Opinion
NO. CIV. S-11-2605 LKK/EFB
06-19-2012
CONSERVATION CONGRESS and KLAMATH FOREST ALLIANCE, Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant, and SIERRA PACIFIC INDUSTRIES, Proposed Defendant Intervenor.
ORDER
Plaintiff Conservation Congress brings this action against Defendants United States Forest Service and United States Fish and Wildlife Service (collectively, "Federal Defendants"), concerning Federal Defendants' approval of a timber sale, known as the Mudflow Vegetation Management Project, and its effect upon the habitat of the northern spotted owl. Plaintiff's action arises under the Endangered Species Act ("ESA"), the National Environmental Policy Act ("NEPA"), the Administrative Procedure Act ("APA"), the Declaratory Judgment Act ("DJA"), and the Equal Access to Justice Act ("EAJA").
Pending before the court is Plaintiff's motion for a preliminary injunction, brought specifically in relation to Plaintiff's claims under the ESA. Pl's Amend. Mot., ECF No. 44. Federal Defendants and Defendant-Intervenor Sierra Pacific Industries ("SPI") oppose. Fed. Defs' Opp'n, ECF No. 46; Def. SPI Opp'n, ECF No. 47. For the reasons provided below, Plaintiff's motion is denied.
I. BACKGROUND
A. Statutory Background
The Endangered Species Act ("ESA") requires that the Secretaries of the Interior and Commerce promulgate regulations listing plant and animal species that are "endangered" by extinction and to designate critical habitat for such species. 16 U.S.C. § 1533; Bennett v. Spear, 520 U.S. 154, 157-58, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Critical habitat consists of those areas which have "physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection." 16 U.S.C. § 1532(5)(A).
Section 9 of the ESA establishes a blanket prohibition on the "taking" of any member of a listed endangered species. 16 U.S.C. § 1538(a)(1)(B); Oregon Natural Resources Council v. Allen, 476 F.3d 1031, 1033 (9th Cir. 2007). To "take" is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19); Oregon Natural Resources Council, 476 F.3d at 1033 n.1.
Section 7 of the ESA allows statutorily-defined "applicants," including Federal agencies, to carve out limited exceptions to Section 9's blanket prohibition under certain circumstances. 16 U.S.C. § 1536(a)-(c), (o). Under Section 7, each federal agency must "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 or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical." 16 U.S.C. § 1536(a)(2). The applicable regulations define an "action" to include "actions directly or indirectly causing modifications to the land, water, or air." 50 C.F.R. § 402.02.
In addition to the ESA's substantive obligations to conserve and not jeopardize protected species, Section 7(a)(2) imposes a procedural obligation on federal agencies. See Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 667, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007); New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 700 (10th Cir. 2009). "An agency's decision whether to take a discretionary action that may jeopardize endangered or threatened species is strictly governed by ESA-mandated inter-agency consultation procedures." Forest Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir. 2006). The procedural obligation ensures that the agency proposing the action, in this case the United States Forest Service ("USFS"), consults with the United States Fish and Wildlife Service ("FWS") to determine the effects of its action on endangered species and their critical habitat. See Fla. Key Deer v. Paulison, 522 F.3d 1133, 1138 (11th Cir. 2008).
The FWS and the National Marine Fisheries Service administer the ESA. 50 C.F.R. § 402.01(b). The "FWS has jurisdiction over freshwater and terrestrial species while the National Marine Fisheries Service is responsible for anadromous and marine species." Johanns, 450 F.3d at 457 n.1 (citing 50 C.F.R. § 402.01(b)).
To meet its procedural obligation, the agency action must first determine whether its proposed discretionary action may affect a listed species or a critical habitat. 50 C.F.R. § 402.14(a). If an agency determines that an action "may affect" critical species or habitats, formal consultation is ordinarily mandated. Natural Resources Defense Council v. Houston, 146 F.3d 1118, 1126 (9th Cir. 1998) (citing Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir. 1985); 50 C.F.R. § 402.14(a)). Formal consultation is excused only where (1) an agency determines that its action is unlikely to adversely affect the protected species or habitat, and (2) the relevant Service (FWS or NMFS) concurs with that determination. Id. (citing 50 C.F.R. § 402.14(b); Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1054, n.8 (9th Cir. 1994)).
If it appears from informal consultation that a protected species may be present in the area of a federal agency's "major construction activity," then the agency must prepare a "biological assessment." 50 C.F.R. § 402.12(b). The purpose of the biological assessment is to "evaluate the potential effects of the action on listed and proposed species and designated and proposed critical habitat and determine whether any such species or habitat are likely to be adversely affected by the action and is used in determining whether formal consultation or a conference is necessary." 50 C.F.R. § 402.12(a). Again, formal consultation is not required if, as a result of informal consultation, the "Federal agency determines with the written concurrence of the Director [of the Fish and Wildlife Service], that the proposed action is not likely to adversely affect any listed species or critical habitat." Sierra Club v. Van Antwerp, 661 F.3d 1147, 1155 (D.C. Cir. 2011) (citing 50 C.F.R. § 402.14(b)).
Informal consultation merely means "all discussions, correspondence, etc., between the Service and the Federal agency," designed to assist the action agency (USFS) in determining whether formal consultation will be necessary. 50 C.F.R. § 402.13(a).
