Summary
finding that a similarly worded forest plan incorporates the NSO Recovery Plan
Summary of this case from Conservation Cong. v. U.S. Forest Serv.Opinion
CIV. NO. 2:15-00249 WBS AC
02-23-2016
CONSERVATION CONGRESS, Plaintiff, v. UNITED STATES FOREST SERVICE, and UNITED STATES FISH AND WILDLIFE SERVICE, Defendants.
MEMORANDUM AND ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Conservation Congress brought this action against the United States Forest Service ("Forest Service") and the United States Fish and Wildlife Service ("FWS"), alleging that defendants violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347, the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544, the National Forest Management Act of 1976 ("NFMA"), 16 U.S.C. §§ 1600-1614, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, in approving the Harris Vegetation Management Project ("Harris Project") in the Shasta-Trinity National Forest. Pursuant to Federal Rule of Civil Procedure 56, plaintiff and defendants both move for summary judgment. (Docket Nos. 32, 41.)
I. Factual and Procedural Background
Plaintiff Conservation Congress is a non-profit corporation dedicated to maintaining, protecting, and restoring the native ecosystems of northern California. (Second Am. Compl. ("SAC") ¶ 9 (Docket No. 10).) Plaintiff has an organizational interest in the lawful management of National Forests in northern California. (Id.)
Defendant Forest Service, an agency of the United States Department of Agriculture, is responsible for the administration and management of the federal lands at issue in this case and compliance with NEPA and NFMA. Defendant FWS, an agency within the United States Department of Interior, is charged with administering the ESA.
According to the Forest Service, the Harris Project is designed to improve forest health and restore fire-adapted ecosystem characteristics on approximately 2,800 acres of National Forest System Land within the 9,200 acre project area in the Shasta-Trinity National Forest in Siskiyou County. (Admin. R. ("AR") at 1045.) Due to prior forest management activity, including railroad logging in the early 1900s and intensive fire suppression, the forest currently has overly dense forest stands. (Id. at 1048.) As a result, too many trees are competing for sunlight, water, and nutrients and the trees are more susceptible to drought, disease, insect infestation, and mortality. (Id.) The stated purposes of the Harris Project are to improve the health and growth of forest stands, develop late-successional habitat, reduce fuel loading to levels where predicted fires will not destroy the forest stands, encourage the growth of hard woods--especially aspen and oaks that are subject to competition from conifers, and reduce open road density. (Id.) The Forest Service will thin overstocked forest stands by removing understory, mid-story, and some dominant trees; diseased and dying trees; and residual wildfire fuels like branches and bark. (Id. at 1049-50.) The timber harvest associated with the treatment will yield 3,392,345 cubic feet of merchantable sawlogs and 215,172 cubic feet of merchantable biomass. (Id. at 1309.) To determine the predicted effects of the Harris Project's alternatives on threatened and endangered species, the Forest Service prepared a Biological Assessment ("BA") and an Environmental Impact Statement ("EIS") that incorporated the BA by reference. (Id. at 1336.)
In its SAC, plaintiff alleges the Harris Project violates the APA, NEPA, NFMA, and ESA because of the adverse effects it will have on the threatened northern spotted owl and the endangered gray wolf. (SAC ¶¶ 22-29.) Plaintiff first alleges defendants violated NEPA and the APA by failing to (1) adequately analyze and disclose the cumulative effects of the Harris Project on the northern spotted owl and other wildlife species; (2) prepare a supplemental EIS in light of significant new information on the effectiveness of fuel treatments; (3) take a hard look at the environmental impacts on late-successional forests, the black-backed woodpecker, the northern spotted owl, and the ecological benefits of natural disturbances; and (4) respond to responsible, opposing scientific opinions. (Id. ¶¶ 44-71.)
