to detect for a few years, we look at the data and the notes of the
surveyor to decide whether there is a good reason to think that the individual is not
resident.”).

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Moreover, FWS contends the SHA guiding criteria aims to increase the
population of resident owls. Def’s Mot. Summ. J. 35. Thus, including various nonresidential uses of habitat to determine Spotted Owl presence would not further the
interest of finding locations where species currently inhabit to designate protections.
Def’s Mot. Summ. J. 35. The Court finds this rationale a reasonable explanation for
FWS’s calculation of baseline conditions and not plainly erroneous or inconsistent
with the regulation.
Nevertheless, plaintiff asserts the SHAs’ baseline calculation is unlawful
because it only relies on resident spotted owl numbers, and therefore ignores the fact
that sites without “residents” may still play an important role in their survival. Pl.’s
Mot. Summ. J. 23-24. Plaintiff relies on the Safe Harbor Policy language defining
“baseline conditions,” which includes “population estimates and distribution and/or
habitat characteristics and determined area of the enrolled property that sustain
seasonal or permanent use by the covered species[.]”

64 Fed. Reg. at 32,722

(emphasis added). It also relies on Safe Harbor Policy language requiring baseline
conditions to “identify habitat characteristics and determined area of the enrolled
property that sustain seasonal and permanent use” to support its contention that
seasonal, foraging, and dispersal use of habitat must be included in the determination
of whether a site is established as “baseline” or “non-baseline.” 64 Fed. Reg. at 32,723.
The plain language of the Safe Harbor Policy does not support plaintiff’s
reasoning for two reasons. First, the definition of baseline essentially allows the
establishment of baseline conditions to be determined by "population estimates and

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distribution" or “habitat characteristics.” As discussed, the SHAs at issue establish
their baseline conditions on population estimates, determined by survey data
indicating the presence of resident owls. AR 003294 (RRC/Oxbow), AR 001367
(ODF); AR 000019 (RRC); AR 002771 (Weyerhauser). Accordingly, the fact the SHA
baseline only includes resident owls and does not incorporate observations of Spotted
Owls that are using a particular area for foraging and dispersal use in its
determination of baseline conditions, does not equate to a failure to “accurately
identify the habitat characteristics and determined area of the enrolled property that
[can] sustain seasonal or permanent use.”
Second, the policy’s mandate to consider and assess seasonal use was
specifically accounted for in the SHAs at issue and provided additional protections
for such seasonal use:
To support the Barred Owl Removal Experiment, ODF will . . . [m]aintain
habitat in the 70 acre core area to support nesting spotted owls that may
reoccupy non-baseline sites and other areas outside of baseline (i.e.
baseline and elevated baseline) Thiessen polygons during the nesting
and rearing season (March 1 to September 30 of the year). The intent is
to allow spotted owls that initiate nesting to complete nesting and fledge
young. The configuration of the 70 acre core habitat to be maintained will
be determined with the technical assistance of the FWS, based on the
best habitat associated with nesting and roosting locations. \
AR 003298 (RRC/Oxbow); AR 000024 (RRC); AR 0027778 (Weyerhauser).
Accordingly, FWS’s consideration of permanent and seasonal use was sufficient for
determining baseline conditions. The fact the FWS did not include foraging and
dispersal use of habitat in whether a site was “occupied” for the purpose of
establishing baseline conditions was not clearly erroneous or plainly inconsistent

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with the policy.
2.

FWS Did Not Disregard Its Own Guidance and Policy in Determining
Whether a Spotted Owl Occupied the Site.
Finally, plaintiff asserts that FWS erred in determining a site was non-

baseline when it had not detected a Spotted Owl in the three to five years because
negative surveys are insufficient to establish “abandonment” of the site. Pl.’s Mot.
Summ. J. 26. Instead, plaintiff claims the policy mandates the sites be categorized as
“unoccupied” and still receive some protection under the SHA. Pl.’s Mot. Summ. J.
26. Despite plaintiff citations to the record, the Court finds no substantive support
for its claims. The record explains that “occupancy is an annual rate and is not
equivalent to ‘abandoned,’ which is a permanent status” and the “Service does not
concur that the sole use of 3 years of protocol surveys is appropriate to determine
permanent abandonment of historic Spotted Owl sites.” AR 01568-70.
Though the record supports plaintiff’s assertion that “abandonment”
classification based on three years of surveys is insufficient, nowhere in the SHA does
FWS mention sites were “abandoned,” exclusively referring to sites as “unoccupied”
if a Spotted Owl had not been observed in three or five years. AR 001373 (ODF); AR
003301 (RRC/Oxbow), AR 000027 (RRC), AR 002777 (Weyerhauser). Further, FWS
does provide additional protections to unoccupied sites if they did become reoccupied
by nesting Spotted Owl pairs. Id.; see e.g. AR 002777 (Weyerhauser) (“If currently
unoccupied spotted owl sites in the Study Area are re-occupied by spotted owl pairs
and those pairs initiate nesting, Weyerhaeuser will alter harvest unit configurations
and potentially harvest scheduling necessary to maintain sufficient habitat in a 70-