To determine a project's effects, agencies are required to understand the existing conditions of the species or critical habitat at issue, before they consider the effects of a proposed action on those conditions. The "environmental baseline" for Section 7 consultation purposes is defined as follows:
The environmental baseline includes the past and present impacts of all Federal, State, or private actions and other human activities in the action50 C.F.R. § 402.02 (definition of "environmental baseline" is included within the definition of "effects of the action"). For Section 7 consultation purposes, the "effects" of a proposed action include not only "direct" effects, but also "indirect effects," which is defined to include any effects caused or induced by the action that are "reasonably certain to occur." 50 C.F.R. § 402.02. Additionally, in meeting the Section 7 consultation requirements, agencies must utilize the best scientific and commercial data available and agencies that fail to consult properly run the risk that their activities will be enjoined. See 16 U.S.C. § 1536(a)(2); see also, e.g., Pacific Rivers Council v. Robertson, 854 F. Supp. 713, 724 (D. Or. 1993) (holding that procedural violations of the ESA, such as not initiating Section 7(a)(2) consultation when required, mandate that the underlying action be enjoined), aff'd in part, rev'd in part sub nom., Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994).
area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process.
B. Factual Background
The northern spotted owl has been listed as a threatened species by the U.S. Fish and Wildlife Service ("FWS"). See Shasta-Trinity National Forest, Biological Assessment Mudflow Vegetation Management Project, MAR002558-2580, at 8 (Feb. 15, 2008) ("Biological Assessment"). Critical habitat for the northern spotted owl was proposed within the Federal Register on May 6, 1991, and a Final Rule was published on January 15, 1992. Id. (citing 56 Fed. Reg. 20816-21016; 57 Fed. Reg. 1796-1838). On September 12, 2008, a Final Revised Critical Habitat Rule for the northern spotted owl became effective. See Fish & Wildlife Service, Second Letter of Concurrence, FWS AR 001317-1331, at 1-2 (Feb. 10, 2012) ("2nd LOC") (citing 73 Fed. Reg. 4732 6-47522). The Mudflow Project area contains 888 acres within the 2008 Critical Habitat designation subunit C-70 and 3,392 acres within the Critical Habitat subunit C-72. Id. at 2.
The area encompassing the Mudflow Project has been surveyed for northern spotted owls "annually to protocol" starting in 2004 through 2007. Biological Assessment, at 9. According to the Biological Assessment for the Mudflow Project, which was based on the 1992 Final Critical Habitat Rule, the nearest known owl nests (ST-211 and ST-213) are located approximately .6 miles to the east and 1 mile to the west, respectively. Id. Portions of both 1.3 mile radius owl home ranges are within the project assessment area. Id. Starting in 1992, annual historical checks have occurred in most years at both nest sites. Id. Owls in ST-211 were last known to nest in 1992. Id. A single male was located in the vicinity of this nest core in 2006. Id. Owls in ST-213 were last known to breed in 1992 and a single male was last heard in 1994. Id. In 2005, a single male northern spotted owl was heard approximately 1 mile to the northeast of the nest core on Forest Service land during surveys conducted by a private landowner, but the owl was not relocated by Forest Service personnel on subsequent surveys. Id. There are no known owl locations on private ownership within 1.3 miles of the Mudflow Project. Id.
The proposed area for the Mudflow Project encompasses approximately 10,430 acres of Forest Service land and 3,400 acres of private land. Id. The project area contains 510 acres of suitable nesting/roosting habitat and 5,125 acres of foraging habitat. Id. There are no activities proposed within 1/4 mile of the known nest cores of ST-213 and ST-211. Id. at 10. Protocol surveys conducted during 2004, 2005, 2006, and 2007 in all areas of potential nesting, roosting, or foraging habitat in the Mudflow Project did not detect any additional owls. Id.
According to the Biological Assessment, the Mudflow Project will "degrade" 1,719 acres of foraging habitat for the northern spotted owl overall, 215 acres of which are within the owl's "home range" (1.3 mile radius) and 18 acres of which are within the owl's "territory" (.7 mile radius). Id. at 11. "Degraded" is defined as a reduction in some habitat components, but the habitat would still function at the current habitat level. Id. The Biological Assessment indicates that none of the Mudflow Project area will be "downgraded" or "removed." Id. "Downgraded" is a term of art which "indicates that there is a temporary reduction (approximately 30 years) in nesting/roosting or foraging habitat." Id. "Removed" is a term of art which "indicates that the habitat would not longer function as nesting/roosting or foraging" habitat." Id. The Biological Assessment concludes with a determination that the proposed Mudflow Project "[m]ay affect, but is not likely to adversely affect" the northern spotted owl. Id. at 15.
The FWS issued an initial letter of concurrence with the Biological Assessment for the Mudlfow Project on April 28, 2008. See 2nd LOC, at 1. On February 10, 2012, in order to take into account both the 2008 Final Revised Critical Habitat Rule for the Northern Spotted Owl and the 2011 Revised Recovery Plan for the Northern Spotted Owl ("Recovery Plan"), the FWS issued a second letter of concurrence. Id. at 1-2.