Plaintiff next alleges defendants violated NFMA and the APA by failing to (5) maintain dead or down material, hardwoods, and snags at naturally occurring levels; and (6) maintain habitat for threatened, endangered, and sensitive species consistent with the species' individual recovery plans. (Id. ¶¶ 72-84.)
Lastly, plaintiff alleges the Forest Service violated the ESA and APA by failing to adequately analyze and disclose in its BA the potential for adverse effects (7) on the northern spotted owl and (8) the gray wolf. (Id. ¶¶ 85-97.) Plaintiff also alleges the FWS violated the ESA and APA by (9) concurring in the Forest Service's determination that the Harris Project would not adversely affect the northern spotted owl; and (10) failing to require the Forest Service to conduct adequate surveys to determine if the gray wolf was present in the project area. (Id. ¶¶ 98-109.)
Plaintiff requests the court vacate and remand the EIS, BA, FWS Concurrence Letter, and Record of Decision ("ROD") and enjoin timber harvest in the Harris Project until defendants comply with NEPA, NFMA, and ESA. (Id. ¶¶ 115-16.) Plaintiff also requests reasonable fees, costs, and expenses pursuant to the Equal Justice Act, 28 U.S.C. § 2412. (Id. ¶ 117.)
Presently before the court is plaintiff's motion and defendants' cross-motion for summary judgment. (Docket Nos. 32, 41.)
II. Discussion
A. Standing
Defendants do not contest plaintiff's standing. Denise Boggs, the executive director of Conservation Congress, states in her declaration that she regularly visits the Shasta-Trinity National Forest to hike, view wildlife, take photographs, and bird watch. (Boggs Decl. ¶ 4 (Docket No. 34).) Boggs specifically visited the Harris Project site and looked for raptors and their nests in the large old growth trees and snags. (Id. ¶ 5.) She has concrete plans to return to the Harris Project area again in September 2016. (Id.) Boggs is concerned the Harris Project will harm her ability to enjoy and hike "through the area in an unimpaired state . . . looking for raptors, woodpeckers, songbirds, and owls." (Id. ¶ 8.) In addition, Boggs worries the Harris Project will have adverse effects on avian species, wolves, furbearers, northern spotted owls, large and old growth trees, and the other species she and the Conservation Congress members work to protect. (Id.) These facts are sufficient to confer standing on plaintiff to bring this suit. See Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846, 859-62 (9th Cir. 2005) (discussing standing requirements in the context of suits under NEPA).
B. Standard of Review
Judicial review of actions by administrative agencies is governed by the APA. Under the APA, the reviewing court must set aside agency actions found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This is a "deferential standard . . . designed to ensure that the agency considered all of the relevant factors and that its decision contained no clear error of judgment." Pac . Coast Fed'n of Fishermen's Ass'n v . Nat'l Marine Fisheries Serv ., 265 F.3d 1028, 1034 (9th Cir. 2001) (citation omitted). An agency action should be overturned only when the agency has "relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id . (citation omitted). The court must ask whether an agency considered "the relevant factors and articulated a rational connection between the facts found and the choice made." Nat'l Res . Def . Council v . U . S . Dep't of the Interior, 113 F.3d 1121, 1124 (9th Cir. 1997) (citation omitted).
The court is not empowered to substitute its judgment for that of an agency. Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1236 (9th Cir. 2001) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). The court defers to an agency's "interpretation of its own regulations . . . unless plainly erroneous or inconsistent with the regulations being interpreted." Ctr. for Biological Diversity v. U.S. Forest Serv., 706 F.3d 1085, 1090 (9th Cir. 2013) (citation omitted).
The court should review an agency's actions based on the administrative record presented by the agency. See Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir. 2006). The court's role is "to determine whether or not, as a matter of law, the evidence in the administrative record permitted the agency to make the decision it did." Nehemiah Corp. v. Jackson, 546 F. Supp. 2d 830, 838 (E.D. Cal. 2008); see also Occidental Eng'g, Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985).