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acre core, designated based on the "nearest, best most contiguous habitat.”).
Thus, FWS was not arbitrary and capricious or plainly inconsistent with
regulation in its determination of baseline cites.
D.

The FWS Did Not Fail to Disclose and Reasonably Analyze the SHA's Effects
on Critical Habitat.
Plaintiff also asserts that FWS failed to consider the cumulative impact of the

incidental take authorization on federal land and failed to establish whether Section
7 consultation is required for permittees' activities on federal easements. Pl.’s Opp’n
to Def.’s Mot. Summ. J. 24. FWS claims a Section 7 consultation is unnecessary
because the SHAs and Permits have no anticipated no effect to critical habitat since
the Permits do not authorize take on areas designated as critical habitat. Def’s Mot.
Summ. J. 35.
Plaintiff claims FWS failed to analyze the impacts of private logging on federal
land in affected areas as part of a cumulative effects analysis. Pl.’s Mot. Summ. J.
28. Plaintiff chiefly relies on the fact FWS had to revise its draft EA to address the
SHAs effects on Spotted Owl critical habitat, but instead issued addenda for each
SHA that stated the SHA would have no impact without explanation. Pl.’s Mot.
Summ. J. 28.

This was error, plaintiff argues, because it ignores the private

landowners’ activities on state and federal land that may affect critical habitat. Pl.’s
Mot. Summ. J. 28-29.
However, the administrative record includes no evidence of permits or planned
activities on behalf of the private landowner that would affect state or federal critical
habitat. The Court does not find support for plaintff’s assertion that the Roseburg

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Oxbow SHA lists sections located on State ODF land that overlaps with critical
habitat. Thus, the only the SHA affected to have any impact on critical habitat is the
ODF SHA, which prompted the FWS to revise its Bi Op to reassess and address such
impacts and determine the permit would not likely adversely affect critical habitat.
AR 001476-80 (“That low level of potential loss would not impair the overall recovery
of the spotted owl at the Range wide, Zone or Unit level or possibly might not even be
detectable, particularly at the less than one-half of one percent level.”).
Plaintiff, however, contends the Bi Op assessing the SHAs’ effects on ODF
lands is also flawed because it does analyze the foraging, transience, and colonization
value of the affected critical habitat. Pl.’s Mot. Summ. J. 31. This is not the case.
The Bi Op does consider and assesses the foraging, transience, and colonization value
of the affected critical habitat, but nevertheless determined that it would not
adversely affect Spotted Owls because the loss of critical habitat would be scattered,
avoiding hinderance on a Spotted Owl's ability to safely travel across its habitat. AR
001466 (“These stands typically do not provide high-quality spotted owl habitat,
although they may occasionally be used for foraging and dispersal.”); AR 001471
(“ODF uses different habitat data in their internal analysis of their actions which
includes foraging and some dispersal habitat as potentially suitable spotted owl
habitat.”); AR 001479 (“[T]he scattered nature of ODF lands mean that any habitat
loss would not appreciably affect the north-south connectivity between subunits.”).
Because no adverse impact to critical habitat was identified, FWS did not conduct a
formal Section 7 consultation, which is reserved for actions that may affect listed

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species or critical habitat. 50 C.F.R. 402.12.
Thus, the Court holds that FWS did not violate the ESA and sufficiently
analyzed the SHA's effects on critical habitat.
II.

NEPA

A.

FWS Did Not Fail to Supplement Its Final EIS in Violation of NEPA.
Plaintiff asserts FWS violated NEPA by failing to prepare and circulate a