C. Plaintiff's Complaint
Plaintiff Conservation Congress filed its original complaint on October 3, 2011, and its first supplemental complaint on March 22, 2012. Pl's Compl., ECF No. 1; Pl's First Suppl. Compl., ECF No. 40. In its first supplemental complaint, Plaintiff makes, inter alia, the following assertions:
The 2011 Recovery Plan for the northern spotted owl notes that "past habitat loss, current habitat loss and competition from Barred Owls" were "the most pressing threats to [northern] spotted owl persistence," and that active management projects should explicitly evaluate the short-term impacts to the Northern Spotted Owl and its prey while considering the long-term ecological benefits of such projects. Id. (citing 76 Fed. Reg. 38575).
According to Plaintiff, the most recent scientific evidence analyzing northern spotted owl population and demographic trends indicate that, despite over 20 years of legal protection under the ESA, the species' population is declining by 3%-4% each year. Id. at 13-14.
The Mudflow Project is only one of many projects that involve tree cutting on lands managed by the Shasta-Trinity National Forest that are designated as critical habitat for the northern spotted owl. Id. at 15. USFS has analyzed and/or approved several projects that also involve tree cutting in northern spotted owl habitat including the Algoma, Pilgrim, Moosehead and East McCloud projects. Id.
FWS has conducted no surveys for northern spotted owl's in the Mudflow Project area since 2007. Id. Seventeen percent of the existing foraging habitat within the home range of a spotted owl pair, designated as ST-211, will be degraded in the Mudflow Project. Id. Despite this level of degradation, in its Biological Assessment, USFS did not evaluate the spatial relationship of its proposed logging to the existing habitat features of this area, even though spatial patterns of logging units vis-a-vis existing habitat, are considered by experts to be important to the survival of Owls post-logging. Id.
Based on the 2008 critical habitat rule, the Mudflow Project area contains 888 acres of designated critical habitat in unit "C-70" and 3,392 acres in unit "C-72," for a total of 4,280 acres of critical habitat. Pl's Reply, ECF No. 49, at 3. The Project will encompass 19% of the total critical habitat in unit C-70 and 11% of the total critical habitat in unit C-72. Id. The 544 acres that USFS and FWS propose to treat are comprised of 408 acres of foraging habitat, 128 acres of dispersal habitat, and 8 acres of non-capable habitat. Id. USFS's proposed treatments include 340 acres of natural stand thinning, 22 acres of thinning with sanitation, and 46 acres of shaded fuelbreak. Id. Plaintiff alleges that these treatments "appear to be targeted at all the foraging habitat, the highest quality remaining habitat[] included in the Project." Id. at 3-4.
Initially, Plaintiff alleged calculations for the Mudflow Project's effects on northern spotted owl critical habitat using the 1992 critical habitat rule. Following briefing by the parties in support of the instant motion, Plaintiff offers recalculations based on the 2008 critical habitat rule.
Plaintiff asserts that, in its Second Letter of Concurrence, FWS fails to consider: the 2011 Revised Recovery Plan for the Northern Spotted Owl; or FWS's Biological Opinion on USFS's Algoma Project. Pl's Am. Compl., ECF No. 40, at 20. Plaintiff further asserts that FWS conducted no surveys in the Mudflow Project area since 2007, even though FWS revised its survey protocol in 2011 to better detect both Barred Owls (a competitor species to the Northern Spotted Owl) and northern spotted owls. Id.
Plaintiff brings two claims under the ESA alleging: (1) inadequate biological assessment on the part of USFS, in violation of 16 U.S.C. § 1536 and 50 C.F.R. § 402.12(a); and (2) arbitrary concurrence letters on the part of FWS, in violation of 16 U.S.C. § 1536(a)(2) and 50 C.F.R. § 402.14(a). Id. at 22-25.
On April 5, 2012, Federal Defendants filed an answer to Plaintiff's supplemental complaint, see Fed. Defs' Answer, ECF No. 41, as did Defendant-Intervenor Sierra Pacific Industries, see Def-Intervenor's Answer, ECF No. 42.
D. Plaintiff's Motion for Preliminary Injunction
On April 9, 2012, Plaintiff filed the pending motion for a preliminary injunction. Pl's Amend. Mot., ECF No. 44.
On April 30, 2012, Federal Defendants and Defendant-Intervenor Sierra Pacific Industries filed oppositions to Plaintiff's motion for a preliminary injunction. See Fed. Defs' Opp'n, ECF No. 46, Def-Int's Opp'n, ECF No. 47.
II. STANDARD OF REVIEW FOR A PRELIMINARY INJUNCTION UNDER THE ENDANGERED SPECIES ACT
Fed. R. Civ. P. 65 provides authority to issue preliminary injunctions. A preliminary injunction is an "extraordinary remedy." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (internal citation omitted). When a court considers whether to grant a motion for a preliminary injunction, it traditionally balances "the competing claims of injury, . . . the effect on each party of the granting or withholding of the requested relief, . . . the public consequences in employing the extraordinary remedy of injunction," and plaintiff's likelihood of success. Id. at 20, 24 (quoting Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982)).
Under the traditional approach, a plaintiff seeking a preliminary injunction must demonstrate that he is "likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (citing Winter, 555 U.S. at 20). Alternatively, "'serious questions going to the merits' [rather than a likeliness of success on 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." Alliance For The Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011).