C. National Environmental Policy Act Claims
NEPA is "our basic national charter for protection of the environment. It establishes policy, sets goals . . . and provides means for carrying out the policy." 40 C.F.R. § 1500.1(a). NEPA "does not set out substantive environmental standards, but instead establishes 'action-forcing' procedures that require agencies to take a 'hard look' at environmental consequences." Metcalf v. Daley, 214 F.3d 1135, 1141 (9th Cir. 2000) (citations omitted). NEPA established the Council on Environmental Quality ("CEQ"), 42 U.S.C. § 4342, which promulgated regulations to govern NEPA compliance.
When a major federal action may affect the environment, NEPA requires the acting agency to undergo a scoping process in which it solicits comments and input from the public and other agencies to identify specific issues to address and study. 40 C.F.R. § 1501.7. An EA shall be prepared when the agency has not yet determined whether an EIS is necessary and must discuss the need for the proposed project, alternatives, and the environmental impacts of the proposed action and alternatives. Id. § 1508.9; 36 C.F.R. § 220.7. If the agency determines that an EIS is necessary, 40 C.F.R. § 1501.4, it drafts an EIS and presents it to the public for notice and comment, id. § 1503.1(a). The EIS "shall provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." Id . § 1502.1. After the Forest Service evaluates and responds to comments, it prepares a Final EIS and provides a pre-decisional objection period before issuing its record of decision. Id. §§ 1502.9(b), 1502.2; 36 C.F.R. Pt. 218.
1. Impacts on the Northern Spotted Owl
Plaintiff alleges that the Forest Service violated NEPA because it failed to take a "hard look" at the impacts of the Harris Project on the northern spotted owl. (Pl.'s Mem. at 26-28 (Docket No. 33).) Specifically, plaintiff contends the Harris Project is managing the forest towards a ponderosa pine habitat--a habitat type that is unsuitable for the northern spotted owl--and the BA and EIS fail to candidly explain how this shift will impact the northern spotted owl. (Id. at 27-28.)
The court's task under NEPA "is to ensure that the agency has taken a 'hard look' at the potential environmental consequences of the proposed action." Klamath-Siskiyou Wildlands Ctr . v . Bureau of Land Mgmt ., 387 F.3d 989, 993 (9th Cir. 2004). "Although an agency's actions under NEPA are subject to careful judicial scrutiny, courts must also be mindful to defer to agency expertise, particularly with respect to scientific matters within the purview of the agency." Id . The standard of review is narrow. Id .
In comparing the alternative action plans in the Silviculture Report, the Forest Service found that "Alternative 1, 4a and 4b overall represent the most aggressive and effective treatment actions to advance stand conditions towards the objectives" of improving forest health and growth, developing late-successional forest, and maintaining aspen and oak. (AR at 7981-82.) These "alternatives provide the greatest reduction in stand density levels both in the short and long term as well as most pronounced shift in species composition towards pine." (Id. at 7982.)
In the BA, the Forest Service discusses how thinning and the shift in species composition towards pine may impact the northern spotted owl. The BA makes clear that the highest-quality nesting/roosting habitat will not be treated and, as a result, species composition will not be affected in these areas. (Id. at 8816.)
In the moderate-quality foraging habitat, the BA explains that forest stands currently have a "higher proportion of mixed conifer composition and white fir dominance; larger tree size; snags and down wood; higher canopy cover; mid and understory layering; but low to no hardwood diversity and few openings." (Id. at 8866.) The thinning "will result in increased resilience of the legacy" sugar and ponderosa pine and increased sunlight and openings "for a second age class of natural fir regeneration and understory." (Id.) This is expected "to contribute to within-stand heterogeneity while maintaining the function of foraging and dispersal habitat for NSOs." (Id.) Further, the BA explains that the Forest Service will refrain from thinning in units 26, 56, 133, or 200 "in order to maintain understory layering and vertical structures for prey species, thermoregulation and perching structures." (Id.) The Forest Service will also retain untreated areas within treated units in order to "contribute to the persistence of high-quality components of roosting, foraging, and dispersal." (Id.) Thus, the BA makes clear that while the Harris Project will increase the prevalence of ponderosa pine overall, it will also promote heterogeneous tree species and other important habitat elements in moderate-quality foraging habitat.
