378 F.3d 1059 (9th Cir. 2004), 03-35279, Gifford Pinchot Task Force v. United States Fish and Wildlife Service

Docket Nº:03-35279.
Citation:378 F.3d 1059
Party Name:GIFFORD PINCHOT TASK FORCE, an Oregon non-profit organization; Cascadia Wildlands Project, an Oregon non-profit organization; Northwest Environmental Defense Center, an Oregon non-profit organization; Oregon Natural Resources Council Fund, an Oregon non-profit organization; American Lands Alliance, an Oregon non-profit organization; Bark, an Oregon
Case Date:August 06, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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378 F.3d 1059 (9th Cir. 2004)

GIFFORD PINCHOT TASK FORCE, an Oregon non-profit organization; Cascadia Wildlands Project, an Oregon non-profit organization; Northwest Environmental Defense Center, an Oregon non-profit organization; Oregon Natural Resources Council Fund, an Oregon non-profit organization; American Lands Alliance, an Oregon non-profit organization; Bark, an Oregon non-profit organization; Klamathiskiyou Wildlands Center, an Oregon non-profit organization; Northwest Ecosystem Alliance, a Washington non-profit organization; Pacific Crest Biodiversity Project, a Washington non-profit organization, Plaintiffs-Appellants,

v.

UNITED STATES FISH & WILDLIFE SERVICE, Defendant-Appellee,

American Forest Resource Council, Defendant-Intervenor-Appellee.

No. 03-35279.

United States Court of Appeals, Ninth Circuit

August 6, 2004

Argued and Submitted June 7, 2004.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Stephanie M. Parent, Pacific Environmental Advocacy Center, Portland, OR, for the plaintiffs-appellants.

R. Justin Smith, United States Department of Justice, Environmental and Natural Resources Division, Washington, D.C., for the defendant-appellee.

James P. Walsh, Davis Wright Tremaine, LLP, San Francisco, CA, for defendant-intervenor-appellee American Forest Resource Council.

Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-00-05462-FDB.

Before: BRUNETTI, McKEOWN, and GOULD, Circuit Judges.

GOULD, Circuit Judge:

This is a record review case in which the Appellants, an assortment of environmental organizations, challenge six biological opinions (BiOps) issued by the United States Fish and Wildlife Service (USFWS or FWS) pursuant to the Endangered Species

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Act (ESA), 16 U.S.C. § 1531 et seq. The BiOps in question allowed for timber harvests in specified Northwest forests and also authorized incidental "takes" of the Northern spotted owl (spotted owl), a threatened species under the ESA. This case will bear on how the USFWS conducts its duties under the ESA in light of the comprehensive Northwest Forest Plan (NFP) that was implemented, in part, to protect the spotted owl.

I

A

We begin by explaining the legal regime created by the ESA. For any federal action that may affect a threatened or endangered species (or its habitat), the agency contemplating the action (the action agency) must consult with the consulting agency1 to ensure that the federal action is not likely to jeopardize "the continued existence of" an endangered or threatened species and that the federal action will not result in the "destruction or adverse modification" of the designated critical habitat of the listed species. 16 U.S.C. § 1536(a)(2). These consultations are known as "Section 7" consultations. The action agency typically makes a written request to the consulting agency, 50 C.F.R. § 402.14(c), and, after formal consultation, the process concludes with the consulting agency issuing a biological opinion. See generally Ariz. Cattle Growers' Assoc. v. United States Fish and Wildlife Serv., 273 F.3d 1229, 1239 (9th Cir. 2001). The BiOp should address both the jeopardy and critical habitat prongs of Section 7 by considering the current status of the species, the environmental baseline, the effects of the proposed action, and the cumulative effects of the proposed action. 50 C.F.R. § 402.14(g)(2)-(3).

If the BiOp concludes that jeopardy is not likely and that there will not be adverse modification of critical habitat, or that there is a "reasonable and prudent alternative" to the agency action that avoids jeopardy and adverse modification, the FWS can issue an Incidental Take Statement (ITS) which, if followed, exempts the action agency from the prohibition on takings found in Section 9 of the ESA. 16 U.S.C. § 1536(b)(4). If the BiOp concludes that jeopardy or adverse modification cannot be avoided, Section 7(g) of the ESA provides that the action agency may apply for an exemption from Section 9's prohibition on taking and the strict civil and criminal penalties associated with such unlawful takings.