By enacting the ESA, Congress altered the normal standards for injunctions under Federal Rule of Civil Procedure 65. The Ninth Circuit has consistently held that "[t]he traditional preliminary injunction analysis does not apply to injunctions issued pursuant to the ESA." Nat'l Wildlife Fed'n v. NMFS, 422 F.3d 782, 793 (9th Cir. 2005). The Supreme Court explained that in enacting the ESA "Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). "Accordingly, courts may not use equity's scales to strike a different balance." Nat'l Wildlife Fed'n, 422 F.3d at 794 (internal quotation omitted). "The appropriate remedy for violations of the ESA consultation requirements is an injunction pending compliance with the ESA." Wash. Toxics Coalition v. Environmental Protection Agency, 413 F.3d 1024, 1035 (9th Cir. 2005) (upholding an injunction prohibiting the EPA from authorizing the use of certain pesticides within proscribed distances of salmon-bearing waters until it had fulfilled its consultation obligations under § 7(a)(2) of the ESA).
III. ANALYSIS
Plaintiff asserts a procedural violation of the ESA due to Federal Defendants' failure to engage in the formal consultation required by Section 7(a)(2).
The Tenth Circuit has indicated that, to challenge the agency's failure to undertake formal consultation, a plaintiff may utilize the ESA's citizen-suit provision, 16 U.S.C. § 1540(g)(1)(A). Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1106 n.3 (10th Cir. 2010). Under this provision, "any person may commence a civil suit . . . to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of [the ESA] or regulation issued under the authority [of the ESA]; . . . ." 16 U.S.C. § 1540(g)(1)(A). However, to challenge discretionary final agency actions of the FWS and other federal agencies under the ESA, plaintiffs must utilize the Administrative Procedure Act ("APA"). See 5 U.S.C. § 706(2); Bennett v. Spear, 520 U.S. 154, 174-75, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).
Plaintiff and Federal Defendants dispute whether Plaintiff's claims against the USFS and the FWS arise under the ESA citizen suit provision or the APA. Because the APA governs judicial review of agency action challenged through the ESA citizen-suit provision, see 5 U.S.C. § 706; Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 981-82 (9th Cir. 1985); Rio Grande Silvery Minnow, 601 F.3d at 1106 n.3 (citing Coal. for Sustainable Res., Inc. V. U.S. Forest Serv., 259 F.3d 1244, 1249 (10th Cir. 2001)), the APA will provide the standard of review for both of Plaintiff's relevant claims, regardless of the statutory authority under which the claims arise. At this stage in the proceedings, the court therefore declines to analyze whether Plaintiffs claims against the USFS and FWS arise under the ESA Section 11(g) citizen suit provision or the APA.
The court must note, however, the ESA Section 11(g) citizen-suit requirement that 60-day written notice be provided to the appropriate Secretary and to any alleged violator intended to be a defendant in the lawsuit. See 16 U.S.C. § 1540(g)(2)(A), (B), and (C). A proper 60-day notice of intent must sufficiently alerl the recipient of the actual alleged violation, so that the recipient may attempt to abate the violation. Southwest Ctr. for Biological Diversity v. Bureau of Reclamation, 143 F.3d 515, 521 (9th Cir. 1998). The Ninth Circuit considers this requirement jurisdictional. Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1072 (9th Cir. 1996).
Here, the administrative record indicates that a 60day notice of intent to sue, from Plaintiff Conservation Congress was received by Sharon Heywood, the Forest Supervisor for the ShastaTrinity National Forest of the USFS, on July 13, 2011over 60 days before Plaintiff's filing of its original complaint in this action. See Letter from Denise Boggs, Conservation Congress, SixtyDay Notice of Intent to Sue (Jul. 13, 2011). The letter was also addressed to Ken Salazar, Secretary of the Interior, for the U.S. Department of the Interior. Id. at 1. In addition to being filed in a timely manner, the letter is explicitly identified as a 60day notice of intent to sue under ESA Section 11(g), see id. at 1; it clearly provides notice of the violation upon which Plaintiff sued, see, e.g., id. at 2 ("the USFS and USFWS have contravened the requirements of the ESA by . . . failing to initiate formal consultation with the USFWS"); and it appears to have been served upon the relevant Secretary (the Secretary of the Interior) as well as the alleged ESA violator (the USFS). This letter was therefore sufficient to satisfy the jurisdictional requirement of notice under 16 U.S.C. § 1540(g)(2)(A)(i). To the extent that Plaintiff asserts an ESA claim against the USFS, brought pursuant to the ESA citizen suit provision of 16 U.S.C. § 1540(g)(1)(A), this court has jurisdiction to hear that claim.
A. Likelihood of Success on the Merits
i. Standard of Review
Under the APA, a court may disturb an agency's final action only if that final action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This standard is "highly deferential, presuming agency action to be valid and affirming the agency action if a reasonable basis exists for its decision." Independent Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000). A reviewing court must not "substitute its judgment for that of the agency" concerning the proposed action. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Rather, a court must determine whether the decision was "based on a consideration of relevant factors" and whether "the agency has taken a 'hard look' at the environmental consequences of its proposed action." Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998). That is, the agency must state a rational connection between the facts found and the decision made. Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059, 1065 (9th Cir. 2004). The standard does not shield the agency from a "thorough, probing, in-depth review." Seattle Audubon Soc'y v. Moseley, 798 F.Supp. 1473, 1476 (W.D. Wash. 1992) (quoting Citizens to Preserve Overton Park, 401 U.S. at 415, 91 S.Ct. 814).