In the existing "lower-quality foraging habitat," the BA explains that the forest stands currently have "a mix of 30-70 year-old multi-layered ponderosa pine/white fir and even aged (40 year old), one to two-layered stands dominated by ponderosa pine, pockets of young and mature lodgepole pine, and incidental sugar pine." (Id. at 8868.) These units are lower-quality habitat because of the higher proportion of pine and the limited proximity to other suitable habitat. (Id.) The BA acknowledges that "[d]ue to favoring ponderosa pine over white fir and lodgepole when thinning in units 25, 44 and 181, changes to the understory and midstory species composition are expected over the long term." (Id.) However, the BA also states that "not all white fir would be removed and these stands are still expected to provide foraging (and dispersal) opportunities for NSOs." (Id.) Treatments "will retain sufficient structural elements and species composition that will continue to provide NSO foraging opportunities within these lower quality stands and habitat function will not be precluded." (Id.)
More than forty pages of the BA and sixty pages of the EIS are dedicated to discussing the northern spotted owl and the means the Forest Service has taken to limit any adverse effects on the listed species. The BA acknowledges that "[t]hinning and fuels treatments are expected to result in variable short-term effects to foraging habitat quality due to reductions in canopy cover and layering, shrub cover, snags, down logs, and coarse wood." (Id. at 8895.) However, the Forest Service concludes that the long-term effects will be beneficial. (Id.)
The Forest Service explains its reasoning and there appears to be a rational connection between the facts found about the northern spotted owl foraging and dispersal habitat and the conclusions regarding thinning and species composition in those areas. See Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) ("[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." (citation omitted)). Given the highly deferential standard of review under the APA, the court must find that the Forest Service fulfilled its obligation to take a "hard look" at the impacts of the Harris Project on the northern spotted owl.
2. Response to Opposing Scientific Opinions
Plaintiff next argues the Forest Service violated NEPA by failing to address and respond to reasonable opposing scientific views. (Pl.'s Mem. at 28.) Plaintiff contends the Forest Service should have issued a supplemental EIS to address a recently published study by Jamie M. Lydersen, which found that fire-regimes are not effective in preventing severe fires. Plaintiff argues the Lydersen study calls into question the effectiveness and reasonableness of thinning the Harris Project area in order to reduce the risk of stand-replacing fires. (Id. at 30.)
In the Final EIS, the acting agency is required to respond to comments and "discuss at appropriate points . . . any responsible opposing view which was not adequately discussed in the draft statement and shall indicate the agency's response to the issues raised." 40 C.F.R. § 1502.9(b).
For example, in Center for Biological Diversity v . United States Forest Service, 349 F.3d 1157, 1169 (9th Cir. 2003), the Ninth Circuit remanded the Final EIS to the Forest Service because it failed to disclose and discuss responsible opposing scientific viewpoints in violation of NEPA. The Forest Service's action plan rested on the assumption that northern goshawks were habitat generalists yet the Final EIS failed to disclose or respond to seven scientific studies submitted during scoping that contradicted this assumption. Id . at 1161, 1167. The Forest Service's inclusion in the administrative record of intra-office memoranda prepared after the issuance of the Final EIS addressing the seven studies and responding to plaintiffs' comments was insufficient. Id . at 1169. The Ninth Circuit found that "[b]ecause the commenters' evidence and opinions directly challenge the scientific basis upon which the Final EIS rests and which is central to it, we hold that Appellees were required to disclose and respond to such viewpoints in the final impact statement itself." Id . at 1167; see also Sierra Club v. Bosworth, 199 F. Supp. 2d 971, 980 (N.D. Cal. 2002) (finding it is not adequate to "merely include scientific information in the administrative record"); Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1214 (9th Cir. 1998) (finding EA must reference support and opposition to Forest Service's conclusions).
