Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt.

• Decision Date: 25 November 2022
• Docket Number: 22-35035
• Parties: KLAMATH-SISKIYOU WILDLANDS CENTER, et al., Plaintiffs-Appellants, v. BUREAU OF LAND MANAGEMENT, et al., Defendants-Appellees, and MURPHY COMPANY, Intervenor-Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

KLAMATH-SISKIYOU WILDLANDS CENTER, et al., Plaintiffs-Appellants, v. BUREAU OF LAND MANAGEMENT, et al., Defendants-Appellees, and MURPHY COMPANY, Intervenor-Defendant-Appellee.

No. 22-35035

United States Court of Appeals, Ninth Circuit

November 25, 2022

NOT FOR PUBLICATION

Argued and Submitted November 10, 2022 Portland, Oregon

Appeal from the United States District Court for the District of Oregon D.C. No. 1:19-cv-01810-CL Michael J. McShane, District Judge, Presiding

Before: CLIFTON and H.A. THOMAS, Circuit Judges, and BAKER ^[**] International Trade Judge.

MEMORANDUM ^[*]

Plaintiffs-Appellants Klamath-Siskiyou Wildlands Center, et al. (collectively "KS Wild") appeal from the district court's grant of summary judgment in favor of Defendants-Appellees, comprising of the United States Bureau of Land Management ("BLM") and United States Fish and Wildlife Service ("FWS"), et al. In 2018, BLM developed the North Landscape Project ("North Project"), a site-specific management approach for conducting annual timber sales in the Klamath Falls Resource Area in accordance with the 2016 Southwestern Oregon Resource Management Plan ("2016 RMP") and Oregon &amp California Revested Lands Act. That same year, FWS issued a Biological Opinion ("BiOp") concluding that the North Project will not jeopardize the Northern Spotted Owl ("NSO") as a species, adversely modify its critical habitat, nor result in its incidental take. BLM concurrently conducted an Environmental Assessment ("EA") for the North Project, which concluded that the action would have no direct effect on the NSO population and is consistent with the owl's recovery as a species. The EA was revised in 2020 with additional information and retained that conclusion.

KS Wild alleges that the BiOp violated the Endangered Species Act ("ESA"), see 16 U.S.C. § 1536(a)(2), and the EA violated the National Environmental Policy Act ("NEPA"), see 42 U.S.C. § 4332(C). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's ruling on cross-motions for summary judgment. Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016). The agency's compliance with the law is reviewed under the Administrative Procedure Act's deferential "arbitrary and capricious" standard. 5 U.S.C. § 706(2)(A); Friends of Animals v. U.S. Fish & Wildlife Serv., 28 F.4th 19, 28 (9th Cir. 2022). This standard requires us to "determine whether the agency considered the relevant factors and articulated a rational connection between the facts found and the choices made." Friends of Animals, 28 F.4th at 28 (quoting Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep't of Agric., 499 F.3d 1108, 1115 (9th Cir. 2007)). We affirm.

1. Endangered Species Act

The district court correctly held that the BiOp was not arbitrary and capricious under the ESA. See 16 U.S.C. § 1536(a)(2), (b). The BiOp analyzed the North Project's impact on NSO critical habitat and conservation, which incorporates recovery of the species and is distinct from its mere survival. See id. § 1536(a)(2); Defs. of Wildlife v. Zinke, 856 F.3d 1248, 1260 (9th Cir. 2017); Definition of Destruction or Adverse Modification of Critical Habitat, 81 Fed.Reg. 7214, 7216-17 (Feb. 11, 2016). For example, the BiOp examined the status of NSO critical habitat, the environmental baseline of the action area, the direct and indirect effects of the action, and the future cumulative effects of the action. It found that the North Project will affect only a small portion of the NSO's critical habitat in the Klamath Falls Resource Area and "less than 0.1 percent" of the NSO's total habitat. The BiOp further considered the North Project's effects on the life cycle of the NSO by noting the owl's long lifespan, extensive range, and varied breeding ground. Contrary to KS Wild's contention, the NSO is therefore distinguishable from anadromous fish whose breeding and migration cycles require an assessment of near-term habitat loss. See, e.g., Pac. Coast Fed'n of Fishermen's Ass'ns, Inc. v. Nat'l Marine Fisheries Serv., 265 F.3d 1028, 1037-38 (9th Cir. 2001); Pac. Coast Fed'n of Fishermen's Ass'ns v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1093 (9th Cir. 2005).

We also defer to FWS's scientific judgment and the validity of its survey protocol in upholding the agency's determination of no incidental take. See San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 626 (9th Cir. 2014). KS Wild has not shown that determination was arbitrary and capricious. Although the North Project may preclude reoccupancy of NSOs in the action area for a prolonged period, habitat degradation from adverse effects does not always "equal harm" sufficient to constitute incidental taking. See Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1238 (9th Cir. 2001). Nor has KS Wild shown that the survey protocol improperly deviates from past policy and practice and the best available science. An individual biologist's "preliminary determination" that the survey protocol departs from prior procedure (which is "later overruled at a higher level within the agency") does not make the decision-making process arbitrary and capricious. See Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 659 (2007). Similarly, internal agency emails that discuss Allowable Sale Quantity targets do not demonstrate that BLM or FWS, in their official capacity, unlawfully focused on economic factors in considering the North Project. See Nat'l Wildlife Fed'n v. U.S. Army Corps of Eng'rs, 384 F.3d 1163, 1174-75 (9th Cir. 2004).

2. National Environmental Policy Act

The district court correctly determined that BLM took a "hard look" at the environmental consequences of the North Project using the process provided by NEPA. See Audubon Soc'y of Portland v. Haaland, 40 F.4th 967 980 (9th Cir. 2022) (quoting N. Alaska Env't Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th Cir. 2006)). First, the EA was not legally deficient when it tiered to the final environmental impact statement ("FEIS") of the 2016 RMP. The FEIS contains project-level analysis-such as potential loss of NSO habitat within the action area and reduced future NSO occupancy. See All. for the Wild Rockies v. U.S. Forest...