In reviewing environmental actions, in particular, the Ninth Circuit has explicitly provided that the "highest deference is owed to the Forest Service's technical analyses and judgments within its area of expertise." League Of Wilderness Defenders Blue Mountains Biodiversity Project v. Allen, 615 F.3d 1122, 1131 (9th Cir. 2010) (citing Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008), overruled on other grounds by American Trucking Ass'ns Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)). The Ninth Circuit has further provided that agencies are entitled to deference relative to their interpretation of their own regulations, including forest plans, and that, under the APA, the court's role in reviewing agency actions is not to weigh conflicting expert opinions or to consider whether the agency employed the best methods, but instead, when an agency's particular technical expertise is involved, to guard the agency's discretion. See Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097, 1099 (9th Cir. 2003); Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376-77, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1980).
ii. Analysis
Underlying the test for injunctive relief is the requirement that Plaintiff demonstrate at least some probability of success on the merits. See Sports Form, Inc. v. United Press Int'l, Inc., 686 F.2d 750, 753 (9th Cir. 1982) (citing Benda v. Grand Lodge of International Association of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979)). For the reasons explained below, the court determines that Plaintiff has not established a probability of success on the merits of its claims. Accordingly, the court denies Plaintiff's request for injunctive relief.
Plaintiff claims that the USFS and the FWS were arbitrary and capricious in their determination that the Mudflow Project was not likely to adversely affect the Northern Spotted Owl and that formal consultation, therefore, should have been required. A plaintiff's burden in establishing a procedural violation of the ESA is to show that the circumstances triggering the procedural requirement exist (i.e., that the agencies were arbitrary and capricious in determining that the Mudflow Project is not likely to adversely affect the Northern Spotted Owl), and that the required procedures have not been followed (i.e., the USFS and the FWS did not engage in formal consultation). See Thomas v. Peterson, 753 F.2d 754, 765 (9th Cir. 1985). It is uncontested that the USFS and the FWS did not engage in formal consultation. Nonetheless, Plaintiff has not met its burden of establishing that the agencies were arbitrary and capricious in determining that Mudflow Project is not likely to adversely affect the Northern Spotted Owl.
a. Short-Term Impacts of the Mudflow Project on the Northern Spotted Owl and its Prey
Plaintiff argues that the USFS's biological assessment and the FWS's second letter of concurrence failed to consider the short-term impacts to the Northern Spotted Owl and its prey in reaching their conclusions that the Mudflow Project offers long-term ecological benefits. Pl's Am. Mot., ECF No. 44, at 23-24.
It appears to the court, however, that the USFS considered the short-term impacts to the species when it determined that "[n]o activities are proposed within 1/4 mile of" the "nearest known owl nests (ST-11 and ST-213)," which are located .6 miles to the east of the Mudflow Project and 1 mile to the west, respectively, and when the USFS further provided that "[s]hould an owl nest be located in the project area, a limited operating period . . . will be required to avoid direct effects to spotted owls during the breeding season." Biological Assessment, at 9-10. The USFS also seems to have explicitly taken into account short-term impacts on the prey of the Northern Spotted Owl when analyzing the effects of the Mudflow Project on the Northern Spotted Owl's foraging habitat. See Biological Assessment, at 11-14.
Furthermore, the FWS clearly considered the short-term effects of the Mudflow Project on both the Northern Spotted Owl and its prey when it determined that:
1) limited detections in both historical activity centers [ST-211 and ST-213] since 1992 indicate a low likelihood of occupancy by NSO [Northern Spotted Owls] within the project area, 2) treatments are not proposed within nesting/roosting2nd LOC, at 9. Indeed, in determining the proximity of any Northern Spotted Owls to the Mudflow Project area, the effects of the Mudflow Project upon the any nesting/roosting habitat or high-quality foraging habitat of the Owls, and the impacts that the Mudflow Project might have upon the Owls' breeding season, the FWS appears to have overtly considered the short-term effects that the Project would have upon the species.
habitat or high-quality foraging habitat, within the NSO core areas, 3) treatments proposed for 171 acres of foraging habitat within the two home ranges have been designed to retain the function of foraging habitat and, 4) a seasonal restriction will be placed on project activities during the breeding season.
Contrary to Plaintiff's assertion, Federal Defendants took into account the short-term impacts of the Mudflow Project on both the Northern Spotted Owl and its prey. Plaintiff therefore fails to establish that Federal Defendants' conclusions were arbitrary and capricious in this regard.
b. Characterization of the Forest Areas
Plaintiff further asserts that the Federal Defendants incorrectly characterized the Mudflow Project area as 65 to 85 year old "second growth" forests, and thus, not high quality Northern Spotted Owl habitat, when the habitat actually includes old growth trees hundreds of years old. Pl's Am. Mot., ECF No. 44, at 24-25.