In this case, the BA was issued on September 9, 2013 and the Final EIS on July 1, 2014. It was not until a month later, on August 26, 2014, that plaintiff submitted an objection to the Harris Project and attached a pre-publication copy of the Lydersen study. (See AR at 127.) Unlike in Center for Biological Diversity, the study was unavailable at the time the EIS was issued and could not have been included. Rather than issue a supplemental EIS, as plaintiff contends was necessary, the Forest Service responded to the Lydersen study by drafting an internal memorandum. (Id. at 9259.)
An agency must "prepare supplements to either draft or final environmental impact statements if" there are "significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c)(1)(ii). "This reflects the paramount Congressional desire to internalize opposing viewpoints into the decision-making process to ensure that an agency is cognizant of all the environmental trade-offs that are implicit in a decision." California v . Block, 690 F.2d 753, 771 (9th Cir. 1982). However, while "NEPA requires agencies to allow the public to participate in the preparation of an SEIS, there is no such requirement for the decision whether to prepare an SEIS." Friends of Clearwater v . Dombeck, 222 F.3d 552, 560 (9th Cir. 2000). The Ninth Circuit has made clear that public comment "is not essential every time new information comes to light after an EIS is prepared" for if it were "to hold otherwise, the threshold decision not to supplement an EIS would become as burdensome as preparing the supplemental EIS itself." Id .
In its internal memorandum, the Forest Service acknowledged Lydersen's finding that "even in forests with a restored fire regime, wildfires can produce large-scale, high-severity fire effects under the type of weather conditions that often prevail when wildfire escapes initial suppression efforts." (AR at 9260.) The agency concluded, however, that this finding does not contradict the scientific evidence cited in support of the Harris Project for two reasons. First, Lydersen examined fire behavior in 90th percentile weather conditions. The EIS, in contrast, suggests the treatment alternatives would reduce flame lengths and result in less active fire crowns in weather conditions under the 90th percentile. (Id. at 9260, 1334.)
Second, the Harris Project only sets out to moderate fire behavior for the next ten years and Lydersen's study actually acknowledges that fire-regimes are effective in such short-term timeframes. Lydersen found that plots treated within fourteen years "'burned predominately at low severity despite recent drought conditions, suggesting that forests with restored frequent-fire regimes are resilient to wildfire under less-than-extreme fire weather conditions.'" (Id. at 9259-60.) The memorandum therefore concluded that "the key findings presented" in Lydersen's study "do not contradict the information presented in the fire and fuels analysis for the Harris Vegetation Management Project." (Id. at 9262.)
In the final ROD, which was circulated to the public, Forest Supervisor David R. Myers explained that the Lydersen study had been reviewed and addressed by the Forest Service in the internal memorandum included in the administrative record. (Id. at 1058-59 n.7.) He concluded, "As the responsible official, I fully considered the Lydersen paper/review. The information in this article did not change the Harris analysis or conclusions." (Id.)
The court must therefore defer to the Forest Service's finding that the Lydersen study did not constitute significant, new, or opposing information that required a supplemental EIS. 40 C.F.R. § 1502.9(c)(1)(ii); Marsh v . Or . Natural Res . Council, 490 U.S. 360, 377-78 (1989) (finding that the court must defer to "the informed discretion of the responsible federal agencies" on the factual question of whether new information suffices to establish a "significant effect" requiring a supplemental EIS). The agency considered the Lydersen study in its internal memorandum and the ROD and made a reasoned decision that it did not change the Harris analysis or conclusions.
Accordingly, the court must deny plaintiff's motion for summary judgment and grant defendants' cross-motion on plaintiff's NEPA claims.
