Conservation Cong. v. United States Forest Serv., NO. CIV. S-11-2605 LKK/EFB

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtLAWRENCE K. KARLTON
Docket NumberNO. CIV. S-11-2605 LKK/EFB
PartiesCONSERVATION CONGRESS and KLAMATH FOREST ALLIANCE, Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant, and SIERRA PACIFIC INDUSTRIES, Proposed Defendant Intervenor.
Decision Date19 June 2012

CONSERVATION CONGRESS and
KLAMATH FOREST ALLIANCE, Plaintiffs,
v.
UNITED STATES FOREST SERVICE, Defendant,
and
SIERRA PACIFIC INDUSTRIES, Proposed Defendant Intervenor.

NO. CIV. S-11-2605 LKK/EFB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date: June 19, 2012


ORDER

Plaintiff Conservation Congress brings this action against Defendants United States Forest Service and United States Fish and Wildlife Service (collectively, "Federal Defendants"), concerning Federal Defendants' approval of a timber sale, known as the Mudflow Vegetation Management Project, and its effect upon the habitat of the northern spotted owl. Plaintiff's action arises under the

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Endangered Species Act ("ESA"), the National Environmental Policy Act ("NEPA"), the Administrative Procedure Act ("APA"), the Declaratory Judgment Act ("DJA"), and the Equal Access to Justice Act ("EAJA").

Pending before the court is Plaintiff's motion for a preliminary injunction, brought specifically in relation to Plaintiff's claims under the ESA. Pl's Amend. Mot., ECF No. 44. Federal Defendants and Defendant-Intervenor Sierra Pacific Industries ("SPI") oppose. Fed. Defs' Opp'n, ECF No. 46; Def. SPI Opp'n, ECF No. 47. For the reasons provided below, Plaintiff's motion is denied.

I. BACKGROUND

A. Statutory Background

The Endangered Species Act ("ESA") requires that the Secretaries of the Interior and Commerce promulgate regulations listing plant and animal species that are "endangered" by extinction and to designate critical habitat for such species. 16 U.S.C. § 1533; Bennett v. Spear, 520 U.S. 154, 157-58, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Critical habitat consists of those areas which have "physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection." 16 U.S.C. § 1532(5)(A).

Section 9 of the ESA establishes a blanket prohibition on the "taking" of any member of a listed endangered species. 16 U.S.C. § 1538(a)(1)(B); Oregon Natural Resources Council v. Allen, 476

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F.3d 1031, 1033 (9th Cir. 2007). To "take" is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19); Oregon Natural Resources Council, 476 F.3d at 1033 n.1.

Section 7 of the ESA allows statutorily-defined "applicants," including Federal agencies, to carve out limited exceptions to Section 9's blanket prohibition under certain circumstances. 16 U.S.C. § 1536(a)-(c), (o). Under Section 7, each federal agency must "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 habitat of such species which is determined by the Secretary . . . to be critical." 16 U.S.C. § 1536(a)(2). The applicable regulations define an "action" to include "actions directly or indirectly causing modifications to the land, water, or air." 50 C.F.R. § 402.02.

In addition to the ESA's substantive obligations to conserve and not jeopardize protected species, Section 7(a)(2) imposes a procedural obligation on federal agencies. See Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 667, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007); New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 700 (10th Cir. 2009). "An agency's decision whether to take a discretionary action that may jeopardize endangered or threatened species is strictly governed by ESA-mandated inter-agency consultation procedures." Forest

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Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir. 2006). The procedural obligation ensures that the agency proposing the action, in this case the United States Forest Service ("USFS"), consults with the United States Fish and Wildlife Service ("FWS") to determine the effects of its action on endangered species and their critical habitat.1 See Fla. Key Deer v. Paulison, 522 F.3d 1133, 1138 (11th Cir. 2008).