B

We next discuss the Northwest Forest Plan and this litigation. The crux of the challenge revolves around protection of the northern spotted owl, strix occidentalis caurina, a cavity nester that tends to live its adult life in the same territory. As a result of prior litigation, in 1990 the spotted owl was listed by the FWS as threatened. 55 Fed.Reg. 26,114 (June 26, 1990); N. Spotted Owl v. Hodel, 716 F.Supp. 479 (W.D.Wash.1988). After being required to do so by a court order, N. Spotted Owl v. Lujan, 758 F.Supp. 621 (W.D.Wash.1991), the FWS delineated the critical habitat for the spotted owl in 1992.

In response to further litigation, the federal government adopted a comprehensive forest management plan for the entire range of the spotted owl known as the "Northwest Forest Plan." The NFP survived litigation, see Seattle Audubon Soc'y

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v. Moseley, 80 F.3d 1401 (9th Cir. 1996), and currently controls the use of the forests at the heart of this challenge. Relevant to this appeal, the NFP allocated the forests into "late successional reserves" (LSRs), "matrix" lands, and "adaptive management areas," with different harvesting rules applied to each area. The LSR allows less harvesting than matrix lands.2 An interagency analysis of the NFP found that it would provide for stable and well-distributed owl populations, though owl populations were projected to decline in the short-term. The NFP was subject to a Section 7 consultation and the resulting BiOp concerning this broad forest plan found no jeopardy or adverse modification. Because the NFP covered such a wide area, from Northern Washington to Northern California, involving virtually all of the federal government's forested land in this expansive area, the NFP BiOp explicitly declined to address the unique impacts of any particular action or implementation of the NFP. The NFP BiOp did not authorize incidental takes, deferring such consideration instead to future BiOps that would address specific projects.

Since the government approval of the NFP, the FWS has issued at least 298 BiOps and incidental take statements for spotted owls in the lands covered by the NFP. A total of 1080 incidental takes of spotted owls have been authorized, and 82,000 acres of spotted owl habitat have been removed, downgraded, or degraded. Six representative BiOps are the subject of this litigation. The first three are "programmatic" BiOps that addressed multiple timber harvest projects covering multiple years.

The first BiOp is the province-wide Coos Bay BiOp, completed on February 18, 1998. This BiOp authorized the removal of 2000 acres of suitable owl habitat and 1043 acres of "critical habitat," and the incidental take of at least eight spotted owls.

The second programmatic BiOp is the province-wide Willamette BiOp, completed on September 29, 1998. This BiOp allowed the modification of about 29,276 acres of spotted owl habitat, with more than 9000 acres completely removed. 13,000 acres of critical habitat were to be affected, with 1809 acres completely removed. The FWS authorized the incidental take of "all" spotted owls associated with the project.

The third programmatic BiOp is the province-wide Rogue Valley BiOp for timber sales in southwest Oregon and northern California. The BiOp authorized the removal of about 28,000 acres of suitable spotted owl habitat and the degrading of 4000 more acres. The BiOp allowed the incidental take of "all spotted owl pairs or resident singles" affected by the action. The BiOp also authorized the likely removal or degradation of 6870 acres of critical habitat for spotted owls.

The fourth BiOp is the Upper Iron Timber Sale BiOp, completed (as amended) on January 20, 1999. This BiOp notes four owl pairs, but does not say how many acres of critical habitat will be impacted, though it states that 165 acres of suitable habitat for a specific owl pairing would be affected. The entire project area is classified as critical habitat. The FWS authorized the incidental take of two spotted owl pairs.

The fifth BiOP is Acci BiOp, completed on September 23, 1999. This BiOp allows harvesting of 1,000 acres, degradation of 227 acres of critical habitat, and incidental

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take of "all" spotted owls associated with the project.

The sixth BiOp is the La Roux timber sale, approved on April 30, 1998. This BiOp allows for removal of 148 acres of critical habitat, the incidental take of one known owl pair, and well as the incidental take of any owl in the non-surveyed area.

In November 2000, Appellants challenged many of the BiOps issued by the FWS in the United States District Court for the Western District of Washington. The challenged BiOps included the six at issue here. American Forest Resource Council (AFRC) sought, and was granted, permission to intervene. A temporary restraining order sought by Appellants to stop these six and other projects was denied, as was the FWS's and AFRC's motion to dismiss on finality grounds. In March 2002, the parties filed cross motions for summary judgment as to the six BiOps in this case. On July 12, 2002, the district court granted summary judgment to the FWS and on August 7, 2002, the district court entered judgment. Subsequent proceedings led the district court to issue "final judgment" on the six BiOps in this case on March 17, 2003. Appellants timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand.

II

We review the grant of summary judgment de novo...

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