Conservation Cong. v. U.S. Forest Serv.

• Decision Date: 13 June 2013
• Docket Number: No. 12–16452.,12–16452.
• Citation: 720 F.3d 1048
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: CONSERVATION CONGRESS, Plaintiff–Appellant, v. UNITED STATES FOREST SERVICE; United States Fish and Wildlife Service, Defendants–Appellees, Sierra Pacific Industries, Intervenor–Defendant–Appellee.

720 F.3d 1048

CONSERVATION CONGRESS, Plaintiff–Appellant,

v. UNITED STATES FOREST SERVICE; United States Fish and Wildlife Service, Defendants–Appellees,Sierra Pacific Industries, Intervenor–Defendant–Appellee.

No. 12–16452.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 8, 2013.

Filed June 13, 2013.

James J. Tutchton (argued), Tutchton Law Office LLC, Centennial, CO, for Plaintiff–Appellant.

Vivian H.W. Wang (argued); Ignacia S. Moreno, Assistant Attorney General; Robert P. Williams; Mary Hollingsworth; E. Ann Peterson, United States Department of Justice, Environmental & Natural Resources Division, Washington, D.C.; Sarah Birkeland, Office of the General Counsel, United States Department of Agriculture, Washington, D.C.; Veronica Rowan, Office of the Solicitor, United States Department of the Interior, Washington, D.C., for Defendants–Appellees.

Julie A. Weis (argued), Haglund Kelley Jones & Wilder LLP, Portland, OR, for Defendant–Intervenor–Appellee.

Appeal from the United States District Court for the Eastern District of California, Lawrence K. Karlton, Senior District Judge, Presiding. D.C. No. 2:11–cv–02605–LKK–EFB.

Before: ALEX KOZINSKI, Chief Judge, M. MARGARET McKEOWN, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

M. SMITH, Circuit Judge:

This case arises from a federal agency's authorization of a timber sale, known as the Mudflow Vegetation Management Project (Mudflow Project or Project), and its potential effects on the Northern Spotted Owl's (Owl) critical habitat. Plaintiff–Appellant Conservation Congress (CC) sued federal Defendants–Appellees,¹ alleging that they had failed to adequately evaluate the effects of the Mudflow Project on the Owl's critical habitat, in violation of section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. § 1536(a)(2), among other claims.² CC unsuccessfully sought to enjoin the Mudflow Project based on its ESA claim. CC now appeals the district court's denial of its motion for a preliminary injunction. We conclude that the district court did not abuse its discretion when it determined CC failed to show a likelihood of success on the merits as to its ESA claim that Defendants arbitrarily or capriciously approved the Mudflow Project. Accordingly, we affirm.

FACTS AND PRIOR PROCEEDING

CC asserts two claims under ESA section 7(a)(2) against Defendants. CC alleges that: (1) the Forest Service's biological assessment (BA) for the Mudflow Project failed to adequately evaluate the Project's potential effects on the Owl's critical habitat, in violation of 16 U.S.C. § 1536 and 50 C.F.R. § 402.12(a); and (2) the FWS issued an arbitrary concurrence letter accepting the BA's conclusion, in violation of 16 U.S.C. § 1536(a)(2) and 50 C.F.R. § 402.14(a).

A. Statutory Framework

The Endangered Species Act of 1973, 16 U.S.C. § 1531, et seq., “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 quotes omitted); see also16 U.S.C. § 1531. To further this aim, ESA section 7(a)(2) imposes both substantive and procedural duties on certain federal agencies. Forest Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir.2006).

Substantively, section 7(a)(2) requires federal agencies, such as the Forest Service, to “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 [critical] habitat of such species.” 16 U.S.C. § 1536(a)(2). Procedurally, before initiating any action in an area that contains threatened or endangered species, federal agencies must consult with the FWS (for land-based species) or the National Marine Fisheries Service (for marine species) to determine the likely effects of any proposed action on species and their critical habitat. Natural Res. Defense Council v. Houston, 146 F.3d 1118, 1126 (9th Cir.1998); Forest Guardians, 450 F.3d at 457 n. 1. The ESA and its implementing regulations establish a framework for such inter-agency consultation. The agency proposing the action (action agency)—in this case, the Forest Service—must independently determine whether the action “may affect” a listed species or its habitat under the ESA. 50 C.F.R. § 402.14(a). If the answer is yes, “formal consultation” with the appropriate consulting agency is generally mandatory. 50 C.F.R. §§ 402.14(a)–(c). An action agency may bypass formal consultation if it determines, and the consulting agency agrees, that the proposed action “is not likely to adversely affect any listed species or critical habitat.” 50 C.F.R. § 402.14(b)(1). When that occurs, “the consultation process is terminated, and no further action is necessary.” 50 C.F.R. § 402.13(a). If, however, after this “informal consultation,” the consulting agency disagrees that the proposed action is not likely to have adverse effects, then formal consultation is required. Medina Cnty. Envtl. Action Ass'n v. Surface Transp. Bd., 602 F.3d 687, 693 n. 8 (9th Cir.2010); 50 C.F.R. § 402.14. In formal consultation, the consulting agency must prepare a biological opinion that advises the action agency as to whether the proposed action, alone or “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).