Plaintiff cites the declaration of Monica Bond, a "wildlife biologist with expertise in wildlife biology, ecology, and behavior." Bond Decl., ECF No. 43, Att. 2. Bond asserts that she "was dumbfounded when [she] saw the large size of the trees proposed for logging within Northern Spotted Owl Critical Habitat." Id. at 6, ¶ 14. In support of her testimony regarding the size of the trees, Bond submits a series of photographs of a person standing beside marked tree trunks. Bond Photos, ECF No. 43, Atts. 3-5, 7, 9-11. Plaintiff also cites the declaration of Denise Boggs, "the Executive Director and a member of Conservation Congress," who asserts that many of the trees marked for cutting "are large, old trees." Boggs Decl., ECF No. 43, Att. 12, at 2, ¶ 4. Boggs further states, "We measured trees marked for cutting up to 43 inches in diameter at breast height. . . . These trees are not 60-80 year old 'second growth' forest," but instead "are old growth trees hundreds of years old." Id.
A court may consider evidence outside the administrative record for the limited purposes of reviewing a plaintiff's ESA claim. Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 497 (9th Cir. 2011), cert. denied, 132 S.Ct. 366 (2011). Thus, to the extent that Plaintiff's claims are brought under the ESA's citizen suit provision, the court considers the Boggs and Bond declarations and attachments.
When reviewing a claim under the APA standard of review, however, an agency action must typically be judged on the rationale and record that led to the decision. See, e.g., Beno v. Shalala, 30 F.3d 1057, 107374 (9th Cir. 1994). However, a court is "not straightjacketed to the original record in trying to make sense of complex technical testimony," but may consider evidence not included in the administrative record to "clarif[y] a dispute that . . . was less than clear from the original record." Bunker Hill Co. v. Envtl. Prot. Agency, 572 F.2d 1286, 1292 (9th Cir. 1977). Here, Plaintiff's submitted evidence is clearly meant to support its assertion that the Federal Defendants' findings are belied by "simple observation." See Pl's Am. Mot., ECF No. 44, at 25. To the extent that Plaintiff's claims are brought pursuant to the APA, the court considers the Boggs and Bond declaration and attachments to ascertain whether the Federal Defendants considered the evident size of the Mudflow Project area trees when making its habitat determination.
Plaintiff's submitted evidence does not establish that the Federal Defendants made an arbitrary and capricious assessment of habitat quality. Even if the court agrees that the trees in the submitted photographs appear to be large as compared to the person in the photograph and therefore also appear to be old, that agreement does not call into question the complex and technical analyses and judgments of the USFS and the FWS in their assessment of the characteristics of the habitat affected by the Mudflow Project. The court declines to disturb the Forest Service's discretion in making technical analyses and judgments of the Mudflow Project habitat--a subject clearly within the agency's area of expertise. See League Of Wilderness Defenders Blue Mountains Biodiversity Project v. Allen, 615 F.3d 1122, 1131 (9th Cir. 2010).
While the photos are opaque, the affidavit says that certain trees were measured. Although troubling, the deference the court owes the agency's technical evaluation disposes of the issue.
Thus, the court finds that the Plaintiff fails to establish that the Federal Defendants' assessment of habitat quality was arbitrary and capricious.
c. Threat of Barred Owls
Plaintiff argues that the USFS's biological assessment fails to discuss the Mudflow Project's potential to facilitate the invasion of Barred Owls, and FWS's Second Letter of Concurrence inappropriately minimizes the threat of Barred Owls and fails to use the best available science. Pl's Am. Mot., ECF No. 44, at 25-26.
Although Plaintiff bases its argument, in part, on the assertion that "FWS has conducted no surveys for Spotted Owl[]s in the Mudflow Project area since 2007," Pl's Am. Mot., ECF No. 44, at 26, the FWS 2nd Letter of Concurrence, in fact, indicates that "[t]he Mudflow [P]roject area has been surveyed annually for NSOs from 2004 to 2011," FWS 2nd LOC, at 6.
Furthermore, the FWS's 2nd Letter of Concurrence explicitly discusses the threat of Barred Owls to Northern Spotted Owls in relation to the Mudflow Project and references the FWS's analysis of recovery planning for the Northern Spotted Owl, which is based upon the 2011 Revised Recovery Plan for the Northern Spotted Owl. See FWS 2nd LOC, at 7, 12. All parties agree that the 2011 Revised Recovery Plan for the Northern Spotted Owl represents the "best available science." The FWS 2nd Letter of Concurrence states:
Barred owls are recognized as a significant threat to the recovery of the NSO (USFWS 2011). Although barred owls have not been detected in the project area, given the local presence of barred owls and their current rate of spread, it is likely that barred owls could move into the project area in the foreseeable future. Results of a recent study . . . suggest that in environments where the two species compete directly for resources, maintaining larger amounts of older forest (nesting/roosting) may help NSOs to persist, at least in the short term. Our evaluation of the Mudflow Project therefore focused on whether proposed treatments could potentially act to exacerbate competitive interactions between the two species by reducing the availability of high-quality habitat (see Recovery Planning for NSO section . . .). As described below, the treatments prescribed by the Mudflow project are not proposed forFWS 2nd LOC, at 7 (italics included). Plaintiff's arguments fail to establish that the FWS arbitrarily and capriciously minimized the threat of Barred Owls in its analysis. Additionally, because the FWS explicitly references its "Recovery Planning for NSO section," which relies upon the 2011 Revised Recovery Plan for the Northern Spotted Owl, the FWS analysis appears to be using the "best available science."
nesting/roosting and other high-quality habitat, and therefore, it is unlikely that the Mudflow project will exacerbate competitive interactions between the two species. In addition, because survey results suggest that neither barred owls nor territorial NSO currently occupy the treatment areas, the direct influence of barred owls was not a factor in determining the effects of this project on NSO.