To meet its procedural obligation, the agency action must first determine whether its proposed discretionary action may affect a listed species or a critical habitat. 50 C.F.R. § 402.14(a). If an agency determines that an action "may affect" critical species or habitats, formal consultation is ordinarily mandated. Natural Resources Defense Council v. Houston, 146 F.3d 1118, 1126 (9th Cir. 1998) (citing Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir. 1985); 50 C.F.R. § 402.14(a)). Formal consultation is excused only where (1) an agency determines that its action is unlikely to adversely affect the protected species or habitat, and (2) the relevant Service (FWS or NMFS) concurs with that determination. Id. (citing 50 C.F.R. § 402.14(b); Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1054, n.8 (9th Cir. 1994)).

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If it appears from informal consultation2 that a protected species may be present in the area of a federal agency's "major construction activity," then the agency must prepare a "biological assessment." 50 C.F.R. § 402.12(b). The purpose of the biological assessment is to "evaluate the potential effects of the action on listed and proposed species and designated and proposed critical habitat and determine whether any such species or habitat are likely to be adversely affected by the action and is used in determining whether formal consultation or a conference is necessary." 50 C.F.R. § 402.12(a). Again, formal consultation is not required if, as a result of informal consultation, the "Federal agency determines with the written concurrence of the Director [of the Fish and Wildlife Service], that the proposed action is not likely to adversely affect any listed species or critical habitat." Sierra Club v. Van Antwerp, 661 F.3d 1147, 1155 (D.C. Cir. 2011) (citing 50 C.F.R. § 402.14(b)).

To determine a project's effects, agencies are required to understand the existing conditions of the species or critical habitat at issue, before they consider the effects of a proposed action on those conditions. The "environmental baseline" for Section 7 consultation purposes is defined as follows:

The environmental baseline includes the past and present impacts of all Federal, State, or private actions and other human activities in the action

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area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process.

50 C.F.R. § 402.02 (definition of "environmental baseline" is included within the definition of "effects of the action"). For Section 7 consultation purposes, the "effects" of a proposed action include not only "direct" effects, but also "indirect effects," which is defined to include any effects caused or induced by the action that are "reasonably certain to occur." 50 C.F.R. § 402.02. Additionally, in meeting the Section 7 consultation requirements, agencies must utilize the best scientific and commercial data available and agencies that fail to consult properly run the risk that their activities will be enjoined. See 16 U.S.C. § 1536(a)(2); see also, e.g., Pacific Rivers Council v. Robertson, 854 F. Supp. 713, 724 (D. Or. 1993) (holding that procedural violations of the ESA, such as not initiating Section 7(a)(2) consultation when required, mandate that the underlying action be enjoined), aff'd in part, rev'd in part sub nom., Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994).

B. Factual Background

The northern spotted owl has been listed as a threatened species by the U.S. Fish and Wildlife Service ("FWS"). See Shasta-Trinity National Forest, Biological Assessment Mudflow Vegetation Management Project, MAR002558-2580, at 8 (Feb. 15, 2008) ("Biological Assessment"). Critical habitat for the northern

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spotted owl was proposed within the Federal Register on May 6, 1991, and a Final Rule was published on January 15, 1992. Id. (citing 56 Fed. Reg. 20816-21016; 57 Fed. Reg. 1796-1838). On September 12, 2008, a Final Revised Critical Habitat Rule for the northern spotted owl became effective. See Fish & Wildlife Service, Second Letter of Concurrence, FWS AR 001317-1331, at 1-2 (Feb. 10, 2012) ("2nd LOC") (citing 73 Fed. Reg. 4732 6-47522). The Mudflow Project area contains 888 acres within the 2008 Critical Habitat designation subunit C-70 and 3,392 acres within the Critical Habitat subunit C-72. Id. at 2.

The area encompassing the Mudflow Project has been surveyed for northern spotted owls "annually to protocol" starting in 2004 through 2007. Biological Assessment, at 9. According to the Biological Assessment for the Mudflow Project, which was based on the 1992 Final Critical Habitat Rule, the nearest known owl nests (ST-211 and ST-213) are located approximately .6 miles to the east and 1 mile to the west, respectively. Id. Portions of both 1.3 mile radius owl home ranges are within the project assessment area. Id. Starting in 1992, annual historical checks have occurred in most years at both nest sites. Id. Owls in ST-211 were last known to nest in 1992. Id. A single male was located in the vicinity of this nest core in 2006. Id. Owls in ST-213 were last known to...

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