B. The Northern Spotted Owl

The Northern Spotted Owl lives in old-growth and mature forests that extend from southwestern British Columbia through parts of Washington, Oregon, and California. The FWS listed the Owl as a threatened species under the ESA and designated 6.9 million acres of “critical habitat” for the Owl in the early 1990s. 55 Fed.Reg. 26114 (June 26, 1990); 57 Fed.Reg. 1796 (Jan. 15, 1992). The ESA defines “critical habitat” for a threatened or endangered species to mean areas that are “essential to” or “essential for” the species' conservation. 16 U.S.C. §§ 1532(5)(A)(i), (ii).³ The FWS has divided the Owl's critical habit into four components: (1) nesting,(2) roosting, (3) foraging, and (4) dispersal. See57 Fed.Reg. at 1797.

C. The Mudflow Project

The Mudflow Project is located on the Shasta–Trinity National Forest, northeast of McCloud, California. The Project area comprises approximately 13,830 acres of land, and was developed to address several issues: declining forest health due to tree root disease and overstocking, threat of wildfire to nearby communities, and declining wet meadow ecosystems. The Project's proposed treatments include thinning, sanitation and regeneration, and restoring wet meadow ecosystems, among others. A total of 544 acres of the Owl's critical habitat are proposed for Project treatment.

D. Biological Assessment

On February 15, 2008, the Forest Service prepared a biological assessment analyzing the potential effects of the Mudflow Project on the Owl and its critical habitat. The BA determined that the Mudflow Project area contains 510 acres of suitable nesting/roosting habitat and 5,125 acres of suitable foraging habitat, but that no Owls occupied the Project area.⁴

To evaluate whether a forest management project, such as the Mudflow Project, is likely to adversely affect critical habitat, the Forest Service applies a three-tier classification system for “estimated degree of change”: degraded, downgraded, and removed. “Degraded” means the treatment will reduce habitat elements, “but not to the degree where existing habitat function is changed.” “Downgraded” habitat will not function in the capacity that existed before treatment, but retains some habitat function. “Removed” means habitat elements will be reduced to the degree that it no longer functions as habitat for the species.

According to the BA, the short-term effects of the proposed treatments would “temporarily ‘degrade’ but ... not ‘remove’ ” foraging habitat in designated critical habitat within the Project area. But in the long-term, Project treatments would improve forest health and resistance to insects and disease, increase tree diameter by reducing intertree competition, and encourage understory reproduction. In sum, the BA determined that the Project would “temporarily degrade[ ]” a total of 1,719 acres of the Owl's suitable foraging habitat within the Project area. No nesting/roosting areas would be degraded, and no part of the Owl's critical habitat would be “downgraded” or “removed.” The BA concluded that the Mudflow Project “may affect, but is not likely to adversely affect,” ⁵ the Owl or its critical habitat.

E. Informal Consultation and Concurrence

In April 2008, the Forest Service engaged in informal consultation with the FWS. The FWS concurred with the ForestService's determination that the Mudflow Project “is not likely to adversely affect” the Owl or its critical habitat.

In late 2011 and early 2012, the Forest Service engaged in further consultation with the FWS regarding the Mudflow Project, in light of new literature and additional updated information. In February 2012, the FWS reconcurred with the Forest Service that the Mudflow Project “may affect, but is not likely to adversely affect designated critical habitat,” given that (1) treatments were not proposed within nesting or high-quality foraging habitat, and (2) 171 acres of treated foraging habitat would retain its function. On June 7, 2011, the Forest Service approved the Mudflow Project in its record of decision, thereby ending the consultation process. 50 C.F.R. § 402.13(a).

In December 2012, while this appeal was pending, the Forest Service reinitiated additional informal consultation with the FWS regarding the potential effects of the Mudflow Project on the Owl, in light of the 2013 revised habitat rule. On April 22, 2013, the FWS issued a third concurrence letter...