D. Endangered Species Act Claims
The ESA was enacted "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). ESA section 4 provides for the listing of species as "threatened" or "endangered," the designation of "critical habitat," and the development of "recovery plans" for listed species. Id . § 1533.
Under section 7(a)(2) of the ESA, each federal agency, in consultation with the FWS, must ensure that its actions are "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." Id. § 1536(a)(2). In fulfilling this obligation, each agency must use "the best scientific and commercial data available." Id .
If listed species are present in the proposed action area, the Forest Service may conduct a BA to evaluate the potential effects on listed species and critical habitat. Id. § 1536(c)(1); 50 C.F.R. § 402.12. The Forest Service then submits the BA to the FWS. 50 C.F.R. § 402.12(j). If the Forest Service concludes that no listed species are likely to be adversely affected and the FWS concurs, formal consultation is not required. Id . § 402.12(k)(1).
1. ESA Challenges to the Gray Wolf Determination
Plaintiff argues in its SAC that defendants violated the ESA by arbitrarily and capriciously determining that Alternative 4b would not affect the gray wolf. However, in plaintiff's reply memorandum, plaintiff admits that its gray wolf claims were mooted when the Forest Service reinitiated ESA section 7 consultation and issued a BA Addendum in October 2015, which found that the Harris Project "may affect, but is not likely to adversely affect" the gray wolf, and the FWS concurred. (Pl.'s Reply at 2; see also Defs.' Mem. at 13 (Docket No. 41-1).) Accordingly, the court must dismiss as moot plaintiff's ESA challenges to defendants' gray wolf determination.
Because claims eight and ten are moot, the court need not rule on plaintiff's request for judicial notice of two exhibits regarding the gray wolf, (Docket No. 37), or whether to admit Ogden's declaration into evidence with its attached extra-record evidence, (Docket No. 35). Defendants withdrew their motion to strike these six extra-record documents because plaintiff admitted claims eight and ten are moot. (Docket No. 47.) --------
2. ESA Challenges to the Northern Spotted Owl Determination
Plaintiff also argues the Forest Service's conclusion that Alternative 4b "may affect, but is not likely to adversely affect" the northern spotted owl in its BA and the FWS's concurrence in this determination were arbitrary and capricious and a violation of the ESA. (Pl.'s Mem. at 4.)
Plaintiff first argues the Forest Service failed to consider the adverse effects of degrading foraging habitat within an already spatially-deficient home range. (Id. at 6-7.) While the BA acknowledges that the ST-218 northern spotted owl home range is below the recommended threshold by approximately 276 acres, (AR at 8855), plaintiff alleges it does not address how losing an additional 17 acres of foraging habitat could exacerbate the adverse effects from spatial deficiency, (Pl.'s Mem. at 7).
Degrade is a term of art defined by the BA as signifying "when treatments have a negative influence on the quality of habitat due to the removal or reduction of NSO habitat elements but not to the degree where existing habitat function is changed." (AR at 8863); see also Conservation Cong. v. U.S. Forest Serv., Civ. No. S-11-2605 LKK EFB, 2012 WL 2339765, at *12 (E.D. Cal. June 19, 2012), aff'd, 720 F.3d 1048 (9th Cir. 2013). Degrade therefore does not signify that the habitat will be "downgraded," meaning it will not function in the capacity that exists pre-treatment, or "removed," meaning it will no longer function as habitat suitable for northern spotted owl. (Id. at 8863-64.) The northern spotted owl will be able to continue to feed, shelter, or disperse within the degraded portions of ST-218. (Defs.' Mem. at 23.) The Forest Service therefore did not discuss the loss of 17 acres of foraging habitat because it will only be "temporarily degraded" in the short-term of fifteen to twenty years and will continue to function as habitat. (Id.; AR at 8863.) The court therefore finds that the Forest Service did not violate the ESA by mentioning the spatial-deficiency but failing to characterize the Harris Project treatment as exacerbating the deficiency.
