Klamath-Siskiyou Wildlands Ctr. v. Nat'l Oceanic & Atmospheric Admin.
| Decision Date | 03 April 2015 |
| Docket Number | Case No. 13–cv–03717–NC |
| Citation | 99 F.Supp.3d 1033 |
| Parties | Klamath-Siskiyou Wildlands Center, Center for Biological Diversity, and Klamath Forest Alliance, Plaintiffs, v. National Oceanic and Atmospheric Administration, National Marine Fisheries Service, and United States Fish and Wildlife Service, Defendants, and Fruit Growers Supply Company, Defendant-Intervenor. |
| Court | U.S. District Court — Northern District of California |
John R. Mellgren, Eugene, OR, Paul August Kampmeier, Wyatt Foster Golding, Seattle, WA, Susan Jane McKibben Brown, Portland, OR, Justin Augustine, San Francisco, CA, for Plaintiff.
Ethan Carson Eddy, U.S. Department of Justice, Washington, DC, for Defendant.
ORDER ON CROSS–MOTIONS FOR SUMMARY JUDGMENT
The Endangered Species Act makes it unlawful for any person to “take” members of an endangered or threatened species. There is an exception: a person may obtain a permit to take a species, if such taking is incidental to the proposed activity and the applicant presents plans to minimize and mitigate its impact. Here, the primary issue is whether or not a permit applicant should be allowed to piggyback off of the conservation work of a non-applicant neighbor.
Plaintiffs Klamath–Siskiyou Wildlands Center, Center for Biological Diversity, and Klamath Forest Alliance (collectively “KS Wild”) allege that defendants U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively “the Services”) improperly issued 50–year incidental take permits to defendant-intervenor Fruit Growers Supply Company to take two “threatened” species: the northern spotted owl and the Southern Oregon/Northern California Coast coho salmon. KS Wild alleges multiple violations of the Endangered Species Act and the National Environmental Policy Act.
KS Wild's key allegation is that Fruit Growers wrongfully obtained an incidental take permit by piggybacking off of the U.S. Forest Service's conservation efforts on neighboring lands.
In discussing the ESA issues, the Court first tackles KS Wild's claims associated with the northern spotted owl. Those claims involve the issue of whether or not the U.S. Fish and Wildlife Service arbitrarily and capriciously issued an incidental take permit to Fruit Growers. The Court also discusses whether FWS erred in issuing a biological opinion that found Fruit Growers' plan to harvest timber would not likely jeopardize the northern spotted owl's continued existence or result in the destruction or adverse modification of critical habitat.
Next, the Court looks at the ESA claims concerning the Southern Oregon/Northern California Coast coho salmon (“coho salmon”).1 KS Wild argues that the National Marine Fisheries Service made an arbitrary and capricious finding in its biological opinion that Fruit Growers' proposed timber-harvesting activities would not jeopardize the continued existence of coho salmon. In particular, KS Wild argues that the Services failed to account for the coho salmon's short three-year lifespan in its “no jeopardy” analysis. KS Wild also argues that NMFS's finding that Fruit Growers satisfied the “minimize and mitigate” requirement under § 10 was arbitrary and capricious.
Finally, the Court examines KS Wild's claims that the Services violated the National Environmental Policy Act. Under NEPA, the reviewing agency must issue an “environmental impact statement” that measures the cumulative effects of the environmental action. The Court examines the question of whether the Services' joint Final Environmental Impact Statement conducted a sufficient cumulative effects analysis of Fruit Growers' proposed actions—its timber harvest projects, its plan to use herbicides, and its plan to perform water withdrawal projects. The Court then looks at KS Wild's contention that Fruit Growers violated NEPA by failing to release certain economic data about Fruit Growers, and by failing to quantify its findings as to the environmental consequences of Fruit Growers' proposed action.
For the reasons explained below, the Court GRANTS KS Wild's summary judgment motion and finds the incidental take permits issued by the Services, the biological opinion issued by NMFS, and the Final Environmental Impact Statement invalid. But the Court DENIES KS Wild's summary judgment motion to invalidate the FWS biological opinion. Accordingly, the Services' cross-motion for summary judgment is DENIED as to all issues except the claim involving the FWS biological opinion's validity. As to that claim, the Services' cross-motion is GRANTED.
Congress enacted the Endangered Species Act of 1973, 16 U.S.C. §§ 1531 –1544, “to halt and reverse the trend toward species extinction, whatever the cost.”Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). In accordance with this policy, the ESA directs the Secretary of the Interior or the Secretary of Commerce to list endangered and threatened species. ESA § 4(a), 16 U.S.C. § 1533(a). Section 9 of the ESA makes it unlawful for any person to “take” a species that has been listed. ESA §§ 9(a)(1)(B) and (G), 16 U.S.C. §§ 1538(a)(1)(B) and (G).
Defined broadly, “take” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” ESA § 3(19), 16 U.S.C. § 1532(19) ; see Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 704, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (). The regulations further define the term “harass” as an “intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.” 50 C.F.R. § 17.3. The regulations define “harm” as Id.
There is an exception to the ESA's § 9 prohibition on taking. Section 10 of the ESA gives wildlife Services the discretion to issue a permit that allows a private individual to take a species, “if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” ESA § 10(a)(1)(B), 16 U.S.C. § 1539(a)(1)(B).
Before the Services can issue this “incidental take permit,” the permit applicant must submit a “Habitat Conservation Plan.” This Plan must show that “the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of the taking,” and that “the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.” ESA § 10(a)(2), 16 U.S.C. § 1539(a)(2). The Secretary2 cannot approve an incidental take permit unless he or she determines that the applicant has satisfied these statutory conditions.
In addition, § 7 of the ESA requires federal agencies to consult with either FWS or NMFS to ensure that any action authorized or carried out by the agency is not likely to jeopardize the continued existence of any endangered or threatened species, or result in the destruction or adverse modification of critical habitat of the species. ESA § 7, 16 U.S.C. § 1536. This process requires the Services to prepare a biological opinion that includes a finding as to whether the proposed action is likely to jeopardize the continued existence of an endangered or threatened species or its habitat. 50 C.F.R. § 402.14. Only after the Service makes this “no jeopardy” finding can it issue an incidental take permit to the applicant.
Congress passed NEPA to protect the environment by requiring that federal agencies scrupulously weigh environmental considerations, and consider potential alternatives to proposed actions before the government launches a major federal action. Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir.2005).
Instead of substantive outcomes, NEPA imposes procedural requirements on actions by federal agencies. Id. (citation omitted). For proposed major federal actions—where there is no dispute that the proposed action qualifies as such—NEPA requires the agency to prepare an...
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