supplement to the 2013 EIS because (1) FWS never emphasized in the 2013 FEIS
that nonfederal landowner participation was “crucial” to the experiment, Compl. ¶ 4;
(2) the FEIS does not disclose that SHAs and Permits will authorize habitat
destruction, Pl.’s Mot. Summ. J. 32-33; Pl.’s Opp’n to Def.’s Mot. Summ. J. 29; and (3)
the Permits and SHAs must be discussed together in one EIS because they are
connected agency actions. Pl.’s Mot. Summ. J. 33; Pl.’s Opp’n to Def.’s Mot. Summ. J.
30.
The U.S. Forest Service’s decision not to prepare an Supplemental EIS is
reviewed under the arbitrary or capricious standard. Great Old Broads for
Wilderness v. Kimbell, 709 F.3d 836, 853 (9th Cir. 2013) (citing Russell Country
Sportsmen v. U.S. Forest Serv., 668 F.3d 1037, 1044 (9th Cir.2011), cert. denied, 566
U.S.1010, 132 S. Ct. 2439, 182 L.Ed.2d 1063 (2012).
Agencies must prepare supplements to a final environmental impact
statements if the agency makes substantial changes in the proposed action that are
relevant to environmental concerns.

40 C.F.R. § 1502.9c)(1)(i). “Whether new

information requires supplemental analysis is a ‘classic example of a factual dispute

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the resolution of which implicates substantial agency expertise.’”

Cascadia

Wildlands v. Carlton, 341 F. Supp. 3d 1195, 1202 (D. Or. 2018) (quoting Tri-Valley
CAREs v. U.S. Dep't of Energy, 671 F.3d 1113, 1130 (9th Cir. 2012).
“[A]n agency need not supplement an EIS every time new information comes
to light after the EIS is finalized. To require otherwise would render agency decisionmaking intractable, always awaiting updated information only to find the new
information outdated by the time a decision is made.” Marsh v. Or. Nat. Res. Council,
490 U.S. 360, 373, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (internal footnote omitted).
1.

FWS Did Not Fail to Supplement the EIS Merely Because It Did Not
Characterize Nonfederal Landowners’ Participation in the Experiment as
"Crucial."
Plaintiff claims a supplemental analysis is necessary because FWS did not

mention landowner participation in the experiment was “crucial” and only considered
the “potential economic effect” the experiment might have on timber harvests from
state and private lands. Compl. ¶ 4. Specifically, FOA argues the “expansion” of the
experiment onto nonfederal land was not anticipated in the 2013 FEIS and is
substantial because it authorizes incidental take across “a whopping 11,550 acres . .
. of high-value nesting/roosting habitat[.]” Pl.’s Mot. Summ. J. 32.
The 2013 EIS accounted for the possibility that nonfederal lands could be
included in the experiment. AR 016409 (“Where possible, we would seek cooperation
from nonfederal landowners.”); AR 016619 (“All study areas contain at least some
nonfederal lands.”).

Though plaintff concedes that the 2013 EIS mentions the

potential of utilizing nonfederal law, it contends that a supplemental EIS is

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nevertheless required because the EIS never mentioned cooperation from nonfederal
lands was “crucial” to the experiment. Compl ¶ 4-5.
FWS did not emphasize the need as “crucial” in the EIS, but it nevertheless
contemplated the value of nonfederal lands and included it in every alternative. AR
016625-30 (showing all alternatives in the EIS contemplated nonfederal land
participation). Accordingly, the Court finds no occasion to require a supplemental
analysis merely because the agency did not describe nonfederal landowner
cooperation as “crucial.” See Japanese Vill., LLC v. Fed. Transit Admin., 843 F.3d
445, 472 (9th Cir. 2016) (“[T]he FEIS already accounts for the noise and light impacts
of possible nighttime construction: This analysis considered both daytime and
nighttime construction activities using the procedures and criteria for a general noise
assessment.”).
Plaintiff also asserts the SHAs and Permits authorize habitat destruction,
which constitutes a substantial change requiring a supplemental analysis. Pl.’s Mot.
Summ. J. 32-33; Pl.’s Opp to Def Mot. Summ. J. 29. Plaintiff misconstrues the
authorization contained in the SHA and associated Permit. As previously discussed,
the SHA and Permits in this case merely exempt incidental take on sites that have
not had a presence of Spotted Owl in the last three or five years. AR 001350 (ODF);
AR 003286 (RRC/Oxbow); AR 000009 (RRC); AR 002762 (Weyerhaeuser).
Accordingly, absent permit issuance, the private landowners would nevertheless be
able to continue their activities on the sites permitting incidental take because no
listed species would be present. 64 Fed. Reg. 32,724 (“If the property owner carried