Plaintiff next contends the BA violated the ESA by failing to comply with the northern spotted owl Recovery Plan and, more specifically, Recovery Action 10. (Pl.'s Mem. at 10.) Plaintiff argues that the BA adopts an overly aggressive management approach and fails to explain why the long-term benefits of treating foraging and dispersal habitat within the ST-218 home range and dispersal habitat within the ST-222 home range outweigh the short-term adverse effects. (Id. at 12-13.)
Recovery plans describe "site-specific management actions as may be necessary to achieve the plan's goal for the conservation and survival of the species"; objective, measurable criteria for when a species should be removed from the list; and estimates of the time and costs required. 16 U.S.C. § 1533(f)(2). "While useful in evaluating an action's impact on the species' recovery, recovery plan objectives are discretionary for federal agencies." Conservation Cong. v . Heywood, Civ. No. 2:11-2250 MCE CMK, 2015 WL 5255346, at * 1 (E.D. Cal. Sept. 9, 2015) (citation omitted); Conservation Cong. v. Finley, 774 F.3d 611, 614 (9th Cir. 2014).
In this case, the northern spotted owl Recovery Plan identifies three main threats to the northern spotted owl--"competition from barred owls, past habitat loss, and current habitat loss"--and outlines a management approach to address these threats. (AR at 31341.) Recovery Action 10 directs the agency to "[c]onserve spotted owl sites and high value spotted owl habitat to provide additional demographic support to the spotted owl population." (Id. at 31342.) However, Recovery Action 10 also provides that long-term improvements to northern spotted owl habitat should be encouraged, even if there are short-term disadvantages: "forest stands could and should be enhanced or developed through vegetation management activities to improve long-term habitat conditions, or to create improved habitat for spotted owls, larger habitat patches, or increased connectivity between patches, they should generally be encouraged even if they result in short-term impacts to existing spotted owls." (Id. at 31343.)
The Harris Project aims to increase forest stand resilience to stressors such as drought, insects, and fire in order to maintain existing habitat used by the northern spotted owl in the short-term and contribute to resilience of foraging and reproductive habitat in the long-term. (Id. at 8563-64.) Defendants weighed the short-term impacts against the long-term benefits and concluded that the Harris Project would ultimately help protect and increase northern spotted owl habitat. While plaintiff fundamentally disagrees that forest thinning will improve forest stand resilience to fire in the long term, the court must "refrain from acting as a type of omnipotent scientist." Tri-Valley CAREs v . U . S . Dep't of Energy, 671 F.3d 1113, 1126 (9th Cir. 2012). The court therefore defers to the government's scientific judgments and finds that the Harris Project is consistent with the Recovery Plan. See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989) ("When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.").
Recovery Action 10 also provides that the Forest Service should use "the best available site-specific data" to protect known northern spotted owl sites or historic sites with reproductive pairs, non-reproductive pairs, and resident singles. (AR at 5873.) The Forest Service based its conclusion that the Harris Project "may affect, but is not likely to adversely affect, the northern spotted owl" in part on eleven activity surveys that were conducted between 1996 and 2013. (Pl.'s Mem. at 11.) The surveys found that no northern spotted owl have been detected in the ST-218 home range since 1996 and the last nesting in ST-222 was in 2009 and a non-reproductive pair was observed in ST-222 in 2013. (AR at 8816.) Plaintiff contends the surveys are not reliable scientific evidence because they were not conducted in six of the seventeen years between 1996 and 2013 and four of the eleven surveys were not conducted in accordance with FWS survey protocol. (Pl.'s Mem. at 11.)