Although the USFS's Biological Assessment does not explicitly discuss any potential invasion of Barred Owls--a threat which was identified in the 2011 Revised Recovery Plan for the Northern Spotted Owl--the USFS's Biological Assessment was published in 2008, years before the 2011 Revised Recovery Plan for the Northern Spotted Owl was issued, and an updated memorandum to the Biological Assessment was made in May 3, 2011, over a month before the 2011 Revised Recovery Plan was released. See Memorandum: Mudflow Vegetation Management Project Biological Assessment Update, MAR002420 (May 3, 2011); 2011 Revised Recovery Plan for the Northern Spotted Owl, FWS AR 002765. Absent evidence that the USFS was aware of the potential threat of Barred Owl invasion due to the Mudflow Project at the time that its Biological Assessments were conducted, yet failed to take that evidence into account, the court cannot determine that the USFS failed to consider the best scientific data available to it at the time. It also appears to the court that the fact that the FWS's 2nd Letter of Concurrence later discussed the Barred Owl threat in some detail in concurring with the USFS's Biological Assessment cures the Biological Assessment's failure to consider the Barred Owl threat before the release of the 2011 Revised Recovery Plan.
Furthermore, the contents of a Biological Assessment are discretionary. The applicable regulations state that "[t]he contents of a biological assessment are at the discretion of the [action] agency and will depend on the nature of the Federal action." 50 C.F.R. § 402.12(f). See also Strahan v. Linnon, 967 F. Supp. 581, 594 (D. Mass. 1997) (citing Bays' Legal Fund v. Browner, 828 F. Supp. 102, 110 (D. Mass. 1993) ("there are no strict requirements for what the biological assessment should include; its contents are discretionary within the agency preparing it.")). As explained above, without evidence indicating that the USFS was aware of any potential invasion of Barred Owls due to the Mudflow Project in 2008, the court cannot find that the USFS abused its discretion in failing to address that threat in its Biological Assessment.
The regulation does list certain criteria that the agency may consider. These include: (1) the results of an on-site inspection of the area affected by the action to determine if listed or proposed species are present or occur seasonally; (2) the views of recognized experts on the species at issue; (3) a review of the literature and other information; (4) an analysis of the effects of the action on the species and habitat, including consideration of cumulative effects, and the results of any related studies; and (5) an analysis of alternative actions considered by the Federal agency for the proposed action. 50 C.F.R. § 402.12(f).
Plaintiff therefore fails to demonstrate that the USFS and FWS were arbitrary and capricious in their consideration, or failure to explicitly consider (in the case of the USFS), any threats of invasion by Barred Owls due to the Mudflow Project.
d. Effects of "Landing" Construction
Plaintiff argues that the FWS failed to address the adverse modification and destruction of critical habitat that will likely result from "landing" construction. Pl's Am. Mot., ECF No. 44, at 26-27.
In discussing the Mudflow Project's landing construction, the FWS's 2nd Letter of Concurrence states that:
Within the project area there are approximately 73 existing landings that would be reused, along with an estimated 55 new landings proposed for construction. All existing and proposed landings are located within existing treatment units and are often directly adjacent to roads. Landing size will vary between 0.25 and 0.5 acres depending on unit volume. Existing landings and openings will be used when available, and Forest biologists will work with the Sale Administrator to encourage placing landings outside of high quality foraging habitat, where possible. A conservatively high estimate of 10 acres of foraging habitat would be affected due to landing construction. Landings are not proposed within nesting/roosting habitat, Riparian Reserves, or NSO core areas. Due to their small size and placement outside of high-quality habitat, the effects of landing construction are considered negligible in the scope of the Project.FWS 2nd LOC, at 6.
Plaintiff has produced no evidence to indicate that, contrary to the FWS's assessment, the proposed landings will adversely affect critical habitat for the Northern Spotted Owl. Plaintiff argues that "[l]anding construction results in the complete destruction of Owl habitat," and "[a]t a minimum it must be considered adverse modification," but cites no evidence in support of those assertions. See Pl's Am. Mot., ECF No. 44, at 27.
The Ninth Circuit has provided that "an adverse modification occurs only when there is a direct or indirect alteration that appreciably diminishes the value of critical habitat," and that "[a]n area of a species' critical habitat can be destroyed without appreciably diminishing the value of a critical habitat for the species' survival or recovery." Butte Environmental Council v. U.S. Army Corps of Engineers, 620 F.3d 936, 948 (9th Cir. 2010) (internal quotations omitted) (emphasis omitted). Even if Plaintiff's assertion that "[l]anding construction results in complete destruction of Owl habitat" is credited, according to the Ninth Circuit, that destruction may not necessarily "appreciably diminish[] the value of the critical habitat," and thus, that destruction does not necessarily rise to the level of an adverse modification. Plaintiff's argument, that the landing construction itself requires the FWS to conclude that an adverse modification will necessarily occur, therefore fails.
Thus, Plaintiff has failed to show that the FWS abused its discretion in determining that adverse affects on Northern Spotted Owls are unlikely to occur.
e. Cumulative Effects of Past Logging and USFS Projects
Plaintiff argues that the USFS and the FWS failed to analyze the cumulative effects of past logging and USFS projects on the Northern Spotted Owl when evaluating the Mudflow Project. Pl's Am. Mot., ECF No. 44, at 27-30.
Although agencies are required to evaluate the cumulative effects on a listed species or critical habitat during formal consultation, see 50 C.F.R. § 402.14(g)(3)-(4), no such requirement binds the action or the consulting agency during informal consultation, cf. 50 C.F.R. § 402.13. Furthermore, in completing the Biological Assessment, the USFS could have, but was not required to include a consideration of cumulative effects. 50 C.F.R. § 402.12(f)(4). Because, as explained above, the contents of a Biological Assessment are discretionary, the court is unwilling to find that the USFS abused its discretion in failing to consider a factor which it was not required to consider in the first instance.
It is particularly difficult for the court to find that the USFS and the FWS abused their discretion in failing to consider cumulative effects where, as here, Plaintiff's argument hangs upon its conflation of the technical and colloquial meanings of the word "degrade." In essence, Plaintiff argues that, according to the USFS and the FWS, "degradations" will occur to the critical habitat, and that "a large amount of degradation from repetitive timber sale projects, even if designed to benefit the Owl over the long-term, simply must have some short-term impacts to the Owl and are likely impeding its recovery." Pl's Am. Mot., ECF No. 44, at 29. Although Plaintiff's argument appears facially valid, the argument loses its force in a regulatory world in which words are not given their plain meanings.
According to the Biological Assessment, "degraded" is defined as "a reduction in some habitat components," without a loss of "function at the current habitat level." Biological Assessment, at 11. The FWS's Second Letter of Concurrence stretches the common understanding of the word "degrade" further by providing that:
The term degraded signifies when treatments influence the quality of habitat by the removal or reduction of habitat elements but not to the degree where existing habitat function is changed . . . . this category includes activities that may be neutral or beneficial to habitat function even though habitat elements are being reduced.FWS 2nd LOC, at 7 (emphasis included). In light of a definition of "degrade" that could mean "beneficial to habitat function," and absent further proof to the contrary, the court is unable to agree with Plaintiff that a series of "degradations" will necessarily have an adverse effect upon the Northern Spotted Owl critical habitat.
Thus, Plaintiff has failed to demonstrate that the FWS and the USFS arbitrarily and capriciously determined that, although Northern Spotted Owl critical habitat will be "degraded" by the Mudflow Project, such "degradation" does not rise to the level of an "adverse modification."
f. Analyzing the Mudflow Project's Effects Upon the Recovery of the Northern Spotted Owl
Finally, Plaintiff argues that FWS and USFS improperly failed to analyze the Mudflow Project's effects upon the recovery, as opposed to the mere survival, of the Northern Spotted Owl. Pl's Am. Mot., ECF No. 44, at 30-31. Underlying Plaintiff's argument is Plaintiff's unsupported assumption that "it appears clear that 'degrading' a species['s] critical habitat may well set back its recovery." Id. at 31. However, as the court previously discussed, in light of the peculiar way that the agencies employ the term "degrade," it is not at all clear to the court that "degrading" a species' critical habitat would necessary adversely affect the recovery of the species. Without evidence to support Plaintiff's position, Plaintiff fails to demonstrate that the FWS and the USFS abused their discretion in this regard.
Moreover, the FWS's Second Letter of Concurrence explicitly states that it is based, in part, on the 2011 Revised Recovery Plan. See FWS 2nd LOC, at 2. The 2011 Revised Recovery Plan for the Northern Spotted Owl, in turn, explains that "[r]ecovery plans describe reasonable actions and criteria that are considered necessary to recover listed species." U.S. Fish & Wildlife Serv., 2 011 Revised Recovery Plan for the Northern Spotted Owl, FWS AR 002766 (June 28, 2011). If the FWS's Second Letter of Concurrence in fact, adheres to the recommendations and analyses of the 2011 Revised Recovery Plan, it stands to reason that the FWS's Second Letter of Concurrence takes into account the recovery, as opposed to the mere survival, needs of the species.
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Because Plaintiff has failed to produce evidence demonstrating that the Federal Defendants abused their discretion in determining that the Mudflow Project is not likely to adversely affect the Northern Spotted Owl, Plaintiff has not established a probability of succeeding on the merits of its claim that the Federal Defendants violated the ESA consultation requirements. The court therefore denies Plaintiff's motion for a preliminary injunction. Plaintiff's request that the court waive the bond requirement is moot.
IV. CONCLUSION
For the foregoing reasons, Plaintiff's motion for a preliminary injunction, ECF No. 43, is DENIED.
IT IS SO ORDERED.
_________________
LAWRENCE K. KARLTON
SENIOR JUDGE
UNITED STATES DISTRICT COURT