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out the management actions and complied with the permit and the Agreement
conditions, the property owner would be authorized to use the property in any manner
that does not result in moving the enrolled property to below baseline conditions.”);
also see Id. at 32,725 (“If the Services conclude that a significant impact could occur,
the issuance of a permit would require preparation of an EA or EIS, although the
Services believe that the need for an EIS will be rare.”). Thus, authorizing incidental
take for a landowners otherwise lawful activities on those sites does not constitute a
substantial change relevant to environmental concerns.
Finally, plaintff argues that the Permits and SHAs are all connected actions
contributing to the experiment and should therefore be discussed together in one EIS.
Pl.’s Mot. Summ. J. 33. Plaintiff relies on 40 CFR 1502.4(a), requiring agencies to
discuss connected actions in same EIS if one action will not proceed unless other
actions are taken previously or simultaneously and are interdependent parts of a
larger action, depending on the larger action for their justification. Pl.’s Mot. Summ.
J. 33. The mandate, plaintiff argues, was violated by FWS knowingly subdividing its
NEPA analysis of the SHAs when the they were are all dependent on the larger owl
removal experiment. Pl.’s Mot. Summ. J. 33-34. FOA reasons that separate analyses
are inappropriate where, as here, nonfederal landowner participation is part of a
coordinated effort and are not separate applicants applying for a permit. Pl.’s Mot.
Summ. J. 34 (“While this may have been excusable if Permittees had indeed
approached FWS one-by-one over the course of the year requesting to enter into
SHAs, that was not the case.”).

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In defense, FWS states the permits are separate, independent agency actions
with different legal purposes and effects, which are supported by their own NEPA
documentation—the EAs and FONSIs. Def Reply in Supp. of Mot. Summ. J. 20.
Under 40 C.F.R. § 1502.4, agencies must “properly define” the proposal that
the environmental impact statement assesses.

The regulatory section directs

agencies to adhere to regulatory criteria in § 1508.25 to determine whether proposals
are related to each other to the extent it must be evaluated in a single impact
statement. 40 C.F.R. § 1502.4.
Turning to those criteria, plaintiff argues that the 2013 FEIS and contested
SHAs and Permits are “connected” actions. Actions are “connected” if they:
i. Automatically trigger other actions which may require
environmental impact statements.
ii. Cannot or will not proceed unless other actions are taken previously
or simultaneously.
iii. Are interdependent parts of a larger action and depend on the larger
action for their justification.
Id. § 1508.25(a)(1). However, if “one of the projects might reasonably have been
completed without the existence of the other, the two projects have independent
utility and are not ‘connected’ for NEPA's purposes.” Pac. Coast Fed'n of Fishermen's
Associations v. Blank, 693 F.3d 1084, 1097–98 (9th Cir. 2012) (quoting Great Basin
Mine Watch v. Hankins, 456 F.3d 955, 969 (9th Cir.2006) (“The crux of the
[independent utility] test is whether each of two projects would have taken place with
or without the other . . . .”).
While the 2013 FEIS and SHAs and Permits are all linked to Action 29 and
the Barred Owl removal experiment, the two actions are not necessarily “connected”

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as defined by the regulatory criteria. Here, each SHA and Permit seek to obtain
information and data to determine whether the Barred Owl removal experiment is
an effective means of promoting Spotted Owl recovery. Though each action benefits
the experiment by contributing data, each action could exist without the other. See
Pac. Coast Fed'n of Fishermen's Associations, 693 F.3d at 1097–98 (“[T]wo actions are
not connected simply because they benefit each other or the environment.”); NW. Res.
Info. Ctr. v. NMFS, 56 F.3d 1060, 1068–69 (9th Cir.1995) (two actions were not
connected merely because they both would benefit salmon); Sylvester v. U.S. Army
Corps of Eng'rs, 884 F.2d 394, 400 (9th Cir.1989) (“[E]ach [action] could exist without
the other, although each would benefit from the other's presence.”).
Moreover, the EA and FONSI for each SHA and Permit assesses the
cumulative impacts of other nonfederal SHAs and Permits, which diminishes the
concern that that FWS is diluting the environmental impacts of each action. See AR
000069-72 (RRC); AR 001411-13 (ODF); AR 002804-807 (Weyerhauser); AR 00333839 (RRC/Oxbow) (“[T]o ensure a robust NEPA analysis, we have added a discussion
of the two Safe Harbor Agreements that are currently under discussion.”); also see
Pac. Coast Fed'n of Fishermen's Associations, 693 F.3d at 1099.
For the reasons stated above, the Court holds supplementation of the 2013
FEIS is not necessary.
CONCLUSION
Plaintiff's Motion for Summary Judgment (doc. 55) is DENIED. Defendants'
Cross Motion for Summary Judgment (doc. 56) is GRANTED. Accordingly, this case

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is dismissed.
IT IS SO ORDERED.
15th
Dated this _____ day of January 2021.

/s/Ann Aiken
______________________________
Ann Aiken
United States District Judge

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