Wildlands v. Thrailkill

• Decision Date: 03 December 2015
• Docket Number: No. 14–35819.,14–35819.
• Citation: 806 F.3d 1234
• Parties: CASCADIA WILDLANDS; Oregon Wild; Center for Biological Diversity, Plaintiffs–Appellants, v. Jim THRAILKILL; United States Fish and Wildlife Service, Defendants–Appellees, Boise Cascade Wood Products, LLC; Rough & Ready Lumber, LLC; Swanson Group MFG. LLC, Intervenor–Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

806 F.3d 1234

CASCADIA WILDLANDS; Oregon Wild; Center for Biological Diversity, Plaintiffs–Appellants,

v. Jim THRAILKILL; United States Fish and Wildlife Service, Defendants–Appellees,Boise Cascade Wood Products, LLC; Rough & Ready Lumber, LLC; Swanson Group MFG. LLC, Intervenor–Defendants–Appellees.

No. 14–35819.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 2015.

Filed Dec. 3, 2015.

Susan Jane McKibben Brown(argued), Western Environmental Law Center, Portland, OR; Jordan Beckett, Beckett Law Office PC, Ashland, OR, for Plaintiffs–Appellants.

Elizabeth Ann Peterson (argued), J. Brett Grosko, J. David Gunter II, and Andrew C. Mergen, Attorneys, Appellate Section, Environment and Natural Resources Division; Sam Hirsch, Acting Assistant Attorney General, United States Department of Justice, Washington, D.C.; Diane Hooblerand Brian Perron, Of Counsel, Office of the Solicitor, United States Department of Justice, Portland, OR, for Defendants–Appellees.

Scott W. Horngren(argued) and Rob Molinelli, American Forest Resource Council, Portland, OR, for Intervenors–Defendants–Appellees.

OPINION

RAWLINSON, Circuit Judge:

This case arises from a dispute over scientific methodology. Cascadia Wildlands and other environmental groups (Cascadia) appeal from the district court's denial of their motion seeking to enjoin the Douglas Fire Complex Recovery Project (Recovery Project) in the southern Oregon Klamath Mountains. Cascadia specifically challenges the biological opinion issued by the United States Fish and Wildlife Service (the Service). Because Cascadia has not demonstrated a likelihood of success on the merits, we affirm the district court's denial of a preliminary injunction.

I. BACKGROUND

A. The Recovery Project

The Douglas Complex Fire burned approximately 48,000 acres of federal and non-federal land in Oregon's Klamath Mountains. In response, the Medford District of the Bureau of Land Management (Bureau) initiated the Recovery Project aimed at salvaging burned acreage. The Bureau completed a Douglas Complex Fire Recovery Project Environmental Assessment, and solicited public comment, which Cascadia timely provided. Subsequently, the Bureau issued a Record of Decision and Finding of No Significant Impact approving the Douglas Complex Fire Recovery Project. This finding authorized the salvage logging of approximately 1,600 acres of fire-killed or injured trees, including hazard tree removal (to which Cascadia does not object), and logging of interior forests for economic benefit. The Bureau also consulted with the Service, after conducting a biological assessment and determining that the Recovery Project “may affect and is likely to adversely affect” the Northern Spotted Owl and its critical habitat. The Service in turn issued a biological opinion, which concluded in part:

[T]he proposed Project is likely to incidentally take 14 adult and up to 10 young spotted owls at seven sites. The take is in the form of harm caused by habitat destruction or degradation via timber harvest¹of up to 33 acres of [nesting, roosting, and foraging] habitat and 1,049 acres of [post-fire foraging] habitat that is likely to significantly disrupt the breeding, feeding, and sheltering behavior of these spotted owls to an extent that causes injury or death.

Nevertheless, the biological opinion concluded that the Recovery Project was “not likely to result in jeopardy to the species or destruction or adverse modification of critical habitat.”²

B. District Court Decision

The district court denied Cascadia's motion for a preliminary injunction, finding that Cascadia failed to adequately establish that it was likely to succeed on the merits, that there were “serious questions” going to the merits, or that irreparable harm to the spotted owl was likely.

1. Barred Owls' Effect on the Northern Spotted Owl

Cascadia's primary argument focused on barred owls, which are predators of the Northern Spotted Owl. Cascadia contended that when barred owls are present, Northern Spotted Owls are less likely to respond to survey calls.³Cascadia submitted that the Service failed to account for this possibility and “underestimated the number of spotted owls sites by relying on false no occupancy determinations.” Cascadia Wildlands v. Thrailkill,49 F.Supp.3d 774, 779 (D.Or.2014)(internal quotation marks omitted).

The court disagreed with Cascadia's contention that the Service's no jeopardy conclusion was arbitrary and capricious, finding that the Service adequately “acknowledge[d] and account[ed] for the potential impact of barred owls on [spotted owl] detectability....” Id.The court observed that the biological opinion specifically referenced the presence of barred owls and the effect of barred owls' presence.

The court found that the Service utilized the best available scientific information—a series of long-term and uniform Bureau surveys. The consistent nature of the surveys provided surveyors with accurate site locations and movement patterns of the owl in the area of the proposed action. The Service also recommended that the Bureau continue the survey process during the upcoming survey season to further inform project planning. Cascadia did not assert that the Service failed to identify the best available scientific information, and did not cite alternative occupancy data. The court found that the Service's approval of the salvage project was not arbitrary, capricious, or otherwise in violation of the law.

2. Wildfire's Effect on the Northern Spotted Owl Habitat

Cascadia asserted that the best available scientific data suggests that following a wildfire, the Northern Spotted Owl expands its core areas and home ranges,⁴including roosting and foraging sites. As a result, the required habitat area would also increase.

The district court found that the record did not support Cascadia's contention that the Service failed to consider this data. The court determined that the Service “fully considered the possibility” that the spotted owl may have expanded or shifted its core-use areas and home ranges post-fire. Although Cascadia failed to produce any evidence that the home ranges actually didexpand, the Service examined and analyzed a variety of data from the study area to locate, to its best estimation, the sites where shifts may have occurred.

The court concluded that the one study Cascadia cited did not support Cascadia's argument. Indeed, that study found no significant differences between core-use areas and home ranges in and around fire-affected areas. The court observed that the Service examined home range circles that were twice as large as those described in the cited study, and core-use areas that were four times the size of those in the study. Thus, the court found the Service's methodology appropriate to evaluate any potential shifts in home range due to wildfires.

The court was not swayed by Cascadia's other documentary evidence. The court concluded that an email from a Bureau official discussing movement of a single owl due to the presence of a barred owl was not evidence of expansion or shifting of ranges due to the Douglas Complex Fire. Moreover, the Bureau was aware of and tracked the single owl, completely accounting for its movement. Similarly, an internal Service memorandum suggesting that some owls could move because of the new conditions created by the Douglas Complex Fire did not undermine the Service's analysis. The Service anticipated and accounted for these potential shifts by surveying larger home range and core-use areas and by using long-term, intensive spotted owl demographic studies on the action area. With this data, the Service identified spotted owls at eight of fourteen sites that could potentially shift. Because the Service “adequately and lawfully accounted for the effect of wildfire on spotted owl site locations,” the court concluded that the Service's decisions regarding owl habitat were not arbitrary, capricious, or an abuse of discretion.

3. Endangered Species Act Procedural Requirements

Cascadia argued that the Service failed to comply with the procedural requirements of the Endangered Species Act because it did not: 1) assess the effects of the proposed action on six known spotted owl sites that overlap the planning area, but not the salvage units; 2) explain why it used two different methods for assessing effects to the species; and 3) consistently apply its effects analysis methodologies.

The district court rejected Cascadia's arguments, finding that the Service appropriately assessed the sites around the spotted owl nesting areas and appropriately defined the action area to include the home ranges of known spotted owl sites that could be impacted. Of the 45 historical nest sites within the action area, only 39 would be affected by any salvage treatment or road/landing construction work. Of the six sites that overlapped the action area, none of them would be affected by the habitat modifications in Recovery Project areas. Cascadia did not contend otherwise. Rather, Cascadia argued that the Service miscalculated the nesting, roosting, and foraging coverage at the home range and core-use areas. However, as the court noted, the calculations urged by Cascadia were guidelines rather than fixed formulas.

In addition, the Service took into consideration other site-specific factors, beyond the amount of remaining nesting, roosting, and foraging habitat, including: 1) the post-fire condition of the habitat; 2) the amount of post-fire foraging habitat left or slated for removal and its proximity to the critical habitat; 3) owl occupancy in the action area; and 4) other abiotic factors such as stream distance, elevations, and slope positions. The Service also evaluated the relative habitat suitability to determine owl occupancy/viability of an area. Areas that were unlikely to be affected by the Recovery Project were to be left relatively intact, thereby supporting a higher level of site occupancy and habitat fitness potential....