The court must exercise deference in reviewing an agency's determination of what constitutes the best scientific data available. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 602 (9th Cir. 2014). The "best scientific . . . data available, does not mean the best scientific data possible." Id . (citation omitted). Even if four of the eleven surveys did not comply with FWS protocol, the surveys for the past seven continuous years were all performed using an FWS protocol and consistently demonstrated the northern spotted owl was not occupying ST-218. (AR at 8846.) Moreover, plaintiff fails to establish that the Forest Service ignored any superior scientific evidence regarding the presence of the northern spotted owl in the Harris Project area. See Jewell, 747 F.3d at 602 ("The best available data requirement merely prohibits [an agency] from disregarding available scientific evidence that is in some way better than the evidence [it] relies on." (citation omitted) (alteration in original)).
Lastly, despite the survey evidence that the northern spotted owl has not been present in ST-218 in recent years, no treatment will occur in the cores of the two known ST-218 or ST-222 home ranges and 97% of the foraging habitat in the ST-218 home range, 66% of the dispersal habitat in the ST-218 home range, all foraging habitat in the ST-222 home range, and 80% of dispersal habitat in the ST-222 home range will be left untreated. (AR at 8816.) In addition, potential disturbances to the northern spotted owl will be minimized by implementing Limited Operating Periods for habitat altering, smoke generating, and noise generating activities above ambient levels if nesting or single northern spotted owls are detected within 0.25 miles of treatment activities. (Id . at 8816, 8862.) Thus, the Harris Project will protect large portions of the ST-218 and ST-222 home ranges in accordance with the Recovery Plan, which requires protection of both "currently occupied as well as historically occupied" northern spotted owl habitat. (Id . at 31341.)
The court must therefore find that the Harris Project is consistent with the northern spotted owl Recovery Plan's recommendations and the Forest Service relied on the best scientific evidence available. Accordingly, the court must deny plaintiff's motion for summary judgment on its ESA claims against the Forest Service and grant defendants' motion.
The court must also find that the FWS did not violate the ESA by concurring in the Forest Service's BA finding of "no adverse effect" on the northern spotted owl. The FWS concurred in the BA after holding several team meetings that included biologists from the Forest Service and the FWS. (Id . at 4055.) The FWS also conducted an independent review and analysis of the project, including information in the BA, several site visits, the Recovery Plan, the Final NSO Critical Habitat Rule, available peer-reviewed scientific literature, information in the EIS, and additional information and clarification from the Forest Service pertaining to the Harris Project. (Id . at 4056.) The FWS clearly articulated a reasonable connection between the facts found and its concurrence in the Forest Service's determination that the Harris Project is not likely to adversely affect the northern spotted owl. The court must therefore deny plaintiff's motion for summary judgment on its ESA claim against the FWS and grant defendants' motion.
E. National Forest Management Act Claims
Plaintiff concludes by arguing that in failing to comply with the Recovery Plan defendants also violated NFMA. Under NFMA, the Forest Service must develop a forest plan for each unit of National Forest System. 16 U.S.C. § 1604(a). After a forest plan is developed, all subsequent agency action, including site-specific plans such as the Harris Project, must comply with NFMA and be consistent with the governing forest plan. Id . at § 1604(i); see also The Lands Council v . McNair, 537 F.3d 981, 988-89 (9th Cir. 2008). In this case, the Shasta-Trinity National Forest land and resource management plan provides that the Forest Service must "maintain and/or enhance habitat for" threatened, endangered, and sensitive "species consistent with individual species recovery plans." (AR at 11112.) The forest plan therefore incorporates the northern spotted owl Recovery Plan. As discussed above, see supra II.D.2, the Harris Project is consistent with the northern spotted owl Recovery Plan and Recovery Action 10. Accordingly, the court must find that defendants did not violate NFMA or the forest plan.
For all of the foregoing reasons, IT IS THEREFORE ORDERED that plaintiff's motion for summary judgment (Docket No. 32) be, and the same hereby is, DENIED and defendants' motion (Docket No. 41) be, and the same hereby is, GRANTED. Dated: February 23, 2016
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE