Conservation Cong. v. Finley

• Decision Date: 16 December 2014
• Docket Number: No. 12–16916.,12–16916.
• Citation: 774 F.3d 611
• Parties: CONSERVATION CONGRESS, a nonprofit corporation, Plaintiff–Appellant, and Environmental Protection Information Center, a nonprofit corporation, Plaintiff, v. Nancy FINLEY, in her official capacity as Field Supervisor, Arcata Fish and Wildlife Office; U.S. Fish & Wildlife Service, an administrative agency of the United States Department of the Interior; Tyrone Kelley, in his official capacity as Forest Supervisor, Six Rivers National Forest ; United States Forest Service, an administrative agency of the United States Department of Agriculture, Defendants–Appellees, Trinity River Lumber, Intervenor–Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

774 F.3d 611

CONSERVATION CONGRESS, a nonprofit corporation, Plaintiff–AppellantandEnvironmental Protection Information Center, a nonprofit corporation, Plaintiff

v. Nancy FINLEY, in her official capacity as Field Supervisor, Arcata Fish and Wildlife Office; U.S. Fish & Wildlife Service, an administrative agency of the United States Department of the Interior; Tyrone Kelley, in his official capacity as Forest Supervisor, Six Rivers National Forest ; United States Forest Service, an administrative agency of the United States Department of Agriculture, Defendants–AppelleesTrinity River Lumber, Intervenor–Defendant–Appellee.

No. 12–16916.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 8, 2014.

Filed Dec. 16, 2014.

René P. Voss (argued), San Anselmo, CA; James Jay Tutchton, Tutchton Law Office LLC, Centennial, CO, for Plaintiff–Appellant.

Mark R. Haag (argued) and Robert P. Stockman, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Ignacia S. Moreno, Assistant Attorney General, Washington, D.C.; James Rosen, Office of the General Counsel, United States Department of Agriculture, Washington, D.C.; Veronica Rowan, Assistant Regional Solicitor, United States Department of the Interior, Washington, D.C., for Defendants–Appellees.

Scott W. Horngren (argued), American Forest Resource Council, Portland, OR, for Intervenor–Defendant–Appellee.

Appeal from the United States District Court for the Northern District of California, Samuel Conti, Senior District Judge, Presiding. D.C. No. 3:11–cv–04752–SC.

Before: SIDNEY R. THOMAS, Chief Judge, and DIARMUID F. O'SCANNLAIN and M. MARGARET McKEOWN, Circuit Judges.

OPINION

THOMAS, Chief Judge:

We again consider the fate of the threatened Northern Spotted Owl, this time in the context of a lumber thinning and fuel reduction project in northern California, known as the Beaverslide Project. Conservation Congress contends that the federal government violated various national environmental laws in failing to consult adequately as to the project's potential effects on the owl.¹ The district court granted summary judgment in favor of the government, and we affirm.

I

The Beaverslide Project is located on approximately 13,241 acres of national forest land in Trinity County, California. According to the United States Forest Service, the project's two main purposes are to protect against the current risk of wildfires due to the dense forest, and to provide a sustainable, long-term timber supply to local communities. The project calls for commercial thinning of trees, reduction of fuels, and the creation of fuel corridors, among other treatments.

The Northern Spotted Owl is a nocturnal predator that occupies forest land stretching from southwest British Columbia through Washington, Oregon, and California. The owl has been listed as a threatened species under the Endangered Species Act, 16 U.S.C. § 1531, et seq., since 1990, and many populations of the owl continue to decline. Recognizing the threat to the owl, the United States Fish and Wildlife Service issued a 2008 Recovery Plan, as well as a revised 2011 Recovery Plan, providing recommendations and suggesting actions to aid in protecting the Northern Spotted Owl. Recovery Plans are prepared in accordance with section 1533(f) of the Endangered Species Act for all endangered and threatened species, and while they provide guidance for the conservation of those species, they are not binding authorities. Friends of Blackwater v. Salazar, 691 F.3d 428, 432–34 (D.C.Cir.2012).

A

The Forest Service and the Fish and Wildlife Service consulted on the project's potential effects on the Northern Spotted Owl. Both the Endangered Species Act and the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq., establish frameworks for consultations.

The Endangered Species Act “is a comprehensive scheme with the broad purpose of protecting endangered and threatened species.” Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1106 (9th Cir.2012) (citation and internal quotation marks omitted). Particularly relevant here is section 7(a)(2) of the Endangered Species Act, which governs the consultations that must take place between agencies. 16 U.S.C. § 1536(a)(2). The Endangered Species Act imposes both substantive and procedural duties on agency consultation. Forest Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir.2006). Substantively, agencies contemplating certain kinds of federal action are required to insure that the action they take “is not likely to jeopardize the continued existence” or “result in the destruction or adverse modification of [critical] habitat” of an endangered or threatened species. Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048, 1051 (9th Cir.2013) (alteration in original) (quoting 16 U.S.C. § 1536(a)(2) ). Agencies must consult with either the Fish and Wildlife Service (for land-based species) or the National Marine Fisheries Service (for marine species) to determine the likely effects of their proposed actions on endangered or threatened species. Id.

According to the implementing regulations, the first step in the consultation process is for the acting agency to independently determine whether its actions “may affect” an endangered or threatened species or that species's habitat. 50 C.F.R. § 402.14(a). If so, the agency must initiate either informal or formal consultation with the consulting agency. San Luis & Delta–Mendota Water Auth. v. Jewell, 747 F.3d 581, 596 (9th Cir.2014) ; see also 50 C.F.R. § 402.14. Informal consultation is an “optional process that includes all discussions, correspondence, etc.” between the two agencies and is “designed to assist the Federal agency in determining whether formal consultation or a conference is required.” 50 C.F.R. § 402.13(a). If upon completion of informal consultation, the two agencies agree in writing that the proposed action “is not likely to adversely affect” any endangered or threatened species, no further action is necessary. Conservation Cong., 720 F.3d at 1051 ; see also 50 C.F.R. §§ 402.13(a), 402.14(b)(1). However, if either agency determines that the proposed action is “likely to adversely affect” a listed species or habitat, formal consultation is required. See 50 C.F.R. § 402.14. Formal consultation entails the consulting agency preparing a “biological opinion” stating whether the proposed action, “taken together with cumulative effects, is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” 50 C.F.R. § 402.14(g)(4).

NEPA is “our basic national charter for protection of the environment.” Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166 (9th Cir.2003) (citation and internal quotation marks omitted). The “twin aims” of NEPA are first, to “place[ ] upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action,” and second, to “ensure[ ] that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (citation omitted). Unlike the Endangered Species Act, NEPA does not provide substantive protections, only procedural ones—it “exists to ensure a process.” The Lands Council v. McNair, 537 F.3d 981, 1000 (9th Cir.2008) (en banc) (citation and internal quotation marks omitted), overruled on other grounds by Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

Foremost among these procedural requirements is that agencies considering “major Federal actions significantly affecting the quality of the human environment” are required to prepare an Environmental Impact Statement (“EIS”). 42 U.S.C. § 4332(C) ; see also W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 486–87 (9th Cir.2011). 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.” 40 C.F.R. § 1502.1.

B

To comply with the Endangered Species Act, the Forest Service issued a Biological Assessment in September 2009, which independently analyzed the Beaverslide Project and concluded that the project “may” but was “not likely to adversely affect” the Northern Spotted Owl. In October 2009, the Fish and Wildlife Service agreed with the Forest Service's conclusion in a Letter of Concurrence.

In May 2010, the Forest Service issued an “Amendment # 1” to its Biological Assessment, responding to anticipated changes in the Forest Service's Supplemental Environmental Impact Statement, discussed further below. The Forest Service's determination that the project “may affect” but was “not likely to adversely affect” the owl remained unchanged. In September 2011, the Fish and Wildlife Service again agreed with this determination in a Technical Assistance Letter. By this time, the Fish and Wildlife Service's 2011 Recovery Plan was available, and the Technical Assistance Letter also concluded that the Beaverslide Project was consistent with the plan's recommendations. All other consultation prior to the letter pre-dated the revised plan.

In May 2011, Conservation Congress sent a notice of intent to sue under the Endangered Species Act's citizen-suit provision to the agencies, as required by 16 U.S.C. § 1540(g). It submitted a second notice in October 2011, after the 2011 Recovery Plan was published. The second notice alleged that the Forest Service's Biological Assessment, its Amendment # 1, and the Fish and Wildlife Service's concurrence letters no longer used the best scientific and commercial data available, and cited to information contained in the 2011 Recovery Plan....